The court explains why an obligation is not a duty.

Homeowners who suffered property damage in the Yarnell fire sued the state for fighting it negligently. The trial court dismissed, holding that the State has no duty. The Court of Appeals affirms.

Plaintiffs first made a public-policy argument. The parties agreed that “prevention or suppression of wildfires . . . is a fundamental public safety obligation.” But “protecting private property against a natural occurrence on public land maintained in natural condition” is, the court feels, an “unworkably broad” duty. The firefighting statute (37-1303) says that fires are fought “in the best interest of the state.” Benefits to private landowners are “incidental to broader public-safety concerns and the best interest of the state” and do not establish a duty to individuals. The court also notes that creating a duty to Plaintiffs would prioritize private lands, limiting the State’s firefighting decisions.

Plaintiffs argued that the State assumed a duty by fighting the fire. Under the Restatement (323) one who voluntarily renders services to another assumes a duty. But the court says that fighting fires, under the statute, is for the benefit of the state, not a service to an individual. The court also says that fighting fires shouldn’t create a duty because that would influence the state to “shield itself from liability” by not fighting them. (Which shows how “fundamental” the state’s “obligations” really are.)

Since the fire started on state land Plaintiffs argued that the state was liable for its spread. The Restatement (Second, Torts, 363) says that possessors are not liable for harm caused outside the land by natural conditions. The court concludes that a lightning-caused fire is a natural condition. Other jurisdictions have disagreed but the court does not discuss their reasoning since that’s not what, the court concluded in the previous paragraph, the Restatement means.

(Opinion: Acri v. State)

A brief opinion issued to discuss the nature of dismissal of a malpractice action for failure to file an expert affidavit.

Plaintiff sued his eye doctors without an affidavit. The trial court ordered him to file one; he didn’t. The court dismissed with prejudice. Plaintiff appealed.

The Court of Appeals first notes that it reviews the matter de novo. The court said the same thing earlier this year (Romero v. Hasan) but cited a 12(b)(6) case. Perhaps feeling the problem with that, the court adds that de novo review is appropriate because failure to file the affidavit “is a pleading failure.”

Plaintiff apparently wanted to make a number of arguments but was pro se and didn’t know how. Some of them the court says he waived, others it rejects summarily.

But, though its not clear that this is among the arguments Plaintiff tried to make, the court concludes that dismissal should have been without prejudice. Such a dismissal “is not tantamount to dismissal for failure to prosecute.”  The dismissal order cited Rule 37(b)(2) but the court says that it is not “a sanction for a discovery violation” and that in any event the rule doesn’t allow dismissals with prejudice for violation of 12-2603. The court apparently thinks these things self-evident as it does not explain them, which again makes us wonder — admittedly without knowing — whether the issue was argued on appeal.

In fairness, the court also mentions the right answer, which is that dismissal is without prejudice because the expert-affidavit statute, 12-2603(F), says so.

Judgment changed to without prejudice and affirmed as modified.

(Opinion: Boswell v. Fintelmann, et al.)

On how to apply the rule of exclusion of witnesses

At trial of this medical malpractice case the parties invoked the rule but the defense prepared its experts (one standard-of-care, the other causation) by showing them transcripts of the plaintiff’s experts’ testimony. Plaintiff found out about this on cross and moved to exclude the defense experts. The trial court concluded that Defendant had violated the rule but found no prejudice because the defense experts hadn’t changed their pre-trial opinions. It refused to exclude the experts but did instruct the jury about what had happened. The jury gave a defense verdict; Plaintiff’s motion for new trial was denied; Plaintiff appealed.

“[W]e hold that, by its terms, Rule 615 does not automatically exempt expert witnesses from exclusion [but] the superior court may nevertheless exercise its discretion under the “essential” witness exemption of Rule 615(c) to allow an expert to listen to other testimony (or to review transcribed testimony).” An expert isn’t automatically “essential” but the trial court “may properly consider that the anti-fabrication purpose of Rule 615 applies principally to fact witnesses, that an expert may review other experts’ opinion reports and pretrial depositions, and that an expert’s opinion may properly be based on other witnesses’ trial testimony.” But Defendant hadn’t asked permission so he violated the rule.

Plaintiff argued that prejudice must be presumed from this, citing a Supreme Court criminal case dealing with fact witnesses. But the court feels that “[n]o presumption of prejudice is generally necessary in the context of purely expert witnesses because disclosure of their expert reports and pretrial depositions establish a basis for assessing actual prejudice in the form of altered opinions.” Plaintiff could show no such alteration.

The trial court’s remedy – an instruction rather than striking or excluding testimony — was within its discretion. The opinion mentions that the trial court found Defendant’s violation a mistake about the rule’s application, not an act of bad faith, but does not clarify what a lawyer’s motivation has to do with the question of whether experts changed their opinions.

For similar reasons the opinion affirms the new-trial ruling.

(Opinion: Spring v. Bradford)