The Arizona Supreme Court issues this opinion the same day as Torres. After holding the anti-abrogation clause does not apply to evolving duties, the Arizona Supreme Court explicitly overrules the duty created in Hamman v. County of Maricopa and Little v. All Phoenix South Community Mental health Center.  The Court in Hamman held a mental health professional has a duty to warn or protect third persons whose “circumstances place them within the reasonably foreseeable area of danger where the violent conduct of the patient is a threat.”  This duty is based on foreseeability, and in Gipson v. Kasey, the Court rejected foreseeability as a factor in determining duty.  Both the trial court and the court of appeals concluded Hamman may no longer be good law, and the court of appeals invited the Supreme Court to explicitly overrule those cases.  For the most part, the Supreme Court agrees with the court of appeals.

The father of two boys filed this lawsuit after they were murdered by their mentally ill mother. The Supreme Court agrees with the court of appeals reasoning and analysis. First, the Court considers a statutory claim of failure to report child abuse of neglect. Because there was no evidence of past or occurring abuse or neglect, the statute A.R.S. 13-3620(A) does not apply.  Moreover, creating a public policy obligation “would create an unintended incentive for mental health professionals to reflexively report patients with children to the police or to the Department of Child Safety anytime even a specter of harm arises.” Second, the Court holds Hamman and Little are no longer good law. Both cases relied upon foreseeability of harm as creating a duty. The court then suggests there may be situations where a mental health professional owes a duty and cites several Restatement provisions, but courts must exercise care to not injecting foreseeability into the duty framework.  Finally, the Court holds that A.R.S. 36-531(B) provides that if a mental health evaluation reveals a danger to the patient or others, the medical director of the agency shall petition for court ordered treatment. This is what occurred here when Crisis Prep petitioned for involuntary treatment, and court ordered treatment followed.

Justice Timmer dissents in part, and Justice Bolick spars with her dissent for confusing duty and scope of duty.  In Hamann, foreseeability was the “bootstrap by which a duty between psychiatrist and patient based on a special relationship is extended to third parties.” Justice Bolick’s rhetorical skills outmatch the other justices, but this opinion is not well written. (OK neither is this blog, but we have a 20 minute rule when posting, and no one should rely on us.) There are too many prepositional phrases beginning with the first sentence. Several sentences begin with “however,” and certain words and phrases are overused including “that,” and “in this context.” We see Justice Bolick misuse the word “found,” use the word “clearly” when it is unnecessary, and the phrase “in order to” creeps in. Minor quibbles but consider this sentence in paragraph 43. After citing three separate Restatement provisions (two from the Second Restatement and one from the Third Restatement), the Court suggests the common law may provide a remedy: “We do not speculate which, if any, of these Restatement sections apply to the facts here, and admonish that they must be read in a way that does not inject foreseeability into the duty framework and in concert with statutes addressing the subject matter.” What? A couple of months ago, we ended a post with Ogden Nash.  This time we suggest Carl Sandburg’s phrase “too many doors to go in and out of.” (from “The Lawyers Know Too Much”)

This is a dramshop case, and we have discussed the case’s history in prior posts. Arizona has a unique anti-abrogation clause in its constitution. The anti-abrogation clause Art. 18 sec. 6 states: “The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”

Chief Justice Brutinel writes this second opinion in Torres. Justice Bolick concurs, and Justice Timmer dissents. The Court’s holding is unless a cause of action was recognized in 1912, it is not protected by the anti-abrogation clause. Reading an opinion by Chief Justice Brutinel gives us the locker room feeling coming off the football field. We know who won, but we feel sweaty and dirty. Nothing elegant about his writing.  “Incognizable” is not a word. Long compounded sentences interspersed with citations or prepositional phrases is, to borrow the football game analogy, running the same play up the middle again and again.

Let’s talk about Justice Bolick’s concurring opinion. Justice Bolick chastises the dissent which he sees “greatly aggrandizes judicial policymaking power.” He tells Justice Timmer she should understand what the word “plenary” means and cites Webster’s College Dictionary. “Even beyond this,” Justice Bolick writes, “through an overly expansive application of article 18, section 6, the dissent takes this vision of constitutionalism: once the judiciary has ratcheted up tort exposure, it can never be ratcheted down – not by the legislature, the people acting in their legislative capacity, or even the judiciary itself.” He then gives a lesson on constitutional law and sets in concrete his view on judicial restraint.

In Justice Timmer’s dissent, she emphasizes stare decisis and what rights of action are “constitutionalized” under the anti-abrogation clause. If she is guilty of being a visionary, she does a poor job of retelling her vision and spends too much time arguing. Justice Timmer emphasizes a line of cases holding the anti-abrogation clause includes tort actions that either existed at the common or evolved from such rights. This may be a very small crack, as Justice Timmer suggests at the end, in what otherwise is now a closed door. 

link to opinion

The court of appeals holds an employee contracting COVID-19 from a co-employee meets the statutory requirements of an “accident arising out of and in the course of employment.” The worker’s compensation statute has a separate provision for when an occupational disease is compensable which does not include the “ordinary diseases to which the general public is exposed.” But that does not preclude an employee from arguing a disease is an “accident.” The court acknowledges the legislature has addressed certain communicable diseases but because it has not enacted a statute for COVID-19 claims, the court reverts to construing whether this is an accident. Under prior case law, “disease” and “accident” are not mutually exclusive.  The court references a 1965 case involving a seamstress who contracted pulmonary emphysema from lint exposure. Reilly v. Indus. Commission, 1 Ariz. App. 12 (App. 1965) (“the law in Arizona is that when a condition has developed, not instantaneously, but gradually, over a period of time, resulting in a definite though unexpected injury or disease, which injury or disease is definitely work-connected, then said injury or disease is the result of an ‘accident’ within the terms of our Workmen’s Compensation Act, and is compensable.”). In this case neither the employee nor employer argued COVID-19 is an “occupational disease,” and the court cites Ford v. Indus. Comm’n, 145 Ariz. 509 (1985) (explaining that, when the condition at issue is a disease, “either party is entitled to require that the claim be administered” under the occupational disease provisions).  More explanation is needed here; a paragraph should not end a thought by citing a case that may suggest something different from what the parties agreed.

Thus, any other non-occupational disease may qualify as an accident. As backup the court cites a pneumonia case from a defective exhaust system, a case where Lyme disease was contracted, a case involving an allergic reaction and a case of hepatitis.  The court distinguishes a string of Valley Fever exposure cases because of the impossibility of showing causation. The court accepts because person to person tracing is possible and a claimant “will occasionally” be able to trace the disease to the workplace. Coupled with the language in Reilly that a disease must be “definitely work-related” one can see where experts and lawyers will clash. The court then deferred to the Industrial Commission’s factual determination showing the exposure was from a co-employee.  As to the employee’s death, the “arising out of” requirement is a causation requirement and may be met when workplace risk is a “contributing factor.” The court concludes: “This is a mixed risk case. [Employee’s] risk of work-related exposure from interacting with potentially infected co-workers in person combined with his underlying medical condition (he was pre-diabetic and immune-compromised after a kidney transplant) resulted –legally and medically—in his death from COVID-19.”

The legislature should have acted long before COVID-19 to clarify recurrent issues with worker’s compensation, diseases, and correlation with language of “accident,” “arising out of,” and “contributing factor.”  We end up with protracted litigation and much will depend on the generosity or lack of generosity of an ICA judge. One final note: the court begins this opinion with gravitas by reminding us of COVID-19’s toll. We would rather just see clarity and coherence. And, as to simple things, clerks and courts should have words flagged in their writing program. Too often we see “statue” for “statute.”

link to opinion