Arizona Case Law Updates

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  • Clements v. Bernini, No. CR-19-0140-PR (September 9, 2020) (J. Brutinel) Party claiming attorney-client privilege must make prima facie showing privilege applies/court may hold hearing to determine whether privilege applies/court may not invade the privilege to determine its existence even with in camera special master/party attempting to set aside privilege based upon crime-fraud exception must demonstrate good faith and reasonable factual basis to support in camera review of communication.



  • Allen v. Town of Prescott Valley, 786 Ariz. Adv. Rep. 10 (App. Div. I, March 13, 2018) (J. Johnsen) Fee of $270 per team for softball league was "nominal" under recreational use statute defeating negligence claim but evidence of notice of non functioning lights and authority to cancel game created fact question on theory of gross negligence/no obligation to amend complaint or specifically allege "gross negligence" in disclosures where defendant pleads immunity based upon statute in answer. 


  • Soto v. Sacco, __ Ariz. Adv. Rep. __ No. CV-16-0136-PR (July 13, 2017) (J. Lopez): Trial court has discretion under Rule 59(a)&(i) to issue remittitur or additur of jury verdict if it adequately states the grounds and explains its ruling with sufficient particularity to avoid speculation as to its basis or appellee establishes the trial court ruling was supported by substantial evidence and not an abuse of discretion. 
  • Robertson v. Alling, 715 Ariz. Adv. Rep. 23 (June 24, 2015) (J. Timmer): Attorney has apparent authority to enter settlement agreement where based up clients' actions there exists a reasonable belief the attorney has such authority/Rule 80(d) only applies where the existence or terms of agreement are challenged, does not require client's written assent but does require written documentation of the terms - e-mail satisfies the written documentation requirement.


  • Reyes v. Frank's Service & Trucking, 695 Ariz. Adv. Rep. 17 (App. Div. I, September 16, 2014) (J. Downie): Taxable Costs Include Reasonable Costs of Taking Depositions Including in and out of State Travel, Interpreter Fees, "No Show" Costs and Videotape and/or Stenographic Costs (However Seeking Both Video and Stenographic Costs is Not Always Reasonable). Where Jury Award Plus Taxable Costs Incurred as of Date of Offer of Judgment Exceeds the Offer, Rule 68(g) Sanctions Are Not Awardable. Negligence Per Se Only Applies Where Statute Requires a Specific Act and Not Where it Merely Requires Party to Act Reasonably.


  • Baker v. University Physicians Healthcare, 231 Ariz. 379, 296 P.3d 42 (March 12, 2013) (J. Bales): Plaintiffs' expert on standard of care in medical malpractice must hold the same specialty or subspecialty of defendant if the nature of the care and treatment at issue falls within the specialty held or claimed by the defendant; Specialty means board certification in the area and "claimed specialty" means area of specialization where board certification is available but not held by defendant.


  • Colorado Cas. Ins. Co. v. Safety Control Co., Inc., 230 Ariz. 560, 288 P.3d 764 (Ct. App. 2012):  stipulated judgment with motorist did not fraudulently or collusively shift liability from general contractor's excess insurer to subcontractor's ongoing operations insurer
  • Flood Control District v. Paloma Investment, Ltd., 635 Ariz. Adv. Rep. 4 (App. Div. I, May 31, 2012) (J. Kessler): Contractual agreement to indemnify for "all liability" includes obligation to pay amount of stipulated judgment subject to covenant not to execute ala Damron agreement; premature notice of claim valid where government suffers no detriment to ability to investigate and evaluate; rule 68 expert fee sanctions apply to fees related to actual testimony and preparation to testify only; ARS Sec. 12-341.01 gives trial judge discretion to award reasonable hourly rate and not actual contingent fee.


  • Young v. Beck, 227 Ariz. 1 251 P.3d 380 (April 5, 2011) (J.Pelander): Family Purpose Doctrine renders son the agent of his parents in operation of family vehicle placing the doctrine outside the abolition of joint liability in UCATA and son's minor deviation from scope of permission to use vehicle does not excuse parents from liability for his negligent driving.


  • Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 229 P.3d 1008 (2010): Arizona does not recognize cause of action for first-party spoliation of evidence.
  • Flagstaff Affordable Hous. Ltd. P'ship v. Design Alliance, Inc., 223 Ariz. 320, 223 P.3d 664 (2010): economic loss doctrine applies to construction contracts.


  • Quintero v. Rogers, 221 Ariz. 536, 212 P.3d 874 (Ct. App. 2009): damages for loss of enjoyment of life are precluded by survival statute, but punitive damages are not.
  • Seisinger v. Siebel, 220 Ariz. 85 203 P.3d 483 (March 13, 2009): Requirement that affidavit signed by expert in same medical speciality as defendant establishing breach of standard of care be filed with disclosure is substantive and not procedural, thus not within rule-making purview of the courts and therefore not in violation of the separation of powers.


  • Haab v. County, 532 Ariz. Adv. Rep. 8 (Ariz. Ct. App. Div. 1, on June 17, 2008) (Judge Irvine): Arizona revised statute §12-2604(A) requiring affidavit by medical doctor in same specialty as defendant to support filing lawsuit violate separate of powers unconstitutional. The plaintiff filed a medical malpractice lawsuit claiming that a defendant doctor negligently administered a spinal epidural. The plaintiff filed an affidavit from a medical doctor who was not in the same specialty as the defendant.

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