§ 1.7.7.3 Tort-Based Indemnity. The third common law path to indemnification is tort-based indemnity provided to a joint tortfeasor who is not "actively" negligent, but is only "passively" or "secondarily" negligent in causing the same injury.91 This is the much debated Busy Bee indemnity doctrine in Arizona.92
In Busy Bee, judgement was entered against a co-partner/tenant (Partner A) of a restaurant for the negligence of his co-partner (Partner B) when a deliveryman fell through a trap door that Partner B had left open. A judgment was entered against Partner A and a judgment over was entered against Partner B for the amount of the judgment entered against Partner B. The Arizona Supreme Court held that both partners owed a duty to adequately warn their invitees of such potential or actual dangers. Nevertheless, although both partners were jointly and severally liable to the plaintiff, Partner B was "primarily liable" due to his role as the "active" tortfeasor, and Partner A was only "secondarily liable" due to his "passive" negligence in the matter.93 The court upheld the judgment over against Partner B as indemnity for the entire amount of the judgment entered against Partner A upon this basis.94 Thus, the doctrine of common law tort-based indemnity was born in Arizona.
For the past 60 years, however, the Busy Bee doctrine has spawned more questions than answers concerning what the Arizona Supreme Court meant by "passive" or "secondary" negligence as opposed to "active" or "primary" negligence. Did the court really mean to say or imply that indemnity rights among joint tortfeasors may be determined by a comparative analysis of the nature and degree of their respective negligence or fault? Arizona courts have consistently rejected that idea and, depending on how you look at it, the Busy Bee doctrine today is either dead and buried or, at the very least, is alive only to the limited extent "where the whole of the fault was in the one against whom indemnity is sought" and the one seeking indemnity is not "personally at fault in any way."95 Accordingly, like implied contractual indemnity, Busy Bee tort-based indemnity is an all-or-nothing proposition.96 Arizona courts have even called it a "general rule" that, in Arizona, with limited exceptions, "indemnity among joint tortfeasors is not allowed."97
The only exceptions to this "general rule" adhere to the requirement that the one seeking indemnity may not be personally at fault in any way.98 In Radcliffe v. Hilton Inn, for example, the Arizona Court of Appeals adopted and applied Restatement of Restitution
§ 90 to provide indemnity to a hotel security guard who unlawfully entered an occupied hotel room at the direction of the hotel's manager.99 The security guard's unlawful entry into the room, though authorized, was quite arguably the kind of "active" negligence that precludes indemnification. Nevertheless, the...
