Arizona Law Regarding Duty to Third Parties

In order to successfully maintain a negligence/tort lawsuit in Arizona, a plaintiff/victim must show that a defendant had a legal obligation to protect him from injury or harm - a “duty” in the parlance of tort law. See Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” Id.

Duties may arise from a special relationship between the parties, a relationship that may find its basis in contract, family relations, or the nature of the putative defendant’s undertakings. See Hislop v. Salt River Project Agric. Improvement and Power Dist., 197 Ariz. 553, 557, ¶ 21, 5 P.3d 267, 271 (App. 2000); Stanley v. McCarver, infra. The proper inquiry is whether a sufficient relationship exists between the parties to make it reasonable, as a matter of public policy, to impose a duty. Markowitz, 146 Ariz. at 356, 706 P.2d at 368.

In Stanley v. McCarver, a doctor-patient relationship was not necessary to support the existence of a duty. 208 Ariz. 219, 226, 92 P.3d 849, 856 (2004). The Court determined that, despite the absence of a doctor-patient relationship among the parties, the doctor owed a duty of care to the plaintiff. Id. at 208 Ariz. at 224, 92 P.3d at 854. The Court noted that while the traditional rule required a doctor-patient relationship before liability could be imposed, the requirement of a formalized relationship to establish a duty was eroding in Arizona, as well as in several other jurisdictions. Id., noting Lombardo v. Albu, 199 Ariz. 97, 99-100 ¶¶ 10-12, 14 P.3d 288, 290-91 (2000) (imposing a duty on a purchaser’s real estate agent to deal fairly with sellers); Tarasoff v. Bd. f Regents, 17 Cal.3d 425, 131 Cal. Rptr. 14, 551 P.2d 334, 340 (1976) (imposing a duty on mental health workers to warn of threat of immediate harm to third party). The Stanley Court also relied on its previous ruling in Diggs v. Ariz. Cardiologists, Ltd, 198 Ariz. 198, 201, 8 P.3d 386, 389 (2000), where a formal doctor-patient relationship did not exist but where a duty was nevertheless imposed on the doctor.
In expanding the duty of a physician to third parties, the Stanley Court specifically held:

The requirement of a formalized relationship between the parties has been quietly eroding in several jurisdictions. It has been eroding in Arizona as well, and, when public policy has supported the existence of a legal obligation, courts have imposed duties for the protection of persons with whom no preexisting “relationship” existed. Indeed, at least one Arizona case has held that a formal doctor-patient relationship need not exist before a duty may be imposed on the doctor. See Diggs… The absence of such a relationship does not necessarily exclude a duty to the patient.

Id. at 202, ¶ 14, 8 P.3d at 390. (Emphasis added) (Some internal citations removed).
The Arizona Supreme Court in Stanley also cited an additional rationale in support of a duty to potential tort claimants:

The imposition of a duty in these circumstances also comports with the Restatement (Second) of Torts § 324A (1965)… Section 324A suggests imposing a duty on one “who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person.” It provides that a person “is subject to liability to the third person ... if (a) his failure to exercise reasonable care increases the risk of ... harm, or ... (c) the harm is suffered because of reliance of ... the third person upon the undertaking.” Restatement, supra, § 324A… (emphasis added).

Subsequent Arizona cases have continued the rationale adopted in Stanley. For example, Gipson v. Kasey holds that a special or direct relationship is not essential for a duty of care to exist. 214 Ariz. 141, 144, 150 P.3d 228, 231 (2007). In Gipson, a co-worker brought prescription pain pills to a holiday party, and gave pills to decedent’s girlfriend. Id. at 214 Ariz. at 142, 150 P.3d at 229. The decedent took six pills from his girlfriend, consumed alcohol, and died in his sleep the next morning from the combination of the drugs and alcohol. Id. The defendant co-worker argued that he did not owe the decedent a duty of care because he had no direct or special relationship with decedent. Id. at 214 Ariz. at 145, 150 P.3d at 232. The Court stated, “[d]uties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant.” Id. citing Stanley, 208 Ariz. at 221, 92 P.3d at 851. The court further held, as explained in Stanley, “when public policy has supported the existence of a legal obligation, courts have imposed duties for the protections of persons with whom no preexisting ‘relationship’ existed.” Id., citing Stanley, 208 Ariz. at 221-22, 92 P.3d at 851-52.

These same principles were reiterated and confirmed as recently as a year and a half ago when the Arizona Supreme Court denied review in Ritchie v. Krasner, 211 P3d 172 (2009). Ritchie is instructive on both the duty and causation arguments raised by defendants. The essential question in Ritchie was whether the defendant IME physician, hired by a workman’s compensation carrier, had a duty to the injured employee despite language in the IME agreement that stated: “It is very important that you realize that no Doctor/Patient relationship exists between you and Dr. Krasner. Because of this, the results of this evaluation will not be given to you or to anyone that you may request to receive them…” In upholding the presence of a duty on the part of the IME physician (Dr.Krasner), the court stated: “As the court noted after trial, because a formal doctor-patient relationship is not necessary for a duty to exist, the disclaimer in the [Agreement] is simply irrelevant.” Id. at ¶ 22.

The Ritchie decision also confirmed the following principles:

1.The existence of a duty is generally a question of law, and we examine whether a duty exists de novo. Diggs v. Ariz. Cardiologists, 198 Ariz. 198, 200, ¶ 11, 8 P.3d 386, 388 (App.2000). The other elements of negligence are factual issues, and are generally within the province of the jury. Gipson II, 214 Ariz. at 143, ¶ 9, 150 P.3d at 230.

2.A duty may arise even in the absence of a formal relationship. Stanley, 208 Ariz at 221 ¶ 7, 92 P. 3d at 851. It can arise from a relationship between the parties, a contractual relationship, or any number of other types of contacts. Id. “A special or direct relationship, however, is not essential in order for there to be a duty of care.” Gipson II, 214 Ariz. at 145, ¶ 18, 150 P.3d at 232.

Other Arizona Cases Establishing An Extended Duty.

1. A bartender to the general public (even though there was no direct relationship between them.) Ontiveros v. Borak, supra.

2. Psychiatrist to family members harmed by a negligently treated patient. Little v. All Phoenix South Community Mental Health Center, Inc, 186 Ariz. 97, 101, 919 P.2d 1368, 1372 (1995). Here, the Court extended a duty to third persons whose circumstances place them within the reasonably foreseeable area of danger. In finding the existence of a duty, the Little Court stated: “In sum, plaintiff was a ‘readily identifiable [person] who might suffer harm if the [defendants were] negligent in the diagnosis or treatment of the patient.’”. Id.

3. Security Service to Intoxicated Spectator. Professional Sports, Inc. v. Gillette Security, Inc., 766 P.2d 9. A security company had a duty to protect third-party patrons of a ball park; privity of contract between security company and injured spectator was not required to establish a duty; there were issues of fact pertaining to breach of duty which precluded summary judgment in favor of security company.

4. A purchaser’s real estate agent to sellers. Lombardo v. Albu, 199 Ariz. 97, 99-100 ¶¶ 10-12, 14 P.3d 288, 290-91 (2000), cited by the Supreme court in Stanley, supra.

Categories: Personal Injury

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