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Hoskinson v. California12/13/1990
ime against an Arizona resident. The Restatement gives the example of a person who explodes dynamite close to the border of a contiguous state, causing injury within that other state. Other examples might include the strict liability required of owners of wild animals whose escape causes injury or damage, or noxious chemicals which poison the air across the border. In such instances, the issue becomes failure to control, rather than intent. In inherently dangerous situations intent is irrelevant.
The third factor, foreseeability, also has no absolute requirement of intent. Rather, foreseeability is established if the act "could reasonably have been expected" to cause effects within the other state. Certainly a good faith argument can be made that the California officials should have anticipated the strong possibility of crimes in Arizona from a dangerous parole violator who had left the state from Los Angeles. Defendants, by grossly negligent or intentional failure to control a known and extraordinarily dangerous child molester,
should be required to bear the risk that he will cause horrendous injury within a reasonable territorial range of activity.
The Supreme Court has already used the "effects" test of § 37 to decide a personal jurisdiction issue, Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). The Ninth Circuit used it in Brainerd v. Governors of University of Alberta, 873 F.2d 1257 (9th Cir. 1989), finding intent because the out-of-state defendant responded to two phone calls and one letter sent to him from Arizona.
The Arizona Supreme Court used § 37 to decide Chavez v. State of Indiana for Logansport State Hosp., 122 Ariz. 560, 596 P.2d 698 (1979), a failure to control case factually similar to this one. The court concluded that the defendants could not reasonably have foreseen a murder in Arizona two years after release. In the present case, the court should also apply § 37, but come to the opposite conclusion on foreseeability, because the facts are stronger. The period of time between release and the murder was not two years, but four months; the killer was not a mental patient released in good faith, but a parole violator for whom state law mandated arrest; the earlier killer was out of touch with family and state officials during the two years after his release, whereas the latter had already been labelled "dangerous," had told a friend he intended to kill a child, and had been in close contact with his family, who allegedly collaborated in his parole violation. The issue is not the simple negligence of Chavez, but intentional nonfeasance or gross negligence in violation of the California Penal Code. See A.R.S. § 38-443 (public officer who knowingly fails to perform any duty required by law is guilty of nonfeasance.)
The majority's decision relies on a single test for personal jurisdiction - "purposeful availment" - and gives it preeminence over all other considerations, although the Restatement (Second) Conflict of Laws recognizes other factors to be weighed, as previously discussed. The Supreme Court's recent decision in Burnham v. Superior Court, U.S. , 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990), ignored the petitioner's plea of lack of "minimum contacts" and asserted personal jurisdiction over him; "purposeful availment" was not a factor. In McAleer v. Smith, 715 F.Supp. 1153, 1157 (D.R.I. 1989), the court insightfully noted in discounting the applicability of the purposeful availment doctrine to tort claims:
Tortfeasors are at odds with the privileges, benefits, and protections of local laws. Theref
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