Reid v. Keifauver (CA1 8/27/13)

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A case about the firefighters’ rule.

Reid, a police officer, saw Keifauver roll her car and was injured when tried to help her out of it. He sued her for negligence under the rescue doctrine. The trial court granted defendant summary judgment on the firefighters’ rule. Reid appealed.

He argued, first, that the rule didn’t apply to him because he had no duty to help her escape the car; as to that he was merely a volunteer. That’s Espinoza (2006), which otherwise adopted the firefighters’ rule. But Reid was on duty (Espinoza had been off-duty) and had an obligation to “respond to and secure the accident scene.” He might not have had a duty to help but “the key to the analysis is whether Reid’s on-duty obligations as a law enforcement officer compelled his presence at the scene,” not what he did when he got there.

Reid next argued that the firefighters’ rule is about assumption of risk, which only the jury can consider. The Court of Appeals reads Espinoza as saying that it isn’t.

The amici want the firefighters’ doctrine abolished, which obviously CA1 can’t do so its not altogether clear why they were brought in at this level.

(link to opinion)

Wyckoff v. Mogollon Health Alliance (CA2 8/22/13)

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Division Two’s rare ventures into the field of published civil law often afford opportunity for snarky comment, though this time they’re as much about the lawyering as the judging.

Wyckoff sued her former employer Mogollon claiming that mold in the workplace made her sick. Mogollon defaulted but successfully moved to set aside the resulting judgment; it then won summary judgment based on the statute of limitations.. Wyckoff appealed both rulings; the court affirms.

On appeal Mogollon argued that the Court of Appeals could not consider the order setting aside default because it was an unsigned minute entry. But there was a final judgment – the summary judgment – and so the court takes jurisdiction of all related orders.

Mogollon also made an abatement argument regarding delay in serving the Complaint but had forgotten both to plead it and to argue it in the trial court.

(In other words, much of Mogollon’s brief was wasted in useless silliness. But what else is new? Courts have been complaining about this sort of thing for at least 100 years. Criticize judges as you will but the poor saps must spend much of their time reading brain-dead arguments that some lawyer charged a lot of money to make. Will the profession never have a serious talk with itself about why lawyers, even respected lawyers, continue to do these things?  You know the answer to that.  If the medical profession operated with the efficiency of the legal profession, we’d all be dead.)

Wyckoff argued that the trial court was wrong in finding the default judgment void, not voidable. But guess what? She hadn’t argued it below.

On the statute of limitations Wyckoff argued the discovery rule. The court spends a long paragraph explaining what that novel, abstruse concept is. In then tells us that “Arizona courts have not addressed the issue of the discovery rule in the specific context of toxic mold exposure.” But the court has read a lot of mold cases from other jurisdictions and “a general rule emerges”: the cause of action accrues when “the claimant experiences physical signs and symptoms of illness, knows that she has been exposed to mold, and knows that mold may present a health hazard.”

So, is this a special rule for mold? If so, why does mold need a special rule? How does it differ from the usual discovery rule? Or is it merely the application to these facts of our normal discovery rule? And if so, why not say that rather than pretend that mere Arizona law isn’t good enough for mold?

(The judges who read those brain-dead briefs always believe that their opinions are of higher quality.)

Although her doctors were at first unsure of the cause of her problems Wyckoff suspected mold even before she retired, which was more than two years before she filed. Judgment affirmed.

We’ll assume that the court published this as a reminder of the scope of its jurisdiction over final judgments, the unfortunate but more likely alternative being that it thought it was making some contribution to the discovery rule.

(link to opinion)

Pounders v. Enserch (8/21/13)

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We reviewed the Court of Appeals opinion here; go there for the facts. The Supreme Court granted review “to consider issues of statewide importance regarding the choice of law in wrongful death actions involving long-latency disease cases.”

It means by that accepting Pounders’ argument that injury occurs when and where the disease manifests itself. Well, actually, it says “when the disease is discoverable,” which raises issues to which the court gave no evident thought, but the point is to adopt the manifestation theory. It does this by showing a sudden regard for the rule lex loci delicti (having treated it for a generation with disdain, if not disgust), deciding that the discussion of it in the first Restatement (which adopted it) has “continuity” with that in the Second Restatement (which rejected it) if manifestation is the law.

Once upon a time the Restatement was intended to summarize the law of the states. It was a handy guide and that’s why our default was to follow it when Arizona had no law on point. Nowadays it is apparently regarded as Holy Writ, with subtle secrets to be revealed by a labored analysis (at least if you also use texts no longer canonical). The advantage of this is that, like the other kind of Holy Writ, the Restatement can mean whatever you want it to. This approach would delight the ALI; how it helps Arizona is less clear. There are decent arguments in favor of manifestation; this sort of pseudo-intellectual game playing will not convince any doubters that is necessarily either the law or a good idea. And as the Court of Appeals opinion illustrates, a more straightforward reading of the Restatement favors exposure, not manifestation.

But even though the injury took place in Arizona the applicable law is that of the state with the “more significant relationship to the occurrence and the parties.” The actual lex loci delicti is not entitled to preference or greater weight – especially where, as in many long-latency cases, it is “fortuitous.” The court goes through a standard Restatement Second choice-of-law analysis and decides, like both courts below, that under these facts New Mexico’s is the law that should apply.

The court did not take review of the ruling that that law bars the claim. The result is therefore affirmed, though the Court of Appeals’ manifestation-vs.-exposure analysis is vacated.

(link to opinion)