Arizona Court of Appeals Division One Holds That The State May Be Held Liable for Statutory Abuse and Neglect Pursuant to A.R.S. § 46-455 When the State Contracts With Private Agencies to Provide Development Disability Services

Jacob Braden was a developmentally disable adult who was eligible to receive services from the State.  Through a vendor agreement, the State contracted with a private agency to provide services to Jacob.  In 2005, Jacob died as a result of injuries he sustained while living at the private facility.  Jacob’s Estate (“the Estate”) filed a claim against the State, alleging, inter alia, statutory abuse and neglect under A.R.S. § 46-455.  In relevant part, A.R.S. § 46-455 creates a cause of action for vulnerable adults who have suffered injury caused by an “enterprise . . . that has assumed a legal duty to provide care.”  The State moved for summary judgment, which the trial court granted on grounds that the State neither provided care nor assumed a legal duty to do so.  This appeal followed.

The Arizona Appeals Court first concluded, unlike the trial court, that the State “provided care” to Jacob.  Specifically, the Court held “that creating Jacob’s [individual service plan], determining the level of supervision he needed, and ensuring that [the private agency] followed these requirements constituted ‘providing care.’” 

Next, the Appeals Court held that the State assumed a legal duty to care for Jacob, despite that the duty was statutorily imposed upon the State.  Based largely on the dictionary definition of the term “assume,” the Court concluded that one can “take up or take on a duty voluntarily or by mandate.”  The Court was also concerned that under a contrary interpretation the State could skirt its statutory obligations by hiring private care providers.

Judge Orozco authored the majority opinion, joined by Judge Kessler.

Judge Hall dissented.  He noted that if the majority’s interpretation is correct, then the State could engage in criminal and civil prosecutions that would subject itself to liability – a result the legislature did not intend.  Judge Hall also reviewed the legislative history and concluded that the legislature did not intend to make the State liable for money damages.