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Verduzco v. American Valet (CA1 6/21/16)

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Discussing the negligence of a parking valet.

Defendant runs the valet parking at a hotel. It released a Porsche to a man who demanded it but who had no claim ticket or I.D., who was in fact stealing it, and who was high on drugs. He drove away and caused a serious accident with Plaintiffs, who sued Defendant (along with its employee and principal) alleging negligence and negligent entrustment. Defendant moved to dismiss, arguing that Plaintiffs hadn’t properly pleaded that it knew or should have known that the driver was on drugs and that it had no duty to Plaintiffs. The trial court granted the motion.

On the issue of duty the argument by Plaintiff’s was that Restatement (Third) 7 should apply.  But Division One rejected the same argument last year in Alcombrack so it affirms dismissal of the negligence claim.

On the negligent entrustment claim it reverses. The Complaint did allege specifically that the driver was on drugs and that Defendant “should have known” that he was impaired. Defendant’s argument, it seems, was that the Complaint should have alleged the specific facts by which it could have known that. But there was “no real dispute that the complaint put [Defendant] on notice of the claim” and the law does not require more. The court doesn’t express any annoyance at the argument, though, so it must have been a closer question than it seems and not just the sort of useless, time-wasting, fee-generating, hyper-pedantic game playing that it sounds like.

Defendant also argued that negligent entrustment shouldn’t apply to valet parking. It cited cases from other jurisdictions holding that a valet must return a car to its owner even if he’s impaired. The court points out that giving the car to someone else instead is “a distinction that matters.” Defendant also contended, in an argument it teased out of sentence in a California case involving police, that a valet has only “transitory” control of the car and not, apparently, controlling control or whatever other species of control it is that can give rise to a claim for negligent entrustment. But Defendant was a bailee and bailees have “sole custody and control.” Defendant doesn’t seem to have made much mention of the law of bailments, perhaps because that law would require of it things  like “ordinary care.”

Defendant made an argument under Restatement (Second) 390 that we will skip because it tempts us to write another sentence full of hyphens. And it argued that because people aren’t liable to the victims of those who steal their cars it shouldn’t be liable to the victims of those it gives cars to. This is another distinction that the court feels makes a difference.

(Opinion: Verduzco v. American Valet)

Hatch Development v. Solomon (CA1 6/21/16)

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This case concerns the grounds for common-law indemnity.

Solomon did water/sewer construction on Hatch’s property. The work caused run-off that damaged the property of a neighbor, who sued them both. Settlement talks ensued; the statute of limitations ran but talks continued. Hatch settled the case. Hatch then brought this action against Solomon for indemnity. The parties filed cross-motions for summary judgment; the trial court gave judgment for Hatch and against Solomon. Solomon appeals.

The Court of Appeals affirms. Solomon’s argument was that since the statute had run Hatch hadn’t satisfied a common obligation. The court distinguishes to different situations: where one pays a common obligation that should have been paid by the other and where one pays a common obligation created by the fault of the other. Under the Restatement, in the second situation – which applies here – one who justifiably believes himself under a duty to pay the underlying claim can get indemnity even if the other party had a defense to it. Hatch maintained that a duty still existed because the case could have been re-filed and pulling out of the settlement would have triggered further litigation; Solomon didn’t dispute that and so the court accepts it (though, reading between the lines, seems to realize that it’s a bit dubious).

Solomon also argued that Hatch can’t get indemnity because it, too, was at fault: it didn’t get the required ADEQ approval for the work and so was negligent per se. But while failure to get the permit might be “but for” causation the only proximate cause of the damage was Solomon’s sloppy work. Hatch’s failure to get approval didn’t cause that (which is what the court means although at one point it phrases things, if not backwards, at least a trifle sideways).

We omit one or two minor arguments that were strictly fact-related.

(Opinion: Hatch Development v. Solomon)

Sanders v. Alger (CA2 6/16/16)

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THIS OPINION HAS BEEN VACATED IN LARGE PART

The court holds that a patient has a duty to care for his caregivers.

Defendant was a 70-year-old man who used a wheelchair. The Department of Economic Security provided in-home care services to him through an independent contractor who was, in the Department’s infinite wisdom, a sixty-year-old woman. The result was that when he fell getting out of the wheelchair she couldn’t hold him; he fell on her, injuring her. She sued him. The trial court granted him summary judgment; she appealed.

The Court of Appeals reverses. Defendant argued the firefighter’s rule – a rescuer doing his duty has no claim. The court holds that the rule applies only to “traditional first responders.” That’s because people who cause fires shouldn’t be afraid of calling for help since fires spread; whereas, apparently, its fine for people who can’t get out of  wheelchairs to be afraid of calling for help since they’re the only ones who will suffer. And its because the firefighter’s rule rests on a policy decision to free from liability people who negligently cause fires (you think that’s not what it says? Read paragraph 9) whereas falls often happen without negligence and so Plaintiff knew there was a risk of falls and so she can sue for one (ditto re paragraph 9). And its because firefighters’ training, equipment, and compensation – including provisions for their care when injured – are given them “in return for” the removal of their right to sue (paragraph 10). This last reason at least has the advantage of applying also to “traditional first responders” other than firefighters, though we frankly hadn’t known before that they get training, pay, and benefits as the result of a quirk in the law of torts.

(Oh, by the way – the state did give Plaintiff training and does have a program to compensate caregivers for injuries and this plaintiff’s injuries are covered by that program. But the record was “sparse” about how those things compare to what is given to firefighters and to other caregivers. Regardless of who had the burden of going forward on that, the court does not tell us what standard of comparison it would apply if the record were fuller.)

The court then holds that Defendant owed a duty to Plaintiff. Although Plaintiff contracted to provide care to Defendant, a contract clause relieving a party from liability amounts to an assumption of risk and so that must go to the jury and so there must, apparently, be a duty to give rise to a defense to duty. (There wasn’t such a clause here and Defendant wasn’t a party to the contract; perhaps it was the fault of the briefs, and not of the court, that this tort analysis is based – but for one brief footnote – on contract and that the discussion of duty never mentions the legal basis of duty.) And besides, parties cannot in their contracts regulate their duties to each other. The court presumably means this in a very restricted sense, as this will otherwise come as a surprise to many parties who think they have done just that, or who think that their contract contains, for example, an arbitration clause, or that the arbitrators – despite what they, the parties, or the AAA might say – are not bound by the strict provisions of the common law.

Another reason for imposing a duty of care is that if there weren’t one then a defendant wouldn’t be liable for gross negligence. The court does not explain how the degree of negligence can affect whether a duty – and therefore negligence – exist in the first place.

Defendant also moved for summary judgment on the facts. The trial court, since it ruled as a matter of law, didn’t reach that. The Court of Appeals for some reason discusses the facts before announcing that the subject is for remand.

(Opinion: Sanders v. Alger)