The case holds that an order granting a remittitur or an additur (and conditional new trial) under Rule 59(f) must, as required by Rule 59(i), “specify with particularity the ground or grounds.” (The court uses the subdivision letters from the 2016 version of the rule but the 2017 rule flips them around; we’re using the new ones. When you read the opinion keep in mind – the court does explain it it a footnote – that old (m) is the new (i), while the old (i) is now (f).)

Plaintiff husband broke his arm when the taxi he was riding in had an accident. He sued the driver and the taxi company. When the jury awarded $700+k the trial court found that “excessive and not supported by the evidence” and granted a remittitur. Plaintiffs rejected it and appealed.

The court begins with a long, vague discussion of new trials and remittiturs that it admits “break[s] no new ground.” Perhaps something in the briefing or argument signaled a need for three pages (counting one very long footnote) of hornbook law.

Plaintiffs argued that because of 59(i) a remittitur order has to be more specific. Hancock (App. 1971) said that (i) doesn’t apply to (f) because (f) states its own grounds (damages excessive or insufficient). This opinion rejects Hancock because (1) rules that don’t apply to other rules “circumvent” them and (2) if (i) didn’t apply then its “required” language wouldn’t be. (Think we’re kidding? Read paragraph 12. In fairness, toward the end of the paragraph the court says that the Hancock interpretation is “inconsistent with Rule 59 when read as a whole,” which maybe is right and at least comes closer to logic than anything else in the paragraph.)

How particular must the trial court be in specifying the grounds? It must “describe why the jury award is too high or low.” That helpful bit of information is found amid seven paragraphs of rambling, during which – in order to distinguish a case cited by Plaintiffs –  the court says interesting things about wrongful-death cases. “[W]e reject the notion that § 12-613’s “fair and just” damages provision mandates greater deference to juries in wrongful death cases than in personal injury actions.” There is “no relevant distinction between a jury’s duty to render a “fair and just” damages award in a wrongful death action and its charge to issue an award based upon its ‘good sense and unbiased judgment’ in a personal injury case.” (Though there is one difference, as the court points out in a footnote: an award of $0 is valid in wrongful death.) This will disappoint plaintiffs’ counsel in those cases, and some trial courts, and some Court of Appeals’ judges, who feel that “fair and just” means “carte blanche.” (Did the court do this deliberately? We would normally suspect so but that suggests more civil-law sophistication than the opinion exhibits.)

So Plaintiffs win? No. Reeves (1978; much of this opinion is just a riff on Reeves) says that if the order isn’t particular enough then the burden shifts to the appellee to prove that there were sufficient grounds for the order. The court quickly finds, in a couple of conclusory sentences, that under these facts new trial was not error. Not a great advertisement for its principal holding.

The court then mentions evidence of allegedly-comparable verdicts, which Defendants had presented. “[W]hile such comparable verdict information may be presented to and considered by the trial court, we emphasize that it is only marginally relevant . . .” This criticism is surely deliberate since it is pure dictum.

Remanded for new trial.

(Opinion: Soto v. Sacco)

We blogged the Court of Appeals’ opinion here; go there for the facts.

We wondered “how the McGill factor survives this sort of analysis”; the answer is that it doesn’t. The Supreme Court “abolish[es] the four-part test for an actionable claim set forth in McGill.” “We hold that such a claim requires proof that: (1) a vulnerable adult, (2) has suffered an injury, (3) caused by abuse, (4) from a caregiver.” These are taken from the statute.

The point of McGill was to distinguish between vulnerable-adult claims and inpatient medical-malpractice claims. The court agrees that there is “considerable overlap” between the two but that’s because of the “broad language” of the statute. McGill added elements that aren’t in it.

The court doesn’t quite say that it was wrong to write McGill in the first place. That case “attempt[ed] to harmonize the statutory language and the legislature’s intent” – an intent, presumed by McGill itself, to distinguish between vulnerable-adult and medical malpractice, an intent this opinion means didn’t exist or at least wasn’t manifested: “If [emphasis added] the legislature wishes . . .  to [add] the requirements of the McGill test, it may do so.” But rather than say specifically that McGill presumed its own conclusion the court says that its test “has proved to be problematic” and “also has been difficult to apply.”

The Court of Appeals’ opinion is vacated; summary judgment reversed and remanded (as to the doctor, too; the court spends only a few sentences on that).

(Opinion: Delgado v. Manor Care)

We blogged the Court of Appeals opinion here; go there for the facts and issues. The Supreme Court comes to a similar result but vacates Division Two’s  substantive discussion.

The lower court’s opinion centered on the firefighters’ rule; this one centers on the issue of duty. The court primarily wants to change the duty analysis. It feels that Division Two held that there was a duty “because all people have a duty to use reasonable care to avoid causing injury to others.” (The lower court also mentioned other reasons, though that does seem to be its thrust.) “[W]e decline to adopt that . . . rationale, as we need not here decide whether people generally owe a duty of reasonable care to others.”  The court evidently realizes – it would be interesting to know if CA2 did – the significance of saying that “all people have a duty.” Many controversies in the law never go away; they simmer under the surface, ready to be brought up again by accident or design. Whether all people have a duty was the central issue in Palsgraf. The dissent said “yes.” Our courts discarded the majority’s reasons for saying “no” some time ago but the reasons they substituted are, mysteriously, less compelling than those of Justice Cardozo. And so we continue to fight the battles of 1928.

In Arizona duty can arise out of relationships. The court says that patient-caregiver is such a relationship. The court essentially feels that since the caregiver owes the patient a duty there should be a reciprocal duty. It analogizes to the rescue doctrine.

The court also holds that the firefighters rule doesn’t apply, though its reasoning is unfortunately vague. The rule doesn’t apply to caregivers on duty because it doesn’t apply to firefighters off duty. Limiting the rule “comports with” its being constitutional – i.e., not an abrogation of a cause of action – which raises more questions than it answers. And the court refers to the rescue doctrine again, except this time to say that it “arguably” doesn’t apply here.

The court seems concerned about effect of its ruling. Earlier in the opinion it spent a long paragraph explaining there could be defenses to these cases, specifically mentioning standard of care, comparative fault, assumption of risk (even though it says elsewhere that caregivers don’t assume the risk), and superseding cause. And at the end it addresses an issue that it did not grant review on: whether Defendant can get summary judgment. “[W]e note it to underscore that our ruling does not establish liability on Alger’s part.” The duty “is that of a reasonable person under the circumstances, and those circumstances include  . . . physical disabilities and limitations.”

(Opinion: Sanders v. Alger)