The Arizona Supreme Court grants a new trial after a jury awarded $4.625 million. The defendant driver admitted liability and the employer admitted respondeat superior liability. The trial should have only been about damages. The plaintiff was allowed to introduce evidence against both the employer and employee. The jury ended up faulting the driver 40% and his employer 60%. This is puzzling, and the Court holds the trial court wrongly allowed evidence that was irrelevant and improper. Because the defendant, however, had not moved to dismiss the negligent hiring claim, the Court declines deciding whether it should adopt the majority rule that once an employer has admitted respondeat superior liability, it is improper to proceed against the employer on any other theory of imputed liability. But it answers this when discussing respondeat superior liability: “Apportionment of fault is therefore not necessary when an employer is vicariously liable because no fault remains for the factfinder to apportion.” The lower courts have floundered on this after the Court’s decision in Kopp. The Court does not discuss these flounderings. This is a pattern with this Court. Take a look at Swift Transp. Co. v. Carman, another opinion from Justice Brutinel, where there are inconsistent appellate court opinions that are not even mentioned.

Plaintiff claims no separate or additional damages from the employer conduct, and the employer’s separate liability adds nothing to the damages sought. What was unfair was plaintiff’s counsel, after being allowed to introduce the irrelevant and inadmissible evidence, painting a picture of a bad employer with arguments that the jury is the “conscience of the community,” the company “does wrong,” and while the driver was at fault, he worked for a company that “acted badly” and turned a “blind eye” in hiring and retaining the employee. Such trial tactics are used because they work. The defendants will get a new trial. We expect the second trial on damages without those tactics being available will not have much steam.

We are late on this one. We try and discuss cases within a week of their appearance, but sometimes we miss our deadline. Developer and Pima County disputed who was entitled to an environmental enhancement fee charged to guests at the Starr Pass Resort.  The opinion is interesting for its guidance on what extrinsic evidence may be considered on a motion to dismiss. If the motion will be converted to a motion for summary judgment under Rule 12(d), this does not mean the defendant must then answer and discovery proceed.  Under 12(d), a trial court has considerable discretion in providing “a reasonable opportunity to present all the material that is pertinent to the motion.” This does not “compel courts to require an answer, discovery, or statements of fact.” If a party needs some discovery, then the party should follow the requirements of 56(d). The court of appeals affirmed the trial court’s reasoning rejecting the defunct developer’s claim to the fees instead of the buyer who purchased the property at a trustee sale. All of this goes back twenty-five years. Like Jarndyce v. Jarndyce, this case does not want to end until the last hope dies, and there are no more fees to earn.

While riding her bicycle in a bike lane in downtown Phoenix, plaintiff Fong rode into an allegedly unmarked excavation trench. There was a factual dispute on whether the bike lane was closed and the signage, but on summary judgment, a court views disputed facts in plaintiff’s favor. She sued the City and the barricade company. The City and barricade company argued the expert statute A.R.S. 12-2602(B) applied, and Plaintiff did not get an expert. The trial court ruled in their favor, and the court of appeals reverses. First, whether expert testimony is required is a legal issue and review is de novo as is whether plaintiff has presented a prima facie case. (We should slow down on the Latin, but the terms are now common place.) The court of appeals fortifies its reasoning with citations from other jurisdictions. Second, as to whether expert testimony is required, if the negligence is grossly apparent to a lay person or within common knowledge, no expert testimony is necessary. The court of appeals relies on the Arizona Supreme Court’s decision in Rossell v. Volkswagen of America, 147 Ariz. 160 (1985). There, the court was reluctant to extend the expert requirement beyond professional malpractice. Lay persons could easily conclude that an excavation in a road without signage or closure is unreasonable and no expert needed. The court of appeals includes several product liability cases involving warnings to consumers as an example, although this unnecessarily complicates its analysis. This is a road maintenance issue and not an issue of design. We have felt uneasiness with the Rossell opinion, its uncertain standard, and its heightened sensitivity to the plaintiff’s bar. We will see if our current Arizona Supreme Court feels this as well.