State lawmakers are moving to make it harder for people who are injured while committing crimes - or their survivors if they are killed - to sue those who hurt them.
A measure approved unanimously Monday by the Senate Judiciary Committee would restore some protection to businesses who want a legal shield when one of their employees restrains a shoplifter or others who are stealing and that person winds up injured or dead. The House has already passed HB2813.
Businesses thought they had that protection. And they did, sort of, until the state Court of Appeals ruled two years ago that the provision is unconstitutional.
Rep. John Kavanagh, R-Fountain Hills, said he believes this new version would withstand any legal challenge. And to gain insurance - and try to avoid a gubernatorial veto - he agreed to water down his measure a bit to satisfy the Arizona Trial Lawyers Association, the group made up of attorneys who represent victims or their survivors in these kinds of cases.
A 1993 law said people can't sue if they're injured while committing or attempting to commit a felony. That law provides immunity even if the person who caused the injury was grossly negligent.
Three years later, legislators extended that to cover misdemeanors.
What brought the law to the court's attention was a lawsuit filed by Lorna Hernandez, window of Frank Hernandez Jr. She filed a complaint against a security guard on duty at a Safeway store in Tucson whose actions she said resulted in her husband's death.
According to a police report, the guard stopped Hernandez, saying he had stolen a bottle of lotion.
His widow's attorney said the guard restrained Hernandez by wrestling him to the floor, facedown, and placing his arm around Hernandez's neck. The lawsuit said that while Hernandez complained he could not breathe, the guard did not release him until Hernandez was handcuffed. The police report said that before they arrived, a guard saw that Hernandez had stopped breathing, and medical help was called. Hernandez was taken to Kino Community Hospital, where he was pronounced dead on arrival.
A medical examiner's report concluded he died of "asphyxia due to neck compression." He also suffered internal bleeding and blunt-force injuries.
Attorneys for the guard, his employer and the store sought to have the lawsuit tossed, citing the law that prohibits those who are committing crimes from filing suit if they are injured.
But appellate Judge Joseph Howard said there is a higher law: The state constitution specifically says the question of whether someone contributed to his or her own death or injury is a question of fact - one that has to be decided by a jury.
Kavanagh's original proposal sought to get around that by instructing juries that they cannot award damages in a case where the person committing the criminal act was at least 50 percent responsible for the injuries. But that, he conceded, still ran into the constitutional problem of taking the decision out of the hands of the jury. The version approved by the House says juries may choose not to award damages in that situation. Another key change would let jurors refuse to award damages only if they concluded that the defendant did not act intentionally.