gible to sue under Arizona law, the new
Supreme Court ruling will also likely affect
who is liable to be sued in such cases. When
one married spouse is sued separately, a
judgment or award against that spouse
individually will only expose the spouse’s
sole and separate property to collection.
However, when a spouse is acting on behalf
of the marital community, and provided
both spouses are named in the action, the
community assets are exposed to a judgment or award.
Along these same lines, the Family
Purpose Doctrine remains good law in
Arizona. 4 Under the doctrine, when there
is a “head of the family” who maintains or
furnishes a motor vehicle for the general
use, pleasure, and convenience of the fami-
ly, and a family member uses the vehicle
with the family head’s expressed or implied
permission for a “family purpose,” the head
of the family is vicariously liable for the acts
or omissions of the driver (typically a motor
vehicle accident). By its very terms, the
doctrine is not limited to parents and chil-
dren (although this is where the doctrine
usually arises). There is case authority in
Arizona supporting the extension of the
doctrine to spouses. 5 The new ruling would
likely make the nexus between same-sex
partners and the Family Purpose Doctrine
easier to prove.
Other tangential issues relating to the
personal injury practice area include jury
selection when injury or wrongful death
claims are pursued by one same-sex partner
for loss of consortium arising out of either
an injury to, or the wrongful death of, his
or her spouse. Although we know that
statistically the general public is becoming
more accepting and comfortable with such
unions, the trial lawyer representing mem-
bers of a same-sex marriage would do well
to carefully and bluntly address this topic in
jury selection lest he or she end up with
jurors more closely aligned with Justice
Scalia’s dissent than Justice Kennedy’s
Arizona common law is ever changing,
based in part on public policy shifts and
direction from the nation’s highest Court.
There will undoubtedly be growing pains
as these newly recognized relationships are
incorporated into Arizona’s decisional law.
However, same-sex spouses will now be
accorded the fundamental right to have
their tort law case recognized for the death
or injury of a loved one.
1. A.R.S. § 12-612.A.
2. Barnes v. Outlaw, 964 P.2d 484, 487
(Ariz. 1998) (quoting Frank v. Superior
Court, 722 P.2d 955, 956 n. 1. (Ariz.
3. Keck v. Jackson, 593 P.2d 668 (Ariz.
4. Young v. Beck, 251 P.3d 380 (Ariz. 2011).
5. Mortensen v. Knight, 305 P.2d 463 (Ariz.
K. THOMAS SLACK is a partner with the Phoenix firm of Beale, Micheaels, Slack & Shughart, PC. He is certified as a specialist by the
State Bar in personal injury and wrongful death litigation, and represents plaintiffs in catastrophic injury and wrongful death cases with
an emphasis on railroad-grade crossing collision, trucking and construction accidents. He also serves as a mediator and arbitrator in
personal injury and wrongful death cases and is a frequent presenter at legal seminars.
Serving Arizona Since 1952