Chavez v. State of Indiana for Logansport State Hospital , 122 Ariz. 560 ( 1979 )

GORDON, Justice

(specially concurring):

I agree that the matter must be reversed and the case dismissed without prejudice. However, I am unable to agree with the reasoning of the majority in doing so.

The majority concludes that the exercise of personal jurisdiction over the defendants in Arizona would be inconsistent with the requirements of due process, because the defendants could not foresee that the released man would come to Arizona, and because the defendants had no contact with Arizona. I disagree with the majority’s conclusion that it was unforeseeable that a man who was found to be dangerous in Indiana might come to Arizona.

Moreover, I disagree with the majority’s indication that the due process issue can be answered merely by determining if the defendants could foresee that their actions would cause an event to occur in Arizona. In Phillips v. Anchor Hocking, 100 Ariz. 251, 413 P.2d 732 (1966), this Court discussed the pitfalls of using solely a foreseeability test to determine if the exercise of personal jurisdiction was consistent with the requirements of due process. Instead, in both Phillips, supra, and Maloof v. Raper Sales, Inc., 113 Ariz. 485, 557 P.2d 522 (1976), this Court’s determination of the due process issue hinged on an analysis of what was the fairest forum. In Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784 (9th Cir., 1977) the Ninth Circuit came to a similar conclusion and stated that the overall reasonableness of subjecting the defendant to the jurisdiction of the forum court must be considered when determining if invoking jurisdiction would be consistent with the requirements of due process.

The bottom line of the majority’s opinion seems to be that there is one test for determining the propriety of Arizona’s invoking in personam jurisdiction in cases that involve products or commercial transactions and another test when deciding if in person-am jurisdiction should be invoked in cases such as this, which involve the furnishing of other services. I feel that the distinction is unsupported by precedent and is illogical when viewed in the light of modern technology, the abandonment of sovereign immunity from tortious acts, the realities of malpractice insurance and the mobility of people within the United States.

Therefore, although I agree with the majority that this matter should be dismissed without prejudice, I do so because the plaintiff’s complaint fails to allege that Arizona is the fairest forum for all concerned.