SUPREME COURT OF ARIZONA
En Banc
SUSAN GIPSON, individually and ) Arizona Supreme Court
as surviving parent of NATHAN ) No. CV-06-0100-PR
KIM FOLLOWILL, deceased, )
) Court of Appeals
Plaintiff/Appellant, ) Division One
) No. 1 CA-CV 05-0119
v. )
) Maricopa County
LARRY KASEY and JANE DOE KASEY, ) Superior Court
a married couple, ) No. CV 2004-000550
)
Defendants/Appellees. )
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Jonathan H. Schwartz, Judge
REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
212 Ariz. 235, 129 P.3d 957 (2006)
VACATED IN PART
________________________________________________________________
JAMES F. BROOK AND ASSOCIATES Scottsdale
By James F. Brook
John N. Vingelli
Attorneys for Susan Gipson
CAVANAGH LAW FIRM Phoenix
By R. Corey Hill
Ginette M. Hill
Christopher Robbins
Attorneys for Larry Kasey and Jane Doe Kasey
LAW OFFICE OF JOJENE MILLS, P.C. Tucson
By JoJene E. Mills
And
ADELMAN GERMAN, P.L.C. Scottsdale
By Daniel J. Adelman
Attorneys for Amicus Curiae Arizona Trial Lawyers Association
________________________________________________________________
B A L E S, Justice
¶1 The issue presented is whether persons who are
prescribed drugs owe a duty of care, making them potentially
liable for negligence, when they improperly give their drugs to
others. We conclude that such a duty is owed.
FACTS AND PROCEDURAL BACKGROUND
¶2 Because we are reviewing a decision granting summary
judgment in favor of Larry Kasey, we describe the facts, some of
which are disputed, in the light most favorable to Susan Gipson,
the non-moving party. See Orme Sch. v. Reeves, 166 Ariz. 301,
309-10, 802 P.2d 1000, 1008-09 (1990).
¶3 Kasey attended an employee holiday party hosted by the
restaurant where he worked. Also present were his co-worker,
Nathan Followill, and Followill’s girlfriend, Sandy Watters.
The restaurant provided beer for the guests. Kasey brought
whiskey to the party and he gave shots to others present,
including Followill, who was twenty-one years old. Kasey also
brought pain pills containing oxycodone, a narcotic drug, which
he had been prescribed for back pain. On prior occasions, Kasey
had given pain pills to other co-workers for their recreational
use.
2
¶4 During the party, Watters asked Kasey for one of his
pain pills. Kasey gave Watters eight pills, noting that they
were of two different strengths, but not identifying them by
name. Although Kasey knew that combining the pills with alcohol
or taking more than the prescribed dosage could have dangerous
side effects, including death, he did not tell Watters this
information.
¶5 When Kasey gave the pills to Watters, he knew that she
was dating Followill. Kasey also knew that Followill was
interested in taking prescription drugs for recreational
purposes because Followill had on prior occasions asked Kasey
for some of his pills, but Kasey had refused because he thought
Followill was “too stupid and immature to take drugs like that.”
¶6 Shortly after she obtained the pills from Kasey,
Watters told Followill she had them, and Followill took the
pills from her. As the night progressed, Followill became
increasingly intoxicated. Around 1:00 a.m., Watters and
Followill left the party. The next morning, Watters awoke to
find that Followill had died in his sleep. The cause of death
was the combined toxicity of alcohol and oxycodone.
¶7 Gipson, Followill’s mother, filed a wrongful death
action against Kasey. The superior court granted summary
judgment for Kasey, finding that he owed Followill no duty of
care and that Kasey’s conduct had not proximately caused
3
Followill’s death because of the intervening acts of Watters and
Followill.
¶8 The court of appeals reversed, holding that Kasey did
owe Followill a duty of care and that disputed facts precluded
summary judgment on the issue of proximate cause. Gipson v.
Kasey, 212 Ariz. 235, 244 ¶ 37, 129 P.3d 957, 966 (App. 2006).
We granted review only with regard to the issue of duty. We
have jurisdiction pursuant to Article 6, Section 5(3), of the
Arizona Constitution and Arizona Revised Statutes (“A.R.S.”)
section 12-120.24 (2003).
DISCUSSION
¶9 To establish a claim for negligence, a plaintiff must
prove four elements: (1) a duty requiring the defendant to
conform to a certain standard of care; (2) a breach by the
defendant of that standard; (3) a causal connection between the
defendant’s conduct and the resulting injury; and (4) actual
damages. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200,
204 (1983) (citing William L. Prosser, Handbook of the Law of
Torts § 30, at 143 (4th ed. 1971)). The first element, whether
a duty exists, is a matter of law for the court to decide.
Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364,
368 (1985). The other elements, including breach and causation,
are factual issues usually decided by the jury. See id. at 358,
4
706 P.2d at 370.1
¶10 The existence of a duty of care is a distinct issue
from whether the standard of care has been met in a particular
case. As a legal matter, the issue of duty involves
generalizations about categories of cases. Duty is defined as
an “obligation, recognized by law, which requires the defendant
to conform to a particular standard of conduct in order to
protect others against unreasonable risks of harm.” Id. at 354,
706 P.2d at 366 (citing Ontiveros, 136 Ariz. at 504, 667 P.2d at
204). The standard of care is defined as “[w]hat the defendant
must do, or must not do . . . to satisfy the duty.” Coburn v.
City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984)
(citing W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 53, at 356 (5th ed. 1984)). Whether the defendant has
met the standard of care - that is, whether there has been a
breach of duty - is an issue of fact that turns on the specifics
of the individual case.
¶11 Whether the defendant owes the plaintiff a duty of
care is a threshold issue; absent some duty, an action for
negligence cannot be maintained. Markowitz, 146 Ariz. at 354,
1
Although breach and causation are factual matters, summary
judgment may be appropriate if no reasonable juror could
conclude that the standard of care was breached or that the
damages were proximately caused by the defendant’s conduct. See
Markowitz, 146 Ariz. at 357-58, 706 P.2d at 369-70; Coburn v.
City of Tucson, 143 Ariz. 50, 53, 691 P.2d 1078, 1081 (1984).
5
706 P.2d at 366. Thus, a conclusion that no duty exists is
equivalent to a rule that, for certain categories of cases,
defendants may not be held accountable for damages they
carelessly cause, no matter how unreasonable their conduct. See
id. at 356, 706 P.2d at 368.2
¶12 In this case, the court of appeals held that Kasey
owed Followill a duty of care,
based on the totality of the circumstances as
reflected in the following factors: (1) the
relationship that existed between Kasey and Followill,
(2) the foreseeability of harm to a foreseeable victim
as a result of Kasey giving eight pills to Watters,
and (3) the presence of statutes making it unlawful to
furnish one's prescription drugs to another person not
covered by the prescription.
Gipson, 212 Ariz. at 238-39 ¶ 15, 129 P.3d at 960-61.
¶13 Kasey argues that none of these factors support a
finding that he owed a duty of care to Followill. Although we
disagree with aspects of the analysis of the court of appeals,
that court correctly concluded that Kasey owed a duty of care.
A. Foreseeability
¶14 Kasey argues that the court of appeals erred by
relying on foreseeability of harm because this Court held in
Martinez v. Woodmar IV Condominiums Homeowners Ass’n, Inc. that
foreseeability should no longer be a factor in determining
2
Intentional torts, in contrast, do not require proof of a
predicate duty of care. See Wells Fargo Bank v. Ariz. Laborers,
Teamsters and Cement Masons Local No. 395 Pension Trust Fund,
201 Ariz. 474, 483-84 ¶ 20, 38 P.3d 12, 21-22 (2002).
6
whether a duty exists. 189 Ariz. 206, 211, 941 P.2d 218, 223
(1997). Gipson, on the other hand, argues that our prior cases
have relied on foreseeability in determining whether a duty is
owed. See, e.g., Donnelley Constr. Co. v. Oberg/Hunt/Gilleland,
139 Ariz. 184, 187, 677 P.2d 1292, 1295 (1984) (“Duty and
liability are only imposed where both the plaintiff and the risk
are foreseeable to a reasonable person.”).
¶15 We acknowledge that our case law has created “some
confusion and lack of clarity . . . as to what extent, if any,
foreseeability issues bear on the initial legal determination of
duty.” Riddle v. Ariz. Oncology Servs., Inc., 186 Ariz. 464,
466 n.3, 924 P.2d 468, 470 n.3 (App. 1996). To clarify, we now
expressly hold that foreseeability is not a factor to be
considered by courts when making determinations of duty, and we
reject any contrary suggestion in prior opinions.
¶16 Whether an injury to a particular plaintiff was
foreseeable by a particular defendant necessarily involves an
inquiry into the specific facts of an individual case. See W.
Jonathan Cardi, Purging Foreseeability: The New Version of Duty
and Judicial Power in the Proposed Restatement (Third) of Torts,
58 Vand. L. Rev. 739, 801 (2005). Moreover, foreseeability
often determines whether a defendant acted reasonably under the
circumstances or proximately caused injury to a particular
plaintiff. Such factual inquiries are reserved for the jury.
7
The jury’s fact-finding role could be undermined if courts
assess foreseeability in determining the existence of duty as a
threshold legal issue. See id. at 741. Reliance by courts on
notions of “foreseeability” also may obscure the factors that
actually guide courts in recognizing duties for purposes of
negligence liability. Id.
¶17 Foreseeability, as this Court noted in Martinez, is
more properly applied to the factual determinations of breach
and causation than to the legal determination of duty. 189
Ariz. at 211, 941 P.2d at 223 (“[F]oreseeable danger [does] not
dictate the existence of duty but only the nature and extent of
the conduct necessary to fulfill the duty.”); cf. Palsgraf v.
Long Island R.R., 162 N.E. 99, 102 (N.Y. 1928) (Andrews, J.,
dissenting) (arguing that foreseeability does not determine duty
but is a factor in determining proximate cause). We believe
that such an approach desirably recognizes the jury’s role as
factfinder and requires courts to articulate clearly the
reasons, other than foreseeability, that might support duty or
no-duty determinations. See Restatement (Third) of Torts:
Liability for Physical Harm § 7 cmt. j (Proposed Final Draft No.
1, 2005) (“Third Restatement”) (rejecting foreseeability as a
factor in determining duty).
B. Relationship Between the Parties
¶18 Kasey also argues that he did not owe Followill a duty
8
of care because they had no “direct” or “special” relationship.
Duties of care may arise from special relationships based on
contract, family relations, or conduct undertaken by the
defendant. Stanley v. McCarver, 208 Ariz. 219, 221 ¶ 7, 92 P.3d
849, 851 (2004). A special or direct relationship, however, is
not essential in order for there to be a duty of care.3
¶19 Under Arizona common law, various categorical
relationships can give rise to a duty. These include, but are
not limited to, the landowner-invitee relationship, Martinez,
189 Ariz. at 212, 941 P.2d at 224; Markowitz, 146 Ariz. at 357,
706 P.2d at 369; Coburn, 143 Ariz. at 52, 691 P.2d at 1080, the
tavern owner-patron relationship, Brannigan v. Raybuck, 136
Ariz. 513, 516, 667 P.2d 213, 216 (1983); Ontiveros, 136 Ariz.
at 511, 667 P.2d at 211, and those “special relationships”
recognized by § 315 of the Restatement (Second) of Torts (1965)
that create a duty to control the actions of another, Ontiveros,
136 Ariz. at 508-09, 667 P.2d at 208-09. None of these
3
That particular “relationships” may provide the basis for a
duty of care reflects the historical evolution of the common
law, which before the nineteenth century recognized fault-based
liability in “actions on the Case” between parties having
relationships to each other by contract or status. 1 Dan B.
Dobbs, The Law of Torts § 111, at 259-63 (2001). As the common
law evolved during the nineteenth century, courts extended the
scope of negligence actions by recognizing a more general duty
of care applicable to suits among strangers, like those involved
in railway crossing accidents. Id. § 112, at 265-66.
Relationships, however, have continued to provide a basis for
identifying and defining duties of care. Id. § 113, at 266.
9
relationships existed between Followill and Kasey.
¶20 Although a duty of care may result from the nature of
the relationship between the parties, we decline to recognize
such a duty here based on the particular facts (some of which
are disputed) of the relationship between Kasey and Followill.
In identifying this relationship as a factor supporting a
finding of duty, the court of appeals noted that “[t]hey were
co-workers and friends; they had socialized previously; [and]
Followill had asked Kasey for pills in the past.” Gipson, 212
Ariz. at 239 ¶ 16, 129 P.3d at 961.
¶21 A fact-specific analysis of the relationship between
the parties is a problematic basis for determining if a duty of
care exists. The issue of duty is not a factual matter; it is a
legal matter to be determined before the case-specific facts are
considered. Markowitz, 146 Ariz. at 354, 706 P.2d at 366; see 1
Dan B. Dobbs, The Law of Torts § 226, at 577 (2001) (“The most
coherent way of using the term duty states a rule of law rather
than an analysis of the facts of particular cases.”).
Accordingly, this Court has cautioned against narrowly defining
duties of care in terms of the parties’ actions in particular
cases. “[A]n attempt to equate the concept of ‘duty’ with such
specific details of conduct is unwise,” because a fact-specific
discussion of duty conflates the issue with the concepts of
breach and causation. Coburn, 143 Ariz. at 52, 691 P.2d at
10
1080; see also Markowitz, 146 Ariz. at 355, 706 P.2d at 367
(noting that “the existence of a duty is not to be confused with
details of the standard of conduct”). Thus, the court of
appeals erred in focusing on the facts of the particular
relationship between Kasey and Followill in determining if a
duty exists.
¶22 A finding of duty, however, does not necessarily
depend on a preexisting or direct relationship between the
parties. As we explained in Stanley, “[t]he requirement of a
formalized relationship between the parties has been quietly
eroding . . . and, when public policy has supported the
existence of a legal obligation, courts have imposed duties for
the protection of persons with whom no preexisting
‘relationship’ existed.” 208 Ariz. at 221-22 ¶ 8, 92 P.3d at
851-52 (internal citations omitted).
C. Public Policy
¶23 Having rejected foreseeability as a factor in the duty
analysis and declining to recognize a duty based on the
particular relationship between the parties, we turn to public
policy considerations. Public policy may support the
recognition of a duty of care. See id. at 223 ¶ 14, 92 P.3d at
853 (“We conclude that public policy is better served by
imposing a duty in such circumstances to help prevent future
harm, even in the absence of a traditional doctor-patient
11
relationship.”).
¶24 Kasey argues that recognizing a duty here would imply
that all people owe a duty of care to all others at all times, a
proposition he contends was rejected in Wertheim v. Pima County,
211 Ariz. 422, 426 ¶ 17, 122 P.3d 1, 5 (App. 2005) (“We do not
understand the law to be that one owes a duty of reasonable care
at all times to all people under all circumstances.” (quoting
Hafner v. Beck, 185 Ariz. 389, 391, 916 P.2d 1105, 1107 (App.
1995))), and Bloxham v. Glock Inc., 203 Ariz. 271, 275 ¶ 8, 53
P.3d 196, 200 (App. 2002) (same). It is not necessary, however,
to frame the issue this broadly to recognize a duty on the part
of Kasey. Instead, in this case, Arizona statutes themselves
provide a sufficient basis for a duty of care.4
¶25 It is well settled that “[t]he existence of a statute
4
This Court has, however, previously noted that “every
person is under a duty to avoid creating situations which pose
an unreasonable risk of harm to others.” Ontiveros, 136 Ariz.
at 509, 667 P.2d at 209 (internal citations omitted).
Similarly, § 7 of the proposed Third Restatement recognizes that
“[a]n actor ordinarily has a duty to exercise reasonable care
when the actor’s conduct creates a risk of physical harm.”
Based on such statements, one could conclude that people
generally “owe a duty to exercise reasonable care to avoid
causing physical harm” to others, subject to exceptions that
eliminate or modify this duty for reasons of policy, such as the
social host rule. See id. § 7 & cmt. a; accord Dobbs, supra, §
227, at 578. Because we find a duty based on Arizona statutes,
we need not decide if a duty would exist independently as a
matter of common law. Nor need we resolve whatever tension may
exist between language in cases such as Wertheim and Bloxham and
the concepts of duty suggested by Ontiveros or the draft Third
Restatement.
12
criminalizing conduct is one aspect of Arizona law supporting
the recognition of [a] duty.” Estate of Hernandez v. Ariz. Bd.
of Regents, 177 Ariz. 244, 253, 866 P.2d 1330, 1339 (1994). Not
all criminal statutes, however, create duties in tort. A
criminal statute will “establish a tort duty [only] if the
statute is ‘designed to protect the class of persons, in which
the plaintiff is included, against the risk of the type of harm
which has in fact occurred as a result of its
violation . . . .’” Id. (citing Keeton et al., supra, § 36, at
229-30).
¶26 Several Arizona statutes prohibit the distribution of
prescription drugs to persons lacking a valid prescription.
See, e.g., A.R.S. § 36-2531(A)(6) (2003); id. § 32-1961(A)
(2002); id. § 13-3408(A)(5) (2001). As the court of appeals
recognized, “[t]hese statutes are designed to avoid injury or
death to people who have not been prescribed prescription drugs,
who may have no medical need for them and may in fact be
endangered by them, and who have not been properly instructed on
their usage, potency, and possible dangers.” Gipson, 212 Ariz.
at 241 ¶ 24, 129 P.3d at 963. Because Followill is within the
class of persons to be protected by the statute and the harm
that occurred here is the risk that the statute sought to
protect against, these statutes create a tort duty.
¶27 Kasey argues that because the legislature did not
13
create a civil duty for a violation of these criminal statutes,
a duty does not exist. But this notion was rejected in
Ontiveros: “[A] duty of care and the attendant standard of
conduct may be found in a statute silent on the issue of civil
liability.” 136 Ariz. at 510, 667 P.2d at 210 (internal
citations omitted).
¶28 Kasey also contends that because Arizona law does not
impose a duty on social hosts who serve alcohol to adults, there
should similarly be no duty here. We disagree. Through A.R.S.
§ 4-301 (2002), the legislature specifically exempted social
hosts from liability for harm caused by a consumer of legal
drinking age. No similar statute exempts those who improperly
give their prescription drugs to others. Cf. Hernandez, 177
Ariz. at 252, 256, 866 P.2d at 1338, 1342 (holding that A.R.S. §
4-301 does not preclude recognition of a duty of care to avoid
serving alcohol to minors).
¶29 Moreover, the reasoning behind the social host no-duty
rule does not apply in this context. When a court or
legislature adopts a no-duty rule, it generally does so based on
concerns that potential liability would chill socially desirable
conduct or otherwise have adverse effects. The no-duty rule for
social hosts is a prime example. Holding social hosts liable
for harm caused by guests to whom they serve alcohol might curb
desirable social exchanges. See, e.g., Keckonen v. Robles, 146
14
Ariz. 268, 272, 705 P.2d 945, 949 (App. 1985) (holding, for
policy reasons, that social host owed no duty to person injured
by intoxicated guest). In contrast, no recognized social
benefit flows from the illegal distribution of prescription
drugs. Cf. Stanley, 208 Ariz. at 223 ¶ 14, 92 P.3d at 853
(observing, in holding that radiologist owed duty of care to
examinee despite absence of formal doctor-patient relationship,
that there was no apparent public benefit from a no-duty rule).
¶30 Kasey additionally argues that because his act of
providing pills to Watters was not sufficient by itself to cause
harm to Followill, no duty was owed. We reject the suggestion
that no duty can exist if the plaintiff’s conduct contributed to
his injury. See Hernandez, 177 Ariz. at 255, 866 P.2d at 1341
(“Nor are considerations of proximate causation a reason to
conclude there is no liability as a matter of law in all
cases.”). Whether the plaintiff’s conduct constituted an
intervening (or even a superseding) cause of the harm suffered
is a question of fact and does not determine whether a duty
exists. See id.; Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147
(1940) (finding defendants who provided alcohol to plaintiff’s
husband, a known alcoholic, liable for loss of consortium to
plaintiff).
¶31 Alternatively, Kasey argues that this Court should
adopt a no-duty rule precluding recovery on the grounds that a
15
person who voluntarily becomes intoxicated and thereby sustains
an injury should not be able to recover from the person
supplying the intoxicants. We reject this reasoning.
Followill’s own actions may reduce recovery under comparative
fault principles or preclude recovery if deemed a superseding
cause of the harm, but those are determinations to be made by
the factfinder. For the reasons stated, neither our case law
nor considerations of policy justify a blanket no-duty rule that
would insulate persons who improperly distribute prescription
drugs from tort liability.
CONCLUSION
¶32 We hold that Kasey did owe a duty of care based on
Arizona’s statutes prohibiting the distribution of prescription
drugs to persons not covered by the prescription. Accordingly,
we vacate the part of the opinion of the court of appeals that
addresses the issue of duty and remand to the superior court for
further proceedings consistent with this opinion.
_______________________________________
W. Scott Bales, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
16
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
H U R W I T Z, Justice, concurring
¶33 The Court correctly applies our precedents in
determining that Kasey owed Followill a duty of care. I write
briefly to suggest that our analysis of duty might be aided in
the future by adopting a different conceptual approach.
¶34 The Court’s analysis today and in our prior cases
largely centers on determining whether we should impose a duty
on the particular defendant before us. But, as the Court notes,
Op. ¶ 24 n.4, under the common law “every person is under a duty
to avoid creating situations which pose an unreasonable risk of
harm to others.” Ontiveros v. Borak, 136 Ariz. 500, 509, 667
P.2d 200, 209 (1983). Or as the proposed Third Restatement of
Torts puts the matter, “[a]n actor ordinarily has a duty to
exercise reasonable care when the actor’s conduct creates a risk
of physical harm.” See Restatement (Third) of Torts: Liability
for Physical Harm § 7(a) (Proposed Final Draft No. 1, 2005)
[hereinafter “Third Restatement”].
17
¶35 It thus would seem to make sense for courts to view
the duty of reasonable care as the norm, and depart from that
norm only in those cases where public policy justifies an
exception to the general rule. See id. § 7(b) (“In exceptional
cases, when . . . policy warrants denying or limiting liability
in a particular class of cases, a court may decide that the
defendant has no duty or that the ordinary duty of reasonable
care requires modification.”); 1 Dan B. Dobbs, The Law of Torts
§ 227, at 579 (2001) (“[N]o-duty rules should be invoked only
when all cases they cover fall substantially within the policy
that frees the defendant of liability.”); see also Stagl v.
Delta Airlines, Inc., 52 F.3d 463, 469 (2d Cir. 1995)
(Calabresi, J.) (“[T]he judicial power to modify the general
[duty] rule . . . is reserved for very limited situations.”)
(applying New York law).
¶36 A judicial finding that a defendant owes no duty to a
plaintiff means that even if the defendant’s actions were
unreasonable and proximately caused harm to the plaintiff, the
plaintiff has no recourse. Such a result should obtain, it
seems to me, only when there is a good reason for doing so, and
18
courts finding no duty as a matter of law should be required
clearly to identify that reason.5
¶37 The exemption from liability for social hosts is a
good example of a policy-based duty exception. Courts have
imposed only limited duties of care upon social hosts serving
alcohol because of “staggering” economic and social consequences
from adhering to the general rule of reasonable care. See
Keckonen v. Robles, 146 Ariz. 268, 272, 705 P.2d 945, 949 (App.
1985).
¶38 If the analytic framework suggested by the Third
Restatement were applied here, the only issue would be whether
there existed a good policy reason to exempt those who
distribute prescription drugs to unauthorized users from the
general duty of care. As the Court correctly concludes, there
is none. Op. ¶¶ 23-31. Thus, adoption of the Third Restatement
approach would not alter the result we reach today.
¶39 My tentative sense, however, is that the Third
Restatement rubric would simplify our analytical task in future
cases and remove some understandable confusion among the bar and
lower courts on the duty issue. For example, we have previously
stated that the issue of duty depends on “the relationship of
the parties.” Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356,
5
In so doing, courts will aid the Legislature in making
informed judgments as to whether the common law of duty should
be statutorily modified in any particular class of cases.
19
706 P.2d 364, 368 (1985). The court of appeals in this case
therefore felt constrained to determine whether the relationship
between Kasey and Followill, who were co-workers and friends,
was sufficient to impose a duty of reasonable care. Gipson v.
Kasey, 212 Ariz. 235, 239 ¶ 16, 129 P.3d 957, 961 (App. 2006).
But, as the Court correctly notes today, a duty of reasonable
care is often found even when the parties have no prior
relationship at all - in automobile accident cases, for
instance. Op. ¶ 18 & n.3; see also Stanley v. McCarver, 208
Ariz. 219, 221-22 ¶ 8, 92 P.3d 849, 851-52 (2004) (noting that
“courts have imposed duties for the protection of persons with
whom no preexisting ‘relationship’ existed”).
¶40 Under the approach counseled by the Third Restatement,
the relationship of the parties is relevant to duty only insofar
as it may suggest policy reasons for modifying or eliminating
the general duty of reasonable care. Thus, in order to avoid
the imposition of excessive costs on possessors of land and to
protect property rights, public policy dictates that the
landowner’s duty to a deliberate trespasser is limited to
refraining from willful or wanton injurious conduct. See, e.g.,
Barnhizer v. Paradise Valley Unified Sch. Dist. No. 69, 123
Ariz. 253, 254, 599 P.2d 209, 210 (1979) (citing Restatement
(Second) of Torts § 333 (1965)). And, in some cases in which
there is no prior relationship between the parties, public
20
policy may support excusing the defendant from the general duty
of reasonable care. Cf. McCarver, 208 Ariz. at 225 ¶ 20, 92
P.3d at 855 (considering whether imposition of duty on physician
to non-patient would “chill” doctors from doing pre-employment
examinations).
¶41 Despite what appear to me to be the advantages of the
Third Restatement approach to duty, the parties in this case
have not urged its adoption. We therefore have not had the
benefit of argument by counsel or amici as to why such an
approach would be preferable to our current jurisprudence. Nor
has the Third Restatement been finally adopted by the American
Law Institute. For those reasons, and because application of
the Third Restatement would not in any event change the result
today, I leave the issue for another day and concur in the
opinion of the Court.
__________________________________
Andrew D. Hurwitz, Justice
21
Gipson v. Kasey
Court: Arizona Supreme Court
Date filed: 2007-01-22
Citations: 150 P.3d 228, 214 Ariz. 141
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