This blog will be updated monthly to highlight legal knowledge that is beneficial for all of us to know and use when common situations arise in our everyday lives.

Comparative Fault

Government

*Suing local and state entities and their employees have extra requirements beyond that of a regular negligence claim. Additionally, it is important to note that suing the federal government and its employees have different requirements than suing local state entities and their employees, so knowing the type of defendant at fault matters. For local and state entities and their employees, A.R.S. §12-821.01 requires a Notice of Claim to be filed and served on the potentially culpable entity within 180 days of the incident to put the government  on notice of the facts and basis of the claim. The notice must also contain a specific amount for which the claim can be settled.  Once the Notice of Claim is served, the government has 60 days to accept or deny the Notice of Claim (no response is deemed a denial after 60 days).

Unlike the two-year statute of limitations for most negligence claims, state claims against local and state entities also have a one-year statute of limitations for a lawsuit to be filed.There are a few exceptions that toll the 180 day deadline and statute of limitations (e.g. minors, incompetent persons), and there are very specific rules that must be complied with for a Notice of Claim and lawsuit to be valid, so it's important to hire an attorney that knows these requirements well.

Insurance

*Automobile insurance can have a lot of purposes, but the primary purpose of most policies it to cover an individual for damage/theft of their insured vehicle, and to provide liability coverage in the event that an owner and/or driver of the insured vehicle is liable for causing a collision and damages/injuries to others. If a claim is filed against the insured for causing a car collision, the insurance company is also required to provide the insured with an attorney to defend the case; for this reason, it is important to contact your insurance company so they can defend you in the event that a claim is filed against you for causing a collision.

For those that are injured as a result of another driver's negligence, it is important to know how much liability coverage the negligent driver has available to compensate the injured party. The minimum amount of liability insurance a car owner in Arizona is required to have for causing injuries is $25,000/$50,000; the first number ($25,000) represents the maximum amount an insurance company will pay to one individual for his or her personal injuries, and the second number ($50,000) represents the maximum amount an insurance company will pay for each accident (i.e. relevant when more than one person is injured in the collision). Liability coverage will cover injured passengers of the vehicle that caused the collision, but not the driver who caused the collision.

The minimum amount of liability insurance a car owner in Arizona is required to have for causing property damage to someone else's car/property is $15,000.

*Homeowners insurance does not just protect you in the event that your home and/or personal property are damaged or stolen. It also provides liability coverage and protects you in the event that you are negligent in a non-motor vehicle incident that results in damaging someone else's property or injuring someone else. For example, homeowners insurance protects you in the event that your dog injures another person (exception: some policies exclude certain breeds of dogs). In the event that you are sued for a negligent non-motor vehicle act, your insurer will provide you with a lawyer to defend you.

*Insurance bad faith is a claim available to insureds who believe they are being mistreated by their own insuaranace company. When handling an insurance claim, the insurance company has a legal duty to  treat their own insureds'  interests' equal to that of its own interests. If the insurance company makes its own interest a priority above that of its insured, the company has committed bad faith. Damages in a bad faith claim can include the financial/economic loss the insured has suffered as a result of the bad faith (including interest if applicable), attorneys' fees, and emotional stress/frustration caused as a result of the bad faith. If the conduct is exceptionally bad, punitive damages may also be available. Examples  of bad faith typically include:

*Unreasonable denial of a claim that should be covered.

*Unreasonable delay in the claims handling process.

*Unreasonable evaluation of a covered claim (i.e. making an offer that is well below the fair value of a claim).

*Other actions taken by the insurer that make it clear that it is protecting the the company over that of its insured.

Medical Malpractice

*Medical malpractice claims have two substantial requirements that are different than a typical negligence claim, and the failure to do both of them can lead to the case being thrown out. First, A.R.S. §12-2602 requires that the plaintiff file a preliminary expert affidavit with his or her initial disclosure; the affidavit must come from a qualified expert that states the factual basis for the claim, the acts/ommissions caused by the defendant medical provider that the expert believes constitutes a violation(s) of the applicable standard of care, and how those violations caused or contributed to the plaintiff's injuries. Second, A.R.S. §12-2602 requries that the plaintiff's testifying expert (it does not need to be the same person who wrote the preliminary affidavit) must be a licensed health professional that practices in the same area of medicine as the defendant medical provider and has to have spent the year preceding the alleged medical negligence practicing or teaching in the same area of medicine as the defendant medical provider. This latter requirement can get especially convoluted, so it is vital to hire an attorney with legitimate experience in handling medical malpractice claims.

Pets

*Arizona has strict dog laws to encourage responsible dog ownership and to protect the public. A.R.S. §11-1020 makes dog owners strictly liable in the event that their unleashed dog injures another person in public. §11-1025 makes dog owners strictly liable in the event that their dog (leashed or unleashed) bites another person (in public or in private). Because these statutes are separate, that also means the injury a person sustains due to an unleashed dog does not necessarily have to be a bite (i.e. unleashed dog causes a cyclist to fall of her bike). "Strictly liable" means that the injured person does not have to prove that the dog owner was negligent (i.e. unreasonable) to establish liability, but only that the event occurred. The only exception to avoiding strict liability during these events is if the dog owner can prove that the injured person provoked the dog. This is why it is important to always leash your dog if you take them out in public, even if you believe that your dog is the friendliest dog in the world; if your dog poses a bite risk, it's important to properly confine the dog and do whatever you need to do to ensure the dog doesn't bite anyone, including vets, pet groomers, and other pet handlers.

Premise Liability

Under Arizona law, premises liability requires landowners to exercise reasonable care to ensure their premises are safe for invitees. This duty includes discovering and correcting or warning of unreasonably dangerous conditions that the possessor should reasonably foresee might harm their guests. A condition is dangerous when it creates an unreasonable risk of harm, and liability arises if the possessor fails to exercise reasonable care to protect invitees. 

Notice of the dangerous condition is required. Constructive notice exists if the condition existed long enough that the proprietor should have known of it and taken action to remedy it. Failure to warn of an unreasonably dangerous condition of which the business had notice can result in liability. However, there is no liability for conditions whose danger is known or obvious--known as "open and obvious"--to invitees unless the possessor should anticipate harm despite such knowledge. 

A landowner is not liable for the negligent conduct of independent contractors who create a dangerous condition on the property unless the landowner has been independently negligent, or in some exceptions where the particular action that the landowner is hiring the third-party contractor do something that has been classified by the law as nondelegable.

Vicarious Liability/Respondeat Superior

*Employers are financially responsible for the negligent conduct of any employee who is working "in the course and scope" of his or her employment at the time when the employee's negligent conduct causes injury to another person.  This concept is fairly straightforward when a traditional, hourly employee causes injury while he or she is on the clock. In less traditional settings, however, It can get a little more complicated; in these situations, an employer's liability for the conduct of another person depends on how much control the employer had over the person at the time the injury occurred, and whether the person was furthering the goals/interests of the employer at the time the injury occurred. A person does not necessarily have to be paid (i.e. volunteer) to be considered and employee of an employer for the purposes of vicarious liability.

Though employers are generally financially responsible for the negligent conduct of their employees, it can get a little tricky when the employee's conduct was intentional or criminal. Though most commercial insurance policies cover the negligent conduct of an employee, most do not cover conduct that is intentional or criminal.

Vulnerable Adult

A.R.S. § 46-455 provides a special, statutory cause of action for vulnerable adults who are unable to protect themselves due to cognitive and/or physical impairment. The statute provides that vulnerable adults may bring a cause of action against those in charge of caring for them in the event that those caregivers cause injury due to neglect, abuse, or exploitation. 

One unique aspect of a vulnerable adult claim that is not available for most civil claims in Arizona is that a vulnerable adult claim provides damages for pre-death pain and suffering.

Wrongful Death

In the event that someone dies due to the negligence of a third party, A.R.S. § 46-455 allows spouses, children, and parents of the decedent to bring a claim against the third party for wrongful death (i.e. only the relatives specifically stated in the statute can bring a wrongful death claim. Siblings, for example, are excluded).  Damages available to the surviving loved ones include the value of the relationship lost, past and future mental suffering of the surviving loved one resulting from the death, past and future lost income that the surviving loved one would have received from the decedent had there been no death, and any out-of-pocket expenses the surviving loved one had to pay as a result of the death (i.e. medical care, burial/funeral expenses). If the negligence was egregious, punitive damages might be available as well.

The estate of the deceased can also bring a claim against the negligent third party, which is called a survival action, though the damages for this type of claim are typically limited to the financial loss of the estate. Pre-death pain and suffering of the deceased is not an available item of damages under Arizona law.