The Arizona Supreme Court upholds judicial immunity for a constable serving a writ of eviction. A constable cannot be sued for negligence or gross negligence. The writ statute, A.R.S. §11-449, imposes liability when a constable is “guilty of any misconduct” but this imposes liability only for intentional wrongful acts such as a failure to comply with the court’s command to execute the writ. The court differentiates by giving an analogy: “Gross negligence is playing with matches near a dry forest with a burn ban in effect: reckless, irresponsible, without regard for others, and with a high probability of substantial harm. Misconduct, on the other hand, is the intentional act of lighting a match with the purpose of causing a wildfire.” Because Fox alleged only negligence and gross negligence, she cannot overcome immunity. The court uses, as we saw a couple of years ago in Matthews, corpus linguistics as a tool in ascertaining what “guilty of misconduct” meant when the statute was enacted. This gives the opinion an uncomfortable feeling, which Justice Timmer highlights in her concurring opinion. But we are even more uncomfortable with what she suggests. Justice Timmer suggests retaining competing corpus-linguistic experts when interpreting statutes. To borrow from Chief Justice Marshall, it isn’t quite “emphatically the province and duty of the judicial department to say what the law is.”

See our previous blog when this case of the tripping customer was decided at the court of appeals. As expected, the Arizona Supreme Court holds the issue is not duty because a duty is owed to an invitee. The issue is whether the duty was breached. Because Circle K’s motion was based on duty, and the trial court decided only the duty issue, the case is remanded for the trial court to consider the alleged breach. The court clarifies its Dinsmoor decision, which discusses case-specific facts in determining duty. This specific facts inquiry asks “when and where the alleged risk of harm arose –within or outside the scope of the special relationship –not whether the alleged risk actually constituted an unreasonably dangerous condition.”  The court gives a nod to the concurring opinion in the court of appeals. Undoubtedly, Circle K will file another summary judgment motion on breach and causation. Because the right-for-any-reason rule cannot apply when the issue was not raised, the parties must go through the exercise again.

link to opinion

A brief opinion on misbehavior during a deposition. In a personal injury case, Plaintiff’s counsel Brett Donaldson instructed his client not to answer questions regarding citations for the accident. Donaldson then argued with defense counsel and cast aspersions on her. When the issue came before the trial court, Donaldson’s behavior had not improved, and he continually interrupted the trial court. The trial court issued sanctions and ordered a second deposition. Donaldson then filed a special action challenging the sanctions. The court of appeals accepted jurisdiction, denied relief, and affirmed the sanctions. Since this is a published opinion, Donaldson has now enshrined his bad behavior and hubris.

link to opinion