Arizona Personal Injury Blog - Wrongful Death

Business Owners Now Owe Nondelegable Duties to Keep Premises Reasonably Safe

Geoff Trachtenberg — Wed, 26 Dec 2007 13:18:10 GMT

"Attention Safeway shoppers, business owners now owe nondelegable duties to their invitees to keep their premises reasonably safe."

Steven H. Simon sued Safeway after he was injured during a store altercation with a security guard who "physically and sexually" assaulted him. The guard was employed by a third-party company who had contracted with Safeway. He mistakenly concluded that Mr. Simon had stolen some items, Mr. Simon then asked to speak to the manager and the altercation began.

Mr. Simon sued Safeway in Simon v. Safeway, Inc. on the grounds that Safeway was vicariously liable under theories of respondeat superior and because it had a nondelegable duty to train, supervise and "employ properly licensed and trained security guards." Safeway filed a motion for summary judgment on the issue of whether they were vicariously liable for the intentional torts of the third-party security guard. Mr. Simon opposed the motion and requested the trial court continue the matter to allow for additional discovery under Rule 56(f). After initially denying Safeway's motion, the trial court granted Safeway's subsequent motion for reconsideration, denied Mr. Simon's request for Rule 56(f) relief and the Court of Appeals reversed.

Before getting into the opinion, as an important footnote, the Court's opinion assumes no independent negligence on the part of Safeway. The Court stated that, although Mr. Simon "clearly raised an independent negligence claim in his original complaint, and the parties discussed it in their initial summary judgment filings . . . we can find no record that the trial court considered or ruled on this claim when it reconsidered and ruled on Safeway's motion for summary judgment. Therefore, we decline to consider any argument about Safeway's independent negligence on appeal." This will be important later.

The Court first addressed the trial court's denial of Mr. Simon's Rule 56(f) motion to continue. Mr. Simon argued that he needed discovery to determine the precise nature of the relationship between Safeway and the security guard and requested time to depose three witnesses--the guard, the Safeway store manager and a Safeway employee who allegedly told the guard that Mr. Simon might be shoplifting.

I won't spend a lot of time talking about Rule 56(f) because it is so fact-specific, but it bears mentioning that Mr. Simon clearly did not adhere to the requirements of Rule 56(f), which requires an affidavit containing very specific information about "who, what, where and when" additional discovery would be completed. Typically, defects in Rule 56(f) affidavits are fatal, but not this time. Not only did fail to raise the issue of a missing affidavit in the trial court, but significantly the Court of Appeals concluded that failure to raise such a defect caused a waiver of the issue because "any technical deficiency in the form of the motion would have been easily remedied had Safeway done so."

So on that note, "good to know," I thought - "failure to file an affidavit in compliance with Rule 56(f) is a mere defect in 'form.'" Hallelujah, right? Wrong. In a footnote, buried at the end of the section, the Court deftly back-peddles, stating "[w]e do not suggest that courts should overlook a party's failure to follow the technical requirements of Rule 56(f). Our conclusion is limited to the specific facts of this case, where the motion substantially complied with the rule's requirements, the opposing party did not object on technical grounds, and the trial court addressed the motion on the merits despite the technical deficiency." So beware, Rul 56(f) requirements remain critical.

Anyway, before turning to the substance, the Court went on to make some important points about independent contractor law in Arizona - namely, whether someone is an independent contractor versus an employee. Although anyone reading our case law should come to the same conclusion as the Court, nothing I know of says it in as plain terms as the following:

We recognize many of the factors that suggest an independent contractor rather than master-servant relationship between Safeway and [the guard] are also present in this case. Safeway compensated [the guard's third-party employer] for its services every four weeks, and [that company] was responsible for hiring, training, and certifying its own employees, including [the guard], and for providing employee compensation and benefits. However, our case law distinguishes a servant from an independent contractor primarily based on the employer's right to control how the work is performed.
The right-to-control test requires an examination of whether the employer reserves the right to supervise or control the method of performing the contracted service or whether the employer's control is limited to the result, leaving the method to the other party.

So the Court concluded, that "even if the evidence in the record is not sufficient, standing alone, to raise a material question of fact, it provides a reasonable basis for Simon's request to conduct additional discovery on the existence of a master-servant relationship." "We therefore cannot say that granting Simon's timely request for additional disclosure could not have led to admissible evidence on this issue, and the trial court thus abused its discretion in denying Simon's motion for time to conduct additional discovery."

Remember, all this has to do with whether Mr. Simon could prove that the guard was, in fact, an employee. However, the balance of the opinion renders this issue moot, because the Court finds that, even if the guard was an employee, Safeway owed nondelegable duties to protect Mr. Simon from the guard and that "Safeway will be vicariously liable for [the guard's] actions if [the guard] is found liable in the first instance."

So next, turning to the meat and potatoes of the case, the Court addressed Mr. Simon's argument that "Safeway had a non-delegable duty to provide safe premises for its business invitees and is liable for the torts of independent contractors it retains to work on its premises." Although the trial court found Safeway could not be vicariously liable because "there was no evidence it had attempted to delegate a nondelegable duty," Division Two disagreed.

In my favorite part of the opinion, the Court of Appeals explained that the analysis of the case was not limited to the traditional independent contractor rule and exceptions in the Restatement (Second) Torts Â§Â§ 409-429. The Court explained that, under those sections, the independent contractor was hired to perform "physical construction or maintenance on land or premises or the work to be performed is peculiarly or inherently dangerous." Those sections "do not directly address, much less resolve, the issue presented in this case, where [a third-party contractor] was hired to provide ongoing services for Safeway on Safeway's premises and where, in the performance of those services, [the third-party contractor's] employees are required to interact personally with business invitees of Safeway."

The Court concluded that "the facts of this case are more akin to premises liability under Restatement (Second) of Torts Â§ 344 (1965) than independent contractor liability under Â§Â§ 409-429." In relevant part, Restatement Â§ 344 provides that "[a] possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons . . . and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done."

The Court then went on to address several opinions on this issue, concluding that while they were "distinguishable from the present case because they deal with a landowner's direct liability for its own tortious acts and not a landowner's vicarious liability for an independent contractor's torts . . . . they do stand for the limited proposition that a landowner's duty of care to business invitees encompasses activities on the land and is not limited to dangerous conditions, as Safeway suggests."

Most significantly, the Court noted that comment c to Â§ 344 expressly provides: "The rule stated applies to the acts of independent contractors . . . who are employed or permitted to carry on activities upon the land. The possessor is required to exercise reasonable care, for the protection of the public who enter, to supervise the activities of the contractor . . . ." "Therefore, a business owner may not escape liability for his failure to exercise reasonable care merely because the aggrieved party was injured by an independent contractor who was employed to provide services for the business owner on the business premises."

So the Court then "turn[ed] . . . to the question of vicarious liability and whether Safeway may be held liable in the absence of its own negligence."

Are you confused? I am, and I think they goofed a little.

Comment c to Â§ 344 does not say that a possessor is liable for independent contractors per se. It says the possessor is "required to exercise reasonable care . . . to supervise the activities of the contractor." That necessarily means that, for Safeway to be liable, Safeway must have been independently negligent in supervising the activities of its contractors. So it's not accurate to say that Safeway was being held liable "in the absence of its own negligence," and by addressing this issue, the Court is necessarily reviewing "argument about Safeway's independent negligence on appeal."

Anyway, it's about to get even more confusing because, instead of focusing on whether Safeway negligently supervised the activities of the security guards, the Court and parties went down the rabbit hole of nondelegable duty. As you'll see, this is good for plaintiffs, but may prove to be reversible error if the Supreme Court ever sees the case (Quarles & Brady handled the appeal, so watch for a petition for review).

Safeway relied primarily on Myers v. City of Tempe, 212 Ariz. 128, 128 P.3d 751 (2006), to support its argument that it cannot possess a nondelegable duty where no duty existed in the first place. Safeway argued that, "because it had no obligation to provide security services in the first instance, the fact it undertook to do so does not create a 'nondelegable duty.'" Specifically, Safeway argued that, since there was no inherent duty to provide security, "it could delegate any duty it assumed to an independent contractor without incurring vicarious liability."

The Court noted that a nondelegable duty is one "for which the employer must retain responsibility, despite proper delegation to another." The Court held that, "[s]uch duty arises in those 'special situations in which the law prescribes a duty requiring a higher degree of care,' such as the affirmative duty of a landowner'to protect those described as his invitees by making and keeping the premises safe.'" The Court went on to explain the well-known rule that, "[t]his exception to the general rule of nonliability for employers of independent contractors is 'premised on the principle that certain duties of an employer are of such importance that he may not escape liability merely by delegating performance to another.'"

Is this correct? Is the affirmative duty of a landowner to protect invitees a higher degree of care? It may have been so at one time, but as Judge Lankford notes in his negligence treatise, Arizona has really abandoned the old "status distinctions" in premises cases. Anyway, even if that is true, what does that have to do with whether Safeway properly supervised its contractors? Is the duty to supervise contractors providing security or the common law duty keep the premises safe to invitees of such importance that it cannot be delegated to another? The wheels feel like they're coming off this opinion.

Anyway, the Court stated that, while "[w]e agree that . . . Safeway had no inherent duty to provide some of the security services performed by [the third-party contractor], . . . . [Safeway did have] a common law duty . . . '. . . to keep [its] premises reasonably safe for invitees." The Court thereby concluded that, "[w]hereas, in Myers, the city owed no special duty to provide emergency medical services, the nondelegable common law duties of business owners to their invitees are undoubtedly implicated in this case."

The Court explained itself as follows:

Here Safeway did not initially have a specific, nondelegable duty to provide security services. Instead, it voluntarily assumed that duty within the context of the heightened duty it already owed to its business invitees. Having [voluntarily] assumed the task of providing security services on its premises, Safeway thus created for itself a personal, nondelegable duty to protect its invitees from the intentionally tortious conduct of those with whom it had contracted to maintain a presence and provide security on its premises. Safeway cannot now disclaim liability merely because the individuals it permitted to interact so closely with its customers had been hired by an independent contractor. Were we to hold otherwise, the potential for abuse would be great. Therefore, we hold that when, as here, a business owner assumes a duty to provide security services, that duty is nondelegable, and the owner will not be insulated from liability for the tortious acts of security personnel hired as independent contractors.

So, according to Division Two, business owners now owe nondelegable duties to their invitees to keep the premises reasonably safe, which includes the conduct of third-party security. Significantly, and despite my snarky comments about the Court's reasoning, in a footnote the Court noted that this is the law in the majority of other jurisdictions considering the issue, so maybe our Supreme Court will agree.

[Ed: At least on appeal, anyway, Steven H. Simon represented himself. It's not often that a pro se litigant is successful on these types of issues, but it appears that Mr. Simon is not an attorney.]

Originally posted at InjuryBoard by Geoff Trachtenberg

Mother is Charged With Homicide After Son Dies in Car

Jenny Albano — Wed, 31 Oct 2007 16:24:57 GMT

A mother of a 17 year-old month boy went in to work at Hooters Tuesday morning and when she returned to her car when her shift was over she realized she had forgotten her son was still in the vehicle. Unfortunately the toddler died because of the temperatures in the car.

Ashly Duchene was booked with a felony count of negligent homicide. She normally dropped her son off at daycare before work, but for some unknown reason she did not drop her son off Tuesday morning. Instead she left her son in the car from 10 a.m. to 5 p.m.

Efforts to revive the boy by witnesses, officers and firefighters were unsuccessful. Temperatures hit nearly 90 degrees Tuesday, but it would have been more than 100 degrees inside the car, said Sgt. Joel Tranter.

Officials think that the reason no one reported that the boy was left in the car was because their view was obstructed by tinted windows. Police requested an interview with Duchene Wednesday morning but were did not receive an immediate response.

Originally posted at InjuryBoard by Jenny Albano

Arizona Courts Have General Personal Jurisdiction over Foreign Insurers

Geoff Trachtenberg — Mon, 27 Aug 2007 14:14:00 GMT

New decision from Division One, Bohreer v. Erie Ins. Exch.. Bohreer holds that an Arizona court has general personal jurisdiction over a foreign insurer which has appointed the Director of Insurance as an agent for service of process and has not withdrawn such qualification or appointment, but has ceased doing business in the state prior to the acts underlying the complaint. The Court held that exercising such jurisdiction did not violate due process.

Originally posted at InjuryBoard by Geoff Trachtenberg

Paternity Statutes Do Not Apply to Wrongful Death Actions Involving Unborn Children

Geoff Trachtenberg — Thu, 07 Jun 2007 17:43:40 GMT

These are complicated times. It seems that, in addition to proving wrongful death, when the decedent is an unborn child, you had better be able to prove paternity as well.

In the case, Aranda v. Cardenas, both the mother and her unborn child were apparently subject to fatal medical malpractice. The Defendants, however, disputed whether the unborn child's father was indeed the child's father, raising the affirmative defense of capacity to sue.

The Defendants were able to pursued the trial court to apply very harsh statutory presumptions and other requirements imposed by the paternity statutes, A.R.S. Â§Â§ 25-801 through 25-818, to the paternity dispute in the wrongful death case. On appeal, the Plaintiff argued that the trial court erred in referring to the paternity statutes and in requiring deoxyribonucleic acid (DNA) tests to prove paternity.

Of course, wrongful death is a creature of statute and the Wrongful Death Act, A.R.S. Â§ 12-611, et seq., does not specify a procedure or standard of proof for proving paternity. Still, I had to laugh a little when the Court stated that "we must look to 'context, subject matter, historical background, effects and consequences, and spirit and purpose'" of the Act to see whether to apply the paternity statutes. Simply put, it is hard to imagine that, when the Wrongful Death Act was enacted in 1887, there was no paternity statute and Legislature had probably not considered "DNA testing."

Anyway, in a somewhat discombobulated fashion, the Court of Appeals correctly decided not to apply the paternity statutes to wrongful death, holding "[w]e cannot conclude that the legislature intended to allow a party who would be a stranger to a paternity proceeding, and thus unable to request mandatory paternity testing . . . to rely on the paternity testing requirement in a wrongful death action where paternity is at issue." This Greek for "it makes no logical sense to apply paternity statutes to wrongful death claims." Yes, I speak the language.

The second issue addressed by the Court, the party who bears the burden of proof, is somewhat of an oddity because everyone seemed to agree that the capacity to sue was an "affirmative defense." Yet, this turns our to be one of those rare cases where the plaintiff bears the burden in connection with such as defense, and I think correctly so.

In my view, for the same reasons that it makes no sense to apply the paternity statutes to a "stranger," it makes no sense to impose the burden on the stranger to disprove paternity. The Court correctly observed that "[t]he plaintiff should have the best access to the information establishing th[e] relationship [whereas] [t]he defendant, on the other hand, is typically a stranger to the relationship who has caused the death of the decedent and may not have any knowledge of the relationship or lack thereof." Thus, the Court concluded that, "[o]nce the defense is timely raised, the party claiming capacity, authority, or legal existence has the burden of proof on that issue."

And the final issue resolved by the Court was whether the Plaintiff had presented sufficient evidence to establish a triable issue on paternity. It seems strange to me that the Court of Appeals addressed this instead of remanding it back to the trial court to determine, in light of the newly determined correct legal standard, but that's just me.

Fortunately, the Court decided that there was a triable issue, but something the defense raised caught my eye. That is, the argument that the Plaintiff's testimony in opposition to summary judgment was, among other things, "self-serving." How often do we hear this - i.e., that our evidence is insufficient because it is "self-serving." How absurd is this argument? Finally, we now have some caselaw to cite to in response to this "non-objection objection." The Court held that, "the fact that . . . testimony might be self-serving, which the trial court noted in its ruling, would not, alone, bar it. It would instead be a matter of credibility for the fact-finder to determine."

And lastly, another aside, the Court noted that "[w]e are perplexed by [Plaintiff's] failure to avow that he had sexual intercourse with [the mother] during the relevant time period." So am I, but as I said, these are "complicated times."

Originally posted at InjuryBoard by Geoff Trachtenberg

Circumstances of Death Are Admissible in Wrongful Death Actions To The Extent They Impact on Shock, Grief and Emotional Distress of Statutory Survivors

Geoff Trachtenberg — Sat, 26 May 2007 15:43:08 GMT

Division One just put out an opinion in Girouard v.Skyline Steel involving interpretation of the wrongful death statute. The case involved admitted liability, but disputed damages where the decedent burned to death in car accident.

The Court clarified that, while pre-death suffering is not compensable in a wrongful death action, the horrific circumstances of the death, the necessity of closed casket funeral, and such were admissible to the extent they impacted on the shock, grief and emotional distress of the surviving father. The Court explained:

In light of the remedial purpose of the Wrongful Death Act, the statute permits a recovery not just for the fact of the decedent's death, but also for the manner in which the decedent dies to the extent the manner of death makes the experience more difficult for the survivor.

I was not particularly surprised by the result (it's common sense, frankly), but apparently the trial court did not see it the same way and needed to be reversed. So, unfortunately, these poor people will have to endure another trial going into the grizzly details of the death of their loved one.

One thing that is notable is that the plaintiff did not bring a survival action. Arguably, one could recover for the "experience of death" in such an action, but that matter is not settled in Arizona.

Originally posted at InjuryBoard by Geoff Trachtenberg

The Difference Between Wrongful Death and Survival Actions

Geoff Trachtenberg — Sun, 22 Apr 2007 09:44:09 GMT

Arizona law provides for two causes of action when someone dies: a wrongful death claim and a survival action. The purpose of providing both actions is to give the parties damaged a complete remedy and opportunity to recover the loss sustained.

The wrongful death action is intended to benefit certain survivors -- called statutory beneficiaries -- such as the decedent's parents, children, and spouse, and its purpose is to compensate them for the loss of the relationship with the decedent. The survival action is intended to benefit the decedent's estate, and its purpose is to prevent the tortfeasor's liability from ceasing upon the injured person's death.

A survival statute does not create a new claim but merely prevents abatement of the injured person's claim and provides for its enforcement by his personal representative. The Arizona Supreme Court has succinctly explained:

The [survival action] permits recovery for the wrong to the injured person and is confined to his personal loss while the [wrongful death action] is for the wrong to the beneficiaries, confined to their loss because of the death. The latter begins where the former ends and recovery on both is not a double recovery for a single wrong but rather separate recoveries for different wrongs.

Barragan v. Superior Court, 470 P.2d 722, 725 (1970).

Originally posted at InjuryBoard by Geoff Trachtenberg

The Full Scope of Arizona's Wrongful Death Statute is Still Uncertain

Geoff Trachtenberg — Sat, 21 Apr 2007 11:13:20 GMT

Arizona's wrongful death statute still has some ambiguity. For example, ARS 12-612 permits a wrongful death claim to be brought "on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate." What does this last part mean?

What damages can the estate recover in a statutory wrongful death action (as opposed to a statutory survival action under ARS 14-3110) and where is that defined? Since Arizona's survival statute strictly limits the kinds of recovery an estate can obtain in a survival action (e.g., no "pain and suffering"), does the absence of such a limitation in the wrongful death statute (beyond ARS 12-613) open the door to a broader action by the estate (e.g., pain and suffering of the descendents?).

Consider the scenario where an entire family is instantly killed and burned to death in a vehicle. There are no statutory survivors, no medical bills and even no bodies to bury. What's the remedy? Is it "cheaper" to kill the entire family than it is to injure them?

Believe it or not, these are still untested issues in Arizona.

Originally posted at InjuryBoard by Geoff Trachtenberg

The Nature of the Wrongful Death Remedy

Geoff Trachtenberg — Fri, 13 Apr 2007 10:33:35 GMT

Unlike most injury claims, wrongful death claims are governed by statute. This has some important and surprising consequences.

By way of some background, the reason wrongful death statutes were enacted was because, at common law, there was no such cause of action. As a result, it was often cheaper to kill someone than it was to simply injure them (there was a saying that, "if your carriage runs over someone, you had better back up and make sure they were dead."). Wrongful death statutes were enacted, at least in part, to correct this unfair result and to compensate the survivors for the loss of a loved one.

One of the consequences of such statutes is that only certain survivors -- i.e., statutory beneficiaries -- can make such a claim. Typically this includes a surviving husband or wife, children or parents. So, for example, it does not include un-adopted children or live-in girlfriends or boyfriends. Those parties not included within the scope of the statute have no derivative remedy for wrongful death.

Another consequence is when someone is killed and there are no statutory survivors. While the person's estate can bring a claim (usually under a separate survival statute), such claims are typically limited to medical and burial expenses, and exclude pain and suffering. So, for example, if someone is negligently killed, dies instantly without the need of medical care and in a manner where there is no body to bury (e.g., due to a fire), there is basically no remedy or meaningful consequence to the person who was negligent.

Ironically, had the same person survived such an incident with severe injuries, the negligent person would be liable for, among other things, medical bills, pain and suffering. So in some cases it is still "cheaper" to kill than it is to injure, a surprising outcome to say the least.

Originally posted at InjuryBoard by Geoff Trachtenberg

Wrongful Death and Negligent Loss of Frozen Embryos

Geoff Trachtenberg — Wed, 21 Mar 2007 10:22:10 GMT

Unlike most injury claims, wrongful death claims are created and governed by statute. Those statutes typically permit claims by certain family members for the negligent loss of a loved one or, in pure legal terms, a "person." But what qualifies as a "person" is subject to a great deal of political, philosophical and even legal debate.

What about frozen embryos? They are genetically complete and simply "frozen in developmental time." Given the right conditions, these embryos are potential persons and, not surprisingly, the parents of these embryos tend to have special concerns when their embryos are negligently lost or destroyed. Worse still, there are stories of such embryos (and even eggs) being sold on the black market.

While the law varies from state to state, the Arizona Court of Appeals recently addressed such a wrongful death claim in a case that I handled. In sum, the court declined to extend the definition of "person" to frozen embryos, leaving it to the Legislature to make the change, but permitted our clients to pursue other claims that, in essence, are probably on par with a wrongful death claim.

Originally posted at InjuryBoard by Geoff Trachtenberg

Settlement Reached in Lawsuit Over Teen's Death

Christina Cole — Thu, 15 Mar 2007 19:55:24 GMT

A wrongful death lawsuit involving a 16-year-old girl who was killed by a motorist on her way to school, has settled for $225,000 with the city paying up.

The suit was filed by the Mother of a junior at Alhambra High School that was killed on November 20, 2004 while she was attempting to catch a Valley Metro bus to get to class.

The lawsuit accused the city of negligence in its operation of traffic signals. However, a Glendale spokeswoman states the city without admitting to any liability, decided to end the lawsuit. "We came to a determination that was in the best interest of the public to compromise all claims in this action and to settle the matter for a reasonable amount."

The girl was hit by a car while trying to cross the road. The suit alleged Glendale was at fault because the pedestrian control button had been disabled and the signal lights didn't work properly.

An attorney for Glendale, filed court documents denying any negligence on the part of the city. The documents show the suit was dismissed on November 6th after settlement talks between the mother and lawyers.

Originally posted at InjuryBoard by Christina Cole