Quiroz v. Alcoa (5/11/18)

We blogged the Court of Appeals’ opinion here. The majority comes to the same result for mostly the same reasons, which it sums up as follows:

“First, duty is not presumed; in every negligence case, the plaintiff bears the burden of proving the existence of a duty. Second, . . . foreseeability is not a factor in determining duty. Third, duty is based on either special relationships recognized by the common law or relationships created by public policy. Fourth, in the context of duty, the primary sources for identifying public policy are state and federal statutes. In the absence of such legislative guidance, duty may be based on the common law — specifically, case law or Restatement sections consistent with Arizona law.”

“Duty is not presumed” means — and this seems to be the main point of the opinon — that the court specifically rejects the attempt of the Third Restatement of Torts to write duty out of the law by presuming it. The court (citing Palsgraf, which had been infra dig for a while) says that “before negligence can be predicated [on] a given act, [in] back of the act must be sought and found a duty to the individual complaining.”

On the issue of public policy the court emphasizes that “in the absence of a statute . . . we exercise great restraint in declaring public policy.” Policy is “primarily a legislative function” and even the court does not establish duties “based on our own notions of appropriate public policy.”

Bales and Pelander dissent, though Pelander apparently does not go so far as to think that Arizona should adopt the Third Restatement.


Gonzalez v. Nguyen (4/12/08)

An important decision on Rule 60(c)(6) (now 60(b)(6)).

Plaintiff took default judgment in a personal-injury case. Defendant then appeared and moved to set it aside under Rule 60(c)(6) (“any other reason justifying relief”), arguing that he wouldn’t contest liability but that the judgment was excessive. The trial court granted the motion. So far, so ordinary; this has for years been a standard insurance-defense argument, one of the few reliable uses of 60(c)(6). But then the Court of Appeals issued a memorandum reversing for lack of meritorious defense or excusable neglect. This wasn’t entirely the Court of Appeals’ fault; the Supreme Court admits that “Rule 60(c)(6) jurisprudence is not a model of clarity or consistency.” So it issues this opinion to straighten things out.

When “the record suggests that the judgment amount is excesssive, a trial court appropriately may provide Rule 60(c)(6) relief.” That the judgment is excessive is a meritorious defense. The showing of it “need not be strong” though it must be “greater than mere speculation.”

Some cases suggest that evidence of the meritorious defense must be extraneous to the judgment record. “We do not find any such requirement in the language or purpose of the rule.” “Rather, if the motion relies on evidence of a meritorious defense that appears in the record, the rule plainly vests authority in the trial court to grant relief, and we disavow language in prior decisions that suggests evidence outside the extant record is necessary.”

Excusable neglect, which is 60(c)(1), isn’t an issue since it and 60(c)(6) are “mutually exclusive.” The latter rule “contemplates circumstances that do not fit into the other . . . subsections.”

The court vacates the lower court’s opinion and affirms the trial court’s order.

(Opinion: Gonzalez v. Nguyen)


Glenn H. v. Hon. Hoskins/Banner (CA1 4/3/18)

It has been some years since we were active in this area of the law; we keep our hand in legally but don’t know enough about what’s happening on the ground to understand how anybody with legal training and the I.Q. of a peanut could have thought this the right way to do things.

Plaintiffs, who are Jehovah’s Witnesses, refused consent for blood transfusions for their hospitalized child. So hospital employees called an “emergency hot line” to the Superior Court (Maricopa County), where judges repeatedly authorized transfusions over the parents’ objections. No court action was ever filed, no lawyer for the hospital was involved, and the record doesn’t say who made the calls. Nor does the record explain how the “hot line” worked (except that judges were apparently assigned to it on a rotating basis), who set it up, or how the hospital employees knew about it.  The court clearly doesn’t understand how this happened and the hospital rather clearly didn’t try very hard to explain what it said was “standard practice in the county.” Plaintiffs filed this special action but didn’t request a stay (not an unprecedented straddle in this situation), so transfusions were made. “At this Court’s urging, the Hospital entered an appearance and answered the petition.” It then threw out the Plaintiffs’ child, telling them to find care elsewhere.

And it argued that the case was moot since the child was no longer a patient and the transfusions were already made. Put aside for a moment that this sort of argument almost never works in these cases; how do you like the thought of lawyers sitting around a table deciding that if they toss the kid into the street his parents would have no case? Denying the mootness objection, the court says this is an issue of public importance likely to evade normal review.

The Superior Court claimed jurisdiction under 8-245 (juvenile court may order medical care for a child under its jurisdiction). But that “does not confer jurisdiction,” it permits court-ordered treatment only “when a child is already under [the court’s] jurisdiction.” Since no action had ever been filed the court had no jurisdiction to do anything. (The court also notes that the orders weren’t 8-245 orders; the statute says that the treatment order is to the parents and that if they don’t comply then the court can order treatment  — but at the county’s expense. These orders simply said that the hospital could transfuse if the doctor felt it necessary during surgery. We wonder if that was a Machiavellian attempt to save Maricopa County money or simple ignorance of the statute the judge was pretending to rely on. Which is worse?)

“Our review of Arizona statutes and rules of procedure reveals no provision . . . authorizing the superior court to maintain an emergency hotline for the purpose of ordering medical treatment for a non-consenting minor . . . .” The orders were therefore void.

To recap: Someone instituted a “hotline” system. For some unknown period of time Superior Court judges accepted phone calls from health-care workers and based on those calls, no legal writ having been filed, issued orders purporting to authorize medical care over objection. How could none of the people involved in that have noticed that there was no legal basis for any of it? What’s worse, the system apparently normally operated ex parte. How could none of the judges have seen what the Court of Appeals strongly suggests — that this violates the Code of Judicial Conduct?

But this is the sort of thing that happens when you turn courts into social-service agencies, complete with bureaucratized judges eager to play the role of social worker.

As for whether anyone will ever be held accountable, you know the answer to that.

In a footnote the Court of Appeals can’t resist pointing out that in this case none of this was necessary anyway. It mentions 36-2271, which was intended to solve this problem long ago: in a surgical emergency the hospital doesn’t need the parents’ consent.

(Opinion: Glenn H. and Sonia H. v. Hon. Hoskins/Banner)