MacDonald v. Napier (CA2 10/18/17)

We weren’t going to blog this one but were then persuaded that we couldn’t just let it go by.

Plaintiff was bitten by a sheriff’s K-9 after leading deputies on an extended car chase. He sued for negligence and won. Defendant appealed.

They argued that the only proper cause of action was battery, the deputy having deliberately released the dog, and that negligence does not lie for the unlawful use of force.

Instead of answering that question the court “begin[s] with the proposition that, in bringing suit, it is the plaintiff’s prerogative to identify particular harms a defendant has caused and the plaintiff is free to connect those harms to particular theories of liability as he or she sees fit.” It cites a case saying that the labels on a Complaint “have no great significance” but that “theories of liability still have substance,” from which it seems to have drawn the conclusion that labels have some significance in defining substance. “Appellants cite no Arizona authority barring McDonald from styling this case as a negligence action rather than a battery action, and we are aware of none.” (There’s no authority against “styling” the case as a foreclosure, either; apparently this court would have let him repossess the dog.)  It then cites two police-dog cases in which negligence was pleaded and not argued about on appeal. That means they are “consistent with the proposition that a plaintiff may bring an action sounding in negligence against” law enforcement. They are of course equally consistent with the proposition that the moon is made of Velveeta. Or else the wording of old Complaints that people didn’t make an issue of is now legal precedent to be cited in our courts.

To give it some credit, the majority does seem to realise that there might be something just a teeny bit wrong with that analysis. So it brings in the big gun: the District Court in and for the District of Columbia. It cites a case in which that trial court allowed a person shot by the D.C. police to sue for negligence.

The Restatement excludes from negligence ““conduct which creates liability because of the actor’s intention to invade a legally protected interest.” But that doesn’t apply because, it seems, Plaintiff was suing not for the intention to release the dog but for negligently forming that intention. This simplifies the law by eliminating the pesky category of intentional torts, which actually result from negligent decisions to commit them.

The court insists that it isn’t creating a tort of “negligent use of excessive force.” The “only cause of action at issue” is “common-law negligence.” For the use of force. But not for the negligent use of excessive force. And not, we assume, for the negligent use of non-excessive force. But the problem isn’t the court’s slipshod use of a word or two but its apparent belief that some substantive difference exists between applying the rules of negligence to a use-of-force case and “creating a tort” — more slipshod wording — of “negligent use of [excessive] force.”

The dog bite statute (11-1025) expands on common-law liability for dogs but specifically says that nothing in it creates liability for bites by police dogs. The court says that Plaintiff alleged common-law negligence, not a statutory action, so the statute doesn’t apply. (The policy implications of the legislature’s obvious belief that negligence doesn’t go that far would be an interesting analysis, though one we’re glad this particular opinion didn’t try to make.)

Also at issue were the instructions. The trial court told the jury that Defendants had the burden to prove that using the dog was justified. Defendants wanted it to be Plaintiff’s burden. The statute (13-409) says that “No person in this state shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter” and speaks directly to use-of-force cases. But the court decides that it needn’t decide, that justification doesn’t apply to negligence. Because it isn’t the use of force that’s at issue, you see, but instead the “negligent misperception of fact contributing to one’s decision to threaten or use force.” So much for 409.

(What, you’re wondering — and this time we know someone who is indeed wondering — about the law of arrest, about the privilege, about qualified immunity? We don’t know whether they make no appearance here because the parties didn’t talk about them or because the court didn’t perceive them as the route to the appropriate result.)

There’s more but you get the gist. Judge Espinoza, dissenting, briefly says he doesn’t agree with the negligence analysis. But mostly he criticizes the jury instructions which, from the sound of it, did get rather mixed up, perhaps in part because of the present belief that giving substantive instructions at more than one point during the trial is just a dandy idea. He also discusses why the trial court was wrong to let Plaintiff’s expert opine about the legal standard for the use of force and, specifically, about a U.S. Supreme Court case on the subject, which the majority spends several paragraphs justifying.

(Opinion: McDonald v. Napier)

McCleary v. Tripodi (CA2 8/29/17)

This is a quiet-title action arising out of some probate shenanigans but we won’t be reviewing that part. Instead we’ll look at the appeal.

The trial court issued a minute entry granting summary judgment in favor of Plaintiffs. Defendant filed two motions to reconsider and then, before they were heard, appealed the minute entry. Plaintiffs moved to dismiss the appeal since it was screamingly defective. But instead the Court of Appeals reacted by staying the appeal until the trial court could sign a judgment. Now it issues this opinion affirming.

The court concludes its summary of the proceedings below by saying “We have jurisdiction for the following reasons. A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1); Ariz. R. Civ. App. P. 9(c).” (The period after “reasons” is in the original but we won’t make an issue of a simple typo because we can understand how the difference between a colon and a period can slip through the edits, reviews, and corrections that are such an important part of the court’s process.) But next the court points out that it has a duty to check its jurisdiction and then pends four pages explaining why it has jurisdiction. So the sentence with the typo was apparently boilerplate and doesn’t really fit this opinion. What did we say about edits and reviews?

But it does make you wonder. If the jurisdiction issue is so simple that it could be solved with the usual kick-it-back-to-the-trial-court-for-a-signature routine then why does it merit extended discussion here? If it isn’t, did the court think it through first or was its act the knee-jerk reaction of a staff attorney or other functionary and this opinion an after-the-fact justification?

The appeal was obviously premature. The first question is whether Barassi applies. The answer is that it can’t because there were two pending motions.

So the question becomes the meaning of Rule 9(c) (premature appeal treated as filed on day of judgment). Following Camasura (App. 2015), the court decides that it does apply to save the appeal. The order appealed from disposed of all issues and “the trial court ultimately entered final judgment upon it.” And what of those pesky motions to reconsider that came between the order and the judgment “ultimately” entered? They don’t matter because they didn’t change the issues, just the arguments. And because the trial court “summarily” denied them (we’re not told what exactly that meant in this case) the original order was the same one judgment was entered on.

Oh. Okay. So a motion that doesn’t modify the issues invokes 9(c) but one that does doesn’t. As long as its denial was summary. These things will always be clear in practice. After all, as the court points out, one of the reasons for rules like 9(c) is “to accommodate a ‘litigant’s confusion’ about when to file.” We would have suggested that accommodating confusion simply creates more of it but that’s just us.

One thing we’re not clear on, though. The trial court denied the motions for reconsideration after the appeal was filed and before the Court of Appeals revested jurisdiction to get a final judgment. So how did it have jurisdiction to rule on them? And if they’ve never properly been ruled on, how can an appeal lie? Or does 9(c) now mean that a premature appeal is not an really an appeal at all, that it has no effect until judgment is entered? But if that’s true, how does the Court of Appeals have jurisdiction that it must “revest” in order to get a judgment?

In the words of an immortal: Go away, kid, you bother me.

(Opinion: McClearly v. Tripodi)

Gullet v. Kindred Nursing Centers (CA2 2/15/17)

The court discusses whether an arbitration agreement is unconscionable and allows discovery on the issue.

Plaintiff’s father died in a nursing home. Plaintiff sued for, among other things, violation of the Adult Protective Services Act. Defendant moved to compel arbitration, the father having signed an arbitration agreement upon admission. Plaintiff argued that the agreement was substantively unconscionable and that discovery should be allowed on whether it was procedurally unconscionable. The trial court granted the motion; Plaintiff appealed.

On substantive unconscionability the Court of Appeals affirms.

Plaintiff argue that the agreement unreasonably restricted discovery. It allowed standard paper discovery but with limits different from the rules of procedure, allowed depositions of six fact witnesses and two experts, and such other discovery as the parties or arbitrator thought “necessary and proper.” “The amount of discovery is not so low and the burden to obtain more so high that the Agreement denies litigants the opportunity to conduct discovery sufficient to adequately arbitrate [sic]  . . .”

Plaintiff also argued that the agreement was unfair because the arbitration agency used by Defendant – and thus arguably financially biased toward it – supplied the list of arbitrators. But the parties could agree to use other arbitrators and, if they didn’t agree, could use the each-pick-your-own-and-they-pick-a-third process. This was not “fundamentally unfair.”

On procedural unconscionability the court reverses. Plaintiff had no evidence of it but said that was because his father was dead so he needed to do discovery to find out if there was any. The court agrees. When he signed the agreement Plaintiff’s father was “a man requiring in-patient care because of serious health problems . . . who died approximately one month later.” That’s enough for the court to decide, analogizing to summary-judgment cases, that Plaintiff should have a chance to explore the issue.

“On the issue of procedural unconscionability, we vacate and remand . . .” Well, no. “Vacate” is something the Supreme Court occasionally does to opinions from the middle courts but not something they can do to this trial court’s ruling. Its reversed but its still on the record. Odd – telling, perhaps? – that such a mistake got through.

(Opinion: Gullet v. Kindred Nursing Centers)