We blogged the Court of Appeals’ opinion here. The majority comes to the same result for mostly the same reasons, which it sums up as follows:
“First, duty is not presumed; in every negligence case, the plaintiff bears the burden of proving the existence of a duty. Second, . . . foreseeability is not a factor in determining duty. Third, duty is based on either special relationships recognized by the common law or relationships created by public policy. Fourth, in the context of duty, the primary sources for identifying public policy are state and federal statutes. In the absence of such legislative guidance, duty may be based on the common law — specifically, case law or Restatement sections consistent with Arizona law.”
“Duty is not presumed” means — and this seems to be the main point of the opinon — that the court specifically rejects the attempt of the Third Restatement of Torts to write duty out of the law by presuming it. The court (citing Palsgraf, which had been infra dig for a while) says that “before negligence can be predicated [on] a given act, [in] back of the act must be sought and found a duty to the individual complaining.”
On the issue of public policy the court emphasizes that “in the absence of a statute . . . we exercise great restraint in declaring public policy.” Policy is “primarily a legislative function” and even the court does not establish duties “based on our own notions of appropriate public policy.”
Bales and Pelander dissent, though Pelander apparently does not go so far as to think that Arizona should adopt the Third Restatement.