Torts - Duty to Perform Safety Inspection
Diaz v. Phoenix Lubrication Service, __Ariz. Adv. Rptr. __, 1 CA-CV 09-0034 (Ct. App., Div. I, May 4, 2010) (J. Gemmill)
AUTOMOBILE LUBE STATION PERFORMING ROUTINE OIL CHANGE AND "SERVICE JOB" DOES NOT HAVE A DUTY TO INSPECT TIRES
Plaintiff took his Volvo to Jiffy Lube for an oil change which included a check of the car's tire pressure. A few weeks later the plaintiff was involved in a catastrophic rollover accident which he attributed in part to poor tread on the tires. This allegation surfaced after the plaintiff sued Volvo, Ford and Discount Tire who designated the local Volvo dealer as a Nonparty at Fault, who when added to the suit named Jiffy Lube as a Nonparty at Fault. Plaintiffs and the defendant dealer alleged Jiffy Lube was negligent in its failure to properly inspect the tires and its failure to warn of the worn tire tread. All the defendants except Jiffy Lube were ultimately dismissed from the case. Then the trial court granted defendants summary judgment based upon a finding there was no tort duty to inspect the tires. The Court of Appeals affirmed relying upon Gipson v. Kasey, 214 Ariz. 141, 150 P. 3d 228 (2007), first noting that the question of duty is a question of law for the court. In analyzing the question Gipson instructs that the court must analyze the relationship of the parties and public policy considerations. With respect to the relationship of the parties, the Court of Appeals the court first looked to the contract between the parties finding it only required an inspection of the tire pressure and not the tires themselves. The court declined to find an implied duty based upon the fact the service technician was performing lubrication functions under the vehicle with the tire tread in plain sight. Turning to public policy considerations the court first noted that the Gipson court relied largely upon Arizona statutes which created a duty. Here there are no statutes involved. Secondly, the Gipson court held that "[a]n actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm." Here the court did not "perceive that Jiffy Lube's actions created the risk resulting from the allegedly worn tires." Where the actor did not create the risk, Restatement (3d) section 37 provides there is no duty. Finally, the Court of Appeals rejected plaintiff's theory that the standard in the industry required the defendants meet this duty finding that the standard in the industry only applies to whether there has been a breach of the standard of care. Only the court can decide the duty question, not an expert or lay witness.