We noticed this had not posted correctly so here it is.
The Arizona Supreme Court holds a design professional separately hired by a contractor owes no duty to the owner of the property. Easy enough. The trial court and the court of appeals both reached this same conclusion. The foreseeability analysis discussed in Donnelly is no longer good law.
This opinion has a distracting style. There are seven justices on our supreme court and each writes differently. When one justice comments on another’s draft opinion, judicial etiquette is not to comment on matters of style. Style receives little attention. Law clerks rarely possess mature legal writing ability, and judicial opinions are not law review articles.a few modest Here are a few suggestions. First, when referring to the earlier Donnelly opinion, using “our holding” or “we held” is awkward. Donnelly was decided 38 years ago. The “we” is better used when speaking for the court today or what the law still is. When referring to prior decisions and distancing from those cases, perhaps use “the court” or even “this court.” Second, a sentence is not a paragraph even when tacking a citation on the end. If an opinion needs to have headings – most short opinions never do– then use headings. Third, placing commentary in string citations is distracting and confusing. Fourth, scattered throughout this opinion are unnecessary prepositional phrases. Good advice from Judge Ruggero Aldisert in his legal opinion writing book: “Examine each sentence word for word, phrase by phrase and clause by clause to see what can be cut.” Finally, this opinion ends, as none should, with dicta suggesting other possibilities for relief. This leaves us wondering. We wonder what an “assignment of liability” means and whether the “third-party beneficiary doctrine” may be useful in some other case. We wonder what, if anything, was newly decided.
In a prior post, we discussed the Arizona Supreme Court’s opinion in this case involving superseding and intervening cause. The supreme court had rejected the court of appeals’ holding that an intoxicated customer’s arrival at home breaks the chain of causation as a matter of law and held this may be a jury question. At the end of its opinion, the supreme court remanded for the court of appeals’ consideration of an issue lurking in the background, i.e., whether Arizona’s dramshop statute (A.R.S. § 4-312(B)) preempts a common law negligence claim. In a jury trial, plaintiffs had prevailed on its common law negligence claim but had lost on the statutory dram shop claim. Now, on remand the court of appeals holds the statute preempts a common law negligence claim. Plaintiffs now ends up with nothing. This preemption defense was never raised with the trial court, but because the issue is of statewide importance, the court of appeals permitted supplemental briefing and considered the issue.
After reviewing earlier Arizona Supreme Court cases the court holds: “[I]f a plaintiff could not have asserted a claim for a particular type of harm against a particular defendant in 1912, then the anti-abrogation clause provides that claim no protection.” Because the legislature enacted the dram shop statute in response to a newly minted common law cause of action, the subsequent legislation preempted it. The court further rejected the argument that a common law cause of action may evolve holding “although the judiciary remains free to change the common law, the legislature retains the constitutional power to recraft the parameters or scope of a court-pronounced common law cause of action.” This decision may change other areas because the legislature has adopted statutory changes to a common law creation only to be rebuffed under the anti-abrogation clause. E.g., Little v. All Phoenix S. Com. Men. Hlth, 186 Ariz. 97 (App. 1996). The cases relied upon in Little are the same cases rejected in this opinion. One should suspect there will be another petition for review filed.
Expect courts will continue to hobble through the preemption issue. Why was the lesson on superseding and intervening cause of such importance to our supreme court on a preempted cause of action? Thus progress?
The substantive issue is whether the dismissal of an employee with prejudice because of a notice of claim defense precludes an action against the employer based on vicarious liability. It took almost a year after the oral argument for the Arizona Supreme Court to decide it could not decide this issue because there was no Rule 54(b) language in the original dismissal. The case goes back to the trial court, and the supreme tells us in a footnote it expresses no view of whether a dismissal of an employee pursuant to the notice of claim statute precludes a claim of vicarious liability against the employer. This decision provides no guidance to the trial judge as to when 54(b) language should be included, but the court does not want to hear an argument about what follows a final judgment when there isn’t one. (The court of appeals had decided to jump in and treat this as a special action.) Of course, the litigants do not want to proceed through discovery and go to trial only to learn the claims against the hospital ended with the dismissal of the employees. On remand would the trial court abuse its discretion by not including such language and sending it right back out the door? Is our supreme court really this impotent to make a meaningful decision until it does so?