Over the years our courts have “clarified” the concept of duty to the point where its now fairly mysterious, even to them.

Several U. of A. students were on a “study-abroad” program in China at Nanjing American University. While there they decided to visit Mt. Everest, where one died of altitude sickness. His mother sued both “universities.” (How, you ask, can an Arizona court have jurisdiction over a Chinese college? Turns out that “Nanjing American University” isn’t “Nanjing University” except, perhaps, for marketing purposes; its instead an Arizona corporation.) The defendants moved for summary judgment on the theory that they had no duty; the court granted it. Mom appealed; the Court of Appeals affirms.

The analysis starts by explaining that there is this thing called “duty” which, along with things called “causation” and “damages” gets you a negligence case. One wonders what group of elementary-school infants they write these things for.

(As to “duty,” the court tells us that the law before 2007 (citing Gipson 2007) “created some confusion and lack of clarity . . . as to what extent, if any, foreseeability issues bear on the initial legal determination of duty.” Courts write their own versions of history and so that is presumably what history will now say: there was confusion before Gipson brought us light. So much for those of us who lived through our courts’ long, slow, and quite deliberate process of creating a justification for the rejection of the Palsgraf standard (“the risk to be foreseen defines the duty to be obeyed”), which we had followed for decades, in favor of a “standard” by which judges make up duty as they go along.)

Arizona cases had held that schools have a duty to students for on-campus events. A Restatement section says that duty extends to a student “at school or otherwise engaged in school activities.” Does that include off-campus events? Well, here the court clearly feels that it is running into a problem. Under Gipson duty is strictly legal, not factual. “Accordingly, this court does not look at ‘the parties’ actions’ alleged to determine ‘if a duty exists.’”  “Instead, this court looks to the legal factors identified elsewhere to determine whether the Tibet trip was an off-campus school activity for which Defendants owed  . . .  a duty of reasonable care.” How does it do that? By plunging back into factual analysis, so at this point you can abandon all hope of a clear idea of what the court thinks its doing.

Citing the Restatement again, “the [school’s] duty is tied to expected activities within the relationship. Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.” (Are you following this? Duty can depend on what’s “expected” but not on what’s “foreseeable.”) “In what are at best analogous contexts, Arizona cases have identified the following factors in determining whether an off-campus activity is deemed a school activity”: its purpose, whether it was part of of the curriculum, whether the school supervised it, and “whether the risk was independent of school involvement.” Though the cases are “at best analogous” and the factors strictly factual the court applies them and, after lengthy discussion of the facts of the trip to Mt. Everest, decides that the schools had no duty.

The court then switches back to legal analysis, deciding briefly that no public policy requires off-campus liability and that there’s no duty simply because the plaintiff’s expert opined that there should be.

(link to opinion)

This special action is about a supersedeas bond. After the next paragraph, though, we encounter an interesting thing.

Some homeowners sued for an injunction and damages to prevent a golf course from becoming an RV park. They won their injunction, $1 in damages – and over $2 million in costs and fees. Defendants wanted to appeal and the question became the amount of the supersedeas bond; the statute (12-2108)  and  rule (ARCAP 7) refer to “the total amount of damages” but also say that the trial court can set it in the full amount of the “judgment” if the appellee is dissipating assets, as these plaintiffs claimed (or reduce it in case of hardship, which the defendants claimed). So the plaintiffs emphasized the word “judgment” and wanted a huge bond, the defendants emphasized “damages” and wanted a $1 bond.

The interesting thing is that this also describes an essentially identical special action taken by the same parties last year. The trial court had ordered the $2 million bond and the defendants took special action. The Court of Appeals kicked the case back to the superior court because the trial judge hadn’t held a hearing. It specifically refused to decide the “damage”/”judgment” question because the parties hadn’t made below the same arguments about it that they briefed for the special action.

So guess what happened: the trial judge held a hearing and decided that he was right, though on hardship grounds he reduced the bond from $2 million to half a million. And the defendants decided that, even so, they would rather have a $1 bond. So they filed another special action to get the “damage”/”judgment” issue finally resolved.

The Court of Appeals takes de novo review of this question of law and decides that the answer is $1. “Judgment” and “damages” mean two different things; damages can be part of a judgment but judgments are not damages.

In a footnote the court also criticizes two procedural errors the trial court made in calculating the bond. These are of course inconsequential given this ruling. And so the last sentence of the footnote says “But because we are remanding the matter for the court to set the bond at $1.00, these errors are inconsequential.” Now, maybe we shouldn’t complain – CA1 is generally better about footnotes than it used to be. But what is its theory of footnotes? What is the reasoning behind footnoting the admittedly inconsequential? Is that what footnotes are for? The four other footnotes in these eight pages are just as important, by the way.

The opinion in the first special action came out last June so the case apparently lost only eight months or so, not a whole year. But who couldn’t have seen this coming? One party or the other would have taken the issue up no matter which way the trial court ruled. You can make a procedural argument for ducking the question the first time – but you can also make an argument for answering it, especially since it’s an issue decided de novo that the trial court was going to have to face on remand. Can you imagine what lawyers who charged $2 million to try a case have charged their clients for eight extra months of appellate practice? Not that the defendants’ lawyers come much cheaper.

(link to opinion)

The court holds that if you sue the wrong defendant then the malpractice claim against you doesn’t accrue until the lawsuit you did file is over.

Plaintiff bought land based on a representation that the City of Phoenix had zoned it in a particular way. It hadn’t, so she sued the seller. She lost at trial, during which she learned that the mistake was the City’s fault; the court entered a large judgment for costs and fees against her. She got new lawyers. They moved for new trial but lost; they appealed but eventually dropped it and she satisfied the judgment. They also sued the City; they were able to settle part of the claim but lost the rest on summary judgment because the statute of limitations had run. So Plaintiff got yet another lawyer and sued her first one.

But by that time more than two years had passed since she learned of the City’s culpability. Defendant therefore moved for summary judgment. Plaintiff argued that she was not injured until the conclusion of the underlying litigation, less than two years  before. The trial court granted the motion.

The Court of Appeals reverses and remands. When malpractice occurs during litigation there is no damage until the appeals are over. Although the court discusses that as if it were an interesting bit of law, its hornbook law and has been for a long time. The question here is whether not including the City in the case against the seller constituted malpractice during the course of it. The court holds that it did. The analysis, though padded with case citations, policy discussion, etc., is actually brief and conclusory. (Our point is that it’s right and should have been brief and conclusory without the padding.)

The analysis is also a bit strange because it treats separately with the two claims Plaintiff purports to make: that the lawyer was negligent for not suing the City and was also negligent for not anticipating that the seller would blame the City. That there’s a significant analytical difference isn’t particularly apparent from the decision. What’s more interesting is that they’re both somewhat artificial; Plaintiff’s real theory, which the court at one point vaguely alludes to – without mentioning (presumably because the record doesn’t) that her present lawyer explained it to a newspaper reporter – is that her old lawyer deliberately didn’t sue the City because that would have given him a conflict of interest.

(link to opinion)