Banner Univ. Med. Ctr. v. Gordon/Harris (1.20.22)

The substantive issue is whether the dismissal of an employee with prejudice because of a notice of claim defense precludes an action against the employer based on vicarious liability. It took almost a year after the oral argument for the Arizona Supreme Court to decide it could not decide this issue because there was no Rule 54(b) language in the original dismissal. The case goes back to the trial court, and the supreme tells us in a footnote it expresses no view of whether a dismissal of an employee pursuant to the notice of claim statute precludes a claim of vicarious liability against the employer. This decision provides no guidance to the trial judge as to when 54(b) language should be included, but the court does not want to hear an argument about what follows a final judgment when there isn’t one. (The court of appeals had decided to jump in and treat this as a special action.) Of course, the litigants do not want to proceed through discovery and go to trial only to learn the claims against the hospital ended with the dismissal of the employees. On remand would the trial court abuse its discretion by not including such language and sending it right back out the door? Is our supreme court really this impotent to make a meaningful decision until it does so?

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Hale et al. v. Window Rock Unified School Dist. (D1 12.28.21)

Division One believes we need to be reminded about the Arizona Supreme Court’s opinion in Gipson v. Kasey, and the removal of foreseeability from duty. Perhaps we do. In Hale v. Window Rock Unified School District, the trial court granted summary judgment for the school because the District had no notice of a potential risk their minor son would be sexually assaulted at school by an eighth-grade student. The school filed a motion for summary judgment, and the trial court granted the motion because although the school had a general duty, the school had no notice of a recognizable risk of harm to this student. The court of appeals reverses and holds the trial court did not apply the current law on foreseeability when it discussed foreseeability in terms of a duty. The trial court determined the Hales did not establish a “recognizable risk existed creating a duty on the part of the school to prevent the alleged attacks.” This was its mistake. Foreseeability remains a factor in examining breach and causation. These may have been the “object of the superior court’s analysis,” but it used the wrong duty language. The court concludes with providing a summary of some evidence including violence exited amount students at the middle school, there had been fights, security guards occasionally roamed the campus or maybe not, and plaintiff’s mother was a former employee at the school and was aware of disciplinary incidents. This is some evidence of breach and whether such evidence is enough, one assumes on proximate cause, “is not before the court.” Why not? Since none of us have the trial court record and can tell how the parties briefed the issues, how does such typical middle school evidence meet the burden of proof on summary judgment in showing a breach or proximate cause where foreseeability now finds its home?

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Torres v. Jai Dining Servs. (11.2.21)

The Arizona Supreme Court begins this dram shop case opinion with noting other courts have blended the different concepts of actual cause and proximate cause and then uses this blended version of causation. Resolution of this case, the court continues, depends on the scope of the risk and foreseeability. Without any reference to these themes embedded in the Third Restatement, the court ends up defining proximate cause by what it isn’t, i.e., unforeseeable and extraordinary. Here are the facts. Intoxicated patron named Cesar Villanueva who is there with friends and his girlfriend is kicked out of a night club at 2:30 a.m. He drives away and gets to his brother’s house where he stays for over an hour. Around 4:00 a.m. his brother takes Villanueva to his own home along with his girlfriend and one of her friends. Villanueva sleeps for a little at his own home but then he is asked to take his girlfriend’s friend home. The friend drives his truck to her home while Villanueva and his girlfriend sleep in the backseat. After arriving at the friend’s house, Villanueva climbs into the front seat and drives away. He causes an accident and kills two people. (The court of appeals’ opinion has more of the details of BAC etc.) Case is tried, and the jury awards $2 million in compensatory damages and apportions 60% fault against Villanueva and 40% against the club. The court of appeals reversed the judgment holding the chain of causation was broken when Villanueva first arrived safely home. Villanueva’s driving was a superseding and intervening cause. Arizona Supreme Court reverses the court of appeals’ opinion that an overserved patron’s later decision to drive while intoxicated after safely reaching home or a similar resting place constitute an intervening and superseding cause that breaks the chain of causation. Proximate cause depends on the scope of the risk and foreseeability. The risk created by overserving alcohol is that the patron will drive while intoxicated and cause an accident. “We agree with Plaintiffs that the risk created by a liquor licensee overserving a patron exists as long as the patron drives intoxicated, regardless of when or where the patron travels and even with a short stop at home.” The supreme court then recognizes instances including liquor liability claims where the driving is not foreseeable and is extraordinary. The court distinguishes the Patterson v. Thunder Pass decision where a tavern employee took a patron home, the patron then decides to walk back and retrieve her car, and then causes an accident. In that case the patron’s decision to go back was unforeseeable and extraordinary as a matter of law. Finally, the supreme court remands the case back to the court of appeals to decide what to do with an argument raised with the argument first raised with the court of appeals that A.R.S. § 4-312(B) preempts common law dram shop claims. Perhaps we will see this case back again at the supreme court.

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