Broemmer v. Abortion Services of Phoenix
173 Ariz. 148, 840 P.2d 1013 (Ariz. 1992)

  • Broemmer went to get an abortion.  The clinic asked her to fill out papers including an arbitration agreement that said if there was any dispute, it would be submitted to arbitration under the American Arbitration Association.
    • Arbitrator would be a doctor, and that's advantageous to the clinic.
      • Also, arbitrators tend to award less in damages than juries.
      • But, since some potential jury members are very against abortion conceptually, Broemmer might actually have been better off with the arbitrator.
  • Broemmer was injured during the procedure and sued for damages.  The clinic made a motion to dismiss, claiming that Brommer had signed a contract to go to arbitration, not the courts.
  • The Trial Court ruled that they did not have subject matter jurisdiction because the arbitration agreement was in effect.  They dismissed the case.  Broemmer appealed.
  • Appellate Court affirmed. Broemmer appealed.
    • The Appellate Court ruled that, although the contract was one of adhesion, it was enforceable because it was within reasonable expectations and was not unconscionable.
      • A contract of adhesion is a standardized form that essentially has a take it or leave it clause.
  • Arizona Supreme Court reversed and said that Broemmer can still sue, in spite of the arbitration agreement.
    • The Arizona Supreme Court said that there are two factors which must be considered:
      • What are the reasonable expectations of the adhering party?
      • Whether the contract is unconscionable. (It just seems wrong)
    • The Court found that there was unequal bargaining power.
    • The Court found that the agreement is out of line with Broemmer's reasonable expectations.
      • An adherent of a contract of adhesion won't be bound to unknown terms if those terms are beyond the range of reasonable expectations.  They will be bound to such terms if they are within the range of reasonable expectations.
  • There was a dissent that basically said that contracts of adhesion involve a duty to read.  It was very clear what the waiver said, so why is Broemmer allowed to get out of a clear contract that they signed?
  • In general, courts dislike clauses that limit liability in personal injury cases.