Someone was inattentive and there’s been an accident. You, a loved one, or your car have been injured or damaged. Perhaps someone has died. The costs of medical bills, repair and replacement of your car or bicycle, and missed time from work loom. This is a reality for all too many in Chandler, Gilbert, and the surrounding areas. Someone has been negligent in Arizona. Phoenix courts and the Arizona legislature, with assistance from a Phoenix auto accident attorney, give us avenues to help us deal with the fallout of unexpected hardship from accidents where others failed to be careful.
The primary avenue available to someone who has been a victim of an auto, motorcycle, or pedestrian accident is called negligence. A Gilbert slip and fall will be argued under the same negligence standards as a car accident in Phoenix. However, your negligence lawsuit alleges that the other party, the defendant, had a duty to act with a certain amount of care and failed to do so, and that due to that failure, an injury was caused.
What Does It Mean to be Negligent in Arizona?
Negligence is that area of tort law that attempts to redress harm caused not by intent (which is a required element in most crimes) but by inattention or carelessness. The basic idea behind the law of negligence is that people should behave in such a way that takes into account foreseeable harm to others from their actions. However, according to a Phoenix auto accident attorney, if you’ve been injured by another’s negligence from a car, motorcycle, or pedestrian accident, you may recover for the harm to your person, property, or finances by way of a civil suit.
Drunk Driving, Careless Driving and Texting Equals Negligent Driving in a Phoenix Auto Accident
A claim for negligence consists of either a wrongful action or wrongful inaction. Negligence is the failure to comply with the applicable standard of care: the requisite standard of conduct objective. This means a party’s conduct is usually measured by an objective standard applicable to all persons. Terry v. Linscott Hotel Corp., 126 Ariz. 548, 617 P.2d 56 (App. 1980); Pearson v. Norman, 106 P.2d 361 (Colo. 1940). Put another way, you have to put your feelings aside and look at the facts of the auto accident. Was there distracted driving, did the driver run a red light, or were they driving drunk? These are objective facts that led to their careless behavior.
At the same time, consideration is given to the facts and circumstances and the risk undertaken by the at-fault driver. These factors are all considered in determining if the actor has complied with the required standard of care. The courts have implemented this objective standard of conduct through the fictitious “reasonable man of ordinary prudence.” Accordingly, negligence is the failure to do what the reasonable person would do “under the same or similar circumstances” as specified by a Phoenix auto accident attorney.
Negligence Is Distracted Driving in a Phoenix Auto Accident
Negligence, then, is a relative term and is tested under facts and circumstances related to time, place, manner, or person. Dorney v. Mammi, 350 Fed. Appx. 649 (3rd Cir. 2009); Strahin v. Cleavenger, 603 S.E.2d 197 (W. Va. 2004); Gorin v. City of St. Augustine, 595 So. 2d 1062 (Fla. Dist. Ct. App. 1992); Spivey v. Battaglia, 258 So.2d 815 (Fla. 1972); Luneau v. Elmwood Gardens, Inc., 198 N.Y.S.2d 932 (N.Y. Sup. 1960).
How is Negligence Shown?
A claim for negligence requires proof of the following four elements:
- The existence of a duty of care
- A breach of that duty
Each of these elements represents a stage of your claim. Much like in a criminal case, you will seek to show each of these required elements one by one. Failing to show any one of the elements results in a loss of the entire claim.
Existence of a Duty and Standard of Care
The general duty of care is an obligation imposed by operation of law on all actors performing acts which could foreseeably harm others. It is the initial element that must be shown and is generally a question of law (meaning it is decided by the court instead of the jury).
Who Owes You a Duty of Care in Arizona?
There are specific duties of care that exist between individuals with certain relationships. Here are just a few examples:
- Parents have a higher duty of care to their children than other adults do to those same children
- A commercial licensed driver
- An employee acting on behalf of his employer
The standard of care requires behavior consistent with one exercising those qualities of attention, knowledge, intelligence, and judgment [that] society requires of its members for the protection of their own interests and the interests of others. The standard of care, however, does not require a person to take unreasonable precautions. Bell v. Smitty’s Super Valu, Inc., 183 Ariz. 66, 68, 900 P.2d 15, 17 (App. 1995).
How a Jury Finds Negligence in Your Auto Accident Case
In ordinary negligence actions, the standard of care imposed is conduct of a reasonably prudent person under the circumstances. In most negligence cases, it is not necessary for plaintiffs to present evidence to establish the standard of care. That is because the jury can rely on its own experience in determining whether the defendant acted with reasonable care under the circumstances. Bell v. Maricopa Med. Ctr., 157 Ariz. 192, 194, 755 P.2d 1180, 1182 (App. 1988); Potter v. H. Kern Wisner, M.D., P.C., 170 Ariz. 331, 823 P.2d 1339 (1991).
The applicable standard is an objective one, rather than a subjective judgment about the individual. RESTATEMENT (SECOND) OF TORTS § 283 cmt. c. Yet, allowance must be made for differences between individuals, the risk apparent to the actor, the actor’s capacity, and all the circumstances under which he must act. Id.
The standard of care requires an actor to recognize a risk of harm, if a reasonable person would do so, with:
a. Such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable person would have.
b. Such superior attention, perception, memory, knowledge, intelligence and judgment as the actor himself has.
As such, the defendant must utilize his own capabilities, even if those capabilities are better than those of the reasonable person.
For example, a Phoenix emergency medical technician (EMT) would be held to the standard of care of someone with the skills a reasonable EMT would display in administering aid. A Phoenix truck driver must utilize the same safe driving standards as a reasonable truck driving in handling his truck on the Phoenix highways.
These rules assess the knowledge that is necessary to enable the actor to recognize the existence of a risk and the extent thereof.
How Risky Is Distracted and Negligent Driving in Arizona?
In determining the magnitude of the risk, the following factors are important:
a. The social value which the law attaches to the interests which are involved.
b. The probability that the actor’s conduct will cause an invasion of any interest of the other or of one of a class which the other is a member.
c. The extent of the harm likely to be caused to the interests involved.
d. The number of persons whose interests are likely to be involved if the risk takes effect. Id. at § 293.
As the social value of the interests increases, the magnitude of the risk which is tolerated diminishes.
What if the Person Who Injured You Is Handicapped, Had a Heart Attack, or Is Teenage Driver?
Physical limitations and handicaps are considered circumstances facing the reasonable person. As such, a disability affects the determination of what is reasonable. For example, a heart attack or temporary delirium are taken into account when determining what the reasonable person would do under the circumstances. However, persons with mental disabilities are held to the same standard as persons without disabilities.
What if the Person Is a Teenage Driver?
Children: The standard of care for children is to behave with conduct of a “reasonable person of like age, intelligence, and experience under the circumstances. This standard is much more subjective than the standard applicable to adults. The relevant experience of the child can be considered in arriving at the reasonableness of the child’s actions. The special standard applied to children arises out of the public interest in their welfare and protection. For example, if a child engages in activity normally undertaken by an adult, the adult standard may apply. Burns v. Wheeler, 103 Ariz. 525, 529, 446 P.2d 925, 929 (1968).
Duties Owed to Other Drivers in Arizona
Statutory Duties: The Arizona legislature has created a few specific duties under certain circumstances. For instance, motorists involved in an auto accident that resulted in an injury or death are required to stop their vehicles and render reasonable assistance to the injured party. Arizona Revised Statute Sections 28-661 .
Assumption of Duty: A legal duty may be created where it does not otherwise exist if an actor assumes a duty to act. The assuming party should anticipate that he or she will be liable for harm arising from the duty to act. Tollenaar v. Chino Valley Sch. Dist., 190 Ariz. 179, 181, 945 P.2d 1310, 1312 (App. 1997).
For example, a volunteer who joins a rescue effort has a duty to act reasonably. Barnum v. Rural Fire Protection Co., 24 Ariz. App 233, 236-237, 537 P.2d 618, 621-622 (1975). Someone who undertakes to render services of his own free will implicitly agrees to exercise reasonable care in performing the undertaking. The scope and nature of the undertaking determines the scope and nature of the duty assumed. White v. U.S., 422 F. Supp. 2d 1089, 1095 (D. Ariz. 2006), vacated in part on other grounds by Stanley v. McCarver, 208 Ariz. 219, 692 P.3d 849 (2004).
Third Parties: Similarly, one who undertakes, voluntarily or for pay, to render services to another which he should recognize as necessary for the protection of a third person, is subject to liability to the third person. Stanley v. McCarver, 204 Ariz. 339, 343, 63 P.3d 1076, 1080 (2003), vacated in part by Stanley v. McCarver, 208 Ariz. 219, 692 P.3d 849 (2004). Hence, a third party may recover for physical harm resulting from an actor’s failure to exercise reasonable care to protect his undertaking, if such failure increases the risk of harm.
Duties Owed to You by Business Owners
Standard of Care Owed by Landowners: First of all, common law distinctions among invitees, licensees, and trespassers apply in determining land owner’s liability for injuries to persons coming upon premises of another under Arizona law. (See Article on Premises Liability). Moore v. Tucson Elec. Power Co., 158 Ariz. 187, 189, 761 P.2d 1091, 1093 (App. 1988). As such, the requisite standard of care depends on your status as the injured person. An owner or occupier of land or buildings who invites another to go on the land owes such person a duty to have the premises in a reasonably safe condition and give warning of latent or concealed perils. Forbes v. Romo, 123 Ariz. 548, 550, 601 P.2d 311, 313 (App. 1979).
A land owner is generally under a duty to use reasonable care to make premises safe for use by social guests and others invited onto the property. Fehribach v. Smith, 200 Ariz. 69, 73, 22 P.3d 508, 512 (App. 2001); Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142, 639 P.2d 330, 332 (1982).
No Duty: Arizona courts have found no duty existed between parties in a variety of specific circumstances. For example, the law imposes no liability upon those who stand idly by and fail to rescue a stranger in danger. Miller v. Arnal, 129 Ariz. 484, 491, 632 P. 2d 987, 994 (App. 1981).
First Step: Determining Whether You Were Owed a Duty
Often, determining whether you were owed a duty of ordinary care is fairly straightforward for a personal injury attorney (and the courts) to determine. For example, if you were involved in an auto accident in Chandler, it is well established that drivers owe others, be they driver, pedestrian, or motorcyclist, a duty to obey the rules of the road.
Similarly, premises liability law has long held that stores and other areas open to the public can be held responsible for accidents that occur on the grounds. For example, if you’ve been in a slip and fall or auto accident, whether there was a duty should be fairly straightforward. Proving the next element, breach of that duty, is usually where the case truly begins.
Hence, when it comes to the special relationships mentioned above, establishing duty becomes slightly trickier. It’s necessarily a fact intensive question and will vary from case to case.
Breach of Duty in Phoenix
Duty is an obligation, recognized by law and not just by a Phoenix auto accident attorney, requiring the defendant to conform to a certain standard of conduct for the protection of you and others against unreasonable risks. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983). Everyone has a duty to show reasonable care toward one another and their property. For example, if the defendant knowingly or willfully exposed you to the harm or risk of loss then he or she has breached the duty. The same goes for the failure to realize the risk if a reasonable person in the same situation would have.
Whether a defendant owes you a duty is a threshold issue; absent a duty, a negligence action cannot be maintained. Gipson v. Kasey, 214 Ariz. 141, 143, 11, 150 P.3d 228, 230 (2007). Once the existence of a duty and its scope are defined, there must be a breach of that duty for negligence to attach which is the proximate cause of injury. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008). Unlike the existence of a duty, the question of breach is normally a question of fact and, therefore, decided by a jury. In its most basic form, a breach of a duty occurs when the defendant’s conduct has fallen below the applicable standard of care.
Types of Breach
As with the existence of a duty, courts in Arizona, in the course of deciding thousands of cases ranging from trucking accidents to DUIs and slip and falls, have established some go-to rules regarding certain types of breach.
Non-delegable Duty: First of all, the employer of an independent contractor is not vicariously liable for the torts of that contractor. Historically, two exceptions have been noted. The first is the non-delegable duty of a possessor of land to make his or her premises safe for business invitees. The second exception is an employer’s non-delegable duty where the work to be performed by an independent contractor is “inherently dangerous.” Ft. Lowell-NSS Ltd. P’ship v. Kelly, 166 Ariz. 96, 800 P.2d 962 (1990).
Specific Duties Owed Under Arizona Law: If an actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused bodily harm to another as to make him helpless, and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm. Maldonado v. S. Pac. Transp. Co., 129 Ariz. 165, 629 P.2d 1001 (App. 1981).
For example, if a driver hits a pedestrian, he has a duty to make sure that the pedestrian gets aid and is not in further danger of being hit by other vehicles.
Sudden Emergency Doctrine: The “sudden emergency” doctrine is used to redefine the standard of care with respect to negligence. For example, if the actor is confronted with a sudden emergency, his actions are not held to the same standard of care of a person not facing emergency circumstances. The “sudden emergency” doctrine applies to both plaintiffs and defendants in determining fault. Breaux v. Roy Young, Inc., 397 So. 2d 1384 (La. App. 3d Cir 1981).
If a legal duty exists, and a breach of that duty occurs, you must still show that the breach was the cause of your damages. Causation is comprised of two legal concepts. First of all, a party is required to prove cause-in-fact. In other words, a party must prove that the injury claimed would not have occurred “but for” the negligent act [Inspiration Consol. Copper Co. v. Conwell, 21 Ariz. 480, 484, 190 P. 88, 90 (1920); Brand v. J. H. Rose Trucking Co., 102 Ariz. 201, 427 P.2d 519 (1967)] or in the alternative, that the negligent act was a “substantial factor” in the resulting injury. Second, it must be determined by the court.
Second, it must be determined by the court [Rogers v. Retrum, 170 Ariz. 399, 402, 825 P.2d 20, 23 (App. 1991).] that the “scope of liability” [In Arizona, the term “scope of liability” has been inconsistently described. See, e.g., Salt River Valley Water Users’ Ass’n v. Cornum, 49 Ariz. 1, 63 P.2d 639 (1937) (proximate cause); Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983) (legal policy); Rogers v. Retrum, 170 Ariz. 399, 825 P.2d 20 (App. 1992) (legal cause)] extends to the range of risks or harms suffered. Sabina v. Yavapai County Flood Control Dist., 196 Ariz. 166, 171, 993 P.2d 1130, 1135 (App. 1999).
In a single-cause event, Arizona courts apply the “but for” test. When multiple actors or causes contribute to the ultimate injury, Arizona courts resort to the “substantial factor” test. Cause-in-fact relies upon proof that an immediately preceding event caused injury. In its purest and simplest form, cause-in-fact is the event which is close in time and without which the accident would not have occurred. Inspiration Consol. Copper Co. v. Conwell, 21 Ariz. 480, 485, 190 P. 88, 90 (1920). The concept of “proximate cause” is enunciated in Nichols v. City of Phoenix, 68 Ariz. 124, 134, 202 P.2d 201, 207 (1949).
The substantial factor test applies when there are multiple actor causes and the operation is in the name. The defendant’s actions must have represented a relevant part of the cause of your injuries.
Scope of Liability/Proximate Cause:
Concluding that the wrongdoers’ actions are a cause-in-fact of the injury does not end the inquiry. A determination must then be made whether the ultimate harm and the persons who are harmed fall within the scope of liability. You may have realized that, under simply the “but for” test, literally anything could suffice as a cause. But for your birth, you would not have sustained the injury. The essential bit of proximate cause is once more in the name, the cause most proximate, or closest, to the injury is thus known as the proximate cause.
Intervening, Superseding Causes:
When multiple causes contribute to the ultimate harm, a singular analysis of scope of liability is inadequate. Consequently, when faced with multiple wrongdoers or multiple causes, the courts have analyzed the scope of liability or the extent of risk of harm in terms of intervening and superseding causes. Phrased another way, “The question is always one of whether the defendant is to be relieved of responsibility as a result of a subsequent wrongdoer’s intervening conduct and subsequent adverse result.” KEETON, note 13 at 302.
The damages that are available to you when there has been a negligently caused personal injury are usually called compensatory damages, as their purpose is to compensate the victim for the injury and return the victim, as nearly as possible, to the position he was prior to the injury. U.S. Fid. & Guar. Co. v. Davis, 3 Ariz. App. 259, 413 P.2d 590 (1966). They fall into two general categories. The first is special damages. White River Sheep Co. v. Barkley, 37 Ariz. 49, 288 P. 1029 (1930).
These are damages that are capable of computation. Many types of damages fit within this category: for past and future medical expenses, past and future wage loss, property damage, past and future lost profits, and loss of services, for example. The second is general damages. Id. These are damages that are not capable of computation [Palmer v. Kelly, 54 Ariz. 466, 97 P.2d 209 (1939).] and include damages for pain and suffering, loss of consortium and hedonic (loss of enjoyment of life) damages. General damages are available to individual victims but not to entities.
Past and Future Medical Expenses: The medical bills are a common and recognized form of special damage. In order for medical bills to be recovered as an element of damage, they must be reasonable in amount, and the treatment to which they relate must have been made necessary by the negligent conduct. See Larsen v. Decker, 196 Ariz. 239, 243-44, 20-21, 995 P.2d 281, 285-86 (App. 2000). Because of the collateral source rule, which prohibits evidence that you have received compensation from a source other the the defendant, the amount of a medical bill is the amount which the victim is entitled to claim regardless of whether that is the amount actually collected by the healthcare provider. Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 202, 13, 129 P.3d 487, 492 (App. 2006). The collateral source rule does not, however, apply in medical malpractice cases. A.R.S. § 12-565.
Past and Future Wage Loss: Past and future wage loss is a recognized element of personal injury damages under Arizona law. Lewis v. N.J. Riebe Enter., Inc., 170 Ariz. 384, 397, 825 P.2d. 5, 18 (1992). You must establish the amount of time lost from work and the amount of compensation you would have received for that time. There will undoubtedly be occasions when medical evidence will be necessary to establish that the medical condition caused by the negligence prevented you from working and the length of time you could not work. Medical evidence will usually be needed when it is not obvious that your inability to work resulted from the injury.
When lost profits are offered as a measure of the victim’s loss, courts usually require a reasonably certain factual basis for computing the lost profits. Rancho Pescado, Inc. v. Nw. Mut. Life Ins. Co., 140 Ariz. 174, 184, 680 P.2d 1235, 1245 (App. 1984). The lost profits must be causally related to the alleged tort. The evidence required to prove loss of future profits depends on the individual circumstances of each case. Although absolute certainty is not required, the jury must be guided by some rational standard. Id.
Compensation for negligently caused damage to property includes the cost of repair, residual diminution in value, and loss of use.
Loss of Services:
Sometimes a negligently caused injury will either prevent or reduce the ability of a victim to perform services around the house. The value of those lost services is an element of damages which may be awarded. Barnes v. Outlaw, 192 Ariz. 283, 964 P.2d 484 (1998). The value of lost services can include housekeeping, childcare, yard work, and cooking.
Present Value of Future Economic Damages:
Future economic damages are generally reduced to present value that is the amount which if invested at a reasonable interest rate today should be enough to cover or replace future losses as they arise. Smith v. Myers, 181 Ariz. 11, 13, 887 P.2d 541, 543 (1994). Present value calculations are also applied to take into consideration the time value of money when a projected payment or earnings stream over time is collected upfront in a lump sum award or payment. A personal injury attorney will hire experts to help compute these damages.
These are damages which are not capable of computation. Palmer v. Kelly, 54 Ariz. 466, 468-69, 97 P.2d 209, 209-10 (1939). They include damages for pain and suffering, loss of consortium, and hedonic (loss of enjoyment of life) damages. They are available to individual victims but not to entities like businesses.
Loss of Consortium:
Historically, wives and children were considered property of the husband who could recover for the loss of their services. Barnes v. Outlaw, 192 Ariz. 283, 964 P.2d 484 (1998). Over time, the focus of an action for loss of consortium shifted to the intangible values of a relationship, such as companionship and affection. Id. Consortium essentially consists of love, affection, protection, support, services, companionship, care, society, and, in the marital relationship, the physical relationship. Frank v. Super. Ct., 150 Ariz. 228, 722 P.2d 955 (1986).
Past and Future Pain and Suffering:
Pain and suffering are elements of damages resulting from negligence. Id. An award for pain and suffering is left to the discretion of the jury, [Id.] based upon the facts and circumstances of the individual case. White v. Breedon, 65 Ariz. 117, 120, 175 P.2d 201, 203 (1946). A court may interfere with the jury’s discretion if it finds that the award is inadequate or excessive. Horn v. Ruess, 72 Ariz. 132, 138, 231 P.2d 756, 761 (1951).
Loss of Enjoyment of Life:
Damages for the limitations to the injured person’s ability to participate in and derive pleasure from the normal activities of daily life, or for the individual’s inability to pursue his talents, recreational interests, hobbies, or avocations are sometimes called “hedonic” damages. Ogden v. J.M. Steel Erecting, Inc., 201 Ariz. 32, 38, ¶ 26, 31 P.3d 806, 812 (App. 2001). They can be awarded without being duplicative of damages for pain and suffering. Id.
Negligently Inflicted Emotional Distress:
There can be an award for emotional distress without a direct physical injury to the victim where certain criteria are met. The emotional distress may arise out of a fright involving the victim alone [Quinn v. Turner, 155 Ariz. 225, 227, 745 P.2d 972, 974 (App. 1987).] or may arise out of the victim witnessing an injury to another, but three requirements must be met. Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979).
Fear of Future Events:
Emotional distress in the form of fear of future events is compensable under certain circumstances. For example, fear that exposure to potentially carcinogenic materials will lead to illness or disease (“cancerphobia”) is too speculative to support compensation because an increased risk of future illness is not an existing medical condition. DeStories v. City of Phoenix, 154 Ariz. 604, 744 P.2d 705 (App. 1987).
Permanence, Disfigurement, and Scarring:
The permanence of an injury is a factor which may be considered by the jury in awarding damages as are disfigurement and scarring. City of Phoenix v. Mullen, 65 Ariz. 83, 89, 174 P.2d 422, 425 (1946); Personal Injury Damages 1, REVISED ARIZONA JURY INSTRUCTIONS (Civil), 4th Edition. Whether an injury is permanent need not be proven by medical testimony, nor is a jury bound by medical testimony about the lack of permanency, if there is controverting evidence from which it may be inferred that the injury is permanent. Mullen, 65 Ariz. at 89, 174 P.2d at 425.
Loss of Earning Capacity: While loss of future wages is an element of special damages, loss of earning capacity is an element of general damages. Rossell v. Volkswagen of Am., 147 Ariz. 160, 172, 709 P.2d 517, 529 (1985).
Persons Liable and Apportionment of Fault
This section discusses “persons liable” for negligence in Arizona. This general discussion centers around the pure comparative negligence principles Arizona adopted when it passed the Uniform Contribution Among Tortfeasors Act (“UCATA”). A.R.S. § 12-2501 et seq.
First of all, the UCATA predominantly establishes a system of pure comparative fault. JEFFERSON L. LANKFORD & DOUGLAS A. BLAZE, THE LAW OF NEGLIGENCE IN ARIZONA, § 6.02 at 6-7 (3rd Ed. 2010). This allows injured parties compensation even when they are at fault, but reduces damages attributable to that fault, and renders “each tortfeasor responsible for paying for his or her percentage of fault and no more.” State Farm Ins. Cos. v. Premier Manufactured Sys., Inc., 217 Ariz. 222, 225, ¶ 12, 172 P.3d 410, 413 (2007).
Non-parties at Fault:
Fault may be allocated to non-parties under A.R.S. § 12-2506(B). Non-party at fault designations are effective and valid even if you are without recourse against the non-party. Dietz v. Gen. Elec. Co., 169 Ariz. 505, 510, 821 P.2d 166, 171 (1991). However, a non-party at fault designation must specifically identify “facts sufficient to establish the existence of another tortfeasor,” even if that tortfeasor cannot be identified. Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433, 937 P.2d 353, 355 (App. 1996).
Exceptions to Comparative Fault:
There are circumstances under which a plaintiff may be denied the benefits of Arizona’s pure comparative fault system. For example, “[t]here is no right to comparative negligence in favor of any claimant who has intentionally, willfully or wantonly caused or contributed to the injury or wrongful death.” A.R.S. § 12-2505(A). The fact finder may still find in plaintiff’s favor under these circumstances, if the defendant was partially at fault, but may not determine relative degrees of fault. The fact finder is to find for the defendant or for the plaintiff as it sees fit. See Williams v. Thude, 188 Ariz. 257, 934 P.2d 1349 (1997).
Several liability means that, of the total fault for harm attributable to defendants, the court shall enter judgment against each defendant only for the defendant’s own percentage of the total fault. Sowinski v. Walker, 198 P.3d 1134, 1169 (Alaska 2008).
Acting as an Agent or Servant: Joint liability may exist under the UCATA when tortfeasors are acting as agents or servants of one another. Estate of Hernandez v. Flavio, 187 Ariz. 506, 930 P.2d 1309 (1997).
Federal Employee Liability Act: 45 U.S.C. § 51, which is the Federal Employers Liability Act (“FELA”), applies to railroad employees working across state lines. There are no Arizona cases dealing with this exception to the abolition of joint and several liability.
As set forth above, A.R.S. §12-2506(D)(2) establishes that a principal or master remains vicariously liable for the torts of an agent or servant. Vicarious liability is a principal’s imputed responsibility for an agent’s or servant’s fault. Wiggs, 198 Ariz. at 371, ¶ 13, 10 P.3d at 629. This includes relationships between employers and employees where the employee is acting within the scope of his duties for the employer. Thus, a trucking accident attorney often focuses on this element when representing a plaintiff against drivers and the companies they carry cargo for.
Family Purpose Doctrine
Arizona recognizes the family purpose doctrine. Young v. Beck, 227 Ariz. 1, 251 P.3d 380 (2011). The Arizona Supreme Court first did so in Benton v. Regeser [20 Ariz. 273, 179 P. 966 (1919).] in 1919, describing the doctrine as follows:
[A parent] who furnishes an automobile for the pleasure and convenience of the members of his family makes the use of the machine for the above purposes his affair or business, and … any member of the family driving the machine with the [parent’s] consent, either express or implied, is the [parent’s] agent. Id. at 278, 179 P. at 968.
Aiding and Abetting Arizona recognizes liability for a party who aids and abets a tortfeasor in causing harm to a third party. Wells Fargo Bank v. Ariz., Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 485, ¶ 31, 38 P.3d 12, 23 (2002). A person has “aided and abetted” another when he or she “knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.” Id.; see also RESTATEMENT (SECOND) OF TORTS § 876(b) (1979).
Negligent Entrustment “Where one who owns a dangerous instrumentality, such as an automobile, and loans it to another who, to the knowledge of the owner, is incompetent to drive such a vehicle, the owner is guilty of negligence if the driver negligently injures another.” Powell v. Langford, 58 Ariz. 281, 285, 119 P.2d 230, 232 (1941).
Defenses to Negligence
In addition to the general defense of no negligent conduct, there are a number of defenses available to a person or entity charged with negligence. They include immunity, privilege, absence of capacity, contributory negligence, and assumption of the risk.
First of all, immunity may derive from the common law or from statutory enactment. Statutory enactments have created more immunities than existed at common law. The reader is urged to review the Arizona Revised Statutes for the status of statutorily created immunities as the legislature frequently tinkers with this area of the law.
Many of the common law immunities have been abrogated in whole or in part. Although blanket sovereign immunity, which protected the state from all suits, has been abrogated, [Stone v. Ariz. Highway Comm’n, 93 Ariz. 384, 381 P. 2d 107 (1963).] remnants of sovereign immunity live on in the form of legislatively granted immunities.
Arizona’s abrogation of sovereign immunity did not affect the immunity of Indian tribes within the State because the sovereignty of Indian nations is governed by federal law. Filer v. Tohono O’Odham Nation Gaming Enter., 212 Ariz. 167, 170, ¶ 6, 129 P.3d 78, 81 (App. 2006).
Notice of Claim Statute:
Another vestige of sovereign immunity is the filing a notice of claim requirement against the public entity or employee sought to be held liable. A.R.S. § 12-821.01(A). Any person who may have a claim against a public entity or a public entity employee must precisely follow the Notice of Claim statute requirements.
Immunity for Employers and Co-Employees:
Arizona’s Workers’ Compensation statutes [A.R.S. § 23-901 et seq.] permit employees, who have not opted out, to make a limited recovery for work-related injuries without having to prove negligence by the employer. So, employers that have complied with the requirements of the statutes are immune from suit by their employees for negligently caused injuries. [A.R.S. § 23-1022(A).] Workers’ compensation benefits are also the exclusive civil remedy of an injured employee against a co-employee. Id.
Immunity for Recreational or Educational Property Use:
A.R.S. § 33-1551 establishes immunity from liability for simple negligence for property owners, tenants, lessees and similarly situated persons who allow others to come on the property for recreational or educational use without charging a fee, other than a nominal one intended to offset the cost of providing the premises. A.R.S. § 33-1551. There is no immunity if an injury is directly caused by willful, malicious or grossly negligent conduct by the person or entity who would otherwise be protected. Id.
A.R.S. § 9-500.02 establishes civil immunity for municipalities, their officers and employees, and any private fire or ambulance company with which they contract, as well as property owners, tenants, and certified emergency medical technicians who provide emergency medical aid for any liability arising out of the emergency medical aid. A.R.S. § 9-500.02(A).The immunity does not apply to injuries caused by gross negligence or intentional conduct. Id. It also does not apply to injuries occurring as the result of the operation of a motor vehicle by the emergency medical technician [Id.] or to injuries which occur in an emergency room. A.R.S. § 9-500.02(E).
Licensed healthcare providers who in good faith give emergency instructions to certified emergency medical technicians at the scene of an emergency or who give pre-arrival instructions may be immune from a suit for civil damages. A.R.S. § 32-2206.
Gratuitous Emergency Care:
A.R.S. § 32-1471 provides immunity to many people who in good faith provide gratuitous emergency care at public gatherings or at the scene of an emergency, so long as the person giving the care is not grossly negligent. Included in the groups given immunity are licensed or certified healthcare providers, licensed ambulance attendants, drivers, pilots and pretty much anyone else who provides emergency care in these situations.
Gratuitous Medical Care at Amateur Athletic Events:
A.R.S. § 32-1472 provides essentially the same immunity as the preceding statute to those licensed or certified healthcare providers who, without compensation, attend an amateur athletic event or practice for the purpose of offering treatment within their specialty to injured athletes. The treatment must be provided in good faith and without gross negligence. A.R.S. § 32-1472.
Acts Relating to Blood Products:
Physicians, surgeons, hospitals, nonprofit blood banks, tissue banks and donors involved in obtaining, preparing, preserving, injecting or transfusing blood or its components are immune from suit brought on the basis of strict liability or implied warranty. A.R.S. § 32-1481.They remain liable for negligence or willful misconduct. Id.
Social Host Immunity:
A.R.S. § 4-301 creates immunity from dram shop liability for social hosts, so long as the person they allegedly
A.R.S. § 4-301 creates immunity from dram shop liability for social hosts, so long as the person they allegedly over served could legally consume alcoholic beverages. But see Knoell v. Cerkvenik-Anderson Travel, Inc., 185 Ariz. 546, 917 P.2d 689 (1996).
Students in Healthcare Provider Program:
Students who are in an educational or training program which has been certified or otherwise approved by the State of Arizona, and which prepares them to be licensed as a healthcare provider, are not liable for medical malpractice for care provided in the program unless gross negligence is proved by clear and convincing evidence. A.R.S. § 12-564(A).
Healthcare Professionals in Non-Profit Clinics:
A healthcare professional who provides treatment within the scope of his or her license at a non-profit clinic where neither the professional nor the clinic receives compensation for the treatment is not liable for medical negligence, unless the healthcare professional was grossly negligent. A.R.S. § 12-571(A).
Previously Owned Prescription Eyeglasses:
A healthcare professional who provides previously owned prescription eyeglasses free of charge is not liable for injury caused by the eyeglasses so long as the recipient, or the recipient’s parent or legal guardian in the case of a minor, has signed a medical malpractice release form and the injury does not result from the professional’s intentional misconduct or gross negligence. A.R.S. § 12-571(B).
Anatomical Gift Immunity:
A.R.S. § 36-856 confers broad immunity upon those who act in good faith in procuring anatomical gifts. A.R.S. § 36-856(A). All acts are presumed to be done in good faith unless they are done with intent to maliciously cause injury. Id.
Volunteers for Hospitals or Governmental Entities:
Volunteers who act in good faith in the service of a non-profit corporation or organization, a hospital, or a governmental entity are immune from civil liability so long as they do not cause injury as the result of willful, wanton or grossly negligent misconduct. A.R.S. § 12-582(A). The entity for whom the volunteer serves, however, remains liable for the actions of the volunteer which are within the scope of the volunteer’s official functions. A.R.S. § 12-582(B).
Horse Owners and Livery Stables:
There is no liability for injuries caused by the ordinary negligence of an owner of a horse or his agent who permits another to take control of a horse, so long as the requirements of A.R.S. § 12-553 are met.
Builders of Baseball Facility:
The owners, designers and builders of a baseball facility are not liable for injuries to spectators who are injured by baseballs, bats or other equipment used by the players during a game so long as the owner, designer or builder provides protective seating that is reasonably sufficient to satisfy expected requests for such seating and they do not intentionally injure the spectator. A.R.S. § 12-554.
Parents of Malicious Minors:
A.R.S. § 12-661 makes custodial parents jointly and severally liable for any malicious or willful misconduct of a minor which results in an injury to the person or property of another. A.R.S. § 12-661(A). Liability attaches to the minor’s parents regardless of whether the parents could have anticipated the misconduct. The parents’ joint and several liability is limited to $10,000.00 per tort of the minor. A.R.S. § 12-661(B). The imposition of this liability is in addition to any other remedies which may exist against the parents. A.R.S. § 12-661(C).
In 1909, the Arizona Supreme Court announced immunity for claims based on the theory that the operation of an unfenced canal and its equipment create an attractive nuisance. Salladay v. Old Dominion Copper Mining & Smelting Co., 12 Ariz. 124, 100 P. 441 (1909).
The privilege of Self-Defense:
Arizona recognizes the existence of a privilege of self-defense. Transamerica Ins. Group v. Meere, 143 Ariz. 351, 694 P.2d 181 (1984). Under the doctrine, a person may use reasonable force to prevent harm to his person. A person who properly acts to defend himself, but who in the heat of the moment uses force which exceeds that which is reasonable under the circumstances, will be outside the privilege for the injuries caused by the unreasonable use of force.
Privilege of Defense of Another:
Arizona also recognizes the privilege to defend a third person. Gortarez by and through Gortarez v. Smitty’s Super Valu, Inc., 140 Ariz. 97, 680 P.2d 807 (1984). The privilege permits one to come to the aid of another where such action is “called for, or sanctioned, by recognized social usage, or commonly accepted standards of decent conduct.” Id. at 101, n. 2, 680 P.2d at 811 quoting W. PROSSER, LAW OF TORTS § 20 at 112-113 (4th ed. 1971).The privilege permits use of “all force reasonably necessary for such defense . . . .” Id.
Contributory negligence, the negligence of a claimant, has evolved as a defense in Arizona. Originally, it was an absolute defense which, if applied by the jury, [ARIZ. CONST. art. 18, § 5.] would preclude a recovery by the plaintiff from a negligent defendant. Cheney v. Super. Ct., 144 Ariz. 446, 698 P.2d 691 (1985).Today, while the test for contributory negligence remains the same, it is applied comparatively with the fault of the defendant or defendants and any non-parties. A.R.S. § 12-2505.
Minor/Adult Capacity and Contributory Negligence:
In order to be contributorily negligent, a plaintiff or non-party at fault must have the capacity to conform his conduct to the standard of a reasonable person. Arizona law recognizes that children below a certain age are too young to have the required capacity. A 4½ year old has been recognized as too young as a matter of law to be contributorily negligent, [Vigue v. Noyes, 113 Ariz. 237, 550 P.2d 234 (1976); De Amado v. Friedman, 11 Ariz. 56, 89 P. 588 (1907).] as has a 5½ year old. See Beliak v. Plants, 84 Ariz. 211, 326 P.2d 36 (1958). Courts, however, have permitted the contributory negligence of 6 and 7 year olds to go to the jury.
Ruiz v. Faulkner, 12 Ariz. App. 352, 470, P.2d 500 (App. 1970). When they do submit the issue of a child’s contributory negligence to the jury, the standard to be applied is more subjective than that applied to an adult. Gilbert v. Quinet, 91 Ariz. 29, 369 P.2d 267 (1962). The defendant must not only plead the defense, he must offer proof of the age, experience and individual capacity of the child. Id. While the child will be judged on the basis of his age, experience and individual capacity, some statutes apply to both adults and children and their violation is negligence per se regardless of the age of the violator. Barnes v. Lopez, 25 Ariz. App. 477, 544 P.2d 694 (1976).
Imputation of Contributory Negligence:
Under certain circumstances, the contributory negligence of one person may attribute to another. For example, in a wrongful death action, the contributory negligence of the decedent is imputed to the statutory plaintiff. Michie v. Calhoun, 85 Ariz. 270, 336 P.2d 370 (1959); Womack v. Preach, 64 Ariz. 61, 165 P. 2d 657 (1946). In survival actions, the negligence of the decedent is similarly imputed to his estate. Id.
Rescue Doctrine and Contributory Negligence:
The rescue doctrine is primarily a liability doctrine. It extends the duty of a person who negligently creates a hazard to those who try to assist or rescue persons injured by the hazard. The rationale is that injury to a rescuer is deemed to be a foreseeable result of the negligently created hazard. Espinoza v. Schulenberg, 212 Ariz. 215, 129 P.3d 937 (2006). The rule also has application to the doctrine of contributory negligence.
Rescue Doctrine and Firefighter’s Rule:
Although a member of the general public who is injured while responding to negligently created emergency may recover from the person who created it, the same is not true of those people whom the public hires, trains and relies upon to respond to emergencies. The so-called firefighter’s rule is an exception to the rescue doctrine. Espinoza v. Schulenburg, 212 Ariz. 215, 129 P.3d 937 (2006). The rule, which should be construed narrowly, [Id.] provides that a public safety employee, who responds to an emergency as part of his official duties, is not entitled to use the rescue doctrine to sue the person who negligently created the emergency to which he is responding. So, the rule applies to all public safety employees who respond to emergencies. However, police officers are within the scope of the rule when responding to emergencies. White v. State, 220 Ariz. 42, 202 P.3d 507 (App. 2008).
Doctrine of Avoidable Consequences:
The doctrine of avoidable consequences requires a plaintiff to use reasonable care to minimize his damages. Law v. Super. Ct., 157 Ariz. 147, 755 P.2d 1135 (1988); § 918 RESTATEMENT (SECOND) OF TORTS. The doctrine is a form of contributory negligence and get the treatment in the same way for comparative fault purposes. Id. It is the tort equivalent of the contract doctrine of mitigation of damages. So, the doctrine may be applied to pre-accident conduct, such as failure to wear a seatbelt, [Id.] as well as to post-accident conduct. See Barnes v. Lopez, 25 Ariz. App. 477, 544 P.2d 694 (1976). So, a party offering the defense must prove that mitigation was probable and that plaintiff failed to take reasonable steps to minimize his damages.
Applying the principles which underlie the doctrine of avoidable consequences, the Arizona Supreme Court in 1988 adopted the seatbelt defense. Law v. Super. Ct., 157 Ariz. 147, 755 P.2d 1135 (1988). The court’s analysis was exhaustive. In the end, the court concluded that as a matter of public policy the law must recognize the responsibility of every person to anticipate and take reasonable measures to guard against the danger of motor vehicle accidents which are not only foreseeable but virtually certain to occur sooner or later. Id. at 152, 755 P.2d at 1140.
Shortly after the Arizona Supreme Court decided the Law case [157 Ariz. 147, 755 P.2d 1135.] which recognized the availability of the seatbelt defense in Arizona, the Arizona Court of Appeals had occasion to consider whether to recognize the existence of a defense arising out of nonuse of a motorcycle helmet. Warfel v. Cheney, 157 Ariz. 424, 758 P.2d 1326 (App. 1988).
The assumption of the Risk:
The assumption of the risk has some features in common with contributory negligence, but has a more restricted application. As was the case with contributory negligence, before the adoption of comparative fault, assumption of the risk was an absolute defense. 1800 Ocotillo, LLC v. The WLB Group, Inc., 219 Ariz. 200, 196 P.3d 222 (2008). Seems like contributory negligence, the defense of assumption of the risk is always one for the jury to decide. ARIZ. CONST. art. 18, § 5. In some cases, the conduct which justifies a jury instruction on contributory negligence will also justify an instruction on assumption of the risk. Hildebrand v. Minyard, 16 Ariz. App. 583, 494 P.2d 1328 (1972).
In conclusion, the law of negligence has been evolving for centuries from its roots in English Common Law to how it is applied to Phoenix auto accidents. It is a broad and varied field that applies to a wide range of circumstances and auto accidents. However, a better understanding of the laws and cases that have informed section of tort law will enable you to better understand your options as you seek to deal with the harm imposed by others on your or your loved ones.