McCaw v. Az. Snowbowl

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
VINCENT MCCAW; CARLY MCCAW; ANDREW MCCAW,
Plaintiffs/Appellants,
v.
ARIZONA SNOWBOWL RESORT,
Defendant/Appellee.
No. 1 CA-CV 21-0585
FILED 11-22-2022
Appeal from the Superior Court in Coconino County
No. S0300CV201800634
The Honorable Dan R. Slayton, Judge
VACATED AND REMANDED
COUNSEL
Fuller Law Group PC, San Diego, CA
By Craig D. Fuller
Counsel for Plaintiffs/Appellants
Jones Skelton & Hochuli, Phoenix
By Jack Klecan, Kristin W. Basha, Eileen Dennis GilBride,
Elizabeth B.N. Garcia,
Co-Counsel for Defendant/Appellee
McClaugherty and Silver PC, Santa Fe, NM
By Joe L. McClaugherty, admitted pro hac vice
Co-Counsel for Defendant/Appellee
MCCAW, et al. v. ARIZONA SNOWBOWL
Opinion of the Court
OPINION
Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.
C A M P B E L L, Judge:
¶1 Vincent, Carly, and Andrew McCaw (the McCaws) appeal
from the superior court’s ruling granting summary judgment in favor of
Arizona Snowbowl Resort (Snowbowl). Because the Arizona Ski Safety Act
(the Act) does not shield a ski area operator from liability for injuries arising
from ski lift accidents, it does not bar the McCaws’ negligence claims.
Accordingly, we vacate the superior court’s summary judgment ruling and
remand for proceedings consistent with this opinion.
BACKGROUND
¶2 In December 2016, Vincent and his two children, 17-year-old
Andrew and 14-year-old Carly, visited Snowbowl for a day of skiing and
snowboarding. While they waited to load the ski chair lift, Andrew’s
snowboard crossed Carly’s skis, causing her skis to “[go] out [from]
underneath her.” Unable to steady herself and sit properly, Carly’s arms
caught the approaching lift chair, leaving her “in a very severe slouch”
position. With the skis and snowboard still entangled and believing she
“would be able to get back on” properly, Carly did not attempt to maneuver
away from the chair as it proceeded five to ten feet along a cable wire before
beginning its ascent.
¶3 Upon realizing Carly’s precarious position, Vincent and
Andrew grabbed her arms, turned toward the ski lift operator, and yelled
for him to “stop” the ski lift. As other ski lift passengers became aware of
the situation, they also began shouting at the operator for help. By that time,
however, the operator was attending to other skiers in the load line and
could not hear the passengers’ pleas over the sound of blaring music.
Andrew and Vincent tried to hold onto Carly, but as she began to slip from
their grasp, they determined they would have to let her go. When their chair
traveled over powdered snow, Vincent and Andrew dropped Carly,
hoping the unpacked snow would provide a safe landing. Carly fell over 34
feet but “popped right up” and waved to Vincent and Andrew upon
landing.
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MCCAW, et al. v. ARIZONA SNOWBOWL
Opinion of the Court
¶4 After the ski lift incident, the McCaws resumed their normal
lives and activities. However, Carly, Vincent, and Andrew began having
recurring nightmares.
¶5 Alleging the ski lift incident caused them “emotional distress”
and “psychiatric injuries,” the McCaws filed a negligence complaint against
Snowbowl. Snowbowl answered, denying liability, and moved for
summary judgment. Specifically, Snowbowl asserted that it “owed no
duty” to the McCaws under the Act. Snowbowl also claimed that the
McCaws failed to present evidence they sustained emotional distress
“result[ing] in the kind of bodily manifestation of physical injury or illness
cognizable under Arizona law.”
¶6 After oral argument on the motion, the superior court granted
summary judgment in favor of Snowbowl, agreeing that the ski area
operator owed no duty to the McCaws. The superior court found that the
Act “comprehensively defines the duties of skiers and the duties of a ski
area operator.” Construing the Act’s provisions, the court determined that
“the duty to safely (1) load, (2) ride, and (3) unload a chair lift is the skier’s
exclusive duty and not a duty of the ski area operator.” Without ruling on
Snowbowl’s alternative argument regarding insufficient evidence of
cognizable damages, the superior court dismissed the matter with
prejudice.1
¶7 Over the McCaws’ objection, the superior court awarded
Snowbowl its requested costs and entered a final judgment in its favor. The
McCaws timely appealed.
DISCUSSION
¶8 The McCaws challenge the superior court’s summary
judgment ruling, contending Snowbowl owed them a duty to monitor the
ski lift and promptly intercede when the misloading occurred. Disagreeing
with the superior court’s determination that the Act assigns all duties
related to ski lift safety “exclusively” to skiers, the McCaws argue that the
Act provides ski area operators the affirmative defenses of contributory
negligence and assumption of the risk. As a corollary, and for the first time
on appeal, the McCaws assert that the superior court’s ruling violated
Article 18, Section 5, of the Arizona Constitution by infringing on their right
1 Contrary to Snowbowl’s assertion, the superior court did not enter a
“ruling” regarding the legal sufficiency of the McCaws’ damages evidence.
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MCCAW, et al. v. ARIZONA SNOWBOWL
Opinion of the Court
to have a jury determine the existence or extent of their contributory
negligence and assumption of risk.
¶9 In reviewing a grant of summary judgment, we view the facts
and the reasonable inferences drawn from those facts in the light most
favorable to the non-moving party and affirm “if the evidence produced in
support of the defense or claim has so little probative value that no
reasonable person could find for its proponent.” State Comp. Fund v. Yellow
Cab Co. of Phx., 197 Ariz. 120, 122, ¶ 5 (App. 1999). We review de novo the
superior court’s application of the law. Id.; see also Ariz. R. Civ. P. 56(a)
(“The court shall grant summary judgment if the moving party shows that
there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.”).
¶10 “To establish a claim for negligence, a plaintiff must prove
four elements: (1) a duty requiring the defendant to conform to a certain
standard of care; (2) a breach by the defendant of that standard; (3) a causal
connection between the defendant’s conduct and the resulting injury; and
(4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). “Whether
the defendant owes the plaintiff a duty of care is a threshold issue[,]” subject
to our de novo review. Id. at ¶¶ 9, 11; Guerra v. State, 237 Ariz. 183, 185, ¶ 7
(2015). To survive a motion for summary judgment, the plaintiff must show
a duty exists; “absent some duty, an action for negligence cannot be
maintained.” Quiroz v. ALCOA Inc., 243 Ariz. 560, 563, ¶ 2 (2018); Gipson,
214 Ariz. at 143, ¶ 11.
¶11 A duty is an “obligation, recognized by law, which requires
the defendant to conform to a particular standard of conduct in order to
protect others against unreasonable risks of harm.” Gipson, 214 Ariz. at 143,
¶ 10 (quotation and citation omitted). “The existence of a duty of care is a
distinct issue from whether the standard of care has been met in a particular
case.” Id.; Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 355 (1985) (noting the
existence of a duty must not “be confused with details of the standard of
conduct” required to satisfy the duty); see also Stephens v. Bashas’ Inc., 186
Ariz. 427, 431 (App. 1996) (explaining that the existence of a duty must be
determined “on the basis of the parties’ relationship, not on the details of
their conduct”).
¶12 “As a legal matter, the issue of duty involves generalizations
about categories of cases.” Gipson, 214 Ariz. at 143, ¶ 10. “Thus, a conclusion
that no duty exists is equivalent to a rule that, for certain categories of cases,
defendants may not be held accountable for damages they carelessly cause,
no matter how unreasonable their conduct.” Id. at 143-44, ¶ 11.
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MCCAW, et al. v. ARIZONA SNOWBOWL
Opinion of the Court
¶13 “Duties of care may arise from special relationships based on
contract, family relations, or conduct undertaken by the defendant,” as well
as from public policy considerations. Id. at 145, ¶¶ 18, 23. “Foreseeability of
harm is not a relevant consideration in determining the threshold legal
issue of whether a duty exists, nor are case-specific facts.” Guerra, 237 Ariz.
at 185, ¶ 8; see also Quiroz, 243 Ariz. at 563, ¶ 2; Gipson, 214 Ariz. at 144,
¶ 15.
¶14 In this case, the McCaws assert that Snowbowl owed them a
duty of care based on their special relationship and status as Snowbowl’s
business invitees. “A business visitor is a person who is invited to enter or
remain on land for a purpose directly or indirectly connected with business
dealings with the possessor of the land.” Nicoletti v. Westcor, Inc., 131 Ariz.
140, 143 (1982) (internal quotations and citations omitted). Under the
common law, a business owner has a duty to both maintain its premises in
a reasonably safe condition and conduct its business in a reasonably safe
manner to avoid causing injury to invitees. Stephens, 186 Ariz. at 430-31; see
also Restatement (Second) of Torts § 343 cmt. b (1965) (stating that “an
invitee enters [land] upon an implied representation or assurance that [it]
has been prepared and made ready and safe for his reception”).
¶15 It is undisputed that the McCaws were Snowbowl’s business
invitees at the time of the ski lift incident. The question is whether the Act
abrogates common-law negligence principles, relieving ski area operators
of a duty of care they would otherwise owe to ski lift passengers.
¶16 “When interpreting a statute, our primary goal is to give effect
to the legislature’s intent.” Wilks v. Manobianco, 237 Ariz. 443, 446, ¶ 8 (2015)
(quotation and citation omitted). To derive that intent, we consider the
“statutory language in view of the entire text, considering the context and
related statutes on the same subject.” Nicaise v. Sundaram, 245 Ariz. 566, 568,
¶ 11 (2019). “If the language is clear and unambiguous,” we follow the text
as written and “need not resort to other methods of statutory construction.”
Indus. Comm’n of Ariz. v. Old Republic Ins. Co., 223 Ariz. 75, 77, ¶ 7 (App.
2009). Only if a statute is ambiguous will we examine “the statute’s history,
context, consequences, and purpose.” Wilks, 237 Ariz. at 446, ¶ 8. When
statutes relate to the same subject or general purpose, they “should be read
in connection with, or should be construed with other related statutes, as
though they constituted one law.” Pinal Vista Props., L.L.C. v. Turnbull, 208
Ariz. 188, 190, ¶ 10 (App. 2004) (quotation and citation omitted). “Further,
each word or phrase of a statute must be given meaning so that no part is
rendered void, superfluous, contradictory or insignificant.” Id.5
MCCAW, et al. v. ARIZONA SNOWBOWL
Opinion of the Court
¶17 “If the legislature seeks to preempt a cause of action[,] . . . the
law’s text or at least the legislative record should say so explicitly.” Orca
Commc’ns Unlimited, LLC v. Noder, 236 Ariz. 180, 182, ¶ 10 (2014) (quotation
and citation omitted). “Absent a clear manifestation of legislative intent to
displace a common-law cause of action, we interpret statutes with every
intendment in favor of consistency with the common law.” Id. (quotation
and citation omitted); see also A.R.S. § 1-201 (“Adoption of common law;
exceptions”). To be clear, “it is not the function of the courts to rewrite
statutes,” and we will not “interpret a statute in favor of denial or
preemption of tort claims - even those that are not or may not be
constitutionally protected - if there is any reasonable doubt about the
legislature’s intent.” Id. at ¶¶ 10-11 (quotations and citations omitted).
¶18 In 1997, the legislature enacted the Act, A.R.S. §§ 5-701
through -707, which regulates ski areas and delineates the responsibilities
of both operators and skiers. Section 5-702 requires ski area operators to
“prominently display signs” outlining “pertinent information for the
protection and instruction” of ski lift passengers. A.R.S. § 5-702(A), (B). As
relevant here, ski area operators must post a sign at the loading point of
each ski lift admonishing “any person not familiar with the operation” of
the ski lift to “ask ski area personnel for assistance and instruction.” A.R.S.
§ 5-702(B)(1) (emphasis added). In addition, ski area operators must place
a sign on the interior of each ski lift chair “that gives instructions for procedures
in the case of emergencies.” A.R.S. § 5-702(B)(3) (emphasis added). Similarly,
A.R.S. § 5-703 requires ski area operators to display signs containing
“pertinent information for the protection and instruction of skiers.” Among
the required postings, ski area operators must display signs indicating the
difficulty level of each slope and trail. A.R.S. § 5-703(B), (C). Ski area
operators must also clearly mark the ski area boundaries and either place a
warning sign or rope off closed areas. A.R.S. § 5-703(D), (F). Apart from
posting signs at designated areas, ski area operators must maintain certain
equipment, A.R.S. § 5-704, and mark all ski lift tickets and passes with the
following admonition:
Warning: Under Arizona law, a skier accepts the risk of any
injury to person or property resulting from any of the inherent
dangers and risks of skiing, including changing weather
conditions, existing and changing snow surface conditions,
surface or subsurface conditions, whether marked or
unmarked, collisions with natural or man-made objects,
whether marked or unmarked and the failure of skiers to ski
within their own abilities.
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MCCAW, et al. v. ARIZONA SNOWBOWL
Opinion of the Court
A.R.S. § 5-703(G). This mandatory warning derives from A.R.S. § 5-701(5)’s
definition of “[i]nherent dangers and risks of skiing”:
[T]hose dangers or conditions that are an integral part of the
sport of skiing, excluding acts of ordinary or gross negligence,
or reckless or intentional conduct on the part of the ski area
operator. Inherent dangers and risks of skiing include:
(a) Changing weather conditions.
(b) Existing and changing snow surface conditions,
such as ice, hard pack, powder, packed powder, wind pack,
corn, crust, slush, cut-up and machine-made snow.
(c) Surface or subsurface conditions, whether marked
or unmarked, such as bare spots, forest growth, rocks,
stumps, streambeds, trees or other natural objects.
(d) Impacts with lift towers, signs, posts, fences or
other enclosures, hydrants, water pipes or other man-made
structures and their components, whether marked or
unmarked.
(e) Variations in steepness or terrain, including roads,
catwalks and other terrain modifications, whether natural or
as a result of slope design, snowmaking or grooming
operations.
(f) Collisions with other skiers.
(g) The failure of skiers to ski within their own abilities.
(Emphasis added.)
¶19 In turn, A.R.S. § 5-705 outlines the “duties of a skier” for
purposes of “any civil action brought by a skier against a ski area operator.”
First and foremost, A.R.S. § 5-705(1) provides that “[a] skier expressly accepts
the total risk of and all legal responsibility for injury to person or property
resulting from any of the inherent dangers and risks of skiing.” (Emphasis
added.) Specific to this appeal, subsection (2) states: “Before using a chair
lift . . . a skier shall have the knowledge and ability to safely load, ride and
unload from the device,” and subsection (5) states: “A skier shall heed all
posted information, signs and other warnings and shall refrain from acting
in a manner that may cause or contribute to the injury of the skier or other
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MCCAW, et al. v. ARIZONA SNOWBOWL
Opinion of the Court
persons or property.” A.R.S. § 5-705(2), (5). The remaining enumerated
duties pertain to skiers’ conduct on slopes and trails. A.R.S. § 5-702(3), (4),
(6)-(12).
¶20 Reading these related provisions together, the legislature
adopted an analytical framework under which skiers assume all legal
responsibility for injuries arising out of the inherent dangers of skiing while ski
area operators retain common-law liability for both ordinary and gross
negligence. As part of this framework, the legislature also imposed duties on
ski area operators and skiers. Sections 5-702 to -704 impose certain posting
and equipment maintenance duties on ski area operators, the breach of
which constitutes negligence per se. Likewise, A.R.S. § 5-705 imposes
certain responsibilities on skiers, the violation of which constitutes a
defense to a civil action. This reading is consistent with the plain language
of the Act.
¶21 While no previous Arizona case has interpreted the Act,
courts in numerous other jurisdictions have construed similar ski safety acts
enacted by their legislatures. Although not controlling, we find the two-tier
assumption of risk analysis conceptualized in many of these out-of-state
cases persuasive.
¶22 Under the first tier, or “primary assumption of risk,” a ski area
operator owes no duty to a skier as a matter of law, and a negligence action
cannot stand. Van Dyke v. S.K.I. Ltd., 79 Cal. Rptr. 2d 775, 778 (Cal. Ct. App.
1998); see also Lopez v. Ski Apache Resort, 836 P.2d 648, 653 (N.M. Ct. App.
1992) (“[P]rimary assumption of the risk is an alternative expression for the
proposition that the defendant . . . owed no duty to the plaintiff.”). The
primary assumption of the risk principle applies only when the plaintiff has
engaged in a sport, or other activity regarded as dangerous and “the injury
suffered arises from an inherent risk in the activity.” Van Dyke, 79 Cal. Rptr.
2d at 778 (emphasis added); see also Jagger v. Mohawk Mountain Ski Area, Inc.,
849 A.2d 813, 828 (Conn. 2004) (“[F]or inherent hazards, ski area operators
owe skiers no duty of care and skiers assume the risk of those hazards in
the primary sense.”); Murray v. Great Gorge Resort, Inc., 823 A.2d 101, 106
(N.J. Super. Ct. Law Div. 2003) (“In the skiing context, an inherent risk is
one that cannot be removed through the exercise of due care if the sport is
to be enjoyed.” (citation omitted)); Horvath v. Ish, 979 N.E.2d 1246, 1251
(Ohio 2012) (“To be covered under the [primary-assumption-of-the-risk]
doctrine, the risk must be one that is so inherent to the sport or activity that
it cannot be eliminated.” (citation omitted)). Determining what constitutes
an “inherent risk” presents a legal question for the court. Van Dyke, 79 Cal.
Rptr. 2d at 778.
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MCCAW, et al. v. ARIZONA SNOWBOWL
Opinion of the Court
¶23 In contrast, under the secondary assumption of the risk tier,
both the ski area operator and the skier have reciprocal responsibilities. See
Horvath, 979 N.E.2d at 1251 (determining the duties of operators and skiers
“are reciprocal,” with “skiers ow[ing] ski-area operators certain
enumerated responsibilities”); see also Jagger, 849 A.2d at 828 (“For those
hazards which are not an innate part of the sport of skiing, or over which
an operator can act reasonably to eliminate or minimize the potential for
harm, operators owe skiers a duty of reasonable care.”). Whether the parties
breached their respective duties of care, and the comparative negligence of
the parties, if any, present questions of fact for a jury. See Jagger, 849 A.2d at
829.
¶24 Applied to the Act, the primary assumption of risk tier
governs any injury arising from the “inherent dangers and risks of skiing,”
as statutorily defined. A.R.S. §§ 5-705(1), -701(5). Because a ski area operator
owes no duty to eliminate or guard against risks inherent to skiing, it is only
liable for a plaintiff’s injuries arising out of the dangers inherent to skiing if
it breached its posting and equipment requirements as delineated in A.R.S.
§§ 5-702 through -704, thereby contributing to the injuries sustained. “This
is a rational solution for limiting ski area operators’ liability and promoting
safety.” Grieb v. Alpine Valley Ski Area, Inc., 400 N.W.2d 653, 656 (Mich. Ct.
App. 1986); see also Gipson, 214 Ariz. at 146, ¶ 29 (“When a court or
legislature adopts a no-duty rule, it generally does so based on concerns
that potential liability would chill socially desirable conduct or otherwise
have adverse effects.”).
¶25 When an injury does not arise out of a risk inherent to skiing,
common-law negligence principles apply, including a duty of care owed to
business invitees. See Horvath, 979 N.E.2d at 1251. Because an operational
failure with a ski lift is not an “inherent risk” of skiing, as that term is
statutorily defined, the Act does not immunize a ski area operator from
liability for ski lift negligence. See Pietruska v. Craigmeur Ski Area, 614 A.2d
639, 641 (N.J. Super. Ct. Law Div. 1992) (“Improper operation of a ski lift is
not an inherent risk of skiing since, with due care, it can be eliminated.
While the [ski safety act] imposes certain duties on a skier who uses a lift, it
does not identify proper usage thereof as an inherent risk.”). This, too, is a
rational solution because, unlike the slopes and trails, where a skier has
“freedom of movement and choice,” a skier has no control over the
movement of a ski lift. See Mannhard v. Clear Creek Skiing Corp., 682 P.2d 64,
66 (Colo. Ct. App. 1983).
¶26 In sum, the Act provides a liability framework that generally
maintains common-law negligence principles while immunizing ski area
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Opinion of the Court
operators from lawsuits for injuries arising from the inherent risks of skiing.
By its clear terms, the Act imposes a duty on skiers to have the knowledge
and ability to safely load, ride, and unload from a ski lift, but it does not
identify passage on a ski lift as an inherent risk of skiing. Indeed, other
provisions in the Act demonstrate that a ski area operator owes a duty of
care to ski lift passengers. For example, A.R.S. § 5-702(B)(1) requires ski area
operators to assist inexperienced passengers in loading ski lifts, and A.R.S.
§ 5-702(B)(3) requires ski lift operators to have predetermined emergency
procedures in place in the event of a ski lift mishap. While the Act charges
a ski lift passenger with a duty of care to safely ride a ski lift,2 it does not
relieve a ski area operator of the common-law duty to maintain and operate
ski lifts with care for its business invitees. Had the legislature intended to
foreclose a passenger from bringing a negligence claim against a ski area
operator for an injury arising out of passage on a ski lift, it was required to
do so by expressly abrogating the common law and including passage on a
ski lift within the enumerated inherent risks of skiing. Young v. Beck, 227
Ariz. 1, 4, ¶ 13 (2011) (“We generally do not find that a statute changes
common law unless the legislature clearly and plainly manifests an intent
to have the statute do so.” (cleaned up)). Absent express preemption
language, we will not construe the Act as barring common-law negligence
claims. See Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 72 (Colo.
1998) (“A ski lift operator must exercise the highest degree of care
commensurate with the lift’s practical operation . . . .”); D’Amico v. Great
Am. Recreation, Inc., 627 A.2d 1164, 1166-67 (N.J. Super. Ct. Law Div. 1992)
(concluding ski lift operators “should be held to the highest standard of
care” because a “skier has no ability to stop the cable from moving” and
cannot “exit the chair once it has begun its ascent”).
¶27 Having determined that ski area operators owe a duty of care
to maintain and operate ski lifts safely and that passengers owe a duty of
care to safely board, ride, and disembark ski lifts, whether Snowbowl or the
McCaws, or both, breached their respective duties presents a question of
2 The McCaws posit that A.R.S. § 5-705(2) requires ski lift passengers
only to possess the requisite knowledge to safely ride a ski lift, without
requiring them to conform to that knowledge for both their protection and
the safety of others. Stated differently, the McCaws argue that ski lift
passengers have no duty to safely ride ski lifts under the Act. We reject this
construction as nonsensical. See Walgreen Ariz. Drug Co. v. Ariz. Dep’t of
Revenue, 209 Ariz. 71, 73, ¶ 12 (App. 2004) (explaining courts “interpret
statutes to give them a fair and sensible meaning and to avoid absurd
results”).
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Opinion of the Court
fact.3 See Wilks, 237 Ariz. at 447, ¶ 15. Therefore, the superior court erred by
granting summary judgment in Snowbowl’s favor on the basis that it owed
no duty as a matter of law.4
CONCLUSION
¶28 For the foregoing reasons, we vacate the superior court’s
summary judgment ruling and award of costs and remand for proceedings
consistent with this opinion. In their briefing, the McCaws requested their
attorneys’ fees incurred on appeal, failing to cite any supporting legal
authority, but withdrew their request at oral argument. We award the
McCaws their costs incurred on appeal, conditioned upon compliance with
ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: JT
3 In this case, the extent of the plaintiffs’ contributory negligence, if
any, must be determined individually.
4 Given our resolution of the duty issue, we need not address the
McCaws’ constitutional claim.
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