THIS OPINION HAS BEEN VACATED

The issue here is whether an assignment to a minor tolls the statute of limitations.

DeSela was injured at school in November 2004. Her mother assigned to her the mother’s claim for her medical expenses. (The validity of the assignment was not at issue but the court feels fidgety enough about it to explain in a footnote why such an assignment is valid.) DeSela then filed a timely notice of claim against the District. In December 2007 she filed suit for personal injury, having turned 18 a year before. The District argued that the claim for medical expenses was barred by the statute of limitations. The trial court agreed and dismissed it. (Whether “dismissal” of some damages – or “summary judgment,” as the Court of Appeals calls it – is actually either of those things is a question for another day.) This opinion reverses.

DeSela contended that when her mother assigned the claim to her it was then tolled because she was a minor. The District argued that the assignor stands in the shoes of the assignee and can’t get more than the assignor possessed. This argument, right or wrong, deserves better treatment than it gets at the hands of this opinion.

The court first says that some cases from other jurisdictions – which of course have different statutes – have allowed similar things.

It next cites a statute that might support either side and blows it off with one questionable sentence. An assignment does not affect an existing defense, 44-144. The statute doesn’t apply, says the court, because the District did not have a statute of limitations defense when the assignment was made. But the right not to be sued beyond the statute existed at the moment the accident happened. Does a defense not “exist” because it is contingent on what the claimant does? If that’s the law then explain why or cite a case, don’t just assume your conclusion.

The court next distinguishes several cases because none of them was a spotted horse.

Is the court sure of itself? Twelve footnotes in fourteen pages says “no,” as does the court’s final argument, that last refuge of all appellate courts: policy. Barring the claim “would serve no identifiable public purpose” since its easier for the plaintiff to sue this way, DeSela sent a timely notice of claim anyway, and the claim isn’t stale because the District knew about it. This does nothing but try to justify the court’s conclusion; the legal content is zero. Limitations statutes are not for ease of suing and are not nullified by notice, statutory or otherwise.

In a footnote, the court had addressed an issue the District raised for the first time at oral argument. Why address it? We don’t know; the reason the court gives is incomprehensible. In any event, a supervening disability does not affect the limitations period, 12-503. This does not apply, the court says, because DeSela did not have a supervening disability – she was a minor even before the assignment. But if you’re going to talk about policy, that announced by 12-503 is at least as clear and cogent as anything raised in this opinion.

This case holds that a comparative-negligence defense does not make damages “unliquidated.” Maybe.

Precision, a trucking firm, bought from Trail King a trailer that failed, causing property damage. Precision sued; the jury found Trail King 100% at fault and – damages being uncontested – awarded the amount sought by Precision. The court denied prejudgment interest, however, ruling that damages were unliquidated because Trail King had alleged comparative negligence. The Court of Appeals decided various other issues by memorandum and published this to address the interest issue.

Trail King argued that damages cannot be liquidated when a jury can apportion fault, citing cases from other states. Arizona law, though, is that uncertainty about liability does not create uncertainty about damages. The court remanded for an award of prejudgment interest.

But along the way the court said that “Given that the jury awarded Precision the entire amount of damages sought, only an award of prejudgment interest on those damages will make Precision whole.” Is this a meaningless rhetorical fillip? Or does it mean that this case only applies when the jury finds the defendant 100% at fault? Based on the discussion and the cases it cites, you could argue both ways.

If the court wanted to rule on only the 100% cases then it should have said so. The sentence probably sounded so good to somebody that nobody realized – or perhaps cared – that it  doesn’t actually make much sense.

This came out a couple of weeks ago but it takes us older folks time to dodder through 67 pages. This criminal case says unfortunate things about common law.

Far West ran a wastewater treatment plant. An employee suffered death by sewage in an underground tank. The recitation of facts borders on hysteria but is intended to show that the company’s higher-ups flagrantly disregarded and evaded safety measures, OSHA requirements, etc. Far West itself was convicted of various crimes including negligent homicide and aggravated assault.

It argued on appeal that it couldn’t be criminally liable and that the court made mistakes at trial. We will hit the highlights.

33-305 says that an “enterprise” commits a criminal offense if “the conduct constituting the offense consists of a failure to discharge a specific duty imposed by law” or if (paraphrasing) it is authorized or recklessly allowed by a manager. Maybe we shouldn’t blame the court’s analysis for being as clunky as the statute, though judges do preen themselves about being wiser than mere legislators. (In fairness, Far West’s arguments – that one statute “violates” another, for example – were evidently not well-crafted; sewage in, sewage out.)  The opinion should have focused on the second part of the statute. Instead, the brunt of it seems to be that the common-law duty to provide a safe workplace is a “specific duty imposed by law,” that it is no different than the requirements of 23-403 (to keep a safe workplace), and that it can therefore trigger the first part of 33-305.

We don’t know much criminal law but the folks connected with this case don’t seem to have known much civil. The common-law duty to provide a safe workplace for employees is just like the common-law duty to provide a safe store for customers, and like traditional common-law duties in general: a duty to use due care under the circumstances to make and keep things reasonably safe. The courts have been telling us for years that duty is separate from the acts necessary to fulfill it (Palsgraf rest in peace, though of course duty was not specific under that case, either). To call the duty to use reasonable care a “specific” duty, or to say that it is the same as a statute that says “you shall do such-and-such,” is a new conception of common law – or a misconception.

So when does a company’s negligence become criminal culpability? How does a corporation “assault” someone who slips on a loose widget? The opinion, clearly sensitive to criticism on that issue, devotes a whole section to saying that they are completely different things. What it boils down to is that criminal acts are really bad as opposed to just moderately bad and that courts know the difference when they see it.

As to the alleged errors at trial, the court justified a set of instructions that may have been, reading between the lines, even more fouled up than Far West made it out to be. More disturbingly, though, it held that the trial court was correct to allow evidence of the ADOSH investigation. A statute clearly prohibits that. But the court said that the statute merely creates a privilege that ADOSH can waive, citing for the proposition an Arizona Supreme Court case that it can’t have read since that just ain’t the holding. There is law about whether a statute can control evidence but none of it is here.

(link to opinion)