THIS OPINION HAS BEEN VACATED

This is a wrongful-non-death case.

After a serious car crash involving several victims the DPS told a family that their daughter had died; in fact she had survived. The family celebrated the miracle of her deliverance by suing the DPS and all the officers involved for negligence, negligent training, and intentional infliction. The trial court granted the defendants summary judgment. The Court of Appeals affirms on the negligent training and intentional infliction counts, for which there was basically no evidence, but reverses on negligence.

The court tells us, in a footnote, that the plaintiffs argument was based on a particular section of the Restatement that an earlier case had said was “clearly inapplicable” to this type of situation. So the court sidesteps this minor annoyance and decides the case on a different basis.

That earlier case (Vasquez 2008), among others, held that the state has no duty to identify victims accurately. The court now holds, though, that by telling the next-of-kin of its identification the state assumes a duty to them. “Given [sic] the primary purpose of the notification is to benefit the survivors, coupled with the weight society gives law enforcement’s statements, and the inarguably devastating emotional impact a family member’s death has on survivors, when the State undertakes the actual NOK notification it must communicate the information with reasonable care being given to the accuracy of what is conveyed.”  The court does not use that Restatement provision, nor for that matter much other law that clearly points to such a conclusion.

In keeping with CA1 tradition the opinion recites facts at length, many of which have nothing to do with the holding. The court’s presentation gives the  impression, perhaps deliberately, that rather than acting negligently the defendants were doing their best under difficult circumstances.

(link to opinion)

A minor case about duty – minor because the plaintiff’s argument was pretty thin – that also makes a curious comment about appeal fees.

Barkhurst was assaulted by a drunken minor in the parking lot of a bar in Kingman. This happened during a dance the bar put on during the Kingman rodeo. The Kingsmen is a volunteer group that organizes the rodeo; its web site had listed the dance along with other events put on by rodeo sponsors. Barkhurst sued it on a dram shop allegation. The trial court granted it summary judgment. The Court of Appeals affirms.

It holds that the Kingsmen had no duty to Barkhurst. “As a general matter, there is no duty to prevent a third person from causing harm to another unless the defendant stands in a special relationship with the third person or with the victim.” The Kingsmen did not control the bar or its activities, which distinguishes the cases Barkhurst relied on. Public policy does not “create a duty upon [sic] persons who sponsor and promote events at which liquor is served to prevent serving underage patrons.”

Barkhurst also argued on appeal that the bar was the apparent agent of the Kingsmen. But he hadn’t done so in the trial court so the Court of Appeals declines to address the argument.

The court denies the Kingsmen’s request for a fee award, though, for the reason that to get that the appeal must be “groundless and not made in good faith.” Apparently the court could agree with the “groundless” part but “nothing in the record indicates the appeal was not pursued in good faith.” One wonders what indicia of bad faith the courts expect normally to show up in the record.

(link to opinion)

A useful case about the responsibility and liability of receivers.

Builder built a low-income apartment complex but then defaulted on its loan, resulting in litigation. The court appointed a receiver, Mashni, to run the complex. Although recorded covenants required it to be rented to low-income tenants, Mashni rented to regular tenants at market rates. This allegedly threatened Builder’s expected tax benefits but Builder did nothing about it until Mashni moved to wind up the receivership, which happened when Builder eventually filed bankruptcy and the Bankruptcy Court took over. The trial court denied his motion to exonerate his bond on the grounds that he “did not faithfully discharge his duties” and “had a responsibility to protect the rights of all parties to the transaction.”

Mashni took special action, arguing that he was immune. The Court of Appeals accepts jurisdiction and grants relief.

A receiver is a ministerial officer, appointed pursuant to statute and rule, not an agent of any party. The receiver’s duty is to the court and its orders. As to the parties he is neutral – especially since, as here, the party’s interests are ususally adverse (i.e., Builder wanted its tax credits while the other party, the lender’s successor-in-interest, wanted the complex to bring in some money).  As long as the receiver’s actions are within the scope of the order appointing him he shares the judge’s immunity.

The trial court did not find that Mashni acted outside the scope of the order, which said nothing about operating the complex as low-incoming housing. He had the authority to reject contracts, which is what the court says the low-income covenants amounted to.

The court also says that Builder could have moved to amend the appointment order to add the low-income requirement. What does that have to do with immunity? “When a party is aware of a perceived defect in a receiver’s performance of his duties, equity demands that the court be informed and given an opportunity to right the wrong through its supervisory powers. If a party does not afford the court such an opportunity, it is difficult to conceive of a case in which it can later seek damages for the harm that it failed to take measures to prevent.” We’re not sure why judges would suggest that equitable considerations can affect immunity, 

(link to opinion)