United States District Court, D. Montana,

Missoula Division.

David K. MANN, Elizabeth S. Mann, Delaney Mann, and Makenzie Mann, Plaintiffs,

v.

REDMAN VAN & STORAGE CO., INC., Defendant.

 

No. CV 10–128–M–DLC.

April 12, 2012.

 

James A. Manley, Manley Law Firm, Polson, MT, Mel C. Orchard, III, Tyson Elliot Logan, Spence Law Firm, Jackson, WY, for Plaintiffs.

 

Christian T. Nygren, Christopher Lee Decker, Milodragovich Dale Steinbrenner & Nygren, Missoula, MT, for Defendant.

 

ORDER

DANA L. CHRISTENSEN, District Judge.

I. Introduction

*1 Following a jury trial held in this matter on January 23–28, 2012, and which resulted in a defense verdict, Plaintiffs have filed a motion for a new trial pursuant to Fed.R.Civ.P. 59(a)(1)(A). Plaintiffs argue a new trial is warranted because the jury’s verdict went against the evidence and because this Court made prejudicial errors in instructing the jury. For the reasons that follow, the motion for a new trial is denied.

 

II. Background

Plaintiffs brought this action against Defendant Redman Van & Storage Company claiming they suffered injuries when a tractor-trailer operated by Redman Van & Storage Company employee Rowdy Anderson collided with a vehicle driven by Plaintiff David K. Mann and in which the other Plaintiffs were riding as passengers. Plaintiffs alleged the collision occurred as a result of Rowdy Anderson’s negligence in operating the tractor-trailer and Redman Van & Storage Company’s negligence in hiring, training, and supervising Rowdy Anderson and in maintaining the tractor-trailer involved in the accident.FN1 Plaintiffs also sought punitive damages. Following a six-day trial the jury returned a verdict finding no negligence on the part of Defendant Redman Van. In response to the first question on the Verdict Form, which asked, “Was the Defendant negligent?”, the jury answered, “No.” Verdict Form (Doc. No. 102) at 1.

 

FN1. Anderson was dismissed as a Defendant on motion of the Plaintiffs after Defendant Redman Van admitted that it would be vicariously liable for Anderson’s acts and omissions in relation to the collision.

 

III. Analysis

Plaintiffs now seek a new trial on two separate grounds. First, Plaintiffs contend that the jury’s verdict is inconsistent with Rowdy Anderson’s testimony regarding his conduct in relation to the collision, during which the Plaintiffs believe Anderson admitted to acting negligently and to performing acts that constitute negligence per se under Montana law. In light of Rowdy Anderson’s testimony and the Court’s instructions on negligence per se, Plaintiffs argue, the verdict goes against the great weight of the evidence and therefore should not stand. Plaintiffs also request a new trial on the ground that the Court committed prejudicial error when it failed to instruct the jury that violations of the Federal Motor Carrier Safety Regulations constitute negligence per se and failed to give a spoliation instruction as Plaintiffs had requested. Defendant Redman Van opposes the motion.

 

A. Rowdy Anderson’s Testimony

Rule 59(a)(1)(A) authorizes a district court to grant a new trial following a jury trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” The grounds for which a new trial may be granted are if the verdict “is contrary to the clear weight of the evidence, is based upon false of perjurious evidence, or to prevent a miscarriage of justice” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir.2007) (quoting Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir.2000)). Even if the verdict is supported by “substantial evidence,” a district court must set it aside if, “in the court’s conscientious opinion, the verdict is contrary to the clear weight of the evidence.” Molski, 481 F.3d at 729. Due to the inherently fact-specific nature of the Rule 59(a) inquiry, a district court’s order denying a motion for a new trial will generally stand on appeal provided there is some reasonable basis for the jury’s verdict. Id. It is reversible error, however, for a district court to deny a Rule 59(a) motion for new trial where there is an “absolute absence of evidence to support the jury’s verdict.” Id. (quoting Urti v. Transp. Commercial Corp., 479 F.2d 766, 769 (5th Cir.1973)).

 

*2 Here Plaintiffs argue that the verdict was against the clear weight of the evidence because the testimony of Rowdy Anderson shows that (1) Anderson acted negligently in relation the collision and (2) that Anderson’s conduct violated Montana transportation statutes and therefore constitutes negligence per se. They point to the following testimony by Anderson:

 

Q. So turned around to the right side because you didn’t know what else to do, jackknifed the truck, and those cables rip out. And you get ready to go back on the highway and, I mean, might not have even known it but your trailer lights were dead, right?

 

A. Correct.

 

* * *

 

Q. And if there’s one thing for sure as you sit here now looking back at that accident, you know and you wish those trailer lights would have been working. Because even if you didn’t check your mirrors, if those lights had been working Kelly Mann and his wife and family never would have pulled into that left lane and moved around you on the left because you would have told them, Hey, I’m going to brake. I’m going to slow. I’m going to turn, by those signals; isn’t that true?

 

A. Correct.

 

Q. And you wish those trailer lights would have been working, don’t you?

 

A. Oh, of course.

 

Q. If those trailer lights would have been working or if you would have looked in those mirrors, we would never be here today. Isn’t that true?

 

A. Yes.

 

Anderson Trial Transcript (Doc. No. 117) at 15, 22–23.

 

In light of that testimony, Plaintiffs argue, the jury should have found that Anderson acted negligently and had no choice but to find, at a minimum, that Anderson was negligent per se by violating Montana Code Ann. §§ 61–8–336 and 61–9–218.

 

Quoting the provisions of Mont.Code Ann. § 61–8–336(1), Instruction No. 15 stated that the jury must find the defendant negligent if the defendant violated the following law:

 

A person may not turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless the movement can be made with reasonable safety and until an appropriate signal has been given. A person may not turn a vehicle without giving an appropriate signal in the manner provided in this section.

 

Instruction No. 15, Doc. No. 95 at 15.

 

Instruction No. 16 directed the jury to find the defendant negligent if it found a violation of Mont.Code Ann. § 61–9–218(1), which provides in part:

 

A motor vehicle or combination of vehicles may be equipped and when required under this chapter must be equipped with signal lamps showing to the front and rear for the purpose of indicating an intention to turn either to the right or left … The lamps showing to the rear must be located at the same level and as widely spaced laterally as practicable. When in use, the lamps must display a red or amber light, or a shade of color between red and amber, visible from a distance of not less than 300 feet to the rear in normal sunlight. When actuated the lamps must indicate the intended direction of turning by flashing the lights showing to the front and rear on the side toward which the turn is made.

 

*3 Instruction No. 16, Doc. No. 95 at 17.

 

Contrary to the Plaintiffs’ argument, the evidence at trial did not compel a finding by the jury of negligence or negligence per se. There is more to Rowdy Anderson’s testimony than is reflected in the excerpts cited by the Plaintiffs; taken as a whole Anderson’s testimony provides the jury with no clear proof as to when and how the lighting pigtail connecting the tractor and trailer units became disconnected. When asked directly if he knew when the pigtail was disconnected, Anderson answered, “My understanding now is that it is a possibility that when I had made the blind-side maneuver, that it very well could have pulled the lights out. But can I guarantee that? I don’t know. I don’t know when it happened.” Anderson Trial Transcript (Doc. No. 117) at 46–47. When asked by the Plaintiffs’ counsel if the pigtail came out during the blind-side maneuver, Anderson responded, “I don’t know for sure, but it very well could have, yes.” Id. at 14.

 

This testimony by Anderson proves only that Anderson has no personal knowledge of when or how the pigtail was disconnected. His speculation on the answer to that question is entitled to no particular weight, and certainly does not enable a finding by the “clear weight of the evidence” that the pigtail came out during the blind-side turn. The evidence introduced at trial does not permit a definitive answer on the question of when the pigtail was disconnected. The jury could have concluded that it happened during the blind-side turn or during the collision. There is evidence and testimony to support inferences in either direction, but neither view has the support of the “clear weight” of the evidence.

 

The record provides a sufficient basis for concluding that Anderson acted in compliance with the relevant statutes and the pigtail came out during the collision. Anderson testified that he engaged his turn signal before making the turn in question. Doc. No. 117 at 43–44. He stated that everything was in good working order on the tractor-trailer during his morning inspection on the day of the collision, and that the signal lights on the tractor were engaged and working after the collision. Id. at 38–39, 46. Anderson stated that the failure of a pigtail connection was “not a common occurrence” and that such a possibility did not cross his mind on the day of the collision. Id. at 47. Defendant Redman’s safety manager, Barney Pounds, who has logged hundreds of thousands of miles as a trucker, testified that it is “highly unusual” for a pigtail to come loose, and that it has never happened to him in his entire career. Pounds Trial Transcript (Doc. No. 116) at 63–64. This evidence supports the jury’s verdict, and Plaintiffs have failed to show that the verdict is contrary to the clear weight of the evidence.

 

Plaintiffs argue that this Court “clearly recognized the overwhelming evidence of bad acts by Anderson and Redman” when it denied the Defendant’s Rule 50 motion for judgment as a matter of law. Doc. No. 124 at 6. This argument misstates the Court’s ruling, and the legal standards associated with Rule 50. The Court’s recollection of its ruling denying the Rule 50 motion differs from the Plaintiffs’ characterization. The Court explained to the parties its view that Rule 50 establishes a high bar for taking issues out of the hands of the jury. The Court also stated that its ruling constituted nothing more than a finding that there is a legally sufficient evidentiary basis upon which the jury could find for the Plaintiffs. The standard under Rule 50 requires the court to view the evidence in the light most favorable to the non-moving party and, without making credibility determinations or weighing the evidence, to decide whether the evidence permits only one reasonable conclusion. E.E.O.C. v. Go Daddy Software, 581 F.3d 951, 961 (9th Cir.2009). With regard to the instant motion, Plaintiffs can only succeed if the verdict is contrary to the clear weight of the evidence. The Court’s ruling in favor of the Plaintiffs on the Defendant’s Rule 50 motion does not in any way foreclose a ruling adverse to the Plaintiffs under Rule 59.

 

B. Jury Instructions

*4 Plaintiffs also argue for a new trial due to errors in instructing the jury. Specifically, Plaintiffs argue the Court should have instructed the jury that violation of the Federal Motor Carrier Safety Regulations constitutes negligence per se, and that the Court should have given a spoliation instruction in relation to Redman Van’s alleged failure to maintain records as required by the Federal Motor Carrier Safety Regulations. “[E]rroneous jury instructions, as well as the failure to give adequate instructions, are … bases for a new trial” under Rule 59. Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir.1990).

 

Plaintiffs have not demonstrated that the Court’s instructions to the jury were inadequate or in error. Plaintiffs have not identified any legal authority to support their argument that violation the Federal Motor Carrier Safety Regulations constitutes negligence per se in Montana. In fact, as United States Magistrate Judge Jeremiah C. Lynch explained in Parrick ex rel. Parrick v. FedEx Ground Package System, Inc., it would have been a violation of well-established Montana and Ninth Circuit law to give the instruction advocated by Plaintiffs:

 

Plaintiff, of course, views the significance of the [Federal Motor Carrier Safety Regulations] violations he alleges differently, and maintains they do provide a legitimate basis for imposing negligence per se liability under Montana law. But the Montana Supreme Court has repeatedly held to the contrary, making clear that “[i]n order to impute liability to a defendant as a matter of negligence per se … the defendant must have violated a statute, as opposed to merely an administrative regulation, safety code, or professional standard.”   Harwood v. Glacier Elec. Co-op., Inc., 949 P.2d 651, 656 (Mont.1997) (citing several cases). Hesitant “to extend the doctrine of negligence per se beyond the statutory framework,” the Montana Supreme Court has consistently determined “that violations of administrative regulations that are not specifically incorporated by statute do not constitute negligence per se.”   Thayer v. Hicks, 793 P.2d 784, 792 (Mont.1990) (citing several cases). While “[t]he violation of a non-statutory standard may be used as evidence of negligence,” it does not provide sufficient “grounds on which to find the defendant negligent per se.” Harwood, 949 P.2d at 656. See also Lutz v.. United States, 685 F.2d 1178, 1184 (9th Cir.1982) (noting that “Montana law distinguishes between violation of a statute or ordinance and violation of the standard specified in a regulation,” with the latter “to be considered as evidence of negligence.”).

 

As these cases instruct, any violation of the non-statutory standards set forth in the Federal Motor Carrier Safety Regulations may be used as evidence of the Defendants’ negligence, but does not provide a basis for finding the Defendants negligent per se.

 

Parrick ex rel. Parrick v. FedEx Ground Package System, Inc., Slip Copy, 2010 WL 3614119, * *2–3 (D.Mont.2010). The jury was properly instructed as to the legal significance of the Federal Motor Carrier Safety Regulations.

 

*5 Plaintiffs proposed two spoliation instructions on the fifth day of trial, both of which were refused. The instructions were similar in substance, and essentially would have instructed the jury that, to they extent that Defendant Redman Van failed to maintain records as required by law, the jury should apply a rebuttable presumption that the absent records would be favorable to the Plaintiffs. In refusing the proposed spoliation instructions, the Court stated:

 

Okay. I’m going to refuse both of these instructions. There is evidence in regarding the failure to maintain records. In fact, I think there is also evidence in that maybe—maybe it was expert Allen testified in response to a question that if it wasn’t written down, if it wasn’t recorded, it didn’t happen.

 

I understand and appreciate that’s going to be an argument in the case. It’s an issue in the case. Parties are free to argue it, again to whatever extent they wish, but I think these instructions constitute—would be an unfair comment by the Court on this single issue.

 

And I also think that they are confusing. When you get into indisputable presumptions and rebuttable presumptions in a case such as this, we get into issues regarding burden of proof and shifting of burden of proof. And I think it’s—again, I think it’s confusing and an unfair comment on the evidence, so I’m going to refuse them.

 

Transcript of Settlement of Jury Instructions (Doc. No. 111) at 24.

 

Plaintiffs have not cited any authority in support of their argument for a new trial due to the Court’s failure to give a spoliation instruction. A district court is invested with inherent powers that are “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”   Unigard Sec. Ins. Co. v. Lakewood Engineering and Mfg. Corp., 982 F.2d 363, 368 (9th Cir.1992) (quoting Chambers v. NASCO, Inc., 501, U.S. 32, 43 (1991)). Those inherent powers include the “broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial.”   Unigard, 982 F.2d at 368 (quoting Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir.1980). Within that discretion lies the power to sanction a party for destruction or spoliation, either by outright dismissal of the case, see, e.g., Halaco Engineering Co. v. Costle, 843 F.2d 376; by exclusion of testimony based on evidence no longer in existence, see Unigard, 982 F.2d at 368; or by allowing the jury to draw an adverse inference against the party responsible for spoliation, see Akiona v. United States, 938 F.2d 158, 161 (9th Cir.1991).

 

Plaintiffs argue that the Court’s failure to give their proposed spoliation instructions left Plaintiffs with “no negligence link between Redman Van and Anderson.” Doc. No. 134 at 9. Such a “link” is provided by Instruction No. 9, which advised the jury that “[a]n employer is liable for all damages caused by the negligence of its employee while acting within the scope of his employment.” Doc. No. 95 at 9. Furthermore, the Plaintiffs were not precluded from presenting evidence of the absent records, or arguing the import of this to the jury, by the Court’s refusal to give the offered instructions. The refusal to give a spoliation instruction was within the Court’s broad discretion and was not an error justifying a new trial under Rule 59.

 

IV. Order

*6 Accordingly, IT IS HEREBY ORDERED that the Plaintiffs’ Rule 59 motion for a new trial (Doc. No. 123) is DENIED.

Court of Appeals of Arizona,

Division 1, Department E.

Robert M. DELCI, V, an Arizona resident and the minor natural son of Robert M. Delci, IV, deceased; and Stacy Lyn Muro, by and through Stacy Lyn Muro, an Arizona resident and his natural mother and next friend; Robert M. Delci, III and Lolly Delci, Arizona residents, as individuals and as the natural parents of Robert M. Delci, IV, deceased, Plaintiffs/Appellants,

v.

GUTIERREZ TRUCKING COMPANY, an Arizona company; Rafael Gutierrez–Martinez and Jane Doe Gutierrez–Martinez, husband and wife and Arizona residents; Normando Romero, Sr., and Jane Doe Romero, husband and wife and Arizona residents; Normando Romero, Jr., an Arizona resident, Defendants/Appellees.

 

No. 1 CA–CV 10–0099.

April 19, 2012.

 

Appeal from the Superior Court in Maricopa County; Cause No. CV2007–023489; The Honorable Joseph B. Heilman, Judge (Ret.). AFFIRMED.

Law Offices of David L. Abney, Esq. by David L. Abney, Esq., Phoenix, Attorney for Plaintiffs/Appellants.

 

Jones, Skelton & Hochuli, P.L.C. by Edward G. Hochuli, James Gary Linder, Russell R. Yurk, Jeremy C. Johnson, Phoenix, Attorneys for Defendants/Appellees.

 

OPINION

HALL, Judge.

*1 ¶ 1 Plaintiffs appeal the superior court’s order granting judgment on the pleadings for Defendants. Concluding that the owner/operator of a motor vehicle has no duty to protect the public from the negligent driving of a car thief, we affirm the superior court’s judgment.

 

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On July 15, 2006, Robert M. Delci, IV, and his son, Robert M. Delci, V, were involved in an automobile collision with an unknown person driving a 1995 Kenworth tractor pulling a 45–foot silver Wastech box trailer (the tractor-trailer). Mr. Delci was killed in the collision; his son was severely injured.

 

¶ 3 The driver of the tractor-trailer did not stop after causing the collision and his or her identity remains unknown. The tractor-trailer was owned by Gutierrez Trucking Company and/or Rafael Gutierrez–Martinez. Normando Romero, Sr., who was the regular driver of the tractor-trailer, had parked it in an unguarded, unfenced field one mile from his house with the keys under a floor mat in the unlocked cab.

 

¶ 4 Plaintiffs filed a complaint in which they alleged Normando Romero, Sr. negligently failed to secure the tractortrailer, and that Gutierrez Trucking Company and/or Rafael Gutierrez–Martinez, as Romero, Sr.’s employer, were responsible for his acts.FN1 Defendants moved for judgment on the pleadings on the grounds that, as a matter of law pursuant to the Arizona Supreme Court’s decision in Shafer v. Monte Mansfield Motors, 91 Ariz. 331, 372 P.2d 333 (1962), they did not owe a duty of care to plaintiffs. Plaintiffs opposed the motion and cross-moved for partial summary judgment on the issue of duty, arguing that special circumstances warranted imposing a duty of care on defendants. The superior court determined plaintiffs’ claims were barred under the Arizona Supreme Court’s ruling in Shafer and granted defendants’ motion for judgment on the pleadings.

 

FN1. Plaintiffs also named Normando Romero, Jr., the son of Normando Romero, Sr., as a defendant in the complaint and alleged he was illegally driving the tractor-trailer when it collided with Mr. Delci’s vehicle. Romero, Jr., did not answer or otherwise respond to the complaint and plaintiffs obtained a default judgment for $1 million against him.

 

¶ 5 Plaintiffs timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12–2101(B) (2003).

 

DISCUSSION

¶ 6 “A motion for judgment on the pleadings for the purposes thereof admits all material allegations of the opposing party’s pleadings, and all allegations of the moving party which have been denied are taken as false so that a motion or judgment on the pleadings is only granted if the moving party is clearly entitled to judgment.” Food for Health Co., Inc. v. 3839 Joint Venture, 129 Ariz. 103, 106, 628 P.2d 986, 989 (App.1981).

 

¶ 7 Under current Arizona common law, plaintiffs were required to prove four elements to establish a claim for negligence: (1) the existence of a duty recognized by law requiring defendants to conform to a certain standard of care; (2) defendants’ breach of that duty; (3) a causal connection between the breach and plaintiffs’ resulting injury; and (4) actual damages. Piccola v. Woodall, 186 Ariz. 307, 309, 921 P.2d 710, 712 (App.1996); Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983) (citing William L. Prosser, Handbook on the Law of Torts, § 30 at 143 (4th ed.1971)). In this case, we are concerned only with the element of duty, the basis for the superior court’s judgment for defendants.

 

*2 ¶ 8 “[T]he issue of duty involves generalizations about categories of cases.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 10, 150 P.3d 228, 230 (2007). A duty is 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. (citation omitted). The existence of a duty is a question of law that we review de novo. Diaz v. Phoenix lubrication Serv., Inc., 224 Ariz. 335, 338, ¶ 12, 230 P.3d 718, 721 (App.2010). Whether a defendant owes the plaintiff a duty is a threshold issue. Gipson, 214 Ariz. at 143, ¶ 11, 150 P.3d at 230. If no duty is owed, a negligence action cannot be maintained. Id.

 

¶ 9 The superior court ruled that, as a matter of law, defendants owed no duty of care to plaintiffs based on the supreme court’s decision in Shafer. In that case, Shafer filed a negligence action against an auto dealership after he was injured by a third party driving a vehicle stolen from the dealer’s lot. 91 Ariz. at 331–32, 372 P.2d at 333. The lot was unfenced and the ignition key had been left in the vehicle. Id. at 332, 372 P.2d at 333.

 

¶ 10 The supreme court began its analysis in that case by noting “[t]he prevailing view” that when, as in Arizona, there is no statute or ordinance dealing with leaving ignition keys in a vehicle, “there can be no liability” on the part of the owner. Id. at 332, 372 P.2d at 334 (citing Richard v. Stanley, 271 P.2d 23, 27 (Cal.1954) (concluding that duty of owner of car “to exercise reasonable care in the management of her automobile did not encompass a duty to protect plaintiff from the negligent driving of a thief”). Characterizing the issue as involving “the scope of the duty owed by defendant,” the court affirmed the trial court’s directed verdict for the defendant because “the duty of one who leaves his keys in an unattended vehicle does not extend to a plaintiff injured in an accident with the converter of the car.” Id. at 333–34, 372 P.2d at 335. It acknowledged that the scope of a defendant’s duty encompassed risks that a reasonable person would recognize as a danger to the plaintiff or one in the plaintiff’s situation, but rejected Schafer’s argument that the defendant should have anticipated the risk of injury because of the frequency of joy riding in the area and the higher frequency of collisions occurring when a vehicle is driven by a joy rider or thief, explaining that Shafer had not introduced any evidence to establish those facts. Id. The court ruled, as a matter of law, that the dealership owed no duty of care to Shafer. Id.

 

¶ 11 Plaintiffs in this case argue the superior court erred in relying on Shafer, which they contend the Arizona Supreme Court impliedly overruled in Gipson by rejecting foreseeability as a factor to be considered in determining the existence of a duty. 214 Ariz. at 144, ¶ 15, 150 P.3d at 231. In Gipson, the supreme court considered whether persons who are prescribed medications owe a duty of care when they improperly give those medications to others for whom the medications were not prescribed. Id. at 142, ¶ 1, 150 P.3d at 229. The court held that evaluating whether an injury to a particular plaintiff was foreseeable by the defendant requires a fact-specific inquiry reserved for the jury, id. at 144, ¶ 16, 150 P.3d at 231, and therefore foreseeability “is more properly applied to the factual determinations of breach and causation than to the legal determination of duty.” Id. at 144, ¶ 17, 150 P .3d at 231. Accordingly, to the extent that the holding in Shafer is premised on a foreseeability analysis, it is no longer valid and does not control the outcome here.FN2 We will affirm, however, the superior court’s ruling if it was correct for any reason. See City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985).

 

FN2. At least one state court decision that, like Gipson, rejects foreseeability as a factor in determining the existence of a duty nonetheless considers foreseeability as one factor bearing on the scope of the duty owed. See In re New York City Asbestos Litig ., 840 N.E.2d 115, 119 (N.Y.2005) (cautioning that “foreseeability bears on the scope of a duty, not whether a duty exists in the first place”). But Gipson seemingly forecloses this approach: “[W]e now expressly hold that foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestions in prior opinions.” Id. at 231, ¶ 15, 150 P.3d at 144. Thus, even though the court in Shafer characterized the issue as one of the scope rather than the existence of a duty, Shafer is not distinguishable on that basis.

 

*3 ¶ 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. A duty of care may arise from a special relationship based on contract, family relations, or conduct undertaken by the defendant, or may be based on categorical relationships recognized by the common law, such as landowner-invitee. Id. at 145, ¶¶ 18–19, 150 P.3d at 232. Public policy used to determine the existence of a duty may be found in state statutory laws and the common law. Id. at 146 n. 4, ¶ 24, 150 P.3d at 233 n. 4.

 

¶ 13 Here, no preexisting relationship existed between the parties that would create a duty of care. Further, none of the categorical relationships that give rise to a duty of care under the common law are implicated. See id. at 145, ¶¶ 18–19, 150 P.3d at 232. Although plaintiffs acknowledge that the act of leaving one’s keys in an unattended vehicle is not prohibited by statute, see Shafer, 91 Ariz. at 332–33, 372 P.2d at 334, they nonetheless urge us to recognize a common-law duty requiring all vehicle owners to take reasonable measures to prevent theft as a matter of public policy.

 

¶ 14 As plaintiffs point out, courts in many other states have recognized an exception to the general no-duty rule in vehicle theft cases in “special circumstances” involving the potential for a significant risk of harm when heavy machinery is left unsecured and easily accessible to unauthorized users, see, e.g., Carrera v. Maurice J. Sopp & Son, 99 Cal.Rptr.3d 268 (App.2009) (unattended tow truck), or in other circumstances in which the owner’s conduct enhanced the probability that his car would be stolen, see, e.g., Cruz v. Middlekauff Lincoln–Mercury, Inc., 909 P.2d 1252 (Utah 1996) (car dealership had policy of leaving keys in ignitions of unsecured vehicles in parking lot). The special circumstances doctrine, however, arose as an exception to the general no-duty rule in cases involving vehicle theft and is premised on the foreseeability of the significant risk of harm posed by the theft of certain types of vehicles by persons likely to be unfamiliar with their operation or other similar circumstances. See Carrera, 99 Cal.Rptr.3d at 277–79; see also McClenahan v. Cooley, 806 S.W.2d 767, 773–76 (Tenn.1991).FN3 Thus, after Gipson, the special circumstances doctrine does not provide a basis in Arizona for recognizing a common-law duty.

 

FN3. In California, whose courts pioneered the development of the special circumstances exception, the role of courts in determining duty “is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct,” rather it is limited to “evaluat[ing] more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” Carrera, 99 Cal.Rptr.3d at 277 (emphasis in original) (citation omitted).

 

¶ 15 Having determined that no special relationship or statute gives rise to a duty of care under the circumstances of this case,FN4 and that the special circumstances exception is inapplicable in Arizona, we must now address plaintiffs’ additional argument that, in any event, defendants owed them a common-law duty to take reasonable measures to safeguard the security of the tractor-trailer because everyone “is under a duty to avoid creating situations which pose an unreasonable risk of harm to others.” (quoting Ontiveros, 136 Ariz. at 509, 667 P.2d at 209) (internal quotation omitted). Plaintiffs further contend that this general principle of negligence law has been incorporated in the Restatement (Third) of Torts: Liability For Physical & Emotional Harm § 7 (2010) (hereinafter Third Restatement), which establishes a presumption of a duty of care by all persons to all others at all times: “An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm,” and ask us to adopt and apply the Third Restatement here. We decline to do so.FN5

 

FN4. We also reject plaintiffs’ argument that Arizona’s apportionment of fault statute, A.R.S. § 12–2506 (2003), required the superior court to allow a jury to evaluate defendants’ fault. The statute does not serve as an independent basis for imposing a duty on defendants, but only authorizes a trier of fact to apportion a percentage of the total amount of damages to those persons, whether a party to the action or not, who are at fault. The statute defines “fault” as an actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages. A.R.S. § 12–2506(F)(2). Thus, in the absence of an actionable breach of a legal duty, the statute has no application.

 

FN5. Were we to do so, we would be required to vacate the trial court’s summary judgment and remand for trial. See Third Restatement § 19 (“The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party.”)

 

*4 ¶ 16 We recognize that, absent Arizona law to the contrary, Arizona courts will usually apply the law of the Restatement. Ft. Lowell–NSS Ltd. P’ship v. Kelly, 166 Ariz. 96, 102, 800 P.2d 962, 968 (1990). Several considerations persuade us not to do so here. First, apart from its reliance on foreseeability, the no-duty result in Shafer is consistent with the Restatement (Second) of Torts: Duty to Control conduct of Third Persons § 315 (1965) (hereinafter, Second Restatement), which provides:

 

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right of protection.

 

The rule set forth in the Second Restatement, which has been abrogated in favor of the presumptive duty-of-care standard in the Third Restatement, has been adopted in Arizona and applied in support of no—duty determinations absent a special relationship. See, e.g., Fe die v. Travelodge Int’l, Inc., 162 Ariz. 263, 265, 782 P.2d 739, 741 (App.1989); Davis v. Manglesdorf, 138 Ariz. 207, 208, 673 P.2d 951, 952 (App.1983). And unlike Martinez v. Woodmar IV Condominiums Homeowners Ass’n, Inc., 189 Ariz. 206, 208–09, 941 P.2d 218, 220–21 (1997), in which the supreme court determined that a condominium complex’s homeowners association owed a duty analogous to that of a landlord to maintain the safety of common areas, and thus could be held liable for injuries suffered by a guest of a tenant who was shot in the complex’s parking lot, plaintiffs have not identified an alternative theory of common-law liability that imposes a specific duty on the owner/operator of a vehicle to safeguard its security. See Bloxham v. Glock, Inc., 203 Ariz. 271, 274, ¶ 6, 53 P.3d 196, 199 (App.2002) (“In the absence of a duty owed to the plaintiff, a defendant cannot be liable for the plaintiff’s injury even if the defendant acted negligently.”) (citation and quotation omitted).

 

¶ 17 Second, we do not perceive that Ontiveros, in which the supreme court abolished the common-law doctrine that tavern owners are not liable for injuries sustained off-premises by third persons as a result of the acts of an intoxicated patron, 136 Ariz. at 521, 667 P.2d at 221, requires us to abandon the rule that the duty of a car owner to exercise reasonable care in the management of his automobile does not include a duty to protect others from the negligent driving of a thief. Even though the principle stated in Ontiveros that “every person is under a duty to avoid creating situations which pose an unreasonable risk of harm to others” could be interpreted, as acknowledged in Gipson, as consistent with the comment in the Third Restatement that people generally “owe a duty to exercise reasonable care to avoid causing physical harm” to others, 214 Ariz. at 146 n. 4, ¶ 24, 150 P.3d at 233 n. 4 (quoting Third Restatement § 7 cmt. a), the rationale for the common-law duty holding in Ontiveros was much more narrowly based on the relation of the licensed supplier of liquor and his patron requiring the licensee to “take affirmative measures to control or avoid increasing the danger from the conduct of others.” 136 Ariz. at 508–09, 667 P.2d at 208–09 (citing the Second Restatement); see also Ontiveros, 136 Ariz. at 511 n. 4, 667 P.2d at 211 n. 4 (“We deal here with the obligation of a licensee to help control the conduct of others who are patrons of his establishment. Such duties are recognized where a ‘special relationship exists between the actor and the third person.’ ”) (quoting Second Restatement).

 

*5 ¶ 18 Finally, adoption of the Third Restatement would do more than just modify existing Arizona negligence law; it would substantially change Arizona’s longstanding conceptual approach to negligence law by effectively eliminating duty as one of the required elements of a negligence action. See Gipson, 214 Ariz. at 147–48, ¶¶ 33–40, 150 P.3d at 234–35 (Justice Hurwitz, concurring) (explaining that the Third Restatement “view[s] the duty of reasonable care as the norm, and depart[s] from that norm only in those cases where public policy justifies an exception to the general rule”) (citing Third Restatement, § 7(b): “In exceptional cases, when an articulated countervailing principle or 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.”); compare 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)); Bloxham, 203 Ariz. at 275, ¶ 8, 53 P.3d at 200 (same). The Third Restatement approach significantly lessens the role of the court as a legal arbiter of whether society should recognize the existence of a duty in particular categories of cases; for this reason, adopting the Third Restatement would increase the expense of litigation. Although restricting the dismissal of negligence actions for lack of duty may be thought desirable as more protective of a litigant’s jury-trial right, such a fundamental change in the common law requires an evaluation of competing public policies that is more appropriately addressed to the Arizona Supreme Court.FN6

 

FN6. To our knowledge, only two state courts have expressly adopted the approach of the Third Restatement. See Thompson v. Kaczinski, 774 N.W.2d 829, 834–39 (Iowa 2009); A.W. v. Lancaster Cnty. Sch. Dist., 784 N.W.2d 907, 917–18 (Neb.2010).

 

CONCLUSION

¶ 19 For the foregoing reasons, we affirm the superior court’s judgment.

 

CONCURRING: SHELDON H. WEISBERG, Judge (Ret.) FN* and ANN A. SCOTT TIMMER, Judge.

 

FN* Pursuant to Article 6, Section 3, of the Arizona Constitution, the Arizona Supreme Court designated the Honorable Sheldon H. Weisberg, as appointed to serve as a judge pro tempore in the Arizona Court of Appeals to sit in this matter.