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Alaface v. National Investment Co.9/1/1994
inapposite. The harms they describe are "economic" only in that it costs money to remedy them. They are all examples of physical harm or damage to persons or property resulting from statutorily regulated hazards such as floods, pesticides, disease, and railroad tracks. These hazards and their concomitant harms are simply not analogous to NIC's violation and its effect on the Alafaces.
I also disagree with the majority's interpretation of section 286 of the Restatement (Second) of Torts. The majority seems to read this section as saying that a statute may be the basis for negligence per se if the purpose of the statute relates to some part of subsections 286(a)-(d). This is incorrect. The words "exclusively or in part" in section 286 refer to the purpose of the statute, not subsections (a)-(d). Restatement (Second) of Torts, ยง 286 (1965). Those subsections are conjunctive, indicating that a statute's purpose must satisfy all four criteria if the statute is to be used as a standard for negligence per se. It is clear the majority has stopped too soon in finding it sufficient that A.R.S. section 32-2181 was intended to protect a particular interest of a class of persons. As Restatement subsection 286(d) makes clear, negligence per se statutes also need to be designed to protect against a particular hazard. Thus, the fact that a statute is designed to protect the public in some fashion is insufficient grounds for making the violation of it negligence per se.
To hold otherwise has the potential of making the violation of virtually any statute grounds for negligence per se liability. Using the majority's expansive approach to negligence per se under section 32-2181, for example, one can now argue that a subdivider should be liable on a theory of negligence per se if it fails to comply with subsection (A)(11) and buyers who relied on that omission are later disappointed to discover they cannot paint their house chartreuse. I cannot agree that negligence per se should be applied to such claims and harms.
Thus, without reference to negligence per se, I would reverse the trial court's grant of summary judgment on appellants' common law negligent misrepresentation by omission claim, affirm in all other respects, and remand this case to allow appellants to prove their remaining theory of liability based solely on the common law standard for disclosure outlined in Hill v. Jones, 151 Ariz. 81, 725 P.2d 1115 (App. 1986) and Frazier v. Southwest Sav. and Loan Ass'n, 134 Ariz. 12, 653 P.2d 362 (App. 1982).
EDWARD C. VOSS, Judge
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