Restatement rule in Arizona

2001See Braun, 11 Ariz.App. at 511-12 , 466 P.2d at 62-63 . [2] "[A]lthough we generally follow the Restatement absent statutes or cases to the contrary, we will not do so blindly." Barnes v. Outlaw, 192 Ariz. 283, 285 , 964 P.2d 484, 486 (1998); see also Villareal v. State Dep't of Transp., 160 Ariz. 474, 479 , 774 P.2d 213, 218 (1989) (recognizing child's consortium claim despite Restatement rule that does not); infra ¶ 24 (reflecting Arizona's rejection of the Restatement view limiting respondeat superior liability for punitive damages). [3] We note, for example, that Arizona's "public policy o

2001See Braun, 11 Ariz.App. at 511-12 , 466 P.2d at 62-63 . [2] "[A]lthough we generally follow the Restatement absent statutes or cases to the contrary, we will not do so blindly." Barnes v. Outlaw, 192 Ariz. 283, 285 , 964 P.2d 484, 486 (1998); see also Villareal v. State Dep't of Transp., 160 Ariz. 474, 479 , 774 P.2d 213, 218 (1989) (recognizing child's consortium claim despite Restatement rule that does not); infra ¶ 24 (reflecting Arizona's rejection of the Restatement view limiting respondeat superior liability for punitive damages). [3] We note, for example, that Arizona's "public policy o

2001See Braun, 11 Ariz.App. at 511-12 , 466 P.2d at 62-63 . [2] "[A]lthough we generally follow the Restatement absent statutes or cases to the contrary, we will not do so blindly." Barnes v. Outlaw, 192 Ariz. 283, 285 , 964 P.2d 484, 486 (1998); see also Villareal v. State Dep't of Transp., 160 Ariz. 474, 479 , 774 P.2d 213, 218 (1989) (recognizing child's consortium claim despite Restatement rule that does not); infra ¶ 24 (reflecting Arizona's rejection of the Restatement view limiting respondeat superior liability for punitive damages). [3] We note, for example, that Arizona's "public policy o

2001See Braun, 11 Ariz.App. at 511-12 , 466 P.2d at 62-63 . [2] "[A]lthough we generally follow the Restatement absent statutes or cases to the contrary, we will not do so blindly." Barnes v. Outlaw, 192 Ariz. 283, 285 , 964 P.2d 484, 486 (1998); see also Villareal v. State Dep't of Transp., 160 Ariz. 474, 479 , 774 P.2d 213, 218 (1989) (recognizing child's consortium claim despite Restatement rule that does not); infra ¶ 24 (reflecting Arizona's rejection of the Restatement view limiting respondeat superior liability for punitive damages). [3] We note, for example, that Arizona's "public policy o

1998See Cannon v. Dunn, 145 Ariz. 115, 116 , 700 P.2d 502, 503 (App.1985); Villareal, 160 Ariz. at 479 , 774 P.2d at 218 (recognizing child’s consortium claim despite Restatement rule that does not). ¶7 Other jurisdictions are divided on this issue.

1998See Cannon v. Dunn, 145 Ariz. 115, 116 , 700 P.2d 502, 503 (App.1985); Villareal, 160 Ariz. at 479 , 774 P.2d at 218 (recognizing child’s consortium claim despite Restatement rule that does not). ¶7 Other jurisdictions are divided on this issue.

1995Corp., 152 Ariz. 309 , 732 P.2d 200 (1987); Jacobson v. Superior Court, 154 Ariz. 430 , 743 P.2d 410 (App.1987); White v. Mitchell, 157 Ariz. 523 , 759 P.2d 1327 (App. 1988); Walter v. Simmons, 169 Ariz. 229 , 818 P.2d 214 (App.1991); Wyatt, 167 Ariz. at 281 , 806 P.2d at 870 .

1995Corp., 152 Ariz. 309 , 732 P.2d 200 (1987); Jacobson v. Superior Court, 154 Ariz. 430 , 743 P.2d 410 (App.1987); White v. Mitchell, 157 Ariz. 523 , 759 P.2d 1327 (App. 1988); Walter v. Simmons, 169 Ariz. 229 , 818 P.2d 214 (App.1991); Wyatt, 167 Ariz. at 281 , 806 P.2d at 870 .

2024See Campbell v. Westdahl, 148 Ariz. 432 , 436–37 (App. 1985) (reasoning); Zoslow, 147 Ariz. at 614 (adopting rule) (quoting Restatement (Second) of Property § 15.2(2) (1977)). ¶60 The landlord argues the putative tenant waived the claim for breach of the covenant of good faith and fair dealing it makes on appeal.

2024See Campbell v. Westdahl, 148 Ariz. 432 , 436–37 (App. 1985) (reasoning); Zoslow, 147 Ariz. at 614 (adopting rule) (quoting Restatement (Second) of Property § 15.2(2) (1977)). ¶60 The landlord argues the putative tenant waived the claim for breach of the covenant of good faith and fair dealing it makes on appeal.

2024Id. (quoting Restatement (Second) of Property § 15.2(2) (1977)).

2024Id. (quoting Restatement (Second) of Property § 15.2(2) (1977)).

2021In State v. Havatone, 246 Ariz. 573, ¶¶ 20-27 (App. 2019), we adopted an “exclusionary rule analysis” in determining which law to apply when an allegedly unlawful search took place in another state (situs) and the case was tried in Arizona (forum).

2021In State v. Havatone, 246 Ariz. 573, ¶¶ 20-27 (App. 2019), we adopted an “exclusionary rule analysis” in determining which law to apply when an allegedly unlawful search took place in another state (situs) and the case was tried in Arizona (forum).

2021“The focus is on which employer had the right to control the specific injury-causing activity.” Ruelas, 199 Ariz. at 347, ¶ 11 . ¶16 Appellants argue Timber Peaks could not have exercised control over Ellsworth because he alone controlled the details of “how” to operate the crane, while Timber Peaks employees merely directed Ellsworth “when” and “where” to move the crane.

2021“The focus is on which employer had the right to control the specific injury-causing activity.” Ruelas, 199 Ariz. at 347, ¶ 11 . ¶16 Appellants argue Timber Peaks could not have exercised control over Ellsworth because he alone controlled the details of “how” to operate the crane, while Timber Peaks employees merely directed Ellsworth “when” and “where” to move the crane.

2017Fund of Ariz. v. Fink , 224 Ariz. 611 , 614, ¶ 14, 233 P.3d 1190 , 1193 (App. 2010) ; see also Piner v. Superior Court (Jones) , 192 Ariz. 182 , 189, ¶¶ 28, 30, 962 P.2d 909 , 916 (1998) (adopting Restatement rule that "the plaintiff has the burden of proving that the conduct of each defendant was a cause of the injury, but when a defendant 'seeks to limit his liability on the ground that the harm is capable of apportionment ... the burden of proof as to the apportionment is upon each such actor.' " (citation omitted)).

2017Fund of Ariz. v. Fink , 224 Ariz. 611 , 614, ¶ 14, 233 P.3d 1190 , 1193 (App. 2010) ; see also Piner v. Superior Court (Jones) , 192 Ariz. 182 , 189, ¶¶ 28, 30, 962 P.2d 909 , 916 (1998) (adopting Restatement rule that "the plaintiff has the burden of proving that the conduct of each defendant was a cause of the injury, but when a defendant 'seeks to limit his liability on the ground that the harm is capable of apportionment ... the burden of proof as to the apportionment is upon each such actor.' " (citation omitted)).

2016Almida contends that the superior court correctly held that § 386 conflicts with Gipson’s directive that “foreseeability is not a factor to be considered by courts when making determinations of duty.” 214 Ariz. at 144, ¶ 15 , 150 P.3d at 231 . ¶6 Section 386 provides: Any person, except the possessor of land or a member of his household or one acting on his behalf, who creates or maintains upon the land a structure or other artificial condition which he should recognize as involving an unreasonable risk of physical harm to others upon or outside of the land, is subject to liability for physica

2016Almida contends that the superior court correctly held that § 386 conflicts with Gipson’s directive that “foreseeability is not a factor to be considered by courts when making determinations of duty.” 214 Ariz. at 144, ¶ 15 , 150 P.3d at 231 . ¶6 Section 386 provides: Any person, except the possessor of land or a member of his household or one acting on his behalf, who creates or maintains upon the land a structure or other artificial condition which he should recognize as involving an unreasonable risk of physical harm to others upon or outside of the land, is subject to liability for physica

2016See id. at 499 (stating " 'reasonableness' emerges as the standard for deciding the validity of stipulated damages clauses”).

2016See id. at 499 (stating " 'reasonableness' emerges as the standard for deciding the validity of stipulated damages clauses”).

2015Additionally, comment E observes that applying subrogation in this way is analogous to the Restatement doctrine of Replacement, in which a lender who makes a new loan to the same borrower “may be given the priority of the original mortgage.” This court has previously applied this doctrine and noted that the replacement mortgage receives priority only “up to the amount paid to release the senior lien.” Brimet II, LLC v. Destiny Homes Marketing, LLC, 231 5 HACI v. BMO, et al Decision of the Court Ariz. 457, 460, ¶ 14 (App. 2013) (citing Cont’l Lighting & Contracting, Inc. v. Premier Grading & Ut

2015Additionally, comment E observes that applying subrogation in this way is analogous to the Restatement doctrine of Replacement, in which a lender who makes a new loan to the same borrower “may be given the priority of the original mortgage.” This court has previously applied this doctrine and noted that the replacement mortgage receives priority only “up to the amount paid to release the senior lien.” Brimet II, LLC v. Destiny Homes Marketing, LLC, 231 5 HACI v. BMO, et al Decision of the Court Ariz. 457, 460, ¶ 14 (App. 2013) (citing Cont’l Lighting & Contracting, Inc. v. Premier Grading & Ut

2014Restatement § 46 emt. h; Watts v. Golden Age Nursing Home, 127 Ariz. 255, 258 , 619 P.2d 1032, 1035 (1980).

2014Restatement § 46 emt. h; Watts v. Golden Age Nursing Home, 127 Ariz. 255, 258 , 619 P.2d 1032, 1035 (1980).

2014Regardless, because the Restatement test is consistent with and encompassed by the broader Hearn test, we need not apply both tests here. 4 204 Ariz. at 256 ¶ 22, 63 P.3d at 287 ; see also Lee, 199 Ariz. at 58 ¶ 15, 13 P.3d at 1175 . ¶11 The underlying issue in Lee was whether defendant State Farm acted in bad faith when it denied its policyholders’ underinsured and uninsured motorist claims based on State Farm’s interpretation of a policy provision. 199 Ariz. at 54–55 ¶¶ 2–4, 13 P.3d at 1171–72.

2014Regardless, because the Restatement test is consistent with and encompassed by the broader Hearn test, we need not apply both tests here. 4 204 Ariz. at 256 ¶ 22, 63 P.3d at 287 ; see also Lee, 199 Ariz. at 58 ¶ 15, 13 P.3d at 1175 . ¶11 The underlying issue in Lee was whether defendant State Farm acted in bad faith when it denied its policyholders’ underinsured and uninsured motorist claims based on State Farm’s interpretation of a policy provision. 199 Ariz. at 54–55 ¶¶ 2–4, 13 P.3d at 1171–72.

2013See In re Krohn, 203 Ariz. 205, 210, ¶ 18 , 52 P.3d 774, 779 (2002) (Arizona courts do not follow the Restatement in the face of “legislative enactment” to the contrary). 4 ¶ 22 Finally, in urging us to reverse the summary judgment against her, Jamerson argues that Arizona should join several other jurisdictions in holding under the common law that, absent a contrary intent of the settling parties, a settlement with the principal does not as a matter of law bar a claim against the agent. 5 Because § 12-2504 preserves Jamerson’s claim against American, we need not address the issue under the co

2013See In re Krohn, 203 Ariz. 205, 210, ¶ 18 , 52 P.3d 774, 779 (2002) (Arizona courts do not follow the Restatement in the face of “legislative enactment” to the contrary). 4 ¶ 22 Finally, in urging us to reverse the summary judgment against her, Jamerson argues that Arizona should join several other jurisdictions in holding under the common law that, absent a contrary intent of the settling parties, a settlement with the principal does not as a matter of law bar a claim against the agent. 5 Because § 12-2504 preserves Jamerson’s claim against American, we need not address the issue under the co

2012Best, Inc., 756 F.Supp. 878, 880-81 (W.D.Pa.1990) (conducting Restatement analysis and concluding plaintiff was injured by silica dust where exposure occurred and not where he subsequently suffered from silicosis); McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 76, 97-98 , 105 Cal.Rptr.3d 378 , 225 P.3d 516 (2010) (determining that law of state of exposure to asbestos governs rather than law of state where diagnosis of mesothelioma occurred); Celotex Corp. v. Meehan, 523 So.2d 141, 146 (Fla.1988) (deciding New York law applied where decedent was exposed in New York to asbestos and was a resident

2012Best, Inc., 756 F.Supp. 878, 880-81 (W.D.Pa.1990) (conducting Restatement analysis and concluding plaintiff was injured by silica dust where exposure occurred and not where he subsequently suffered from silicosis); McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 76, 97-98 , 105 Cal.Rptr.3d 378 , 225 P.3d 516 (2010) (determining that law of state of exposure to asbestos governs rather than law of state where diagnosis of mesothelioma occurred); Celotex Corp. v. Meehan, 523 So.2d 141, 146 (Fla.1988) (deciding New York law applied where decedent was exposed in New York to asbestos and was a resident

2012Best, Inc., 756 F.Supp. 878, 880-81 (W.D.Pa.1990) (conducting Restatement analysis and concluding plaintiff was injured by silica dust where exposure occurred and not where he subsequently suffered from silicosis); McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 76, 97-98 , 105 Cal.Rptr.3d 378 , 225 P.3d 516 (2010) (determining that law of state of exposure to asbestos governs rather than law of state where diagnosis of mesothelioma occurred); Celotex Corp. v. Meehan, 523 So.2d 141, 146 (Fla.1988) (deciding New York law applied where decedent was exposed in New York to asbestos and was a resident

2012Best, Inc., 756 F.Supp. 878, 880-81 (W.D.Pa.1990) (conducting Restatement analysis and concluding plaintiff was injured by silica dust where exposure occurred and not where he subsequently suffered from silicosis); McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 76, 97-98 , 105 Cal.Rptr.3d 378 , 225 P.3d 516 (2010) (determining that law of state of exposure to asbestos governs rather than law of state where diagnosis of mesothelioma occurred); Celotex Corp. v. Meehan, 523 So.2d 141, 146 (Fla.1988) (deciding New York law applied where decedent was exposed in New York to asbestos and was a resident

2007See, e.g., Butler v. Mooers, 771 A.2d 1034 , 1037 ¶ 8 (Me.2001); Ray v. Stone, 952 S.W.2d 220 , 224 (Ky.Ct.App.1997); State ex rel.

2007See, e.g., Butler v. Mooers, 771 A.2d 1034 , 1037 ¶ 8 (Me.2001); Ray v. Stone, 952 S.W.2d 220 , 224 (Ky.Ct.App.1997); State ex rel.

2004Co. v. Arizona Dep't of Revenue, 184 Ariz. 105, 109 , 907 P.2d 74, 78 (App.1995) (quoting Comm'r v. Sunnen, 333 U.S. 591, 600 , 68 S.Ct. 715 , 92 L.Ed. 898 (1948)) (citing § 28(2) and holding that "[t]he Restatement's exception is appropriate when `a judicial declaration intervening between the two proceedings. . . change[d] the legal atmosphere as to render the rule of collateral estoppel inapplicable'"). ¶ 16 Application of the exception is appropriate here.

2004Co. v. Arizona Dep't of Revenue, 184 Ariz. 105, 109 , 907 P.2d 74, 78 (App.1995) (quoting Comm'r v. Sunnen, 333 U.S. 591, 600 , 68 S.Ct. 715 , 92 L.Ed. 898 (1948)) (citing § 28(2) and holding that "[t]he Restatement's exception is appropriate when `a judicial declaration intervening between the two proceedings. . . change[d] the legal atmosphere as to render the rule of collateral estoppel inapplicable'"). ¶ 16 Application of the exception is appropriate here.