Arizona Supreme Court Holds Duty of Care Between Co-workers Created by Statutes Prohibiting Acts that Harmed One of Them.

The Supreme Court today issued what seems poised to become an oft-cited ruling in Arizona tort law. Defendant Kasey and Plaintiff Gipson’s son Followill were co-workers attending their company holiday party. Beer was served at the party, in addition to which Kasey brought his own whiskey and oxycodone (which was properly prescribed to him). On occasion before this party, Kasey had given out his prescribed oxycodone to colleagues for their recreational use. At the party, Watters, another co-worker, asked Kasey for one of his pills, and he gave her 8 of them, noting that the pills were of different strengths. On prior occasions, Kasey had refused, however, to give pills to Followill citing his stupidity and immaturity. Watters, whom Kasey knew to be dating Followill, subsequently gave her pills to Followill. He then took the pills, continued drinking, and died that night in his sleep of alcohol and drug-induced toxicity. Gipson, filed a wrongful death action action against Kasey for her son’s death. The Superior Court granted summary judgment for Kasey but Division One reversed, holding that Kasey owed Followill a duty of care.

The Supreme Court granted review as to the duty of care issue and, in today’s opinion by Justice Bales, agreed with Division One’s conclusion but vacated its reasoning. The Supreme Court began by noting that the existence of a duty of care is a matter of law, while the satisfaction of that duty is a question of fact. The Court continued by stating that the existence of a duty is a threshold issue, and that in the absence of a duty no claim for negligence will lie.

In its analysis, the Court began by clarifying its admittedly confusing earlier opinions on the subject of foreseeability. The Court unequivocally held that foreseeability is NOT a factor to be considered by courts when determining the presence or absence of a duty. The Court, citing its prior decision in Martinez v. Woodmar IV Condominiums Homeowners Ass’n, 189 Ariz 206, 211 (1997), went on to explain that foreseeability more properly applies to the factual issues of breach and causation, and is thus a matter within the province of the jury, not the court.

The Court next addressed the impact of the presence or absence of a special relationship between the parties in determining a duty. The Court noted that Division One erred in focusing on the relationship between Kasey and Followill in determining a duty here. While acknowledging that Arizona’s common law recognizes certain relationships that give rise to a duty, the Court held that such a relationship is a sufficient but not a necessary condition for a duty to arise and that no such relationship was present here.

Concluding its analysis, the Court, however, held that public policy alone supports recognition of a duty of care between Kasey and Followill. Relying on Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 253 (1994), the Court stressed that the existence of a criminal statute outlawing certain conduct establishes a tort law duty where the civil plaintiff falls within the class of people that the statute is designed to protect and where the harm complained of occurred as a result of the statute’s violation. Noting that several Arizona criminal statutes criminalize Kasey’s distribution of Oxycodone, the Court held that Kasey owed a duty of care to Followill. The Court thus remanded the case to the Superior Court for further proceedings consistent with the opinion.

All four other Justices concurred in the opinion, but Justice Hurwitz wrote separately to urge that Arizona adopt the Rule of the Restatement (Third) of Torts, which asserts that every actor owes a duty of reasonable care whenever his conduct creates a risk of harm. Put another way, rather than focusing on when the law creates or imposes a duty, Justice Hurwitz would begin from the principal that a duty exists and then depart from the finding of a duty “only in those cases where public policy justifies an exception.” (Para. 35) He stressed, however, that the outcome on the facts of this case would be the same, but that he believed that the Third Restatement’s rule provides a simpler and better rationale.