Delgado v. Manor Care (CA2 6/28/16)

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THIS OPINION HAS BEEN VACATED

Yet another case involving a long-term care facility.

Plaintiff’s decedent was an elderly patient in Defendants’ care following successful tumor surgery at another hospital. She died in Manor Care of sepsis caused by a number of underlying problems.  Plaintiff’s claims included a count under the Adult Protective Services Act. Defendants obtained summary judgment on that, arguing that the decedent’s age and status had nothing to do with it, that this was at best a malpractice case and not one involving neglect or abuse of a vulnerable person. They also moved for summary judgment on the malpractice claim, though, and the trial court apparently granted it, for reasons not given in the opinion. (The opinion says that “the motion for summary judgment . . . sought dismissal” of the claim and that the claim was “dismissed”, so its not clear what happened nor that the Court of Appeals knows there’s a difference.) Plaintiff appealed.

Defendants’ first argument on appeal was that the judgment on the malpractice claim barred appeal of other negligence claims because of claim preclusion. Yes, you read that right: an issue lost in the trial court couldn’t be appealed because, you see, losing it made it res judicata. Plaintiff must have pointed out that res judicata applies to successive cases because Defendants then cited, as “supplemental authority”, cases holding that it can, too, apply in the same case – when judgment for an agent bars a vicarious claim against the principal.  The court holds that that doesn’t apply here. (We don’t understand why courts continue to allow “supplemental authority” to mean “old cases you wish you’d cited now that you see what your opponent as to say.”)

On the substantive claim the court relies on McGill (2002), which concluded that the statute wasn’t intended to apply to negligence that could happen to anyone, incapacitated or not. It set forth the elements of the claim, including that the negligence “must be related to the problem or problems that caused the incapacity.” The court, reviewing the record, decides, apparently, that there was a question of fact as to whether the decedent could have or would have gotten adequate care for her sepsis if she hadn’t been incapacitated by her tumor surgery, or something along those lines. From what the court tells us of the facts there may indeed be a statutory claim here separate from plain negligence but the court’s discussion doesn’t do much to explain the distinction nor how the McGill factor survives this sort of analysis. In any event, reversed and remanded.

We recently praised Newman for minimizing the use of “APSA.” Delgado uses the acronym 19 times, so its author either hadn’t read our blog or else had and was expressing an opinion of it.

Those who like acronyms also tend to like footnotes; their use here is liberal, with the usual degree of precision. One footnote briefly mentions, for example, that the decedent had been hospitalized for tumor surgery; another tells us (we think, it’s not clear) that the trial court gave some sort of judgment on the negligence claim. Its nice that the opinion mentions, at least in footnotes, the basis of Defendants’ two arguments. And a footnote tells us that the court won’t address Defendants’ claim that Plaintiff hadn’t shown “neglect” because “establishing such a claim is unnecessary to render the grant of summary judgment improper.” What does this obscure double-negative mean? That neglect isn’t necessary? That the evidence raised a question of the other statutory possibilities, “abuse” or “exploitation”? That the summary judgment was on the “incapacitated” issue and that the “neglect” issue is somehow not properly presented? Or does it have a perfectly logical and reasonable meaning that suffers only from not being expressed in English?

The acronym/footnote folks are also commonly affected by shiny-new-toy syndrome. The opinion tells us (in a footnote, naturally) that “claim preclusion” means “res judicata” and that it will use the former, “more modern” term. We wonder how many more decades will pass before those who like the term realize that they must either declare victory or admit defeat. Using a newer term that they (accurately) feel they must for clarity’s sake, after many years, still  define using an older term is just silly. Use one or the other, kids. As for which to use, what we said here still applies.

(Opinion: Delgado v. Manor Care)

Verduzco v. American Valet (CA1 6/21/16)

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Discussing the negligence of a parking valet.

Defendant runs the valet parking at a hotel. It released a Porsche to a man who demanded it but who had no claim ticket or I.D., who was in fact stealing it, and who was high on drugs. He drove away and caused a serious accident with Plaintiffs, who sued Defendant (along with its employee and principal) alleging negligence and negligent entrustment. Defendant moved to dismiss, arguing that Plaintiffs hadn’t properly pleaded that it knew or should have known that the driver was on drugs and that it had no duty to Plaintiffs. The trial court granted the motion.

On the issue of duty the argument by Plaintiff’s was that Restatement (Third) 7 should apply.  But Division One rejected the same argument last year in Alcombrack so it affirms dismissal of the negligence claim.

On the negligent entrustment claim it reverses. The Complaint did allege specifically that the driver was on drugs and that Defendant “should have known” that he was impaired. Defendant’s argument, it seems, was that the Complaint should have alleged the specific facts by which it could have known that. But there was “no real dispute that the complaint put [Defendant] on notice of the claim” and the law does not require more. The court doesn’t express any annoyance at the argument, though, so it must have been a closer question than it seems and not just the sort of useless, time-wasting, fee-generating, hyper-pedantic game playing that it sounds like.

Defendant also argued that negligent entrustment shouldn’t apply to valet parking. It cited cases from other jurisdictions holding that a valet must return a car to its owner even if he’s impaired. The court points out that giving the car to someone else instead is “a distinction that matters.” Defendant also contended, in an argument it teased out of sentence in a California case involving police, that a valet has only “transitory” control of the car and not, apparently, controlling control or whatever other species of control it is that can give rise to a claim for negligent entrustment. But Defendant was a bailee and bailees have “sole custody and control.” Defendant doesn’t seem to have made much mention of the law of bailments, perhaps because that law would require of it things  like “ordinary care.”

Defendant made an argument under Restatement (Second) 390 that we will skip because it tempts us to write another sentence full of hyphens. And it argued that because people aren’t liable to the victims of those who steal their cars it shouldn’t be liable to the victims of those it gives cars to. This is another distinction that the court feels makes a difference.

(Opinion: Verduzco v. American Valet)

Hatch Development v. Solomon (CA1 6/21/16)

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This case concerns the grounds for common-law indemnity.

Solomon did water/sewer construction on Hatch’s property. The work caused run-off that damaged the property of a neighbor, who sued them both. Settlement talks ensued; the statute of limitations ran but talks continued. Hatch settled the case. Hatch then brought this action against Solomon for indemnity. The parties filed cross-motions for summary judgment; the trial court gave judgment for Hatch and against Solomon. Solomon appeals.

The Court of Appeals affirms. Solomon’s argument was that since the statute had run Hatch hadn’t satisfied a common obligation. The court distinguishes to different situations: where one pays a common obligation that should have been paid by the other and where one pays a common obligation created by the fault of the other. Under the Restatement, in the second situation – which applies here – one who justifiably believes himself under a duty to pay the underlying claim can get indemnity even if the other party had a defense to it. Hatch maintained that a duty still existed because the case could have been re-filed and pulling out of the settlement would have triggered further litigation; Solomon didn’t dispute that and so the court accepts it (though, reading between the lines, seems to realize that it’s a bit dubious).

Solomon also argued that Hatch can’t get indemnity because it, too, was at fault: it didn’t get the required ADEQ approval for the work and so was negligent per se. But while failure to get the permit might be “but for” causation the only proximate cause of the damage was Solomon’s sloppy work. Hatch’s failure to get approval didn’t cause that (which is what the court means although at one point it phrases things, if not backwards, at least a trifle sideways).

We omit one or two minor arguments that were strictly fact-related.

(Opinion: Hatch Development v. Solomon)