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Arizona Court of Appeals Opinions (Civil) – Week of January 27, 2020

Arizona Court of Appeals Opinions (Civil) – Week of January 27, 2020


Posted Feb 03, 2020

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Bottomlee v. State, No. 1 CA-CV 19-0016 (Jan. 28, 2020)

The mother of an infant who suffocated and died at a daycare center sued the State of Arizona, alleging a state inspector was grossly negligent in directing the daycare that Boppy pillows were only to be used on the floor during “tummy time.” Her infant subsequently suffocated and died when left unattended on a Boppy pillow during “tummy time.” The superior court granted the State’s motion to dismiss for failure to state a claim and the plaintiff appealed.

The Arizona Court of Appeals vacated the dismissal of the plaintiff’s first and second claims, which allege gross negligence and respondeat superior liability, on the basis of a finding of duty. Unpersuaded by the State’s argument that daycare investigators are akin to law enforcement officers whose duty is to the general public, not an individual, the Court noted that even police officers have a duty to act reasonably when they endeavor to provide specific protection to a particular person. See Hogue v. City of Phoenix, 240 Ariz. 277, 280-81 (App. 2016) (quoting Austin v. City of Scottsdale, 140 Ariz. 579, 581-82 (1984); see also Hutcherson v. City of Phoenix, 192 Ariz. 51, 55-56 (1998) (by creating 911 system, city accepted duty to reasonably respond to emergency calls).

Therefore, when the inspector ordered the daycare to correct their protocol on using pillows, the inspector provided specific directions to particular people and created a special relationship that effectively opened the door for the plaintiff’s gross negligence claim.

Click here to read the full opinion.

Chung v. Choulet, No. 1 CA-CV 18-0460 (Jan. 28, 2020)

In this case, the Arizona Court of Appeals addressed the proper procedural steps for allowing a delayed appeal. Here, the superior court granted Chung’s request to file a delayed appeal after the clerk failed to notify the parties of the entry of the Arizona Rule of Civil Procedure 54(b) Judgment, as required by Rule 58(c). The court entered partial final judgment on October 2, 2017. Chung first learned of the entry of Judgment two months later, on December 4, 2017, when counsel for the opposing side sent them a copy.

Chung moved to extend the time to appeal under ARCAP 9(f), or, in the alternative, to set aside the judgment under Rule 60(b). The superior court granted the ARCAP 9(f) time extension, but the Court of Appeals denied ARCAP 9(f) relief as untimely under the Rule. The superior court then set aside the Rule 54(b) Judgment and allow the Plaintiff to appeal, which led to the instant appeal. Choulet argued it was error to set aside the Rule 54(b) Judgment to allow a delayed appeal and the Court of Appeals agreed.

Although under ARCAP 9(f), the court may open the time for filing an appeal fourteen days in the case of a party not receiving notice of the judgment, this only applies if filed within twenty-one days of entry of judgment. Here, Chung made the request two months after the entry of judgment and, thus, the request was more appropriately analyzed under Rule 60(b), which allows reopening to file an appeal if the moving party shows, among other factors, due diligence and extraordinary circumstances. In this case, Chung provided the court with no evidence that they exercised due diligence by simply waiting for the judgment to come through the mail and failed to properly explain what extraordinary circumstances existed. Thus, the court reversed the superior court’s order and remanded the case for further proceedings on the remaining claims.

Click here to read the full opinion.

Rizzio v. Surpass Senior Living, LLC, No. 1-CA CV 19-0221 (Jan. 30, 2020)

In this case, the Arizona Court of Appeals addressed whether an agreement to arbitrate that requires one side to bear all arbitration costs, regardless of outcome, is substantively unconscionable when the party seeking to avoid arbitration agreed to same.

The Court of Appeals found that the contract, which the signer admittedly took limited time to read, which recommended consultation with counsel, and which did not make patient admission contingent on signing, was not procedurally unconscionable, as nothing in Arizona law requires a drafter to explain the provisions of standardized contracts, nor does the post-hoc regret of a party suffice to demonstrate unconscionability.

The Court of Appeals affirmed, however, the superior court’s finding that the cost-shifting provision of the contract was substantively unconscionable. In other words, its terms were “so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity.” Maxwell v. Fid. Fin. Servs., Inc., 184 Ariz. 82, 89 (1995). It thus severed the cost-shifting portion of the agreement from the remainder and remanded the case for further proceedings.

Click here to read the full opinion.