Griffith v. Valley of the Sun Recovery & Adjustment Bureau, Inc.
613 P.2d 1283, 29 U.C.C. Rep. Serv. (West) 711, 126 Ariz. 227 (1980)
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Rule of Law:
A repossessor's violation of the statutory duty to avoid a 'breach of the peace' during self-help repossession is not negligence per se, but the repossessor may be liable under common law negligence if their actions create a foreseeable risk of harm that proximately causes injury to a bystander. An intervening act is not a superseding cause if the repossessor's negligent conduct is ongoing at the time of injury.
Facts:
- A-Able Adjusters, through its employee Donald Gorney, was hired to repossess a Lincoln Continental.
- Gorney was aware that prior repossession attempts on the same vehicle had been frustrated, including one involving a violent confrontation.
- Around 4:00 AM, Gorney went to the car's location, unscrewed a spotlight that illuminated the area, and intentionally set off the car's burglar alarm.
- This action attracted the attention of neighbors and the police; Gorney hid until they left.
- Gorney then returned and again triggered the car alarm while attempting to take the vehicle, prompting a verbal and physical confrontation with the car's driver, Bob Williams.
- A neighbor, believing a theft was in progress, arrived with a shotgun.
- Williams shouted for the gun, and as the neighbor passed it to him, the weapon accidentally discharged, severely injuring Norman Griffith, an innocent bystander.
Procedural Posture:
- Norman and Hannelore Griffith filed a negligence action in the trial court against A-Able Adjusters, its owners, and its employee, Donald Gorney.
- The defendants-appellees filed a motion for summary judgment.
- The trial court granted the defendants' motion for summary judgment.
- The plaintiffs-appellants, Norman and Hannelore Griffith, appealed the summary judgment ruling to the intermediate court of appeals.
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Issue:
Is a repossession agent who creates a volatile and confrontational situation during an attempted self-help repossession liable for injuries to an innocent bystander caused by the accidental discharge of a weapon brought to the scene by a third party?
Opinions:
Majority - Ogg, Chief Judge
Yes, a repossession agent may be liable under these circumstances. The court rejected the argument that violating the 'breach of the peace' statute (A.R.S. § 44-3149) constitutes negligence per se, because the statute defines a general standard of conduct rather than proscribing specific acts. However, the court found that a jury could reasonably conclude that the agent's actions created a foreseeable risk of harm. Given that Gorney was aware of prior violence and deliberately created a volatile situation in the middle of the night, reasonable minds could differ as to whether he should have foreseen that a confrontation could lead to injury. Finally, the neighbor's act of bringing a gun was not a superseding cause because Gorney's negligent conduct was actively continuing up to the moment of injury; therefore, the neighbor's act was a concurrent, not intervening, cause.
Analysis:
This decision clarifies the scope of liability for creditors and repossession agents conducting self-help repossessions under the Uniform Commercial Code. By holding that a violation of the 'breach of the peace' standard is not negligence per se but can support a common law negligence claim, the court preserves the remedy of self-help while holding agents accountable for creating foreseeable violence. The ruling reinforces the principle that foreseeability is a jury question in fact-intensive negligence cases. Furthermore, its application of the 'concurrent cause' doctrine limits the ability of a defendant whose negligence is ongoing to escape liability by blaming a third party's intervening act.
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