Not many civil cases lately. This delay is chance but the numbers will decrease. The shriveling of the civil system continues, as litigants abandon and are abandoned by the courts. One wonders whether, in a generation or two, even the ambulance-chasers will find room in a courthouse full of folks who think that the noblest expression of a legal system constructed by the finest minds over 1000 years is to decide whether today’s burglar gets two years or seven and where he should see his kids next Tuesday. They will think the legal disputes of law-abiding non-troublemakers a distracting nuisance but at least they will know how to try cases. (And they may last longer than the trial judges; if the transmogrification into bureaucratic social-worker continues, society will eventually ask why such people need be or ought to be lawyers.)

Plaintiff was a locksmith sent to change the locks on a house being foreclosed. The occupant, tenant of the defaulting homeowners, thought he was a burglar and shot him. He sued the homeowners. The trial court found that they had no duty to him; the Court of Appeals affirms the summary judgment. (Plaintiff also sued others, won a judgment, then settled it, aspects not involved in this opinion.)

Plaintiff argued premises liability — that the homeowners, as landowners, created an unreasonably dangerous condition on the property by not telling their tenant that the house was in foreclosure and that someone might be coming by to inspect it or change the locks. But an owner not in possession has no duty to third persons injured on the property.

Plaintiff also argued Restatement §322: a person whose conduct, tortious or not, causes harm has a duty to prevent further harm. The court, examining the cases, points out that this applies to causing further harm and doesn’t create a duty surrounding the original harm.

Plaintiff also argued Restatement (Third) §7: “[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” But Arizona follows Restatement (Second) §322: no duty to control third person absent special relationship.

And Plaintiff argued Restatement (Third) §39 and (Second) §321. The court holds that he waived these by not raising them below, then addresses them anyway.

§39: when prior conduct, though not tortious, creates a risk of harm there is a duty to prevent it. It is based on §322, discussed above, and on §321: one who subsequently realizes that an act has caused unreasonable risk of harm has duty of care to prevent it. The court rejects §321, first because the Restatement Third “replaced and superseded” the Restatement Second. We don’t know whether that means that Second doesn’t exist anymore or can’t apply anymore or can’t be cited anymore or can’t be followed anymore. Fortunately, instead of trying to figure that out the court goes on to analyze §321 anyway. It has never been adopted in Arizona. Most other states have rejected it.

There is a dissent, arguing that duty applies under §§321 and 322. The dissent also wades into an argument about whether the lender had the right to change the locks; the deed of trust said yes, the Restatement of Mortgages says no. The homeowners’ point was that, even if 321/322 apply, they can’t realize that their conduct would cause the lender to do something it lacked the power to do. Here the dissent finds a Restatement it doesn’t want to follow. A statute on mortgages arguably allows the mortgage to determine the lender’s right to possession. The dissent says that should apply to deeds of trust as well, which is of course a decent argument and was used in another case not too long ago, which our faithful readers will remember.

(link to opinion)

We’re not going to do a full review of this for one or more reasons set forth in our FAQ. And because behind the scenes it comes too close to being a political case, which perhaps helps explain the reasoning and the result. The court grants immunity to a government official by distinguishing between “actual” and “subjective” malice on the one hand and “objective malice” on the other. Why the court relegates an important part of the analysis to a footnote is unclear. The bottom line is that if lawyers have thought up adequate excuses for a bureaucrat’s actions, and perhaps if they haven’t,  then his actual motivation and intention are beside the point. Also that calling another person “crazy” is now mere hyperbole and cannot support a defamation action, though another unclear thing is whether that’s a matter of law or an appellate-court finding of fact.

We suggest, though, that the court wipe all metadata from its pdf files before posting them. We all know how these things really get done but appearances are important.

(link to opinion)

THIS OPINION HAS BEEN AFFIRMED IN PART, DEPUBLISHED IN PART

This case is of value primarily for its discussion of tariffs, which routinely take plaintiffs’ counsel unaware (though presumably not here since airlines also file them). But at the end it also broadly interperts the Blue Stake law.

U.S. Airways’ operations were knocked out for a few hours when a nearby construction project cut a cable. Underground lines had been mismarked because Qwest’s maps were wrong. U.S. Airways sued Qwest, among others. Qwest won summary judgment because its tariffs limit liability for negligence. U.S. Airways appealed.

The Court of Appeals affirms. The opinion reviews the substantial body of law upholding tariffs that limit liability for negligence. U.S. Airways argued that the tariff didn’t apply to it because it wasn’t Qwest’s customer (the cable cut disrupted its AT&T service). The court cites various cases holding that tariffs apply to the public generally, not just to customers.

U.S. Airways also argued that the tariff (or, more specifically, the state’s approval of the tariff) unconstitutionally abrogates its cause of action. But it couldn’t cite authority that negligence against a utility for economic loss existed at common law. And even if it had, the tariff merely limits Qwests’ liability (although to an amount that is basically de minimis).

Qwest cross-appealed the trial court’s finding that it owed a duty to U.S. Airways under the Blue Stake statute (40-360.22). The statutes provide for liability to “underground facility operators and excavators.” But the court decides that since the statute creates a “duty or obligation” – to mark its lines and to do so “carefully” —  “the legislation was enacted, in part, to protect end users like US Airways.”

(The case also involved the issue of whether the contractor who marked the location of the underground cables for Qwest owed a duty to U.S. Airways. The court affirms that it did not but the reasons are fact-specific; the opinion restates existing law.)

(link to opinion)