Broemmer v. Abortion Services of Phoenix
Supreme Court of Arizona, 1992.
173 Ariz. 148, 840 P.2d 1013.

Facts:

Broemmer went to an abortion clinic and signed three forms, one of which was an agreement to arbitrate any disputes. During the procedure, she suffered a punctured uterus, and then filed a malpractice suit.

Side Notes:

  • The clinic staff didn’t explain to her what she signing, and also didn’t provide her with any copies.
  • The agreement also required that any arbitrators be licensed medical doctors who specialized in obstetrics/gynecology.

History:

  • The trial court granted summary judgment for the defendants.
  • The court of appeals held that although the contract was one of adhesion, it didn’t fall outside the plaintiff’s reasonable expectations and was not unconscionable, and affirmed the trial court’s decision.

Issue:

Was the agreement to arbitrate enforceable?

Holding:

No. Case reversed.

Reasoning:

Reasonable Expectations Doctrine – minority rule.

Reasonable expectations doctrine:

  • Majority rule: The “reasonable expectations” doctrine is not recognized.
  • Minority rule: Where a drafter of a standard-form contract has reason to believe that the non-drafting party would not assent to the contract if she knew that the writing contained a particular term, the term is not part of the contract. Restatement (Second) of Contracts § 211(3).

Waiver of such fundamental rights was beyond her reasonable expectations:

  • She was under a great deal of emotional stress, had only a high school education, and didn’t even know what arbitration was.
  • How can it be within her expectations if she had no knowledge of what arbitration was?

Why was this not against public policy?

  • Arizona legislature said that they liked arbitration and that it’s good for society.

In determining whether the other party has reason to believe that the party manifesting such assent would not do so if he knew that the writing contained the particular term, such a belief or assumption may be

(1) shown by the prior negotiations, or

(2) inferred from the circumstances.

Reason to believe may be inferred

[1] from the fact that the term is bizarre or oppressive,

[2] from the fact that it eviscerates the non-standard terms explicitly agreed to, or

[3] from the fact that it eliminates the dominant purpose of the transaction. The inference is reinforced if the adhering party never had an opportunity to read the term, or if it is illegible or otherwise hidden from view.