Kopp v. Physician Group of Arizona (7/9/18)

The Supreme Court changes the law on the effect of dismissal.

Plaintiffs sued a doctor and a hospital for malpractice; against the hospital they alleged both respondeat superior and independent negligence in hiring and supervision. They settled with the doctor and dismissed him with prejudice. The hospital then moved for summary judgment, arguing that the claims against it were derivative. The trial court granted the motion; the Court of Appeals affirmed.

The Supreme Court reverses.

“Derivative liability is no broader than vicarious liability.” Even though the claims of independent negligence against the hospital depend on proving the doctor negligent they are not vicarious.

But, the hospital also argued, dismissal of the doctor was an adjudication on the merits against him so he can’t be proved negligent. The lower courts had followed Torres (App. 1971), holding that allegations against the hospital don’t survive dismissal of the doctor if proving the doctor’s negligence is an element of those allegations. The Supreme Court cites Chaney Building (1986) to the effect that collateral estoppel applies only to facts or issues actually litigated. Stipulated judgments aren’t litigated and bind others only if the settlement agreement said so. The court recognizes that the law since DeGraff (1945) has been otherwise; “we disavow our holding in DeGraff insofar as that case and its progeny conclude that a stipulated dismissal with prejudice ‘operate[s] as an adjudication that [the dismissed party] was not negligent.'”

At least the court acknowledges DeGraff. In all other respects it follows the script written years ago by one of the people involved in this case: this opinion isn’t radically changing existing law, you understand, that was really done years ago by another case (Chaney Building in this performance of the play) so this one is simply following the precedent, never mind that the supposed precedent had never before been read that way.

(Opinion: Kopp v. Physician Group)

 

Kopacz v. Banner Health (CA1 7/5/18)

This malpractice case breaks no new legal ground but contains a practice pointer and illustrates a modern quirk of Rule 56.

Plaintiff had complications following cardiac catheterization by Defendant, resulting in surgeries and a stay in a rehab hospital. Her lawsuit came after the limitations period so Defendant moved for summary judgment. Plaintiff argued that the complications had rendered her unable to understand what was happening, tolling the statute. The trial court granted the motion.

The Court of Appeals affirms.

Mental disability may constitute “unsound mind” under the tolling statute (12-502). But the showing requires “hard evidence” of inability to manage one’s affairs or to understand one’s rights. Plaintiff submitted conclusory affidavits from herself and her daughter to the effect that she’d been too sick to consider suit. The court considers them insufficient, especially in view of “hard evidence” in the hospital records showing that Plaintiff was alert, oriented, and aware of her injury just a few days after the catheterization. (Was the court weighing evidence? Well, yeah; affidavits are either conclusory or not on their face, regardless of other evidence.)

Plaintiff argued that even if her evidence didn’t qualify her for “unsound mind” it at least triggered the discovery rule. But the discovery rule deals with when information revealing the cause of action was available. In this case that was shortly after the incident. Whether Plaintiff had the mental ability to evaluate it is an “unsound mind” question.

The take-away is that mental impairment caused by the tort can indeed extend the time for suit but you need some pretty clear evidence in the medical record, a good expert opinion, or both.

After the trial judge’s ruling Plaintiff asked for a more specific statement, arguing that the minute entry didn’t address an issue discussed at oral argument. Rule 56(a) says that the trial court “should” state the reasons for its ruling on summary judgment. This court’s minute entry said that the action had accrued on a particular date — which was more than two years before the Complaint — and that the action was therefore barred. The Court of Appeals says that “even if we were to interpret the word ‘should’ in Rule 56(a) as imposing a requirement — a proposition for which [Plaintiff] offers no authority” this minute entry was sufficient.

So the part about stating reasons isn’t a requirement and can be satisfied with a truism rather than a reason. And for once we’re not being sarcastic — that’s a reasonable and appropriate way to treat the sentence. Why, then, does it exist? Well, it didn’t always.

Once upon a time — long, long ago (i.e., when we started practicing) — a good trial judge would grant summary judgment with a minute entry that said “The motion is GRANTED.” The judges realized that since they could be affirmed for any available reason, to focus attention on a subset of reasons increased the chance of reversal. But that also had the effect of increasing appellate workload, and for the same reason: although review is de novo, both the parties and the court tend to consider primarily — and often exclusively — reasons given by the trial judge. And so the “should” sentence was insinuated into the law, as a way of narrowing review in practice but not in theory. (Those who did so presumably told themselves that they were increasing judicial efficiency, a standard excuse for cutting corners.)

 

Normandin v. Encanto Adventures (CA1 6/26/18)

On the constitutionality of the recreational-user statute. We add at the end a note on usage.

Plaintiff held her child’s birthday party at Encanto Park. She paid for a package of things including ride tickets, reservations at picnic tables, etc. There was a nearby area where people broke pinatas but the package did not cover that. So she brought her own pinata, during the breaking of which she fell, allegedly on a hidden sprinkler head in the pinata area. She sued in negligence for her injury Encanto Adventures, which ran the park and sold her the package, and the City of Phoenix. Defendants moved for summary judgment under the statute (13-1551). The trial court granted the motion.

The Court of Appeals affirms. It first agrees that under these facts Encanto Adventures was a “manager” covered by the statute and that the money Plaintiff paid for the package didn’t turn her from a recreational user into a commercial customer (because she hadn’t paid anything for the pinata or use of the pinata area).

It then holds the statute constitutional. It does not violate the anti-abrogation provision because negligence did not lie against the government at common law and Defendant acted as a government agent. It did not violate the privileges-and-immunities clause because the creation of a “recreational user” class, which has been done by many states, is rationally related to the governmental interest in encouraging the opening of land for recreational use.  And it is not a “special law” favoring certain corporations like Encanto Adventures because it meets the requirements of Gallardo (2014): it has a rational relationship to a legitimate legislative objective, it covers all similarly situated, and it allows entities to move in and out of the class (by chosing whether to charge a non-negligible admission fee).

The court awards costs to Defendants. They also asked for sanctions because there had been an Offer of Judgment. The court says that Rule 68(g) applies only to costs in the Superior Court.

On the subject of usage, the court uses a cedilla over the “n” in “pinata.” So is it a foreign word? If so, it should also be italicized. If not, it shouldn’t use the cedilla because English doesn’t. But a bigger problem is that modern Spanish doesn’t, either. The cedilla here is a sign of politically-correct genuflection, not of sophistication or cultural respect. In fairness to the court it is hardly the only offender in this regard nowadays and may simply be reflecting the style of the briefs.

(Opinion: Normandin v. Encanto)