Arizona's Vulnerable Adult Statute Applies to the State's Treatment of Incapcitated Adults
Estate of Braden v. Arizona, __Ariz. Adv. Rptr. __, 1CA-CV 08-0764 (App., Div. I, June 29, 2010) (J. Orozco)
ARIZONA'S ADULT PROTECTIVE SERVICES ACT APPLIES TO THE STATE OF ARIZONA AND ITS AGENCIES
The estate of Braden brought a lawsuit against the State of Arizona, the Department of Economic Services and its Division of Developmental Disabilities [DDD] for violation of ARS sec. 46-451 et seq. in caring for Braden a developmentally disabled adult. DDD contracted with Arizona Integrated Residential and Educational Services, Inc. [AIRES] to provide Braden care and it was there that Braden died from injuries. Because it was AIRES and not DDD or the state that actually provided the care and because the trial court found the state did not voluntarily "assume" the duty to provide this care the trial court granted the state summary judgment.
The Court of Appeals disagreed and reversed. First the court found that the state assigned a caseworker for Braden, prepared an ISP (written plan of services to be provided Braden) and met with Braden's family and AIRES to discuss the plan of care and prioritize needs. The Court of Appeals found these actions adequate to establish that the state had in fact "provided care" for Braden. This "close question" was decided this way in part because of the remedial nature of the vulnerable adult statute and the consequent requirement it be interpreted broadly to effectuate application.
Next the Court of Appeals rejected the state's argument that it did not "assume a legal duty" to care for Braden because it did not "voluntarily" undertake his care but instead was mandated by law to provide the care. The court looked to Webster's dictionary and found that "volunteering" is not a perquisite to finding one has "assumed" a duty. Particularly based upon the remedial nature of the statute the state assumes the duty when it "takes up" the responsibility whether voluntarily or by mandate.
Next the court rejected the state's argument that language in the statute requiring an APSCA claim be served on the state and expressly stating that such obligation did not "authorize the person to name this state . . . as a party" precluded application of the statute. Instead the Court of Appeals found that this language only meant that the requirement of service on the state alone did not create a cause of action but likewise did not preclude one if there was an independent act or omission by the state creating liability.
Next the court rejected the state's argument that to allow liability against the state would create the absurd result of requiring the attorney general to simultaneously represent the plaintiff and the defendant state and would require to state to report violations to itself. The court noted that the attorney general is never required to represent the plaintiff or get involved in the claim but if it decides to do so statute allows it to hire private counsel. There is nothing absurd about the state properly reporting a violation of its own subdivision.
Finally the state argued it was immune for its administrative decisions under ARS sec. 12-820.01. The Court of Appeals handily rejected this argument noting that it has repeatedly been held in Arizona that this immunity only applies to policy making decisions and not the administration of day to day duties and responsibilities in carrying out those policies.