Wednesday, May 22, 2013

I Think I Signed a Waiver, But I Got Injured. Now What?

The state of Arizona is very friendly to you.  While they can be enforceable in certain situations, they are highly disfavored. 

As a participant in some sporting event such as go-cart racing, a mud run event, or other physical activity, there is a risk of getting injured.  Owners or organizers of these activities, in an attempt to avoid lawsuits, will often require a waiver be signed by the participants in an attempt to limit the owner or organizers’ exposure. 

Generally, injuries will occur in one of three ways:

1.     The activity in question has some inherent risks.  For example, when you choose to play tackle football, you understand that there is a risk that you may be tackled.  When you enter a mud run event, you understand there will be mud.

2.     Something the owner or organizer did was negligent, and that negligence created a risk of harm that otherwise would not have existed. 

3.     The owner or organizer, or one of their agents, was grossly negligent, reckless, or intentional in their conduct resulting in injury to a participant.  

As you seek to hold another responsible for injuries you have sustained, it is essential to show that there was something in owners’ or organizers’ conduct that fell below whatever reasonable standard of care that they owed to you.  You need to show that if the person you believe to be responsible had acted reasonably, then you would not have been injured. 

Consequently, most of Arizona disputes with revolve around #2 above.  However, if you can clearly identify the negligent act by the owner or organizer, and you can show that you did not have an opportunity to bargain with the owner or organizer (meaning you did not negotiate the terms of the contract), then Arizona law treats you favorably as a claimant. 

As a general matter, Arizona says that “An attempt to limit one’s liability from one’s own negligence is not uncommon.  The general reaction of courts to this attempt has been unfavorable.  The reason is simple.  To relieve oneself of liability for one’s own negligence may encourage carelessness.”  Sirek v. Fairfield Snowbowl, Inc. 166 Ariz. 183, 800 P.2d 1291 (Ariz. App., 1990). 

In Salt River Project Agric. Improv. & Power Dist. v. Westinghouse Electric Corp. 190 Ariz. 463, 800 P.2d 1291, (app. 1990) (“SRP”) the Arizona Supreme Court answered the question whether “liability in a tort [can] be bargained away.” The answer to that question was yes, BUT generally limited to the following circumstance: “The law disfavors contractual provision by which one party seeks to immunize himself against the consequences of his own torts.” (p. 383).  But the court did indicate it would be appropriate in a commercial setting where “businessmen can bargain over which party is to bear the risk of damage and set the price accordingly, thus achieving a more rational distribution of the risk than the law would otherwise allow.”

Claimants also have the benefit of the fact that validity of waivers, exculpatory clauses and other similar contractual provisions will ultimately be a question for the a jury. Phelps. v. Firebird Raceway, Inc. 210 Ariz. 403, 1111 P.3d 1003 (Ariz. 2009).  Should you claim reach litigation, as many do, the Plaintiff may be successful at overcoming the validity of the waiver through a summary judgment, but even if they are not, they will still have the opportunity to argue the case to a jury. 

Tuesday, April 16, 2013

No Chase Policy

Many police departments, including Arizona’s own Phoenix Police Department, are instituting policies which limit officers’ ability to give chase to fleeing vehicles, much to the chagrin of the makers of “World’s Most Dangerous Police Chases 8.” Not only does this impact the high speed chase to the Mexican border you were planning in the Spring, but it could affect liability if you are involved in an accident resulting from police pursuit.
In the past, police enforcement policies were often influenced by the concept of governmental immunity. In short form, this basically means that individuals cannot bring suit against the government in certain circumstances. Unfortunately for police stations, immunity from third parties harmed in police chases no longer exists in most states, including Arizona. Ryan v. State, 134 656 P.2d 597 (1982).
According to Arizona statute, officers are authorized to take certain actions in pursuit of a fleeing vehicle, including running red lights or exceeding speed limits. A.R.S.A. § 28-624. However, none of the traffic exceptions are absolute.  For example, a squad car running a red light must display its lights and siren and slow down as necessary. An officer exceeding the speed limit may only do so with light and siren switched on and only if his or her speed does not endanger life or property. On top of all these exceptions, police officers still have a “duty to drive with due regard for the safety of all persons,” and the statute “does not protect the [officer] from the consequences of [his or her] reckless disregard for the safety of others. A.R.S.A. § 28-624(D). Basically, an officer can be found liable for causing an accident during pursuit if he was grossly negligent, or in other words, his conduct was willful and wanton. Estate of Aten v. City of Tuscon, 817 P.2d 951, 960 (App.1991). To be considered willful and wanton, the officer’s actions must “have been committed with actual or deliberate intention to harm or with an utter indifference to or conscious disregard for the safety of others.” Id. at 958.
Not only can police be held liable for accidents between a squad car and a third party, but also accidents between a third party and the suspect who the grossly negligent police officer is chasing. Id. at 955. The basic idea is that an officer is spurring on reckless driving by giving chase. And in that case, he can be grossly negligent by missing opportunities to stop the chase earlier or by choosing to continue pursuit that will endanger third parties.
In order to protect themselves from liability, many police departments institute policies explaining when officers may give chase. For example, Phoenix only authorizes hot pursuit in the event that the person being pursued is suspected of a violent felony. Scottsdale Police Department authorizes giving chase if the fleeing suspect is believed to have committed a dangerous felony or if there is an immediate and articulable threat to human life. And in those cases, officers are still held to the same standard of care outlined by Arizona statute and case law.
Unfortunately, it looks like we might have to wait even longer for “World’s Most Dangerous Police Chases 9.”

Tuesday, March 26, 2013

Who Has Keys To Your Hotel Room?

The last time I stayed in a hotel, I was in Florida at the Disney World Swan Resort. That was before I entered law school and my primary source of income became fantasy football. However, some people make more than $100 per year and can afford to stay in a hotel now and then. But if you are one of the lucky few whose livelihoods don’t depend on Ron Gronkowski’s high ankle sprain, you are probably unaware of what your favorite hotel might (or might not) be doing to protect themselves from you.
Arizona follows the Restatement Second, Agency § 213, which in part provides that an employer can be held independently liable for the harm its employee causes if the hotel was negligent in hiring that employee. In order to avoid such liability, a hotel must act as a prudent person would “in selecting the person for the business at hand.”
Acting prudently requires mixing two ingredients: (1) the right employee, with (2) the right job or environment. A hotel will be found independently liable if it hires an employee to do a particular job which creates an undue risk of foreseeable harm to a third party. If that, to you, sounded like “Blah, blah, I want to, blah, watch, blah, cat videos” you aren’t alone. But it is actually simpler than the legal jargon makes it sound.  For example, if our hypothetical hotel hires a recent child sex offender to be a sous chef in the attached nightclub, the risk of foreseeable harm is very low. Thus, the hotel would be in a better position to be protected from liability. The same could not be said if the hotel hired that same person to be a lifeguard in the pool. After all, any prudent hotel should reasonably foresee the undue risk of combining that employee with that environment. The key is that the employer must know, or should know, beforehand, that the employee is unfit for the job and poses an undue risk of harm. The range between finding the right employee and placing him or her in the right job is a sliding scale, balancing risk against foreseeability.
So we’ve established that hotels shouldn’t hire bulls to tend their china shops. But since liability depends on an employer’s knowledge of an employee’s prospective risk, do hotels have an obligation to do background checks? The answer lies in the duties of each particular job; does the job give access to customer’s room? Credit card? Or is the job requirement restricted to kitchen duties. Kassman v. Busfield Enterprises, Inc., 639 P.2d 353 (Ct. App. Div. 2 1981). In Kassman, the Court held that an employer was not negligent in hiring a doorman who assaulted a customer without checking his criminal history because a doorman’s work is relatively simple and requires no special training. In a similar case, the Court held a background check wasn’t necessary to protect an employer from liability because the job—security guard—didn’t require carrying a weapon. Olson v. Staggs-Bilt Homes, Inc., 534 P.2d 1073 (1975). In fact, both cases turned on the fact that neither job description included bearing arms. And in both cases, the employee shot someone. How this affects the hospitality industry, where many jobs might be considered “simple” and most don’t require carrying weapons, is hard to say. Is a maid’s work simple enough?  What if the maid has served jail time on 5 different occasions for theft?  Is it reasonable for a customer to assume that the hotel is going to ensure that their maids do not have a long list of offenses dealing with theft when they decide to leave their laptop on the bed? What about a lifeguard, bellhop, front desk attendant, or valet driver? Are any of these jobs more or less simple than that of a doorman or security guard? 
Oftentimes, customers being placed in a vulnerable position will have an impact on an employers duty.  What happens when a taxi driver assaults a passenger? In one Michigan case, the court found that the taxi company had a duty to perform a background check. Burch v. A&G Ass. Inc., 333 N.W.2d 140 (1983). The Court’s reasoning was that a carrier extends a promise that its drivers are safe and qualified simply by hiring them.
Basically, customers getting in a taxi are placed in a vulnerable position in reliance on the carrier’s implied promise of safety. Therefore, carriers owe them validation of that trust.
What we can take from this mess is that the duty to perform a background check is decided on a case-by-case basis. The more dangerous, demanding, or complicated the job; or the more vulnerable a customer’s position, the more likely a background check is required to immunize a hotel from liability. This is because the foreseeable risk of harm increases when the job description requires, for example carrying a gun. One could form a very persuasive argument that hotel employees, particularly those with key access to guests’ rooms, also pose a high risk of foreseeable harm. 

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