The court of appeals flounders while interpreting a residual clause. We suggest a better solution: toss the residual clause as void for vagueness.

The plaintiffs were sexually abused by their father, who later committed suicide while awaiting his criminal trial. Mom went to prison for allowing and not reporting the abuse. The plaintiffs sued the church they attended and individuals at their church, including Shaunice Warr, who was their Sunday school teacher and occasional babysitter. After agreeing with the trial court that a Sunday school teacher or occasional babysitter owes no common law duty, the court considers whether the mandatory reporter statute, A.R.S. § 13-3620, creates a separate statutory duty. The statute defines a mandatory reporter as 1. Any physician, physician’s assistant, optometrist, dentist, osteopathic physician, chiropractor, podiatrist, behavioral health professional, nurse, psychologist, counselor or social worker who develops the reasonable belief in the course of treating a patient; 2. Any peace officer, child welfare investigator, child safety worker, member of the clergy, priest or Christian Science practitioner. 3. The parent, stepparent or guardian of the minor. 4. School personnel, domestic violence victim advocates or sexual assault victim advocates who develop the reasonable belief in the course of their employment. 5. Any other person who has responsibility for the care or treatment of the minor. The court of appeals interprets this last category as including a Sunday school teacher or occasional babysitter.

The court does not discuss actual evidence, although the case was decided on summary judgment. “[T]he question of whether Warr was ever responsible for the care of the Does, and therefore owed them a duty under the statute, depends on underlying factual questions regarding the nature and extent of their relationship. The record before us is not sufficient to address that question.” Is the court telling us its statutory interpretative exercise may be for naught because the facts may not support a duty? The court further holds that because the mandatory reporter statute might support a duty, the separate claims for negligent and intentional infliction of emotional distress remain. That statement needs further explanation.

The dissent disagrees with the majority interpretation of “any other person.” The word “other” suggests the individual should be in a similar category as those listed. The dissent questions an expansive definition broader than the listed categories. This is a criminal statute; it is less than precise, and the consequences are serious. The dissent interprets the clause as requiring a professional relationship, as did the trial court.

link to opinion

The Arizona Supreme Court upholds judicial immunity for a constable serving a writ of eviction. A constable cannot be sued for negligence or gross negligence. The writ statute, A.R.S. §11-449, imposes liability when a constable is “guilty of any misconduct” but this imposes liability only for intentional wrongful acts such as a failure to comply with the court’s command to execute the writ. The court differentiates by giving an analogy: “Gross negligence is playing with matches near a dry forest with a burn ban in effect: reckless, irresponsible, without regard for others, and with a high probability of substantial harm. Misconduct, on the other hand, is the intentional act of lighting a match with the purpose of causing a wildfire.” Because Fox alleged only negligence and gross negligence, she cannot overcome immunity. The court uses, as we saw a couple of years ago in Matthews, corpus linguistics as a tool in ascertaining what “guilty of misconduct” meant when the statute was enacted. This gives the opinion an uncomfortable feeling, which Justice Timmer highlights in her concurring opinion. But we are even more uncomfortable with what she suggests. Justice Timmer suggests retaining competing corpus-linguistic experts when interpreting statutes. To borrow from Chief Justice Marshall, it isn’t quite “emphatically the province and duty of the judicial department to say what the law is.”

See our previous blog when this case of the tripping customer was decided at the court of appeals. As expected, the Arizona Supreme Court holds the issue is not duty because a duty is owed to an invitee. The issue is whether the duty was breached. Because Circle K’s motion was based on duty, and the trial court decided only the duty issue, the case is remanded for the trial court to consider the alleged breach. The court clarifies its Dinsmoor decision, which discusses case-specific facts in determining duty. This specific facts inquiry asks “when and where the alleged risk of harm arose –within or outside the scope of the special relationship –not whether the alleged risk actually constituted an unreasonably dangerous condition.”  The court gives a nod to the concurring opinion in the court of appeals. Undoubtedly, Circle K will file another summary judgment motion on breach and causation. Because the right-for-any-reason rule cannot apply when the issue was not raised, the parties must go through the exercise again.

link to opinion