Beverly Carroll, Appellants-Plaintiffs v. United States of America, Appellee-Defendant

dissenting:

The Arizona Supreme Court’s answer to the question presented by my colleagues has no bearing at all on this case, which involves an agency of the United States Government, not a gratuitous lender. The theory that underlies the majority’s ques *753 tion appears to be that, because the government makes FmHA loans gratuitously, the appropriate private party analogue is the good Samaritan. This is not, and never has been, the law. The good Samaritan doctrine has been carefully circumscribed by the federal courts; it normally applies only where the activity in question has no analogue in the private sector. See, for example, Indian Towing Co. v. United States, 350 U.S. 61 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955) (operation of a lighthouse); Gill v. United States, 429 F.2d 1072 , 1075 (5th Cir.1970) (furnishing in-flight weather information to airplane pilots); Creasy v. United States, 645 F.Supp. 853 (W.D.Va.1986) (inspection and repair of premises); and Barnson v. United States, 531 F.Supp. 614 (D.Utah 1982) (inspection of mines). Here, there is a private sector analogue: a private commercial lender; there is no need to and no authority for resorting to a good Samaritan…

ORDER

The certification order and dissent filed on December 17, 1990 is redesignated a published order.

ORDER

1. This Court certifies that resolution by the Arizona Supreme Court of the following question of law set forth in Paragraph 2 will be determinative of a significant substantial question of law in the above-captioned ease.

2. Under Arizona law, would a person who gratuitously undertook to lend money to a person who then relied on his offer of the loan be liable under Restatement (Second) of Torts § 323 (1965) and McCutchen v. Hill, 147 Ariz. 401 , 710 P.2d 1056 (1985) if he negligently failed to make the loan, causing economic harm to the would-be borrower?

3. Counsel for the parties are Paul Carroll, Pro Se, 5205 West Thunderbird, # 1004, Glendale, Arizona 85306, (602) 938-6990 and Richard G. Patrick, Assistant United States Attorney, 230 North 1st Avenue, Room 4000, Phoenix, Arizona, 85025, (602) 261-3011.

4. No party to this certification process will be allowed to request attorney’s fees or any costs associated with this certification process.

5. This Order is effective fourteen (14) days after the date thereof.

6. The Order and six (6) certified copies shall…

923 F.2d 752 Beverly CARROLL, et al., Appellants-Plaintiffs, v. UNITED STATES of America, Appellee-Defendant. No. 89-15178. United States Court of Appeals, Ninth Circuit. Jan. 18, 1991. Paul Carroll, pro. per., Glendale, Ariz., for plaintiffs-appellants. Richard G. Patrick, Asst. U.S. Atty., Phoenix, Ariz., for defendant-appellee. Before: CHAMBERS, KOZINSKI and NOONAN, Circuit Judges. ORDER 1 The certification order and dissent filed on December 17, 1990 is redesignated a published order. ORDER 2 1. This Court certifies that resolution by the Arizona Supreme Court of the following question of law set forth in Paragraph 2 will be determinative of a significant substantial question of law in the above-captioned case. 3 2. Under Arizona law, would a person who gratuitously undertook to lend money to a person who then relied on his offer of the loan be liable under Restatement (Second) of Torts Sec. 323 (1965) and McCutchen v. Hill, 147 Ariz. 401 , 710 P.2d 1056 (1985) if he negligently failed to make the loan, causing economic harm to the would-be borrower? 4 3. Counsel for the parties are Paul Carroll, Pro Se, 5205 West Thunderbird, # 1004, Glendale, Arizona 85306, (602) 938-6990…