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?

Division One believes we need to be reminded about the Arizona Supreme Court’s opinion in Gipson v. Kasey, and the removal of foreseeability from duty. Perhaps we do. In Hale v. Window Rock Unified School District, the trial court granted summary judgment for the school because the District had no notice of a potential risk their minor son would be sexually assaulted at school by an eighth-grade student. The school filed a motion for summary judgment, and the trial court granted the motion because although the school had a general duty, the school had no notice of a recognizable risk of harm to this student. The court of appeals reverses and holds the trial court did not apply the current law on foreseeability when it discussed foreseeability in terms of a duty. The trial court determined the Hales did not establish a “recognizable risk existed creating a duty on the part of the school to prevent the alleged attacks.” This was its mistake. Foreseeability remains a factor in examining breach and causation. These may have been the “object of the superior court’s analysis,” but it used the wrong duty language. The court concludes with providing a summary of some evidence including violence exited amount students at the middle school, there had been fights, security guards occasionally roamed the campus or maybe not, and plaintiff’s mother was a former employee at the school and was aware of disciplinary incidents. This is some evidence of breach and whether such evidence is enough, one assumes on proximate cause, “is not before the court.” Why not? Since none of us have the trial court record and can tell how the parties briefed the issues, how does such typical middle school evidence meet the burden of proof on summary judgment in showing a breach or proximate cause where foreseeability now finds its home?