ARIZONA TRANSPORTATION RESOURCES
- 1.1 Statutes of Limitation
- 1.2 Negligent Hiring, Retention, and Supervision, and Negligent Entrustment
- 1.3 Course and Scope of Employment
- 1.4 Comparative or Contributory Negligence
- 1.5 Contribution or Implied Indemnity from Third-Parties
- 1.6 Exclusivity of Workers’ Compensation
- 1.7 Seat Belt and Helmet Use
- 1.8 Spoliation
- 2.1 Caps?
- 2.2 Joint and Several Liability
- 2.3 Standard of Proof Required for Compensatory Damages
- 2.4 Hedonic Damages
- 2.5 Life Care Plans
- 2.6 Wrongful Death Standing and Damages
- 2.7 Punitive Damages
- 2.8 Offers of Judgment
- 2.9 Biomechanics
- 2.10 Must policy limits be disclosed pre-suit?
- 2.11 May a claimant recover general damages if the claimant does not have own auto-insurance? So called no pay, no play rules.
There is a 2 year statute of limitations on negligence-based claims for bodily injury and property damage. A.R.S. § 12-542.
A breach of contract claim based on an oral contract is subject to a 3 year statute of limitations. A.R.S. § 12-543. A breach of contract claim based on a written contact has a 6 year statute of limitations. A.R.S. § 12-548.
Arizona follows the Second Restatement of the Law of Agency with regarding to a claim for negligent hiring, retention, and supervision. Kassman v. Busfield Enterprises, Inc., 131 Ariz. 163, 166, 639 P.2d 353, 356 (Ct. App. 1981). Section 213 of the Second Restatement of the Law of Agency sets forth the general rule concerning negligent hiring, retention, and supervision of employees:
“A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(a) in giving improper or ambiguous orders of in failing to make proper regulations; or
(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others:
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.”
An employer may be held directly liable for negligent hiring, retaining, and supervision of an employee if: (1) the employer knew or should have known of the risk of hiring a particular employee; and (2) the employer’s negligence proximately caused the plaintiff’s injury. See Id.
Arizona recognizes the tort of negligent entrustment. Love v. Liberty Mut. Ins. Co., 158 Ariz. 36, 760 P.2d 1085 (Ct. App. 1988). The clam arises when the owner of a dangerous instrumentality, such as an automobile or truck, loans it to another person. Powell v. Langford, 58 Ariz. 281, 119 P.2d 230 (1941); Tellez v. Saban, 188 Ariz. 165, 171, 933 P.2d 1233, 1239 (Ct. App. 1996). To establish the claim, a plaintiff must prove: (1) defendant owned or controlled the vehicle; (2) defendant gave the driver permission to operate the vehicle; (3) the driver, by virtue of his physical or mental condition, was incompetent to drive safely; (4) the defendant knew or should have know the driver, by virtue of his physical or mental condition, was incompetent to drive safely; (5) causation; and (6) damages. Acuna v. Kroack, 212 Ariz. 104, 128 P.3d 221 (2006).
In Arizona, an employer cannot avoid or eliminate a cause of action for negligent hiring, training, and supervision or negligent entrustment by admitting the employee was in the course and scope of his employment and vicarious liability. Quinonez for & on Behalf of Quinonez v. Andersen, 144 Ariz. 193, 197, 696 P.2d 1342, 1346 (Ct. App. 1984). Claims for negligent hiring, training, and supervision and negligent entrustment are separate and independent claims from respondeat superior. Id.
Under the doctrine of respondeat superior, an employer is liable for an employee’s acts if the employee commits those acts during the scope of employment. Bruce v. Chas. Roberts Air Conditioning, 166 Ariz. 221, 801 P.2d 456 (Ct. App. 1990). An employee acts within the course and scope of employment when: (1) the conduct is of the type the defendant hired the employee to perform; (2) the conduct occurs within the authorized time and space limits; and (3) the employee acts in furtherance of the employer’s purpose. Love v. Liberty Mutual Insurance Co., 158 Ariz. 36, 760 P.2d 1085 (Ct. App. 1988); Smithey v. Hansberger, 189 Ariz. 103, 106, 938 P.2d 498, 501 (Ct. App. 1996).
Arizona is a pure comparative negligence jurisdiction. A.R.S. § 12-2501, et seq. If a jury finds the plaintiff at fault, he is not barred from recovery. A.R.S. § 12-2505. Instead, the plaintiff’s damages will be reduced by the proportionate degree of his fault. Id. However, a plaintiff cannot recover if he intentionally caused or contributed to the injury. Id. Determining comparative negligence is always a question of fact decided by the jury. Gunnell v. Ariz. Pub. Serv. Co., 202 Ariz. 388, 394, 46 P. 3d 399, 405 (2002); A.R.S. § 12-2505.
The “Sudden Emergency Doctrine” is known as the Imminent Peril Doctrine” in Arizona. A driver who is faced with sudden unexpected peril cannot be held to the standard of care of a reasonably prudent man who is not faced with such peril. Petefish By & Through Clancy & Dave, 672 O.2d 937 (Ariz. App. 1982) approved as modified, 672 P.2d 914 (Ariz. 1983). The Imminent Peril Doctrine is not an absolute defense that requires the jury to exculpate the defendant entirely. It is within the jury’s discretion how it affects fault apportionment. The prerequisites to giving a sudden emergency instruction are that there was a sudden or unexpected confrontation with imminent peril, that the emergency was not the result of negligence of the person seeking instruction, and that the party seeking instruction must have had two or more alternative courses of conduct available. Id.
A.R.S. §§ 12-2501 through 12-2504 constitute the Uniform Contribution Among Joint Tortfeasors Act. Contribution involves sharing the responsibility for paying the plaintiff’s damages among all those responsible for the plaintiff’s injuries. A.R.S. § 12-2501. The right of contribution arises only if “two or more persons become jointly or severally liable in tort for the same injury to person or property.” Id. A tortfeasor is entitled to seek contribution for the amount she paid in excess of his pro rata share. Id.
Indemnity occurs when the full loss suffered by a defendant is shifted to another person who is obliged to pay those damages. Indemnification is implied when two parties have a contract that is silent as to the allocation of the indemnification provisions, but the relationship between the parties is such that the court imposes one nonetheless. Schweber Electric v. National Semiconductor, 174 Ariz. 406, 850 P.2d 199 (Ct. App. 1992). For example, indemnity is implied where an agent, through no wrongdoing of his own, incurs liability for an act she performed on a principal’s behalf.
Generally, in Arizona, an employee cannot sue his employer or co-employees for work-related injures. A.R.S. § 23-1022. Arizona’s workers’ compensation statutory scheme is the employee’s exclusive remedy. Id. An exception is where the employee, prior to the injury, completes a written rejection of workers’ compensation benefits.A.R.S. § 23-906. Another exception is where the employer fails to have worker’s compensation insurance at the time of the employee’s injury. A.R.S. § 23-907(B). A third exception is where the employee is injured due to the gross negligence or willful act of the employer.A.R.S. § 23-1022(A).
Arizona recognizes seat belt and helmet non-use as affirmative defenses. See Law v. Superior Court In & For Maricopa Cty., 157 Ariz. 147, 155-157, 755 P.2d 1135, 1142-1145 (1988) (recognizing seat belt defense); Warfel v. Cheney, 157 Ariz. 424, 429–30, 758 P.2d 1326, 1331–32 (Ct. App. 1988) (recognizing helmet defense). A defendant must show: (1) the plaintiff failed to use a seat belt or helmet; (2) the non-use was unreasonable under the circumstances; and (3) the non-use increased plaintiff’s injuries and damages. Id. A jury decides whether the failure to use a seat belt or helmet reduces the plaintiff’s damages. Id.
Spoliation is the intentional destruction or significant, meaningful alteration of evidence. See Black’s Law Dictionary 1257 (6th ed.1990). Although Arizona does not recognize a separate tort for spoliation, Arizona Courts will give an “adverse inference” instruction where there is spoliation. Smyser v. City of Peoria, 215 Ariz. 428, 439–40, 160 P.3d 1186, 1197–98 (Ct. App. 2007). A party seeking an adverse inference instruction for spoliation must establish: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with the culpable state of mind; and (3) the destroyed evidence could not be obtained to support that claim or defense. Id.
Arizona does not have a damages cap in personal injury cases. In fact, the Arizona Constitution prohibits the State from enacting a damages cap in personal injury cases. Ariz. Const. art. II, § 31.
Arizona has abolished joint and several liability in most instances and enacted several liability. See A.R.S. §§ 12-2506 through 23-2509. Joint liability remains the rule in cases where vicarious liability applies; where the tortfeasors acted in concert; for actions brought under the Federal Employers’ Liability Act, which addresses compensation for injured railroad workers; and for waste disposal cases. A.R.S. § 12-2506; Yslava v. Hughes Aircraft Co., 936 P.2d 1274 (Ariz. 1997).
In Arizona, a jury may award an amount to compensate a plaintiff for the following: (1) economic damages, which compensate for objectively verifiable monetary losses including lost income, loss of earning capacity, and medical expenses and (2) non-economic damages, which compensate for losses which cannot be easily expressed in monetary terms including pain and suffering, loss of enjoyment of life, hedonic damages, mental anguish, injury and disfigurement, and loss of consortium. See RAJI (Civil) 5th.
A plaintiff has the burden of proving compensatory damages. Coury Bros. Ranches v. Ellsworth, 103 Ariz. 515, 521-22, 446 P.2d 458, 464-65 (1968). The plaintiff has the duty to establish both, the fact that damages were sustained and the amount of such damages. Id.; Lewin v. Miller, Wagner & Company, Ltd., 151 Ariz. 29, 34, 725 P.2d 736, 741 (App. 1986). Proof that damages were sustained requires a higher showing than proof as to the amount of damages. Coury, 103 Ariz. at 521, 446 P.2d at 464; Gilmore v. Cohen, 95 Ariz. 34, 386 P.2d 81 (1963). To establish he has sustained damages, a plaintiff must prove with a reasonable degree of certainty that his damages do in fact exist. Lewin, 151 Ariz. at 34, 725 P.2d at 741; Coury, 103 Ariz. at 521, 446 P.2d at 464. Speculation, guessing or estimates as to the existence of damages is not sufficient to meet the showing of a reasonable degree of certainty. See id.
Arizona recognizes the collateral source rule. See Taylor v. S. Pac. Transp. Co., 130 Ariz. 516, 519, 637 P.2d 726, 729 (1981). The collateral source rule allows a plaintiff to fully recover from a defendant even when the plaintiff has recovered from a source other than the defendant for the same injury. Id.
Arizona recognizes hedonic damages. See Quintero v. Rogers, 221 Ariz. 536, 539–40, 212 P.3d 874, 877–78 (Ct. App. 2009). Hedonic damages compensate an injured party for the limitations, resulting from a defendant’s negligence, on the injured person’s ability to participate in and derive pleasure from normal daily life activities or the person’s inability to pursue her talents, recreational interests, hobbies, or avocations. Id.
Arizona allows a plaintiff to recover damages arising from the need for future medical and non-medical care due to injuries sustained from the incident that is the subject of the litigation. Saide v. Stanton, 135 Ariz. 76, 77, 659 P.2d 35, 36 (1983). To submit the question of future care expenses to a jury, a plaintiff must show: (1) the need for future care is reasonably probable and (2) must present some evidence of the probable nature and cost of the future care. Id.
In Arizona, wrongful death actions are governed by A.R.S. §§ 12-611 through 12-613. A wrongful death action may only be brought by the decedent’s spouse, children, parents or guardians, or, if none of these survived, the decedent’s estate. A.R.S. § 12-612.
Unlike a negligence claim, damages are not an essential element of a wrongful death claim. Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 196, 273 P.3d 645, 648 (2012). A plaintiff may recover damages for the decedent’s prospective earning capacity; the loss of love, affection, companionship, consortium, and personal anguish and suffering. Id. A plaintiff cannot recover damages for the decedent’s own pain and suffering. Id.
Arizona allows a plaintiff to recover punitive damages. See Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 330, 723 P.2d 675, 679 (1986). To recover punitive damages, a plaintiff must show, by clear and convincing evidence, the defendant acted with an “evil hand” guided by an evil mind.” Linthicum at 326; Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986). This can be shown through proof either that the defendant intended to injure the plaintiff, or consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others. Id.
There is no statutory cap on punitive damages. Hudgins v. Sw. Airlines, Co., 221 Ariz. 472, 489–92, 212 P.3d 810, 827–30 (Ct. App. 2009). However, courts may limit a punitive damages award if it is unconstitutionally excessive. Id. The Arizona Court of Appeals has determined an 8:1 punitive damages to compensatory damages ratio is unconstitutionally excessive. Id.
Punitive damages are insurable. See State v. Sanchez, 119 Ariz. 64, 67, 579 P.2d 568, 571 (Ct. App. 1978).
Offers of judgment are governed by Rule 68, Arizona Rules of Civil Procedure. An offer of judgment is an offer communicated to an adverse party to allow judgment to be entered against that adverse party in the action. Ariz. R. Civ. P. 68. The offer must contain a specific monetary sum to settle the asserted causes of action, if the offer includes a money judgment. Id. The offer must be inclusive of all damages, taxable court costs, interest, and attorneys’ fees. Id. The offeror may exclude attorneys’ fees, but must specifically state that in the offer. Id.
An offer of judgment remains effective for 30 days after it is served, unless the offer is made within 60 days after service of the summons and complaint, in which case it remains effective for 60 days. Id.
If the offer is timely accepted, either party may file the offer and acceptance, and a judgment embodying the terms of the offer is entered. Id. An offer that is not timely accepted is deemed rejected. Id.
If the offeree rejects an offer of judgment and, later, does not obtain a more favorable judgment, the offeree must pay as a sanction: (1) reasonable expert witness fees incurred by offeror from the date of the offer; (2) double the taxable costs, as defined in A.R.S. 12-332, incurred by offeror from the date of the offer; and (3) prejudgment interest on un-liquidated claims to accrue from the date of the offer. Id.
Biomechanics is the study of the mechanical laws relating to the movement or structure of living organisms. Biomechanical expert witnesses are frequently retained in motor vehicle personal injury actions to opine as to the mechanism of injury and causation.
An insurance company does not have to disclose its policy limits prior to a lawsuit.
May a claimant recover general damages if the claimant does not have own auto-insurance? So called no pay, no play rules.
Yes. Arizona does not have a “no pay, no play” statute.