 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lohse v. Faulkner12/29/1992
ntiff's injuries and taken any measures still available to minimize his further loss. Here, by contrast, it was wholly speculative whether Faultner's agents, in the absence of negligence, would have been positioned to prevent harm. Lathrop testified that one person would have sufficed to patrol the entire area that Faultner had been working. Forest Service agent Pearson and Faultner spent some time in conversation at the loader when the loader engine had been shut down long enough to be warm, not hot, to Pearson's touch. There were other areas where crews used power machinery that needed patroling, and it was purely speculative, according to Lathrop, whether even a diligent patrol would have been near the loader or elsewhere in the woods at the critical moments when the fire could be detected and suppressed.
Plaintiffs dismiss the Lathrop deposition segments offered by defendants as merely cross-examination to be evaluated by a fact-finder, not the Judge. Yet defendants provided far more of the substance of Lathrop's testimony than did plaintiffs. Plaintiffs rely wholly on Lathrop's general assertion that a fire patrol would have "increased the probability" of timely detecting the fire. But the range of probability runs from infinitesimal to nearly certain, and probability can increase from one to another insignificant degree. Lathrop ultimately acknowledged that he had no opinion whether a fire patrol would in fact have prevented plaintiffs' injuries in this case. Like the trial court, we find such evidence too thin, even under Thompson, to create a jury case of proximate cause.
THE CROSS-APPEAL
Defendants requested attorneys' fees pursuant to Ariz.Rev.Stat.Ann. section 12-341.01(A) (1992), which permits discretionary fees to the prevailing party in any contested action arising out of a contract, express or implied. The trial court denied fees, stating "this action did not arise out of a contract, so attorneys' fees may not be awarded." We conclude that the trial court erred.
Plaintiffs alleged that defendants' culpable acts constituted breach of contract as well as tort. In such cases, fees may be awarded under 12-341.01(A) "as long as the cause of action in tort could not exist but for the breach of contract." Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519, 522, 747 P.2d 1218, 1221 (1987) (quoting Sparks v. Republic Nat'l Life Ins. Co., 132 Ariz. 529, 543, 647 P.2d 1127, 1141, cert. denied, 459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed.2d 632 (1982)).
Plaintiffs claimed that defendants neglected their contractual safety responsibilities and failed to conduct their logging operations with reasonable care. The contract element of this dual assertion was not essential to plaintiffs' tort claim against Faultner; plaintiffs might have sued Faultner in tort alone for his failure to take reasonable precautions against fire. However, Faultner was an independent contractor, whose negligence ordinarily could not have been attributed to Southwest. Plaintiffs attempted to overcome this hurdle by asserting that Southwest had assumed and neglected a nondelegable contractual responsibility for the fire prevention activities of employees and subcontractors alike. This contract was therefore an essential medium for plaintiffs' assertion of a tort claim against Southwest.
Moreover, a number of plaintiffs in the consolidated underlying cases sought fees against both defendants under 12-341.01(A). That plaintiffs' counsel has never abandoned these claims weakens his present argument that the statute does no
Page 1 2 3 4 5 6 7 8 9 10 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|