This case holds that a comparative-negligence defense does not make damages “unliquidated.” Maybe.

Precision, a trucking firm, bought from Trail King a trailer that failed, causing property damage. Precision sued; the jury found Trail King 100% at fault and – damages being uncontested – awarded the amount sought by Precision. The court denied prejudgment interest, however, ruling that damages were unliquidated because Trail King had alleged comparative negligence. The Court of Appeals decided various other issues by memorandum and published this to address the interest issue.

Trail King argued that damages cannot be liquidated when a jury can apportion fault, citing cases from other states. Arizona law, though, is that uncertainty about liability does not create uncertainty about damages. The court remanded for an award of prejudgment interest.

But along the way the court said that “Given that the jury awarded Precision the entire amount of damages sought, only an award of prejudgment interest on those damages will make Precision whole.” Is this a meaningless rhetorical fillip? Or does it mean that this case only applies when the jury finds the defendant 100% at fault? Based on the discussion and the cases it cites, you could argue both ways.

If the court wanted to rule on only the 100% cases then it should have said so. The sentence probably sounded so good to somebody that nobody realized – or perhaps cared – that it  doesn’t actually make much sense.

This came out a couple of weeks ago but it takes us older folks time to dodder through 67 pages. This criminal case says unfortunate things about common law.

Far West ran a wastewater treatment plant. An employee suffered death by sewage in an underground tank. The recitation of facts borders on hysteria but is intended to show that the company’s higher-ups flagrantly disregarded and evaded safety measures, OSHA requirements, etc. Far West itself was convicted of various crimes including negligent homicide and aggravated assault.

It argued on appeal that it couldn’t be criminally liable and that the court made mistakes at trial. We will hit the highlights.

33-305 says that an “enterprise” commits a criminal offense if “the conduct constituting the offense consists of a failure to discharge a specific duty imposed by law” or if (paraphrasing) it is authorized or recklessly allowed by a manager. Maybe we shouldn’t blame the court’s analysis for being as clunky as the statute, though judges do preen themselves about being wiser than mere legislators. (In fairness, Far West’s arguments – that one statute “violates” another, for example – were evidently not well-crafted; sewage in, sewage out.)  The opinion should have focused on the second part of the statute. Instead, the brunt of it seems to be that the common-law duty to provide a safe workplace is a “specific duty imposed by law,” that it is no different than the requirements of 23-403 (to keep a safe workplace), and that it can therefore trigger the first part of 33-305.

We don’t know much criminal law but the folks connected with this case don’t seem to have known much civil. The common-law duty to provide a safe workplace for employees is just like the common-law duty to provide a safe store for customers, and like traditional common-law duties in general: a duty to use due care under the circumstances to make and keep things reasonably safe. The courts have been telling us for years that duty is separate from the acts necessary to fulfill it (Palsgraf rest in peace, though of course duty was not specific under that case, either). To call the duty to use reasonable care a “specific” duty, or to say that it is the same as a statute that says “you shall do such-and-such,” is a new conception of common law – or a misconception.

So when does a company’s negligence become criminal culpability? How does a corporation “assault” someone who slips on a loose widget? The opinion, clearly sensitive to criticism on that issue, devotes a whole section to saying that they are completely different things. What it boils down to is that criminal acts are really bad as opposed to just moderately bad and that courts know the difference when they see it.

As to the alleged errors at trial, the court justified a set of instructions that may have been, reading between the lines, even more fouled up than Far West made it out to be. More disturbingly, though, it held that the trial court was correct to allow evidence of the ADOSH investigation. A statute clearly prohibits that. But the court said that the statute merely creates a privilege that ADOSH can waive, citing for the proposition an Arizona Supreme Court case that it can’t have read since that just ain’t the holding. There is law about whether a statute can control evidence but none of it is here.

(link to opinion)

This is a garnishment case. Unless your clients are governed by OSHA, it doesn’t mean much even to your garnishments. It mentions a useful thing about renewing judgments but  wouldn’t really be worth blogging if not for a couple of points that it either shouldn’t have made or should at least have thought through.

An industrial accident occurred on Galloway’s job site. ADOSH issued a citation and notice of penalty. He requested a hearing; the administrative law judge ruled against him. ADOSH filed the citation with the court in April 2003, renewed it by affidavit in February 2007, and garnished Galloway’s employer in September 2008. (Why the State filed  so slowly, renewed so quickly,  then waited so long to enforce is mysterious, but then so is much of what is done by lawyers who can’t be sued.) Galloway objected to garnishment, arguing that ADOSH had no proper judgment. The trial court, in December 2008, found otherwise.

Galloway appealed from a slightly later order. Division One observed in a footnote that appeal “may have been more properly taken from the December . . . order” and since appeal was timely anyway “we also consider this appeal as one from the earlier ruling.” That’s an interesting bit of law: despite what the brief says, the appellate court will pick whichever order is more favorable to the appellant, so long as an appeal from it is timely. It used to be up to the appellant to choose what to appeal and the court didn’t practice law for him if he got it wrong. (The court didn’t really mean that, you say? Then why did the court say it? A reason we scrutinize – and warn against – footnotes is that they are so often filled with the slapdash, the questionable, and the just plain wrong.)

Galloway’s argument was that ADOSH should have filed the ALJ’s decision, not the original citation. But the statute (28-418J) says that  “After an order or decision on a civil penalty becomes final . . .  the civil penalty shall act as a judgment . . .”  Everybody seems to have assumed that the citation itself is the “civil penalty” so, if you make the same assumption, it – rather than an order upholding it – is what gets filed as a judgment.

Galloway also argued that premature renewal was ineffective. The court agreed (this is the useful, though hardly new, thing: you have to follow the renewal statute exactly). But it made no difference. 28-418 also says that after filing the civil penalty the State has eight years to enforce it. This trumps the five-year renewal statute for judgments generally. Though that much makes sense, the court then concludes that the two should be conflated, so that ADOSH gets eight years under its statute and all rights under the general one – which would include a right to renew that 28-418 doesn’t mention. That’s a conclusion not justified by anything in this opinion, which makes no attempt at the sort of statutory analysis necessary to do so.