The court holds that the duty to licensees on your property does not survive their leaving.

Mr. and Mrs. Hopkins went on vacation, asking a friend to house-sit and look after their 14-year-old daughter. But on Friday night the friend went out instead, the daughter started inviting people over, and a large party ensued.  Two of the guests had an argument in the kitchen, then went out into the street and had a fight. Wickham was injured; he and his parents sued, among others, the Hopkins.

The Hopkins moved for summary judgment, arguing that they had no duty toward a person not on their premises. The trial court agreed, as does this opinion.

First, though, we get a definition of “negligence,” a statement of the elements of negligence, and definitions of elements of negligence. Just in case you’d forgotten.

As a social guest Wickham was a licensee. The Hopkins did not owe him a licensee duty because he wasn’t on the property and, even if he were, the Hopkins did not violate the duty owed licensees, viz., protecting from hidden perils and not willfully or wantonly causing harm.

As to whether the Hopkins owed Wickham a general duty after he left their premises the court cites the Gipson analysis: duty is a matter of relationships and public policy. Wickham and the Hopkins had no duty-creating relationship after he left the premises because . . . well, just because. (We don’t disagree; the problem is that we-know-it-when-we-see-it analyses like Gipson’s not infrequently produce arbitrary-looking results.) The Wickhams point to invitee cases requiring safe ingress and egress but the court declines their invitation (as it has approximately 2.3 zillion times before) to abolish the distinction between licensees and invitees.

The Wickhams also argue that the Hopkins voluntarily assumed a duty to prevent the daughter from having a party by asking the friend to mind her. But by doing so they didn’t voluntarily assume a duty to young Wickham after he left. The court goes out of its way to say that it can’t consider the dangers foreseeably raised by drunken, partying teenagers because Gipson says foreseeability isn’t a factor.

In its public policy analysis the court notes that no statute suggests that there should be liability here (the Hopkins did not supply the alcohol), that it makes no sense to impose a greater duty toward guests after they leave, and that merely having a party doesn’t “implicate” a policy requiring protecting people after they’ve left it. (“Implicate” apparently means “there isn’t any such policy and if there were it would be a bad one.”)

(link to opinion)

[EDIT: On 7/5/11 the court issued an opinion superseding this one, apparently in response to the insurers’ Motion for Reconsideration. It differs subtly from the original discussed in this blog but not in any way the import of which is obvious or which makes it a better opinion.]

The question is whether an insurer had a reasonable basis for denying coverage just because a court ruled that it had no coverage.

When Lennar was sued by a bunch of its homebuyers it tendered the defense to its insurers, who filed for declaratory judgment to determine coverage; Lennar counterclaimed for breach of contract and bad faith. The insurers won summary judgment on the coverage claim in 2003 but CA1 reversed in 2007. The insurers then moved for summary judgment on the bad faith claim, arguing that the trial court’s ruling on summary judgment established that they at least had a reasonable basis for denying coverage. The trial court granted it. The Court of Appeals reverses.

“Whether the reasonableness of an insurer’s coverage position may be determined as a matter of law depends on the nature of the dispute and other factors, including whether extraneous evidence bears on the meaning of the contested policy language,” the court tells us. In other words, whether it’s a matter of law is a question of fact. Among the things to be considered are what the trial court ruled, what the Court of Appeals ruled (four years later), and – when, as here, the policy is a standard form – whatever any other court in the country has ruled, on the theory that other rulings create an “industry standard” or affect what other companies thought about the language. (Shades of the old debate in products cases; if anybody loses any case anywhere for any reason, that may now be the standard.)

(The court then helpfully goes on to point out to Lennar several more bad-faith issues that it can argue on remand.)

Returning to earth, the court holds that good-faith duties regarding investigation and claims-handling apply until the DJ action is resolved. This is not quite so bad since the law is already clear that the insurer denies at its own risk. The insurers had tried to argue that they also had causation defenses that they basically never tried to investigate.

But the court just can’t bring itself to end without lamenting how this “saga” illustrates, apparently, the evil that insurers do and, impliedly, that taking years to resolve an insured’s appeals is the insurers’ fault. We prefer that opinions at least make a pretense of impartiality.

(link to opinion)

Plaintiff here tries and fails to dent the coming-and-going rule.

Driving home after finishing deliveries, the newspaper’s delivery lady hit and killed Carnes. The newspaper moved for summary judgment because she wasn’t in the course and scope at the time. It relied on the coming-and-going rule: in Arizona, you’re not in the course and scope driving to and form work. But Carnes looked at some worker’s comp cases and found the “employer’s convenience” rule: if the employer makes you use your own car, the trip to and from work is in the course and scope. That’s the tort rule in California; it has not been used in tort in Arizona. The question was whether it should be.

The trial court granted summary judgment; this opinion affirms.

Workers’ comp doctrines can be considered in tort when they are consistent with respondeat superior. The Court of Appeals decided that the employer’s convenience rule isn’t. The key to respondeat superior is control. The employer’s convenience doctrine would impose liability on the employer for actions over which it had no actual control or right of control. The court rejected California’s approach “because the doctrine of respondeat superior in California is based substantially on the concept of enterprise liability” rather than on control.

We quoted that sentence correctly, by the way – the court didn’t italicize respondeat superior. It’s interesting to discover that “respondeat” is now an English word.

(link to opinion)