foreseeability analysis in Arizona

2023Gipson subsequently held, contrary to prior rulings, that foreseeability cannot be used in determining duty at all. 214 Ariz. at 144 ¶ 15 (“To clarify, we now expressly hold that foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in prior opinions.”); accord Quiroz, 243 Ariz. at 565 ¶¶ 12–13 (“To be clear, in eliminating foreseeability, Gipson changed our duty framework by limiting the duty analysis to special relationships and public policy,” thus marking “a sea change in Arizona tort law.”).

2021Because Gipson explicitly rejected the foreseeability framework as it pertains to the existence and scope of a duty, 214 Ariz. at 145, ¶ 23 , Donnelly cannot support Cal-Am’s argument that Edais owed it a duty of due care. 4 CAL-AM v. EDAIS Decision of the Court ¶14 Relying on Flagstaff Affordable Housing Ltd.

2026See State v. Morris, 173 Ariz. 14 , 18–19 (App. 1992).

2026See State v. Morris, 173 Ariz. 14 , 18–19 (App. 1992).

2000To determine foreseeability, courts should take into account, inter alia, whether the “plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” Id.; cf. Drew v. Drake, 110 Cal.App.3d 555 , 168 Cal.Rptr. 65, 65-66 (1980) (denying recovery for bystander distress to person who lived three years with victim as de facto spouse because relationship too remote to satisfy foreseeability test). ¶ 17 We do not find the foreseeability framework to be a particularly useful mechanism by which to ascertain and delimit a

2000To determine foreseeability, courts should take into account, inter alia, whether the “plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” Id.; cf. Drew v. Drake, 110 Cal.App.3d 555 , 168 Cal.Rptr. 65, 65-66 (1980) (denying recovery for bystander distress to person who lived three years with victim as de facto spouse because relationship too remote to satisfy foreseeability test). ¶ 17 We do not find the foreseeability framework to be a particularly useful mechanism by which to ascertain and delimit a

2000See, e.g., Trapp v. Schuyler Construction, 149 Cal.App.3d 1140 , 197 Cal.Rptr. 411, 412 (1983) (minor appellants as close friends, first cousins, and regular playmates of the minor deceased did not meet the Dillon foreseeability criteria); Kately v. Wilkinson, 148 Cal.App.3d 576 , 195 Cal.Rptr. 902, 907 , (1983) (best friends akin to natural sisters insufficient to satisfy foreseeability test of Dillon). ¶ 18 Confining a liability decision to the theoretical construct of a foreseeability analysis precludes consideration of other factors that, as a matter of good policy, ought to enter into a d

2000See, e.g., Trapp v. Schuyler Construction, 149 Cal.App.3d 1140 , 197 Cal.Rptr. 411, 412 (1983) (minor appellants as close friends, first cousins, and regular playmates of the minor deceased did not meet the Dillon foreseeability criteria); Kately v. Wilkinson, 148 Cal.App.3d 576 , 195 Cal.Rptr. 902, 907 , (1983) (best friends akin to natural sisters insufficient to satisfy foreseeability test of Dillon). ¶ 18 Confining a liability decision to the theoretical construct of a foreseeability analysis precludes consideration of other factors that, as a matter of good policy, ought to enter into a d

2000See Napier v. Bertram, 191 Ariz. 238, 244, ¶ 21 , 954 P.2d 1389, 1395, ¶21 (1998) (concluding after review of competing policies that it would be inappropriate to recognize a negligence duty by insurance agent to non-client); cf. Bovsun v. Sanperi, 61 N.Y.2d 219 , 473 N.Y.S.2d 357 , 461 N.E.2d 843, 847 (1984) (“[D]elineation of limits of liability in tort actions is usually determined on the basis of consideration of public policy.”).

2000See Napier v. Bertram, 191 Ariz. 238, 244, ¶ 21 , 954 P.2d 1389, 1395, ¶21 (1998) (concluding after review of competing policies that it would be inappropriate to recognize a negligence duty by insurance agent to non-client); cf. Bovsun v. Sanperi, 61 N.Y.2d 219 , 473 N.Y.S.2d 357 , 461 N.E.2d 843, 847 (1984) (“[D]elineation of limits of liability in tort actions is usually determined on the basis of consideration of public policy.”).

2000See Napier v. Bertram, 191 Ariz. 238, 244, ¶ 21 , 954 P.2d 1389, 1395, ¶21 (1998) (concluding after review of competing policies that it would be inappropriate to recognize a negligence duty by insurance agent to non-client); cf. Bovsun v. Sanperi, 61 N.Y.2d 219 , 473 N.Y.S.2d 357 , 461 N.E.2d 843, 847 (1984) (“[D]elineation of limits of liability in tort actions is usually determined on the basis of consideration of public policy.”).

2000See Napier v. Bertram, 191 Ariz. 238, 244, ¶ 21 , 954 P.2d 1389, 1395, ¶21 (1998) (concluding after review of competing policies that it would be inappropriate to recognize a negligence duty by insurance agent to non-client); cf. Bovsun v. Sanperi, 61 N.Y.2d 219 , 473 N.Y.S.2d 357 , 461 N.E.2d 843, 847 (1984) (“[D]elineation of limits of liability in tort actions is usually determined on the basis of consideration of public policy.”).

2022See supra ¶¶ 4–7; Donnelly, 139 Ariz. at 188 (“We only hold here that design professionals are liable for foreseeable injuries to foreseeable victims which proximately result from their negligent performance of their professional services.” (emphasis added)).

2021Partnership v. Design All, Inc., 223 Ariz. 320, 327, ¶¶ 35-37 (2010), Cal-Am asserts that our supreme court approvingly cited Donnelly and “recognized the continuing vitality of Donnelly as to the liability in negligence of design professionals.” However, Flagstaff Affordable Housing involved an architect who was in privity of contract with the property owner. 223 Ariz. at 321, ¶ 3 .

2021Partnership v. Design All, Inc., 223 Ariz. 320, 327, ¶¶ 35-37 (2010), Cal-Am asserts that our supreme court approvingly cited Donnelly and “recognized the continuing vitality of Donnelly as to the liability in negligence of design professionals.” However, Flagstaff Affordable Housing involved an architect who was in privity of contract with the property owner. 223 Ariz. at 321, ¶ 3 .

2018Id . § 302 cmt. a; see also Prosser & Keeton, § 43, at 285 (noting that the Restatement of Torts adopted foreseeability as a basis for duty); see Fedie v. Travelodge Int'l, Inc. , 162 Ariz. 263 , 265-66, 782 P.2d 739 , 741-42 (App. 1989) (discussing the existence of duty based on Second Restatement §§ 302 and 302B, and noting that both sections rely on foreseeability to determine duty); City of Tucson v. Wondergem , 6 Ariz. App. 570 , 576, 435 P.2d 77 (1967) (stating that Second Restatement § 302 cmt. g is based on the "doctrine of foreseeability"); Satterfield, 266 S.W.3d at 355 (noting that

2018See Boisson v. Ariz. Bd. of Regents , 236 Ariz. 619 , 622 ¶ 6, 343 P.3d 931 , 934 (App. 2015) (holding that post- Gipson "foreseeability is not a part of the duty inquiry and those portions of pre- Gipson cases relying on foreseeability when addressing the issue are no longer valid"); Delci v. Gutierrez Trucking Co. , 229 Ariz. 333 , 336 ¶ 11, 275 P.3d 632 , 635 (App. 2012) (applying Gipson and holding that duty determinations in pre- Gipson cases "premised on a foreseeability analysis" are "no longer valid"). ¶13 To be clear, in eliminating foreseeability, Gipson changed our duty framework by

2018See Boisson v. Ariz. Bd. of Regents , 236 Ariz. 619 , 622 ¶ 6, 343 P.3d 931 , 934 (App. 2015) (holding that post- Gipson "foreseeability is not a part of the duty inquiry and those portions of pre- Gipson cases relying on foreseeability when addressing the issue are no longer valid"); Delci v. Gutierrez Trucking Co. , 229 Ariz. 333 , 336 ¶ 11, 275 P.3d 632 , 635 (App. 2012) (applying Gipson and holding that duty determinations in pre- Gipson cases "premised on a foreseeability analysis" are "no longer valid"). ¶13 To be clear, in eliminating foreseeability, Gipson changed our duty framework by

2018Id . § 302 cmt. a; see also Prosser & Keeton, § 43, at 285 (noting that the Restatement of Torts adopted foreseeability as a basis for duty); see Fedie v. Travelodge Int'l, Inc. , 162 Ariz. 263 , 265-66, 782 P.2d 739 , 741-42 (App. 1989) (discussing the existence of duty based on Second Restatement §§ 302 and 302B, and noting that both sections rely on foreseeability to determine duty); City of Tucson v. Wondergem , 6 Ariz. App. 570 , 576, 435 P.2d 77 (1967) (stating that Second Restatement § 302 cmt. g is based on the "doctrine of foreseeability"); Satterfield, 266 S.W.3d at 355 (noting that

2018Id . § 302 cmt. a; see also Prosser & Keeton, § 43, at 285 (noting that the Restatement of Torts adopted foreseeability as a basis for duty); see Fedie v. Travelodge Int'l, Inc. , 162 Ariz. 263 , 265-66, 782 P.2d 739 , 741-42 (App. 1989) (discussing the existence of duty based on Second Restatement §§ 302 and 302B, and noting that both sections rely on foreseeability to determine duty); City of Tucson v. Wondergem , 6 Ariz. App. 570 , 576, 435 P.2d 77 (1967) (stating that Second Restatement § 302 cmt. g is based on the "doctrine of foreseeability"); Satterfield, 266 S.W.3d at 355 (noting that

2018Id . § 302 cmt. a; see also Prosser & Keeton, § 43, at 285 (noting that the Restatement of Torts adopted foreseeability as a basis for duty); see Fedie v. Travelodge Int'l, Inc. , 162 Ariz. 263 , 265-66, 782 P.2d 739 , 741-42 (App. 1989) (discussing the existence of duty based on Second Restatement §§ 302 and 302B, and noting that both sections rely on foreseeability to determine duty); City of Tucson v. Wondergem , 6 Ariz. App. 570 , 576, 435 P.2d 77 (1967) (stating that Second Restatement § 302 cmt. g is based on the "doctrine of foreseeability"); Satterfield, 266 S.W.3d at 355 (noting that

2012See City of Phoenix v. Geyler, 144 Ariz. 323, 330 , 697 P.2d 1073, 1080 (1985). ¶ 12 Because foreseeability cannot be considered in determining the existence of a duty, we next turn to the question whether defendants owed a duty to plaintiffs under the Gipson framework, in which the supreme court discussed two scenarios that may give rise to a duty of care: (1) the relationship between the parties, and (2) public policy. 214 Ariz. at 144-46, ¶¶ 18-26 , 150 P.3d at 231-33 .

2012See City of Phoenix v. Geyler, 144 Ariz. 323, 330 , 697 P.2d 1073, 1080 (1985). ¶ 12 Because foreseeability cannot be considered in determining the existence of a duty, we next turn to the question whether defendants owed a duty to plaintiffs under the Gipson framework, in which the supreme court discussed two scenarios that may give rise to a duty of care: (1) the relationship between the parties, and (2) public policy. 214 Ariz. at 144-46, ¶¶ 18-26 , 150 P.3d at 231-33 .

2009See, e.g., State v. Lindsley, 191 Ariz. 195, 198 , 953 P.2d 1248, 1251 (App.1997) ("Although we previously said if a loss is a `foreseeable' loss it is not merely a consequential loss ... the proper focus is upon how directly the loss flows from the defendant's acts.").

2009See, e.g., State v. Lindsley, 191 Ariz. 195, 198 , 953 P.2d 1248, 1251 (App.1997) ("Although we previously said if a loss is a `foreseeable' loss it is not merely a consequential loss ... the proper focus is upon how directly the loss flows from the defendant's acts.").

2008Schneider v. Cessna Aircraft Co., 150 Ariz. 153, 158-59 , 722 P.2d 321, 326-27 (App.1985) (reversing jury verdict because trial court erroneously refused to instruct jury that defendant could be held strictly liable for failing to warn of product dangers that manufacturer had “reason to foresee”); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 434 , 581 P.2d 271, 279 (App.1978) (holding that whether a product is defective or unreasonably dangerous because of a failure to warn depends on foreseeability, seriousness, and the cost of preventing injury).

2008Schneider v. Cessna Aircraft Co., 150 Ariz. 153, 158-59 , 722 P.2d 321, 326-27 (App.1985) (reversing jury verdict because trial court erroneously refused to instruct jury that defendant could be held strictly liable for failing to warn of product dangers that manufacturer had “reason to foresee”); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 434 , 581 P.2d 271, 279 (App.1978) (holding that whether a product is defective or unreasonably dangerous because of a failure to warn depends on foreseeability, seriousness, and the cost of preventing injury).

2008Motors Corp., 204 Ariz. 575, 581-82 , 65 P.3d 956, 962-63 (App.2003). 4 ¶ 19 In the absence of Arizona law specifically addressing the court’s reservation in Dart , we would ordinarily follow pre-Dart authority, in which Arizona courts applied a foreseeability test in warning cases.

2008Motors Corp., 204 Ariz. 575, 581-82 , 65 P.3d 956, 962-63 (App.2003). 4 ¶ 19 In the absence of Arizona law specifically addressing the court’s reservation in Dart , we would ordinarily follow pre-Dart authority, in which Arizona courts applied a foreseeability test in warning cases.

2008Schneider v. Cessna Aircraft Co., 150 Ariz. 153, 158-59 , 722 P.2d 321, 326-27 (App.1985) (reversing jury verdict because trial court erroneously refused to instruct jury that defendant could be held strictly liable for failing to warn of product dangers that manufacturer had “reason to foresee”); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 434 , 581 P.2d 271, 279 (App.1978) (holding that whether a product is defective or unreasonably dangerous because of a failure to warn depends on foreseeability, seriousness, and the cost of preventing injury).

2008Schneider v. Cessna Aircraft Co., 150 Ariz. 153, 158-59 , 722 P.2d 321, 326-27 (App.1985) (reversing jury verdict because trial court erroneously refused to instruct jury that defendant could be held strictly liable for failing to warn of product dangers that manufacturer had “reason to foresee”); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 434 , 581 P.2d 271, 279 (App.1978) (holding that whether a product is defective or unreasonably dangerous because of a failure to warn depends on foreseeability, seriousness, and the cost of preventing injury).

1994Under a foreseeability analysis, " ‘we must take a broad view of the class of risks and victims that are foreseeable, and the particular manner in which the injury is brought about need not be foreseeable.’ ” Rogers, 170 Ariz. at 401 , 825 P.2d at 22 (quoting Schnyder v. Empire Metals, Inc., 136 Ariz. 428, 431 , 666 P.2d 528, 531 (App.1983) (citations omitted)). 3 .

1994Under a foreseeability analysis, " ‘we must take a broad view of the class of risks and victims that are foreseeable, and the particular manner in which the injury is brought about need not be foreseeable.’ ” Rogers, 170 Ariz. at 401 , 825 P.2d at 22 (quoting Schnyder v. Empire Metals, Inc., 136 Ariz. 428, 431 , 666 P.2d 528, 531 (App.1983) (citations omitted)). 3 .