Not many civil cases lately. This delay is chance but the numbers will decrease. The shriveling of the civil system continues, as litigants abandon and are abandoned by the courts. One wonders whether, in a generation or two, even the ambulance-chasers will find room in a courthouse full of folks who think that the noblest expression of a legal system constructed by the finest minds over 1000 years is to decide whether today’s burglar gets two years or seven and where he should see his kids next Tuesday. They will think the legal disputes of law-abiding non-troublemakers a distracting nuisance but at least they will know how to try cases. (And they may last longer than the trial judges; if the transmogrification into bureaucratic social-worker continues, society will eventually ask why such people need be or ought to be lawyers.)

Plaintiff was a locksmith sent to change the locks on a house being foreclosed. The occupant, tenant of the defaulting homeowners, thought he was a burglar and shot him. He sued the homeowners. The trial court found that they had no duty to him; the Court of Appeals affirms the summary judgment. (Plaintiff also sued others, won a judgment, then settled it, aspects not involved in this opinion.)

Plaintiff argued premises liability — that the homeowners, as landowners, created an unreasonably dangerous condition on the property by not telling their tenant that the house was in foreclosure and that someone might be coming by to inspect it or change the locks. But an owner not in possession has no duty to third persons injured on the property.

Plaintiff also argued Restatement §322: a person whose conduct, tortious or not, causes harm has a duty to prevent further harm. The court, examining the cases, points out that this applies to causing further harm and doesn’t create a duty surrounding the original harm.

Plaintiff also argued Restatement (Third) §7: “[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” But Arizona follows Restatement (Second) §322: no duty to control third person absent special relationship.

And Plaintiff argued Restatement (Third) §39 and (Second) §321. The court holds that he waived these by not raising them below, then addresses them anyway.

§39: when prior conduct, though not tortious, creates a risk of harm there is a duty to prevent it. It is based on §322, discussed above, and on §321: one who subsequently realizes that an act has caused unreasonable risk of harm has duty of care to prevent it. The court rejects §321, first because the Restatement Third “replaced and superseded” the Restatement Second. We don’t know whether that means that Second doesn’t exist anymore or can’t apply anymore or can’t be cited anymore or can’t be followed anymore. Fortunately, instead of trying to figure that out the court goes on to analyze §321 anyway. It has never been adopted in Arizona. Most other states have rejected it.

There is a dissent, arguing that duty applies under §§321 and 322. The dissent also wades into an argument about whether the lender had the right to change the locks; the deed of trust said yes, the Restatement of Mortgages says no. The homeowners’ point was that, even if 321/322 apply, they can’t realize that their conduct would cause the lender to do something it lacked the power to do. Here the dissent finds a Restatement it doesn’t want to follow. A statute on mortgages arguably allows the mortgage to determine the lender’s right to possession. The dissent says that should apply to deeds of trust as well, which is of course a decent argument and was used in another case not too long ago, which our faithful readers will remember.

(link to opinion)