The court holds that the police aren’t liable to future victims for not finding a criminal.

Various victims of the Baseline Killer sued Phoenix, arguing that if the police had analyzed DNA samples sooner he could have been caught before he committed the crimes in question. The trial court consolidated the claims and granted Phoenix summary judgment. Plaintiffs appealed.

The Court of Appeals affirms. The statute (12-820.02(A)(1)) requires intent or gross negligence in cases of  “failure to make an arrest.” The court concludes that there can’t be gross negligence because there is no duty of care, either on “special relationship” or public policy grounds. 

A police department is not a “general insurer of safety” and owes no duty to individuals unless it “endeavor[s] to provide specific protection to a particular person.” The city did not have a specific relationship with the victims sufficient to create a duty because it did not know who they would be. “Merely investigating a crime, without any specific endeavor to provide specific protection . . . does not create a duty to a victim’s family.”

Plaintiffs argued that the legislature expressed a public policy that there is a duty by passing the statute limiting liability for it. They raised this for the first time on appeal. The court first announces that it need not consider the argument, then considers it. It says that the argument “flip[s] the analysis on its head” because the statute was meant to create immunity, not duty.

Well, regardless of what you think about letting civil lawyers second-guess police detectives, that last is heavy-handed. It does not “flip the analysis” to point out – as both a matter of logic and of statutory construction – that if the legislature passes a law about something then it has found that there is something to pass a law about. An “immunity statute” (the court calls it that) immunizes against something. It either creates a limited right or limits a pre-existing right. It is possible to read the opinion as meaning that the statute applies only to the particular-person cases; it would have been better, if that’s what it meant, to say so rather than to accuse people of the heinous offense of “flipping.”

(Opinion: Hogue v. Phoenix)

(NOTE: The Supreme Court vacated this decision for reconsideration in light of Soto v. Sacco, 242 Ariz. 474 (2017). The Court of Appeals’ “reconsidered” decision is here.)

This opinion appears to establish that, at least in a wrongful-death case, there can be no remittitur when the damages are strictly emotional.

Plaintiffs’ son was killed when his car was struck by one being chased by DPS officers. The jury awarded $30,000,000; but it also held the state only 5% at fault, resulting in a net award of $1,500,000, so which of those numbers the jury came up with first is interesting speculation. In any event, the state moved for remittitur. The trial court granted it in a rambling minute entry that showed no particular grasp of the law (at least in the part quoted by the opinion) and found that $10,000,000 was “the reasonable value of damages.” Plaintiffs appealed.

The Court of Appeals reverses. It first discusses new trial/remittitur law; this is basically cut-and-paste from other cases. The court seems to be saying that a remittitur order needs to explain why the verdict is exaggerated compared to the evidence, not simply announce a different standard of fairness.

But the court goes on to make clear that this isn’t merely a procedural case. “We discern no lack of evidence to support the damages awarded in this case.” The court doesn’t specify what evidence it discerns to justify $30 million for the loss of an adult son (the opinion neglects to point out that he was an adult). The trial court didn’t find that the verdict was the result of passion or prejudice; the opinion nevertheless feels it appropriate to say that no “such finding would have been supportable.” Having inserted this bit of dictum, the court discerns no reason to explain it.

(Its not entirely clear but one of the defendant’s arguments might have been that the jury improperly applied the damages instruction by awarding something to “send a message,” as Plaintiff’s counsel was allowed to ask it to do, even though punitive damages were not at issue. Or perhaps it wasn’t an argument, as the court doesn’t address it except to suggest, as courts tend to in wrongful-death cases, that the statute’s “fair and just” language covers a multitude of sins.)

The state did definitely argue that the verdict was excessive compared to past wrongful-death verdicts. The court rejects a comparative approach, for various reasons.

First, the idea of using comparisons relies on “a seventy-five-year-old” case. Its hard to know why the court thinks that a criticism since its opinion had earlier relied on a 63-year-old case that in turn relied on, and quoted at length, a 204-year-old case. (Brief style point: A few style guides do still recommend writing out numbers less than 100. Nowadays the limit is more like twenty. But it would be nice to think that the court is actually using a style guide, however antiquated.) Also, another case that did use comparisons (Desert Palm Surgical Group; this opinion never gives a full cite of it and so doesn’t reveal that it came down eighteen months ago) was, we’re told, not similar to this one because it was based on lack of evidence of special damages. (The relevant paragraph in Desert Palm Surgical doesn’t actually mention special damages except perhaps by saying “the verdict in this case . . . simply cannot be reconciled with other Arizona civil jury verdicts, especially given the record before us.”)

Second, “the crude statistical approach . . . is simply at odds with” the statute. There follows a long paragraph that doesn’t mention the statute nor explain why its language precludes comparisons, “crude” or otherwise. Except that, a page or so later, the court tells us that “we read the legislature’s commitment of damages to the jury’s sense of justice as a broad appeal to the jury’s conscience.” And if the jury’s conscience says $300 million? Or $3 billion? Well, at some point even this court would presumably discern passion or prejudice rather than mere conscience, and we will be interested to see it explain some day how and where it discerns the difference. But its analysis does not suggest that there would at any point be a basis for remittitur.

(Another reason why comparative analysis is “unpersuasive” is that “the trial court’s own order” did not use it. Huh? So the wrong approach might have been the right one had the trial court used it?)

For a shorter but more helpful analysis of remittitur, though not in a wrongful-death context, see Desert Palm Surgical, the opinion this court doesn’t quite want to admit it issued last year. That one manages to cite what is, at age 44, still probably the leading case, Creamer v. Troiano.

(Opinion: Ahmad v. State)

“We . . . hold that the time to renew an amended judgment runs from the time the amended judgment is entered.” Well, no, that’s a truism, not a holding. The real holding is that “such renewal is effective as to all relief granted in the amended judgment.”

A court entered a money judgment and then, several months later, entered an amended judgment that added attorney’s fees resulting from a motion for new trial and, also, “consolidated all previous awards.” The judgment holder timely renewed the amended judgment but not the original. The judgment debtor filed this action for declaratory judgment, seeking a ruling that only the additional amounts added in the amended judgment were collectible. The trial court granted judgment on the pleadings; the debtor took special action.

The Court of Appeals accepts review but denies relief. The legal issue is, its says, “straightforward”: the effect of a judgment is “ascertained by a construction of its terms,” the amended judgment said that it incorporated the original and therefore it did, and thus its renewal renews the whole thing.

The judgment debtor actually had an argument, based on a Hawaii case. The court mentions it in a footnote, reserving the body of the opinion for criticism of the debtor’s position. But the Hawaii renewal statute specifically applies to the “original judgment” so the case is distinguishable.

The court holds that “timely renewal of an amended judgment serves to renew all components of the amended judgment, even if renewal of an earlier judgment would be time-barred.”

The court feels that to insist on renewal of “all previous judgments” would be a “convoluted requirement.” It was too convoluted for this judgment creditor, who had tried to renew the original judgment but managed to foul up the paperwork. But for those who can clear that hurdle it is of course safer to renew them all. Its just a matter of time before someone relies on this case but has forgotten to write the second judgment so as to include the first. The procedural implications of rolling up judgments seriatim – which is the only truly convoluted part of this –  are problems for another day.

(Opinion: Schlussel v. Gerlach)