This case was brought to try to create a new tort: third-party spoliation (i.e. “spoliation” by someone who’s not a party to a lawsuit). As with many cases brought to make legal points, the lawyers win while their client loses.

We blogged the opinion of the Court of Appeals (which, as we suggested then, was written to slide the case to the Supreme Court while not changing the law but also not sticking anybody’s neck out – the bureaucratic mind at work). The facts haven’t changed: Lips got a hip replacement at Scottsdale/Osborn. Part of it broke, requiring its replacement. She wanted to sue its manufacturer but the hospital had thrown the old hardware away, so she sued the hospital for spoliation.

The Supreme Court looked separately at the issues of negligent and intentional third-party spoliation.

The alleged damage to Plaintiff’s cause of action was an economic injury. There is no general duty of due care for the economic – as opposed to physical – safety of others. Plaintiff argued that there should be a “limited” duty because her surgeon told SHC that it had to keep the hardware. But the requests or demands of others do not create duties. (Another way of saying this is that they don’t create rights, which we wish people would remember when “reserving the right” to do something they have no right to do.) In a footnote, though, the court obliquely points out that the hospital could be liable if it had undertaken to keep the hardware and then damaged it.

A tort of intentional third-party spoliation, however, would in the court’s view be perfectly consistent with the law so long as it required a specific intent to damage the plaintiff’s claim. But this plaintiff didn’t allege that and the surgeon’s message wasn’t enough to create an inference of one. “Therefore, even assuming that we would recognize the tort of third-party intentional spoliation,” Plaintiff loses. The opinion upholds the trial court’s dismissal of the claim while vacating what the Court of Appeals had to say about intentional spoliation.

We won’t claim entirely to understand why the court is playing games here. The effect of the ruling is to create a tort of intentional third-party spoliation. If it didn’t want to change the law, the thing to do was to decline review. If it hadn’t realized when it accepted review that this plaintiff couldn’t quite qualify for a new tort then it could – as it has done before in analogous situations – announce that the petition had been improvidently granted. Instead, it approves the tort, defines it, vacates the lower court’s explanation that there is no such tort, but plays coy about whether its going to “recognize” it. The fact is that this is a major change in the law, and it is done by dictum, and if the court is embarrassed by that then – rather than do the deed and try to preserve its modesty with a fig leaf – it shouldn’t have. No matter who signed the briefs.

Stylistically the opinion is clear and relatively short, though its longest paragraph (12) is mostly unneeded. Citations to Doubtful Danny Dobbs or to the cheerful but bibulous Bill Prosser are always red flags but are handled reasonably here.

The Supreme Court issues this short and clear opinion to change, or at least to clarify, a point of appellate law.

Accused of car theft, Geeslin requested a jury instruction on “unlawful use” of the car. She claimed that that’s a lesser included offense. The trial judge concluded on the record that it isn’t and refused the instruction. The Court of Appeals, though clearly signaling its disagreement with the trial court, held that it couldn’t consider the issue because the instruction was not in the record on appeal.

That has generally been considered the law – you can’t review an instruction not in the record. The point of this opinion is that although that may be a good rule of thumb, if the record provides “everything necessary to determine whether the evidence warranted the requested instruction” then the appellate court can review it.

Here, the issue was simply whether unlawful use is a lesser included offense. The issue wasn’t whether the instruction properly stated the law, so not having it in the record wasn’t fatal.

This makes sense. But we hope it won’t lead to endless argument about whether a particular record had “everything necessary.” As the Court of Appeals pointed out, Geeslin had several opportunities to supplement the record. Bright-line rules have benefits, among them fewer controversies and better professional discipline.

The Arizona Supreme Court took this case as a “special proceeding” for interlocutory review of a ruling by an “adjudication court” on a “motion for summary disposition.”

Sound like the twilight zone? It won’t to old ears but if yours aren’t then welcome to the world of the water cases. This species of permanent litigation has enriched generations of Arizona lawyers. The present opinion, for example, cites cases called Gila River I, Gila River VI, Gila River VII, and maybe some other Gila Rivers we missed.  It has spawned its own rules and procedures, e.g., the 1991 Special Procedural Order that controls this particular sub-species of stream litigation. And it has its own language, which we needn’t go into since if you care about AFYs and rebound calls and the Globe Equity Decree of 1935 and such then you already know what they are. One occasionally suspects, though, that like Jarndyce v. Jarndyce the case isn’t entirely understood by anyone alive – a situation always beneficial to the profession.

Few of the stream opinions neglect to describe their litigation’s tortuous history, often with rueful but passing acknowledgment that it was “complex” twenty years ago. This one also informs us that “much of Arizona is arid desert land” – citing the United State Supreme Court for the proposition, in case you weren’t clear on it.

The case is so complex that, as usual with such cases, procedure trumps substance. This opinion, in the course of 32 pages and 19 often-lengthy footnotes, upholds a settlement agreement involving one party (arrived at in 2005, to show you how quickly these things move) by saying not much more than that the lower court’s order approving it was procedurally correct and that any factual loose ends can be dealt with in the future. It addresses inconsistencies between the special procedural orders in the Gila River litigation and the Little Colorado litigation by saying, in not quite as many words, “we don’t want to talk about that.”

That is the way it manages these cases. Unless kept firmly at bay they would overwhelm. And so, since the only fair way to resolve the facts would be to use dueling pistols, we have developed procedural systems for handling – without ever ending – them, systems that must be preserved at all costs. The judges hope that push doesn’t come to shove until after they’ve retired, the lawyers until after their grandchildren have.