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

In lawsuits alleging road design defects, a public entity is not liable if it can show the plan or design conformed to generally accepted engineering or design standards when constructed, and the public entity provides a reasonably adequate warning.  The immunity statute ARS 12-820.03 further states that if there is a disputed fact, the issue shall be resolved by a trial before a trial on damages. These two cases discuss this in more detail.  In Morales, a case filed against the State, Division 1 accepted a petition for special action questioning whether the statute was constitutional because the bifurcation mandate evades the judiciary’s rule making authority.  Division 1 holds the legislature can direct how claims may be brought against public entities, and there is no conflict between the statute and Rule 42.

In Campion, a wrongful case filed against the City of Tucson, Division 2 upholds the trial court trying the immunity defense first and not the entire liability case. The city won at trial. We are confused as to what distinction appellants were making between the liability case and immunity defense, and the court tells us many arguments were not properly developed on appeal. The distinction may have had something to do with the driver’s fault, but the court’s opinion continues with many other issues, and we lose further interest. As to discovery issues before trial, the court recognizes the significant discretion trial judges have in determining proportionality. During discovery, the appellants obtained some discovery on other accidents but wanted more. Then at trial, there was disagreement over whether the other accidents were substantially similar.  The trial court noted differences and had discretion whether to allow the evidence. On the other side, from the opening statement, the city presented evidence and argument as to the lack of prior incidents. The court emphasizes caution with Pak-Mor evidence, but appellant’s requested curative instruction did not accurately state the law. The court plods through arguments over post-accident video evidence, a federal highway report, cross-examination of expert and lack of reliance on the report, and the refusal of a jury instruction that the adjacent school had no legal duty. We are reminded not every perceived wrong is a fruitful reason for an appeal. But for the bifurcation issue, we would fault the court for designating this chore as an opinion.

link to Morales

link to Campion