The Court of Appeals defends  the concept of duty.

An unknown person stole an unlocked Gutierrez truck, collided with Delci’s car, and escaped unidentified. Delci sued it. Gutierrez moved for summary judgment on the grounds that it had no duty to Delci. The trial court granted it.

The Court of Appeals affirms, following Arizona Supreme Court precedent in Schafer, which involved a car stolen from a dealership lot. Delci argued that Schafer was overruled by Gipson (duty not measured by foreseeability). The Court of Appeals agrees that foreseeability can no longer be the test but points out that duty is now based on relationships and that there was no relationship between the parties.

Delci countered that some states have adopted a special rule involving heavy machinery, since its more dangerous and easier to steal. The court say that this rule is based on foreseeable harm and foreseeability is no longer a basis of duty.

Delci then argued the ALI has now announced, in section 7 of an add-on piece to the new Restatement of Torts called Restatement Third, Torts: Liability for Physical and Emotional Harm, “An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Delci apparently argued that Ontiveros said something that “could be interpreted” to mean the same thing; this court says that that case was narrowly based on the obligations of liquor suppliers. In any event, the court rejects section 7 because “it would substantially change Arizona’s longstanding conceptual approach to negligence law by effectively eliminating duty as one of the required elements of a negligence action.”

Section 7 is headed “duty” but its intention is indeed to eliminate the concept, as its comments make as clear as anything that turgid can. That is what Palsgraf (the source of duty based on foreseeability) and Gipson, in their own ways, went to some length to prevent. This is perhaps the clearest example of the ALI’s recent attempts to make law on the basis of professorial theorizing rather than actually to restate what judges and lawyers and real parties in real controversies have thought appropriate.

(link to opinion)

THIS OPINION HAS BEEN VACATED IN PART

Choice of law in an asbestos case.

Pounders was an APS employee working at the Four Corners plant in New Mexico. While there he inhaled asbestos. Diagnosed with mesothelioma some years later while living in Arizona, he sued those responsible for the parts of the plant that contained asbestos. He then died and his widow amended the Complaint to wrongful death.

The trial court applied New Mexico’s statute of repose, granting the defendants summary judgment. Pounders appealed. The Court of Appeals affirms.

The Restatement choice-of-law rule defaults to the law of the place where the injury occurred unless another state has a “more significant relationship” to the claim.

Much of the opinion is devoted to Mrs. Pounders first argument, that the injury occurred in Arizona – where the condition developed and was diagnosed – rather than where the fibers were inhaled. She cited cases to the effect that you can’t sue before you know you have a disease. But the Restatement says that the injury happens “where the force set in motion by the actor first takes effect on the person” and the first effects occur immediately upon inhalation. So the injury occurred in New Mexico. For some reason the opinion then discusses at length cases from other jurisdictions that have gone both ways before announcing that the better-reasoned cases come to the conclusion it had reached before discussing them.

But it seems that Pounders was wise to emphasize that argument. Though the court next takes six pages to slog through the interest analysis before deciding that Arizona did not have a more significant interest than New Mexico, that is more a matter of Division One style than of necessity. Turns out that Arizona was simply where Pounders happened to be when he was diagnosed and died.

In the last several pages the court analyses the New Mexico statute, in light of New Mexico precedent, to rule that it does indeed apply to this case. The court suggests that its having to analyze New Mexico law is “curious” but its actually routine in choice-of-law cases, especially those rather obviously filed in one jurisdiction to try to avoid the law of another.

(link to opinion)