May 2011
September, 2010
SNAPSHOT
A Monthly Legal Update for Governmental Agencies
Lisa S. Wahlin Legislative Update
602.792.5707
lwahlin@gbmlawpc.com
SB1070 - The Ninth Circuit upheld the lower court’s injunction and ruling that portions of the
law are illegal. The State of Arizona is appealing the Ninth Circuit’s decision to the Supreme
Ms. Wahlin spent 16 Court.
years in government
practice as a
prosecutor and civil
litigator before The Legislature adjourned sine die on April 20. Laws go into effect on July 19.
moving to private
practice in 2007. HB2110 amends A.R.S. § 20-487 to remove Risk Retention Groups from the definition of
Her expertise is in insurers. Final status: Passed.
wrongful death and
personal injury, as HB2409/SB1644 amends A.R.S. § 12-341.01 to allow recovery of attorney fees for any civil
well as government action, not just those arising out of contract. The bill also includes a provision that prohibits
liability defense,
including civil rights political subdivisions from recovering attorneys’ fees for actions to enforce law, ordinances,
defense, police or regulations. Final status: Held in committee.
liability, and
jail/corrections HB2444 amends A.R.S. § 38-1101 by deleting the requirement that a law enforcement
defense.
officer submit to a polygraph exam in an administrative investigation and adds a provision
She is admitted to
practice in Arizona,
that a polygraph exam may only be done by mutual agreement. It also adds a new section,
the U.S. District 38-1105, which sets forth time limitations for disciplinary actions against law enforcement
Court of Arizona, and
the Ninth Circuit
officers. Final status: Passed as amended. The final version provides that a polygraph
Court of Appeals. may be required but it cannot form the basis for disciplinary action unless other evidence
exists. It also adds time limitations for disciplinary actions.
SB1031 repeals A.R.S. §§ 12-572 and 573 and amends § 12-563 to provide that the
plaintiff in a medical malpractice action must prove the elements of his claim by clear and
Erin E. Byrnes convincing evidence. Final status: Held in committee.
602.792.5713
ebyrnes@gbmlawpc.com
SB1057 amends A.R.S. § 38-1104 to allow a law enforcement officer to recover attorneys’
Ms. Byrnes has been
fees and costs when he or she is subject to disciplinary proceedings without just cause. It
practicing for 11 years also includes a provision allowing the recovery of punitive damages under certain
and has specialized in situations. Final status: Passed as amended. The final version provides that law
defending government
entities in civil rights enforcement officers may appeal their termination to superior court, and that the prevailing
and employment party may recover attorneys’ fees and costs. The final version does not allow for recovery of
litigation since 2002.
punitive damages.
This work has
included defending SB1071 adds a new section to the Arizona Civil Rights Act that prohibits racial profiling by
Title VII, ADA, ADEA,
and FLSA lawsuits, as law enforcement and requires data collection by all law enforcement agencies beginning
well as § 1983 January 2012. Final status: Held in committee.
lawsuits.
She also has special
expertise in Indian law
matters. Strengthening Medicare and Repaying Taxpayers (SMART Act)
Ms. Byrnes is admitted H.R. 1063: The SMART Act amends the MMSEA. It creates a fast-track procedure for
in Arizona, Oklahoma,
federal district court, parties seeking to settle litigation to determine the conditional payment amount (which must
and eight tribal courts be known before Medicare liabilities can be resolved). It provides for a threshold amount
in Arizona.
below which Medicare Secondary Payer (MSP) obligations will not apply and creates a
statute of limitations for all MSP claims. It also amends the reporting penalties and
eliminates the requirement to use social security numbers for reporting. Current status: In
committee.
Graif Barrett & Matura, P.C.
1850 North Central Avenue
Suite 500
Phoenix, Arizona 85004 SNAPSHOT is for informational use only. The information in this newsletter should not be relied upon as specific legal advice. For legal advice on a
602.792.5719 specific issue or matter, please consult an attorney who is knowledgeable and experienced in that area. For more information regarding information
provided in this issue, please contact Lisa Wahlin at 602.792.5707 or Erin Byrnes at 602.792.5713.
Page 2
SNAPSHOT
A Monthly Legal Update for Governmental Agencies
Case Law Update
Arizona Court of Appeals
Vicarious Liability Proper Plaintiffs in Wrongful Death Actions
Carnes v. Phoenix Newspapers, Inc., __P.3d__, 2011WL Edonna v. Heckman, __P.3d__, 2011WL 1815131 (May 3,
1375450 (April 7, 2011) 2011)
Phoenix Newspapers (PNI) was sued on a theory of Plaintiff Edonna’s parents divorced when he was young, and
vicarious liability for the negligent actions of one of their he saw his father only sporadically while he was growing up.
newspaper delivery persons, Stephanie Sebastian. When he was 13 years old, Edonna’s stepfather adopted him
Sebastian had several delivery routes, and used her own and his biological father agreed to the adoption. After he
vehicle to pick up and deliver the papers. One day after reached adulthood, Edonna’s contact with his biological
Sebastian had finished her deliveries and was heading father increased and they became close. In October 2005,
home, she collided with a bicycle ridden by Plaintiff Leticia Edonna’s biological father was riding a motorcycle and was
Carnes’ husband. Mr. Carnes died as a result of his killed when Defendant Heckman’s car collided with him.
injuries. Mrs. Carnes sued for wrongful death, claiming that Edonna filed a negligence and wrongful death action against
PNI was liable because Sebastian was an agent or Heckman. Heckman argued that Edonna was not a proper
employee who was acting in the course and scope of her wrongful death beneficiary for the death of his biological
employment when the collision occurred. father because of his adoption. The trial court denied his
motion to dismiss.
An employee’s conduct is within the scope of employment
if the conduct is: (1) the kind the employee is employed to The Court of Appeals overturned the trial court, finding that
perform; (2) substantially within authorized time and space the right to bring a wrongful death action is a legal incident of
limits; and (3) actuated, at least in part, by a purpose to the parent-child relationship that is lost upon adoption. The
serve the employer. In essence, an employer is vicariously wrongful death statute, A.R.S. § 12-612, creates a limited
liable for an employee’s negligent driving if the employee class of beneficiaries who may sue, which includes the
was subject to the employer’s control at the time of the children of the decedent. The wrongful death statute does not
accident. define “child.” The adoption statutes, however, indicate that
upon adoption, the relationship between the child and the
The court applied Arizona’s “going and coming rule” and
biological parent is completely severed and all legal rights,
held that PNI was not liable. Under this rule, an employer is
privileges, and consequences of that relationship cease to
not liable for the tortious acts of his employee while the
exist. Because the right to bring a wrongful death action is a
employee is going to or returning from his place of
legal consequence of the parent-child relationship, that right
employment. When the accident occurred, Sebastian was
is lost upon adoption. Accordingly, regardless of the extent
on her way home and there were no facts showing that
and quality of his relationship with his biological father,
Sebastian was subject to PNI’s control at the time of the
Edonna was not entitled to bring a wrongful death action.
accident.
The plaintiff urged the court to apply the “employee’s own Ninth Circuit Court of Appeals
conveyance rule,” which is an exception to the going and
coming rule. This rule provides that if the employee is Qualified Immunity
required, as part of his job, to use his own vehicle during
the work day, the trip to and from work is also within the A.D. v. Markgraf, 636 F.3d 555 (9th Cir. 2011)
scope of employment. The court found that this exception California Highway Patrol officer Markgraf pursued a stolen
did not apply to overcome the going and coming rule. To vehicle that traveled at high speeds through city streets.
date, Arizona courts have applied the employee’s own Multiple agencies and officers were involved in the pursuit.
conveyance rule in workers’ compensation cases but not in When the vehicle finally stopped in a cul de sac, Markgraf got
tort cases. The Court of Appeals declined to be the first out of his car and commanded the suspect driver to turn off
court to apply it to a tort case and noted that the rule is the car. The suspect ignored his commands and rammed a
used in workers’ compensation cases to further public patrol car several times. Markgraf, fearing for the safety of the
policy purposes that are not pertinent in tort cases. other officers at the scene, fired 12 shots at the suspect
through the passenger window, killing the suspect. No other
SNAPSHOT is for informational use only. The information in this newsletter should not be relied upon as specific legal advice. For legal advice on a specific issue or matter, please consult an
attorney who is knowledgeable and experienced in that area. For more information regarding information provided in this issue, please contact Lisa Wahlin at 602.792.5707 or Erin Byrnes at
602.792.5713.
Page 3
SNAPSHOT
A Monthly Legal Update for Governmental Agencies
Ninth Circuit Court of Appeals
(Continued)
officers discharged their weapons and none of them
believed that the suspect posed an immediate threat. The
children of the suspect filed a § 1983 action against
Markgraf, claiming he violated their Fourteenth Amendment
right to a familial relationship. The district court held that
Markgraf was not entitled to qualified immunity for his
actions and Markgraf appealed.
When a § 1983 claim involves an alleged due process
violation, as it does here, the officer is liable only if his
conduct “shocks the conscience.” And when the claim is
based on a situation where actual deliberation was
impractical, the plaintiff must prove that the officer acted
with a purpose to harm that was unrelated to legitimate law
enforcement objectives. The Ninth Circuit noted that the
district court confused the legal standards. The correct
inquiry to determine whether Markgraf was entitled to
qualified immunity is whether an objectively reasonable
officer would believe, under the circumstances Markgraf
confronted, that a legitimate law enforcement objective
existed – not whether a reasonable officer would believe it
was constitutional to cause harm without a legitimate law
enforcement objective. The court overturned the district
court’s decision and held that Markgraf was entitled to
qualified immunity. They found that nothing in the body of
case law prior to his conduct would have alerted him that
his split-second decision in dealing with someone who had
just led police on a dangerous high-speed chase, and who
was using her car as a weapon, shocked the conscience.
SNAPSHOT is for informational use only. The information in this newsletter should not be relied upon as specific legal advice. For legal advice on a specific issue or matter, please consult an
attorney who is knowledgeable and experienced in that area. For more information regarding information provided in this issue, please contact Lisa Wahlin at 602.792.5707 or Erin Byrnes at
602.792.5713.