We do not discuss the appellate jurisdiction questions entertained by the Arizona Supreme Court but go directly to the duty issue. The Department of Liquor Licenses and Control owed no duty to prevent a bar with a liquor license from overserving its customers. While the Department has specific authority to act under state statutes, the statutes do not require or prohibit certain conduct. “To create a duty, therefore, a statute must regulate the defendant’s conduct in a way that requires or prohibits certain conduct, such that the defendant must conform to a particular standard of conduct. Such a statute provides notice to affected parties about how they must conform their conduct to the requirements of the law.” The statutes here are discretionary. The Department may suspend or revoke a license, may conduct inspections, and may impose civil penalties. Such permissive statutes cannot serve as a basis for a public policy duty. The court also considered statutes imposing liability on those who serve, sell, or furnish alcohol. The court then rejected the thinking that the qualified immunity statute itself supports a duty because the staute states that the gross negligence standard applies to a public entity issuing a license or failing to revoke or suspend a license. The qualified immunity statute does not affirmatively impose a duty. The court gives a nod to the court of appeals’ opinion from almost ten years ago limiting claims against public entities based on broad duties:  Hogue v. City of Phoenix, 240 Ariz. 277 (App. 2016). We blogged that case and discussed the “flip the analysis” point back then.

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We keep reading appellate decisions about this tragedy out of Cochise County. This is the third appellate decision we can recall. Dr. Herrod is a general practitioner and a lay pastor, an LDS bishop, at a church. He learned information as a pastor that father sexually abused his children. The abused children claimed that as a physician and mandatory reporter, he was required to notify authorities even if the information came to him as privileged as a pastor and not while treating either the mother or the abused children. Court of appeals agrees with the trial court rejecting this theory. “Under the express language of the statute, Dr. Herrod had a duty to report only if he developed a reasonable belief of child abuse or neglect “in the course of treating a patient.” § 13-3620(A)(1).” There is a concurrence and dissent. In a nutshell, the dissent would find an expansive common law duty of well-being outside the mandatory reporter statute. The dissent doesn’t care how he learned of the abuse, the abuse impacted his patient’s well-being.

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Another neighborly dispute. A neighbor sues her neighbors for making too much noise. She cites the CC&Rs and requests fees but then loses at a bench trial. The neighbors then demand their fees. Although there is a clause in the CC&Rs prohibiting noise and a separate clause allowing for attorney’s fees, the essence of the claim is a nuisance tort. No one receives fees in tort actions, and one cannot contract around common law. The court provides a good review of Barmat and prior cases under § 12-341.01 to emphasize that fees are authorized only when the tort could not exist but for the breach of contract.

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