Author Archives: unknown

Acri v. State (CA1 3/30/17)

Posted on by

The court explains why an obligation is not a duty.

Homeowners who suffered property damage in the Yarnell fire sued the state for fighting it negligently. The trial court dismissed, holding that the State has no duty. The Court of Appeals affirms.

Plaintiffs first made a public-policy argument. The parties agreed that “prevention or suppression of wildfires . . . is a fundamental public safety obligation.” But “protecting private property against a natural occurrence on public land maintained in natural condition” is, the court feels, an “unworkably broad” duty. The firefighting statute (37-1303) says that fires are fought “in the best interest of the state.” Benefits to private landowners are “incidental to broader public-safety concerns and the best interest of the state” and do not establish a duty to individuals. The court also notes that creating a duty to Plaintiffs would prioritize private lands, limiting the State’s firefighting decisions.

Plaintiffs argued that the State assumed a duty by fighting the fire. Under the Restatement (323) one who voluntarily renders services to another assumes a duty. But the court says that fighting fires, under the statute, is for the benefit of the state, not a service to an individual. The court also says that fighting fires shouldn’t create a duty because that would influence the state to “shield itself from liability” by not fighting them. (Which shows how “fundamental” the state’s “obligations” really are.)

Since the fire started on state land Plaintiffs argued that the state was liable for its spread. The Restatement (Second, Torts, 363) says that possessors are not liable for harm caused outside the land by natural conditions. The court concludes that a lightning-caused fire is a natural condition. Other jurisdictions have disagreed but the court does not discuss their reasoning since that’s not what, the court concluded in the previous paragraph, the Restatement means.

(Opinion: Acri v. State)

American Power Products v. CSK (3/23/17)

Posted on by

On the interplay between 12-341.01 and contractual fee provisions.

The case  arose out of a contract that gave a right to attorney fees to the prevailing party; the phrase was not defined but the contract applied Arizona law. During trial of cross-claims CSK’s was dismissed and the parties apparently agreed that American would get judgment of at least $10,000 (we will use round numbers). That’s what the jury awarded, though American had sought $5 million. CSK had made a $1 million OJ. But the trial court found that American was the successful party and awarded it $775,000 in fees. The Court of Appeals affirmed that. The court reasoned that the contract did not define or limit “prevailing party” and that applying OJ law, which is for contracts now part of the statute, would change the contract, which the statute itself prohibits.

The Supreme Court reverses. “To the extent prior case law broadly precludes application of § 12-341.01 whenever the parties’ contract contains an attorney fee provision, regardless of its content, scope, and other provisions in the contract, we disagree. Rather, § 12-341.01 ‘is inapplicable by its terms if it effectively conflicts with an express contractual provision governing recovery of attorney’s fees.’” “Thus, rather than being completely supplanted by any attorney fee provision in the parties’ contract, the statute — consistent with its plain language — applies to ’any contested action arising out of contract’ to the extent it does not conflict with the contract.”

Justice Timmer dissents, basically agreeing with the Court of Appeals.

Remanded for the trial court to determine fees incurred before the offer (which American gets) and after the offer (which CSK gets).

(Opinion: American Power Products v. CSK)

Boswell v. Fintelmann (CA1 3/9/17)

Posted on by

A brief opinion issued to discuss the nature of dismissal of a malpractice action for failure to file an expert affidavit.

Plaintiff sued his eye doctors without an affidavit. The trial court ordered him to file one; he didn’t. The court dismissed with prejudice. Plaintiff appealed.

The Court of Appeals first notes that it reviews the matter de novo. The court said the same thing earlier this year (Romero v. Hasan) but cited a 12(b)(6) case. Perhaps feeling the problem with that, the court adds that de novo review is appropriate because failure to file the affidavit “is a pleading failure.”

Plaintiff apparently wanted to make a number of arguments but was pro se and didn’t know how. Some of them the court says he waived, others it rejects summarily.

But, though its not clear that this is among the arguments Plaintiff tried to make, the court concludes that dismissal should have been without prejudice. Such a dismissal “is not tantamount to dismissal for failure to prosecute.”  The dismissal order cited Rule 37(b)(2) but the court says that it is not “a sanction for a discovery violation” and that in any event the rule doesn’t allow dismissals with prejudice for violation of 12-2603. The court apparently thinks these things self-evident as it does not explain them, which again makes us wonder — admittedly without knowing — whether the issue was argued on appeal.

In fairness, the court also mentions the right answer, which is that dismissal is without prejudice because the expert-affidavit statute, 12-2603(F), says so.

Judgment changed to without prejudice and affirmed as modified.

(Opinion: Boswell v. Fintelmann, et al.)