August 5, 2023 was one of the hottest days in a record setting hot summer in Tucson. That afternoon the Pima County Sheriff's Office sent out a Silver Alert asking the community for help locating Miguel Moreno. Miguel was a 72 year old man with a dementia diagnosis. A few days earlier he moved in...
Schmidt, Sethi & Akmajian Blog
Torts: Accrual of Abuse of Process Action and Waiver
Liberti v. City of Scottsdale, No. 2 CA-CV 2024-0082 (App. Div. II, October 25, 2024) (J. Sklar) https://www.appeals2.az.gov/decisions/CV20240082releasedasOpinion.pdf ABUSE OF PROCESS CLAIM ACCRUES AGAINST PUBLIC ENTITY WHEN PLAINTIFF “REALIZES” OR “RESONABLY SHOULD KNOW” SHE HAS BEEN DAMAGED RE...
Governmental Liability: Notice of Claim “Specific Amount for Which Claim Can Be Settled”
City of Mesa v. Ryan, No. CV23-0284-PR (October 17, 2024) (C.J. Timmer) A.R.S. § 12-821.01(A) REQUIRES GOVERNMENTAL ENTITY BE SERVED A NOTICE OF CLAIM WITHIN 180 DAYS WHICH CONTAINS “A SPECIFIC AMOUNT FOR WHICH THE CLAIM CAN BE SETTLED AND FACTS SUPPORTING THAT AMOUNT”—DEMANDING $1 MILLION “O...
Contracts: Homeowner Association Enforceability of Amendment Covenants, Conditions & Restrictions
Gross v. The Shores at Rainbow Lake Comm. Ass'n, No. 1 CA-CV 23-0394 (App. Div. I, October 10, 2024) (J. Thumma) AMENDMENT TO CC&R's OF HOA ONLY ENFORCEABLE IF “REASONABLE AND FORESEEABLE” Defendant The Shores Lake Community Association [HOA] amended its Covenants, Conditions and Restrictions [...
Administrative Law: Suspension of Driver’s License Based Upon THC in Blood
Kirsten v. Arizona Dept. of Transp., No. 1 CA-CV 24-0092 (App. Div. I, October 1, 2024) (J. Jacobs) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/No.%201%20CA-CV%2024-0092%20KIRSTEN%20v%20ADOTMVD.pdf ABSENCE PROOF OF IMPAIRMENT, A.R.S. § 36-2852(A)(1) PROHIBITS SUSPENSION OF DRIVER'S...
Rules of Civil Procedure: Default Judgment Appropriate Where No Timely Answer to Amended Complaint Filed/Right to Appeal form Default Judgment
Melbye v. Dennis, No. 2 CA-CV 2023-0209 (App. Div. II, September 9, 2024) (J. Eckerstrom) https://www.appeals2.az.gov/decisions/CV20230209Opinion.pdf FAILURE TO TIMELY ANSWER AMENDED COMPLAINT IN FACE OF ENTRY OF DEFAULT SUPPORTS ENTRY OF DEFAULT JUDGMENT/DEFENDANT MAY APPEAL FROM DEFAULT JUDGME...
Medical Malpractice: Need for Expert Witness to Establish Breach of Standard of Care
Francisco v. Affiliated Urology Ltd, No. CV-23-0152-PR (August 16, 2024) (J. Montgomery) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2024/CV230152PR.pdf FAILURE TO WARN PATIENT OF RISKS OUTLINED IN DRUG PACKAGING BEFORE PRESCRIBING MEDICATION INADEQUATE WITHOUT EXPERT TESTIMONY TO ES...
Homeowner’s Association Right to Sue for Structural Defects
Gallery Comunity Ass'n v. K. Hovnanian at Gallery, LLC, No. 1 CA-CV 23-0375 (App. Div. I, August 6, 2024) (J. Jacobs) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/1%20CA-CV%2023-0375%20Gallery%20v.%20K.%20Hovnanian.pdf A.R.S. § 33-2002(A) AUTHORIZES HOA TO BRING LAWSUIT FOR STRUCTUR...
Protecting Our Kids: Essential Tips for Safe Driving around School Buses and in School Zones
I am loving the First Day of School photos that friends are sending me and that are popping up on my social media. It's bittersweet for me – for the first time in a long time, I don't have a kid starting school this week. My K-12 parenting career has ended. Now I look forward to hauling IKEA mov...
GENDER AND RACIAL DISPARITIES IN HEALTHCARE
Over the past several months, there has been a great deal of reporting that women and minorities are more likely than white males to be the victims of poor health care. https://www.nbcnews.com/health/health-news/medical-mistakes-are-likely-women-minorities-rcna133726 According to researchers, w...
Insurance: Commercial Automobile Liability Insurance Coverage for Additional Insured for “Use” of Insured Vehicle
Stalker & Parson Cos., Inc. v. Scottsdale Ins. Co., No. CV-21-0256-CQ (July 10, 2024) (J. Beene) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2024/CV210256CQ.pdf LOADING & UNLOADING (TO INCLUDE TRANSPORTATION OF LOAD BETWEEN LOADING AND UNLOADING) OF VEHICLE CONSTITUTES “USE” OF INSUR...
Don't Miss Your Deadline: The Arizona Statute of Limitations for Personal Injury Claims
The aftermath of a serious injury can be overwhelming. Medical bills pile up, and the path to recovery can seem long and uncertain. If your injury was caused by someone else's negligence, you may be considering legal action. Know this - Arizona law imposes a strict deadline for filing a personal ...
Federal Locomotive Inspection Act: Strict Liability for Injury When Locomotive “In Use”
Carter v. BNSF Railway Co., No. 1 CA-CV 23-0164 (App. Div. I, June 25, 2024) (J.Cattani)) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/1%20CA-CV%2023-0164.pdf LOCOMOTIVE PARKED ON SIDERAIL AWAITING REPAIRS IS NOT “IN USE” TO CREATE STRICT LIABILITY FOR INJURY AGAINST RAILWAY COMPANY...
Evidence: Admissibility of Personnel Record and Driving History of Defendant’s Employee in Damages Only Trial
Evidence: Admissibility of Personnel Record and Driving History of Defendant's Employee in Damages Only Trial Roaf v. Stephen S. Rebuck Consulting, LLC, No. CV-23-0233-PR (June 25, 2024) (C.J. Brutinel) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2024/CV230233PR.pdf WHERE DEFENDANT ...
Ted Schmidt Elected as President of the State Bar of Arizona
Ted Schmidt, managing partner of Schmidt, Sethi & Akmajian, has been elected President of the State Bar of Arizona Board of Governors. Ted is a longtime Tucson resident and graduate from the University of Arizona liberal arts college and University of Arizona College of Law in 1977. “It's an h...
Public Records Release of Arizona Department Economic Security Vulnerable Adult Records/”Bona Fide Research” Exception
Silverman v. Ariz. Dept. of Economic Sec., No. CV-23-0181-PR (June 3, 2024) (J. Timmer) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2024/CV230181PR.pdf INVESTIGATIVE JOURNALIST MAY QUALIFY UNDER BONA FIDE RESEARCH EXCEPTION TO CONFIDENTIALITY PROTECTION OF VULNERABLE ADULT RECORDS ...
Evidence: Where Facts Demonstrating Negligence Do Not Require Expert Testimony to Survive Summary Judgment
Fong v. City of Phoenix, No.1 CA-CV 23-0520 (App. Div. I, June 6 , 2024) (J.Kiley) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/1%20CA-CV%2023-0520%20Fong%20v.%20City%20of%20Phx%20OP.pdf WHERE CONSTRUCTION SIGNAGE, BARRICADES AND FLAGMAN FAILED TO DETOUR BIKE LANE TRAFFIC AWAY FROM ...
Civil Procedure: Sanctions for Failure to Participate in Preparation of Joint Pretrial/Intentional Infliction of Emotional Distress
Smith v. Olsen, No. 1 CA-CV 22-0565/1 CA-CV 23-0041 (App. Div. I May 30, 2024) (J.Jacobs) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/1%20CA-CV%2022-0565%20Smith%20v.%20Olsen.pdf ARIZ R. CIV. PROC. 16 & 37 AUTHORIZES TRIAL COURT TO BAR DEFENDANT FROM OBJECTING TO PLAINTIFF'S TRIAL...
Guardianship Statutes A.R.S. §§ 14-5101(3), -5304, and -5304.02 Violate Due Process
In re the Matter of Annette Wood, No. 1 CA-CV 22-0710 (App. Div. I May 30, 2024) (J.Howe) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/FINAL%20CV%2022-0710%20Wood%20v.%20Coconino%205.29.2024.docx.pdf ARIZONA GUARDIANSHIP STATUTES- A.R.S. §§ 14-5101(3), -5304, & -5304.02 UNCONSTITU...
Civil Procedure: Converting Motion to Dismiss into Motion for Summary Judgment
Star Pass Resort Developments, LLC v. Pima County, No. 2 CA-CV 2023-0082 (App. Div. II, May 22, 2024) (J. Sklar) https://www.appeals2.az.gov/decisions/CV20230082Opinion.pdf TRIAL COURT HAS WIDE DISCRETION IN CONVERTING MOTION TO DISMISS INTO MOTION FOR SUMMARY JUDGMENT AND MAY DO SO BEFORE ANSWE...
US Supreme Court Allows California Prison Covid-19 Death Claims to Go Forward
In a significant legal development, the Supreme Court has declined to hear an appeal from California prison officials seeking immunity from lawsuits related to the deadly COVID-19 outbreak at San Quentin in May 2020. The court's decision, issued without comment or dissent, allows lawsuits from fa...
Premises Liability: Consideration of Facts in Deciding Duty/Breach of Store Guidelines and Apology go to Standard of Care not Duty
Perez v. Circle K Convenience Stores, Inc., No. 1 CA-CV 22-0425 (App. Div. I, April 9,2024) (J. Foster) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/Perez%20-%20Final.pdf WHERE PLAINTIFF HAD VISITED STORE 25-30 TIMES, WAS FAMILIAR WITH END AISLE DISPLAYS AND WHERE PLAINTIFF ADMITTED...
Jury Selection Is in the News - What's the Deal with Voir Dire
Jury selection – also called Voir Dire – has been in the news this week. With the first criminal trial of a former President getting underway, the process of finalizing the 12 individuals who will return a verdict has become an item of intense interest. Lawyers and court watchers were surprised t...
Torts: Notice of Claim—Sufficiency of Alleged Facts Supporting Liability/Duty of State Issuing Liquor License
Sanchez-Ravuelta v. Yavapai County, No. 2 CA-CV 2023-0059 (App. Div. II, April 3, 2024) (J. Eckerstrom) https://www.appeals2.az.gov/decisions/CV20230059Opinion.pdf LAWSUIT AGAINST GOVERNMENTAL ENTITY IN ARIZONA MUST BE PRECEDED BY A TIMELY NOTICE OF CLAIM WHICH MUST SET FORTH FACTS SUFFICIENT TO...
MEDICAL MALPRACTICE IN THE AGE OF ARTIFICIAL INTELLIGENCE
Artificial intelligence now influences many professions, from education, financial analysis and increasingly in healthcare. How might concerns about medical malpractice liability impact the use of AI in medicine? This was the topic of a recent study by Jons Hopkins University. https://carey.jh...