Gipson v. Kasey

SUPREME COURT OF ARIZONA

En Banc

SUSAN GIPSON, individually and ) Arizona Supreme Court

as surviving parent of NATHAN ) No. CV-06-0100-PR

KIM FOLLOWILL, deceased, )

) Court of Appeals

Plaintiff/Appellant, ) Division One

) No. 1 CA-CV 05-0119

v. )

) Maricopa County

LARRY KASEY and JANE DOE KASEY, ) Superior Court

a married couple, ) No. CV 2004-000550

)

Defendants/Appellees. )

)

) O P I N I O N

__________________________________)

Appeal from the Superior Court in Maricopa County

The Honorable Jonathan H. Schwartz, Judge

REMANDED

________________________________________________________________

Opinion of the Court of Appeals, Division One

212 Ariz. 235, 129 P.3d 957 (2006)

VACATED IN PART

________________________________________________________________

JAMES F. BROOK AND ASSOCIATES Scottsdale

By James F. Brook

John N. Vingelli

Attorneys for Susan Gipson

CAVANAGH LAW FIRM Phoenix

By R. Corey Hill

Ginette M. Hill

Christopher Robbins

Attorneys for Larry Kasey and Jane Doe Kasey

LAW OFFICE OF JOJENE MILLS, P.C. Tucson

By JoJene E. Mills

And

ADELMAN GERMAN, P.L.C. Scottsdale

By Daniel J. Adelman

Attorneys for Amicus Curiae Arizona Trial Lawyers Association

________________________________________________________________

B A L E S, Justice

¶1 The issue presented is whether persons who are

prescribed drugs owe a duty of care, making them potentially

liable for negligence, when they improperly give their drugs to

others. We conclude that such a duty is owed.

FACTS AND PROCEDURAL BACKGROUND

¶2 Because we are reviewing a decision granting summary

judgment in favor of Larry Kasey, we describe the facts, some of

which are disputed, in the light most favorable to Susan Gipson,

the non-moving party. See Orme Sch. v. Reeves, 166 Ariz. 301,

309-10, 802 P.2d 1000, 1008-09 (1990).

¶3 Kasey attended an employee holiday party hosted by the

restaurant where he worked. Also present were his co-worker,

Nathan Followill, and Followill’s girlfriend, Sandy Watters.

The restaurant provided beer for the guests. Kasey brought

whiskey to the party and he gave shots to others present,

including Followill, who was twenty-one years old. Kasey also

brought pain pills containing oxycodone, a narcotic drug, which

he had been prescribed for back pain. On prior occasions, Kasey

had given pain pills to other co-workers for their recreational

use.

2

¶4 During the party, Watters asked Kasey for one of his

pain pills. Kasey gave Watters eight pills, noting that they

were of two different strengths, but not identifying them by

name. Although Kasey knew that combining the pills with alcohol

or taking more than the prescribed dosage could have dangerous

side effects, including death, he did not tell Watters this

information.

¶5 When Kasey gave the pills to Watters, he knew that she

was dating Followill. Kasey also knew that Followill was

interested in taking prescription drugs for recreational

purposes because Followill had on prior occasions asked Kasey

for some of his pills, but Kasey had refused because he thought

Followill was “too stupid and immature to take drugs like that.”

¶6 Shortly after she obtained the pills from Kasey,

Watters told Followill she had them, and Followill took the

pills from her. As the night progressed, Followill became

increasingly intoxicated. Around 1:00 a.m., Watters and

Followill left the party. The next morning, Watters awoke to

find that Followill had died in his sleep. The cause of death

was the combined toxicity of alcohol and oxycodone.

¶7 Gipson, Followill’s mother, filed a wrongful death

action against Kasey. The superior court granted summary

judgment for Kasey, finding that he owed Followill no duty of

care and that Kasey’s conduct had not proximately caused

3

Followill’s death because of the intervening acts of Watters and

Followill.

¶8 The court of appeals reversed, holding that Kasey did

owe Followill a duty of care and that disputed facts precluded

summary judgment on the issue of proximate cause. Gipson v.

Kasey, 212 Ariz. 235, 244 ¶ 37, 129 P.3d 957, 966 (App. 2006).

We granted review only with regard to the issue of duty. We

have jurisdiction pursuant to Article 6, Section 5(3), of the

Arizona Constitution and Arizona Revised Statutes (“A.R.S.”)

section 12-120.24 (2003).

DISCUSSION

¶9 To establish a claim for negligence, a plaintiff must

prove four elements: (1) a duty requiring the defendant to

conform to a certain standard of care; (2) a breach by the

defendant of that standard; (3) a causal connection between the

defendant’s conduct and the resulting injury; and (4) actual

damages. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200,

204 (1983) (citing William L. Prosser, Handbook of the Law of

Torts § 30, at 143 (4th ed. 1971)). The first element, whether

a duty exists, is a matter of law for the court to decide.

Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364,

368 (1985). The other elements, including breach and causation,

are factual issues usually decided by the jury. See id. at 358,

4

706 P.2d at 370.1

¶10 The existence of a duty of care is a distinct issue

from whether the standard of care has been met in a particular

case. As a legal matter, the issue of duty involves

generalizations about categories of cases. 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. at 354,

706 P.2d at 366 (citing Ontiveros, 136 Ariz. at 504, 667 P.2d at

204). The standard of care is defined as “[w]hat the defendant

must do, or must not do . . . to satisfy the duty.” Coburn v.

City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984)

(citing W. Page Keeton et al., Prosser and Keeton on the Law of

Torts § 53, at 356 (5th ed. 1984)). Whether the defendant has

met the standard of care - that is, whether there has been a

breach of duty - is an issue of fact that turns on the specifics

of the individual case.

¶11 Whether the defendant owes the plaintiff a duty of

care is a threshold issue; absent some duty, an action for

negligence cannot be maintained. Markowitz, 146 Ariz. at 354,

1

Although breach and causation are factual matters, summary

judgment may be appropriate if no reasonable juror could

conclude that the standard of care was breached or that the

damages were proximately caused by the defendant’s conduct. See

Markowitz, 146 Ariz. at 357-58, 706 P.2d at 369-70; Coburn v.

City of Tucson, 143 Ariz. 50, 53, 691 P.2d 1078, 1081 (1984).

5

706 P.2d at 366. Thus, a conclusion that no duty exists is

equivalent to a rule that, for certain categories of cases,

defendants may not be held accountable for damages they

carelessly cause, no matter how unreasonable their conduct. See

id. at 356, 706 P.2d at 368.2

¶12 In this case, the court of appeals held that Kasey

owed Followill a duty of care,

based on the totality of the circumstances as

reflected in the following factors: (1) the

relationship that existed between Kasey and Followill,

(2) the foreseeability of harm to a foreseeable victim

as a result of Kasey giving eight pills to Watters,

and (3) the presence of statutes making it unlawful to

furnish one's prescription drugs to another person not

covered by the prescription.

Gipson, 212 Ariz. at 238-39 ¶ 15, 129 P.3d at 960-61.

¶13 Kasey argues that none of these factors support a

finding that he owed a duty of care to Followill. Although we

disagree with aspects of the analysis of the court of appeals,

that court correctly concluded that Kasey owed a duty of care.

A. Foreseeability

¶14 Kasey argues that the court of appeals erred by

relying on foreseeability of harm because this Court held in

Martinez v. Woodmar IV Condominiums Homeowners Ass’n, Inc. that

foreseeability should no longer be a factor in determining

2

Intentional torts, in contrast, do not require proof of a

predicate duty of care. See Wells Fargo Bank v. Ariz. Laborers,

Teamsters and Cement Masons Local No. 395 Pension Trust Fund,

201 Ariz. 474, 483-84 ¶ 20, 38 P.3d 12, 21-22 (2002).

6

whether a duty exists. 189 Ariz. 206, 211, 941 P.2d 218, 223

(1997). Gipson, on the other hand, argues that our prior cases

have relied on foreseeability in determining whether a duty is

owed. See, e.g., Donnelley Constr. Co. v. Oberg/Hunt/Gilleland,

139 Ariz. 184, 187, 677 P.2d 1292, 1295 (1984) (“Duty and

liability are only imposed where both the plaintiff and the risk

are foreseeable to a reasonable person.”).

¶15 We acknowledge that our case law has created “some

confusion and lack of clarity . . . as to what extent, if any,

foreseeability issues bear on the initial legal determination of

duty.” Riddle v. Ariz. Oncology Servs., Inc., 186 Ariz. 464,

466 n.3, 924 P.2d 468, 470 n.3 (App. 1996). 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.

¶16 Whether an injury to a particular plaintiff was

foreseeable by a particular defendant necessarily involves an

inquiry into the specific facts of an individual case. See W.

Jonathan Cardi, Purging Foreseeability: The New Version of Duty

and Judicial Power in the Proposed Restatement (Third) of Torts,

58 Vand. L. Rev. 739, 801 (2005). Moreover, foreseeability

often determines whether a defendant acted reasonably under the

circumstances or proximately caused injury to a particular

plaintiff. Such factual inquiries are reserved for the jury.

7

The jury’s fact-finding role could be undermined if courts

assess foreseeability in determining the existence of duty as a

threshold legal issue. See id. at 741. Reliance by courts on

notions of “foreseeability” also may obscure the factors that

actually guide courts in recognizing duties for purposes of

negligence liability. Id.

¶17 Foreseeability, as this Court noted in Martinez, is

more properly applied to the factual determinations of breach

and causation than to the legal determination of duty. 189

Ariz. at 211, 941 P.2d at 223 (“[F]oreseeable danger [does] not

dictate the existence of duty but only the nature and extent of

the conduct necessary to fulfill the duty.”); cf. Palsgraf v.

Long Island R.R., 162 N.E. 99, 102 (N.Y. 1928) (Andrews, J.,

dissenting) (arguing that foreseeability does not determine duty

but is a factor in determining proximate cause). We believe

that such an approach desirably recognizes the jury’s role as

factfinder and requires courts to articulate clearly the

reasons, other than foreseeability, that might support duty or

no-duty determinations. See Restatement (Third) of Torts:

Liability for Physical Harm § 7 cmt. j (Proposed Final Draft No.

1, 2005) (“Third Restatement”) (rejecting foreseeability as a

factor in determining duty).

B. Relationship Between the Parties

¶18 Kasey also argues that he did not owe Followill a duty

8

of care because they had no “direct” or “special” relationship.

Duties of care may arise from special relationships based on

contract, family relations, or conduct undertaken by the

defendant. Stanley v. McCarver, 208 Ariz. 219, 221 ¶ 7, 92 P.3d

849, 851 (2004). A special or direct relationship, however, is

not essential in order for there to be a duty of care.3

¶19 Under Arizona common law, various categorical

relationships can give rise to a duty. These include, but are

not limited to, the landowner-invitee relationship, Martinez,

189 Ariz. at 212, 941 P.2d at 224; Markowitz, 146 Ariz. at 357,

706 P.2d at 369; Coburn, 143 Ariz. at 52, 691 P.2d at 1080, the

tavern owner-patron relationship, Brannigan v. Raybuck, 136

Ariz. 513, 516, 667 P.2d 213, 216 (1983); Ontiveros, 136 Ariz.

at 511, 667 P.2d at 211, and those “special relationships”

recognized by § 315 of the Restatement (Second) of Torts (1965)

that create a duty to control the actions of another, Ontiveros,

136 Ariz. at 508-09, 667 P.2d at 208-09. None of these

3

That particular “relationships” may provide the basis for a

duty of care reflects the historical evolution of the common

law, which before the nineteenth century recognized fault-based

liability in “actions on the Case” between parties having

relationships to each other by contract or status. 1 Dan B.

Dobbs, The Law of Torts § 111, at 259-63 (2001). As the common

law evolved during the nineteenth century, courts extended the

scope of negligence actions by recognizing a more general duty

of care applicable to suits among strangers, like those involved

in railway crossing accidents. Id. § 112, at 265-66.

Relationships, however, have continued to provide a basis for

identifying and defining duties of care. Id. § 113, at 266.

9

relationships existed between Followill and Kasey.

¶20 Although a duty of care may result from the nature of

the relationship between the parties, we decline to recognize

such a duty here based on the particular facts (some of which

are disputed) of the relationship between Kasey and Followill.

In identifying this relationship as a factor supporting a

finding of duty, the court of appeals noted that “[t]hey were

co-workers and friends; they had socialized previously; [and]

Followill had asked Kasey for pills in the past.” Gipson, 212

Ariz. at 239 ¶ 16, 129 P.3d at 961.

¶21 A fact-specific analysis of the relationship between

the parties is a problematic basis for determining if a duty of

care exists. The issue of duty is not a factual matter; it is a

legal matter to be determined before the case-specific facts are

considered. Markowitz, 146 Ariz. at 354, 706 P.2d at 366; see 1

Dan B. Dobbs, The Law of Torts § 226, at 577 (2001) (“The most

coherent way of using the term duty states a rule of law rather

than an analysis of the facts of particular cases.”).

Accordingly, this Court has cautioned against narrowly defining

duties of care in terms of the parties’ actions in particular

cases. “[A]n attempt to equate the concept of ‘duty’ with such

specific details of conduct is unwise,” because a fact-specific

discussion of duty conflates the issue with the concepts of

breach and causation. Coburn, 143 Ariz. at 52, 691 P.2d at

10

1080; see also Markowitz, 146 Ariz. at 355, 706 P.2d at 367

(noting that “the existence of a duty is not to be confused with

details of the standard of conduct”). Thus, the court of

appeals erred in focusing on the facts of the particular

relationship between Kasey and Followill in determining if a

duty exists.

¶22 A finding of duty, however, does not necessarily

depend on a preexisting or direct relationship between the

parties. As we explained in Stanley, “[t]he requirement of a

formalized relationship between the parties has been quietly

eroding . . . 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.” 208 Ariz. at 221-22 ¶ 8, 92 P.3d at

851-52 (internal citations omitted).

C. Public Policy

¶23 Having rejected foreseeability as a factor in the duty

analysis and declining to recognize a duty based on the

particular relationship between the parties, we turn to public

policy considerations. Public policy may support the

recognition of a duty of care. See id. at 223 ¶ 14, 92 P.3d at

853 (“We conclude that public policy is better served by

imposing a duty in such circumstances to help prevent future

harm, even in the absence of a traditional doctor-patient

11

relationship.”).

¶24 Kasey argues that recognizing a duty here would imply

that all people owe a duty of care to all others at all times, a

proposition he contends was rejected in Wertheim v. Pima County,

211 Ariz. 422, 426 ¶ 17, 122 P.3d 1, 5 (App. 2005) (“We do not

understand the law to be that one owes a duty of reasonable care

at all times to all people under all circumstances.” (quoting

Hafner v. Beck, 185 Ariz. 389, 391, 916 P.2d 1105, 1107 (App.

1995))), and Bloxham v. Glock Inc., 203 Ariz. 271, 275 ¶ 8, 53

P.3d 196, 200 (App. 2002) (same). It is not necessary, however,

to frame the issue this broadly to recognize a duty on the part

of Kasey. Instead, in this case, Arizona statutes themselves

provide a sufficient basis for a duty of care.4

¶25 It is well settled that “[t]he existence of a statute

4

This Court has, however, previously noted that “every

person is under a duty to avoid creating situations which pose

an unreasonable risk of harm to others.” Ontiveros, 136 Ariz.

at 509, 667 P.2d at 209 (internal citations omitted).

Similarly, § 7 of the proposed Third Restatement recognizes that

“[a]n actor ordinarily has a duty to exercise reasonable care

when the actor’s conduct creates a risk of physical harm.”

Based on such statements, one could conclude that people

generally “owe a duty to exercise reasonable care to avoid

causing physical harm” to others, subject to exceptions that

eliminate or modify this duty for reasons of policy, such as the

social host rule. See id. § 7 & cmt. a; accord Dobbs, supra, §

227, at 578. Because we find a duty based on Arizona statutes,

we need not decide if a duty would exist independently as a

matter of common law. Nor need we resolve whatever tension may

exist between language in cases such as Wertheim and Bloxham and

the concepts of duty suggested by Ontiveros or the draft Third

Restatement.

12

criminalizing conduct is one aspect of Arizona law supporting

the recognition of [a] duty.” Estate of Hernandez v. Ariz. Bd.

of Regents, 177 Ariz. 244, 253, 866 P.2d 1330, 1339 (1994). Not

all criminal statutes, however, create duties in tort. A

criminal statute will “establish a tort duty [only] if the

statute is ‘designed to protect the class of persons, in which

the plaintiff is included, against the risk of the type of harm

which has in fact occurred as a result of its

violation . . . .’” Id. (citing Keeton et al., supra, § 36, at

229-30).

¶26 Several Arizona statutes prohibit the distribution of

prescription drugs to persons lacking a valid prescription.

See, e.g., A.R.S. § 36-2531(A)(6) (2003); id. § 32-1961(A)

(2002); id. § 13-3408(A)(5) (2001). As the court of appeals

recognized, “[t]hese statutes are designed to avoid injury or

death to people who have not been prescribed prescription drugs,

who may have no medical need for them and may in fact be

endangered by them, and who have not been properly instructed on

their usage, potency, and possible dangers.” Gipson, 212 Ariz.

at 241 ¶ 24, 129 P.3d at 963. Because Followill is within the

class of persons to be protected by the statute and the harm

that occurred here is the risk that the statute sought to

protect against, these statutes create a tort duty.

¶27 Kasey argues that because the legislature did not

13

create a civil duty for a violation of these criminal statutes,

a duty does not exist. But this notion was rejected in

Ontiveros: “[A] duty of care and the attendant standard of

conduct may be found in a statute silent on the issue of civil

liability.” 136 Ariz. at 510, 667 P.2d at 210 (internal

citations omitted).

¶28 Kasey also contends that because Arizona law does not

impose a duty on social hosts who serve alcohol to adults, there

should similarly be no duty here. We disagree. Through A.R.S.

§ 4-301 (2002), the legislature specifically exempted social

hosts from liability for harm caused by a consumer of legal

drinking age. No similar statute exempts those who improperly

give their prescription drugs to others. Cf. Hernandez, 177

Ariz. at 252, 256, 866 P.2d at 1338, 1342 (holding that A.R.S. §

4-301 does not preclude recognition of a duty of care to avoid

serving alcohol to minors).

¶29 Moreover, the reasoning behind the social host no-duty

rule does not apply in this context. When a court or

legislature adopts a no-duty rule, it generally does so based on

concerns that potential liability would chill socially desirable

conduct or otherwise have adverse effects. The no-duty rule for

social hosts is a prime example. Holding social hosts liable

for harm caused by guests to whom they serve alcohol might curb

desirable social exchanges. See, e.g., Keckonen v. Robles, 146

14

Ariz. 268, 272, 705 P.2d 945, 949 (App. 1985) (holding, for

policy reasons, that social host owed no duty to person injured

by intoxicated guest). In contrast, no recognized social

benefit flows from the illegal distribution of prescription

drugs. Cf. Stanley, 208 Ariz. at 223 ¶ 14, 92 P.3d at 853

(observing, in holding that radiologist owed duty of care to

examinee despite absence of formal doctor-patient relationship,

that there was no apparent public benefit from a no-duty rule).

¶30 Kasey additionally argues that because his act of

providing pills to Watters was not sufficient by itself to cause

harm to Followill, no duty was owed. We reject the suggestion

that no duty can exist if the plaintiff’s conduct contributed to

his injury. See Hernandez, 177 Ariz. at 255, 866 P.2d at 1341

(“Nor are considerations of proximate causation a reason to

conclude there is no liability as a matter of law in all

cases.”). Whether the plaintiff’s conduct constituted an

intervening (or even a superseding) cause of the harm suffered

is a question of fact and does not determine whether a duty

exists. See id.; Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147

(1940) (finding defendants who provided alcohol to plaintiff’s

husband, a known alcoholic, liable for loss of consortium to

plaintiff).

¶31 Alternatively, Kasey argues that this Court should

adopt a no-duty rule precluding recovery on the grounds that a

15

person who voluntarily becomes intoxicated and thereby sustains

an injury should not be able to recover from the person

supplying the intoxicants. We reject this reasoning.

Followill’s own actions may reduce recovery under comparative

fault principles or preclude recovery if deemed a superseding

cause of the harm, but those are determinations to be made by

the factfinder. For the reasons stated, neither our case law

nor considerations of policy justify a blanket no-duty rule that

would insulate persons who improperly distribute prescription

drugs from tort liability.

CONCLUSION

¶32 We hold that Kasey did owe a duty of care based on

Arizona’s statutes prohibiting the distribution of prescription

drugs to persons not covered by the prescription. Accordingly,

we vacate the part of the opinion of the court of appeals that

addresses the issue of duty and remand to the superior court for

further proceedings consistent with this opinion.

_______________________________________

W. Scott Bales, Justice

CONCURRING:

_______________________________________

Ruth V. McGregor, Chief Justice

16

_______________________________________

Rebecca White Berch, Vice Chief Justice

_______________________________________

Michael D. Ryan, Justice

_______________________________________

Andrew D. Hurwitz, Justice

H U R W I T Z, Justice, concurring

¶33 The Court correctly applies our precedents in

determining that Kasey owed Followill a duty of care. I write

briefly to suggest that our analysis of duty might be aided in

the future by adopting a different conceptual approach.

¶34 The Court’s analysis today and in our prior cases

largely centers on determining whether we should impose a duty

on the particular defendant before us. But, as the Court notes,

Op. ¶ 24 n.4, under the common law “every person is under a duty

to avoid creating situations which pose an unreasonable risk of

harm to others.” Ontiveros v. Borak, 136 Ariz. 500, 509, 667

P.2d 200, 209 (1983). Or as the proposed Third Restatement of

Torts puts the matter, “[a]n actor ordinarily has a duty to

exercise reasonable care when the actor’s conduct creates a risk

of physical harm.” See Restatement (Third) of Torts: Liability

for Physical Harm § 7(a) (Proposed Final Draft No. 1, 2005)

[hereinafter “Third Restatement”].

17

¶35 It thus would seem to make sense for courts to view

the duty of reasonable care as the norm, and depart from that

norm only in those cases where public policy justifies an

exception to the general rule. See id. § 7(b) (“In exceptional

cases, when . . . policy warrants denying or limiting liability

in a particular class of cases, a court may decide that the

defendant has no duty or that the ordinary duty of reasonable

care requires modification.”); 1 Dan B. Dobbs, The Law of Torts

§ 227, at 579 (2001) (“[N]o-duty rules should be invoked only

when all cases they cover fall substantially within the policy

that frees the defendant of liability.”); see also Stagl v.

Delta Airlines, Inc., 52 F.3d 463, 469 (2d Cir. 1995)

(Calabresi, J.) (“[T]he judicial power to modify the general

[duty] rule . . . is reserved for very limited situations.”)

(applying New York law).

¶36 A judicial finding that a defendant owes no duty to a

plaintiff means that even if the defendant’s actions were

unreasonable and proximately caused harm to the plaintiff, the

plaintiff has no recourse. Such a result should obtain, it

seems to me, only when there is a good reason for doing so, and

18

courts finding no duty as a matter of law should be required

clearly to identify that reason.5

¶37 The exemption from liability for social hosts is a

good example of a policy-based duty exception. Courts have

imposed only limited duties of care upon social hosts serving

alcohol because of “staggering” economic and social consequences

from adhering to the general rule of reasonable care. See

Keckonen v. Robles, 146 Ariz. 268, 272, 705 P.2d 945, 949 (App.

1985).

¶38 If the analytic framework suggested by the Third

Restatement were applied here, the only issue would be whether

there existed a good policy reason to exempt those who

distribute prescription drugs to unauthorized users from the

general duty of care. As the Court correctly concludes, there

is none. Op. ¶¶ 23-31. Thus, adoption of the Third Restatement

approach would not alter the result we reach today.

¶39 My tentative sense, however, is that the Third

Restatement rubric would simplify our analytical task in future

cases and remove some understandable confusion among the bar and

lower courts on the duty issue. For example, we have previously

stated that the issue of duty depends on “the relationship of

the parties.” Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356,

5

In so doing, courts will aid the Legislature in making

informed judgments as to whether the common law of duty should

be statutorily modified in any particular class of cases.

19

706 P.2d 364, 368 (1985). The court of appeals in this case

therefore felt constrained to determine whether the relationship

between Kasey and Followill, who were co-workers and friends,

was sufficient to impose a duty of reasonable care. Gipson v.

Kasey, 212 Ariz. 235, 239 ¶ 16, 129 P.3d 957, 961 (App. 2006).

But, as the Court correctly notes today, a duty of reasonable

care is often found even when the parties have no prior

relationship at all - in automobile accident cases, for

instance. Op. ¶ 18 & n.3; see also Stanley v. McCarver, 208

Ariz. 219, 221-22 ¶ 8, 92 P.3d 849, 851-52 (2004) (noting that

“courts have imposed duties for the protection of persons with

whom no preexisting ‘relationship’ existed”).

¶40 Under the approach counseled by the Third Restatement,

the relationship of the parties is relevant to duty only insofar

as it may suggest policy reasons for modifying or eliminating

the general duty of reasonable care. Thus, in order to avoid

the imposition of excessive costs on possessors of land and to

protect property rights, public policy dictates that the

landowner’s duty to a deliberate trespasser is limited to

refraining from willful or wanton injurious conduct. See, e.g.,

Barnhizer v. Paradise Valley Unified Sch. Dist. No. 69, 123

Ariz. 253, 254, 599 P.2d 209, 210 (1979) (citing Restatement

(Second) of Torts § 333 (1965)). And, in some cases in which

there is no prior relationship between the parties, public

20

policy may support excusing the defendant from the general duty

of reasonable care. Cf. McCarver, 208 Ariz. at 225 ¶ 20, 92

P.3d at 855 (considering whether imposition of duty on physician

to non-patient would “chill” doctors from doing pre-employment

examinations).

¶41 Despite what appear to me to be the advantages of the

Third Restatement approach to duty, the parties in this case

have not urged its adoption. We therefore have not had the

benefit of argument by counsel or amici as to why such an

approach would be preferable to our current jurisprudence. Nor

has the Third Restatement been finally adopted by the American

Law Institute. For those reasons, and because application of

the Third Restatement would not in any event change the result

today, I leave the issue for another day and concur in the

opinion of the Court.

__________________________________

Andrew D. Hurwitz, Justice

21