Opinion
No. 1 CA-CV 15-0470
12-06-2016
DONALD JAMES EARL, Plaintiff/Appellant, v. STATE OF ARIZONA, and its Department of Economic Security, a public entity; HILLARY ARNEY, individually and in her capacity as an employee of Child Protective Services; MICHELLE SLATER, individually and in her capacity as an employee of Child Protective Services, Defendants/Appellees.
COUNSEL Ellinwood & Francis, LLP, Tucson By Ralph E. Ellenwood, D. Tyler Francis Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By James B. Bowen Counsel for Defendants/Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2013-009901
The Honorable Douglas Gerlach, Judge
AFFIRMED
COUNSEL Ellinwood & Francis, LLP, Tucson
By Ralph E. Ellenwood, D. Tyler Francis
Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Phoenix
By James B. Bowen
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Donn Kessler joined. HOWE, Judge:
¶1 Donald Earl appeals the trial court's order granting judgment as a matter of law in his wrongful death action in favor of the State and Child Protective Services employees Hillary Arney and Michelle Slater. Earl argues that DCS did not properly move for judgment as a matter of law. Earl also argues that the trial court erred by requiring that, to prove DCS's negligence, Earl had to first establish that a trial court would have granted a dependency action. For the following reasons, we affirm.
The Division of Child Protective Services of the Arizona Department of Economic Security was subsequently renamed the Department of Child Safety (DCS). See S.B. 1001, 51st Leg., 2nd Spec. Sess. (Ariz. 2014). For consistency, we refer to the State, Child Protective Services, Department of Child Safety, and Child Protective Services employees Arney and Slater as "DCS." --------
FACTS AND PROCEDURAL HISTORY
¶2 On March 22, 2012, Earl's son, Destin, received second-degree burns on his leg after being placed next to a space heater. This occurred while his mother, Kalie Carr, and Earl had both been drinking and arguing. Destin was taken to the hospital, where DCS investigator Hillary Arney interviewed Carr and Destin's paternal grandmother in person, and then Earl by phone. Carr admitted to drinking that night. Arney asked the doctor for her recommendation as to whom Destin should be released, and the doctor stated in writing that the child should go home with paternal grandmother because "mother is unsafe to take child." Arney, Earl, Carr, and paternal grandmother all agreed that Destin and his brother would go home with paternal grandmother and that Earl and Carr would wait 24 hours before seeing the children.
¶3 Shortly after the incident, paternal grandmother filed for and received temporary guardianship of Destin and his brother. Because paternal grandmother had guardianship, Arney had no reason to immediately pursue temporary custody or initiate a dependency action. This allowed Arney to refer the parents for voluntary services and to further investigate the incident.
¶4 Both Earl and Carr participated in a substance abuse assessment. Carr's assessment concluded that she had a high probability of substance abuse dependency. Carr also completed an assessment at the local counseling center, which recommended she have individual counseling sessions. After participating in the services for a short time, Carr informed Arney that she would not continue with any of the voluntary services.
¶5 On or about April 25, Arney learned that paternal grandmother had ended the guardianship of the two children. Paternal grandmother informed the court that she wanted to dismiss the guardianship because she felt "comfortable knowing that the boys w[ould] be with the [maternal great-grandmother] and . . . safe and taken care of." Considering paternal grandmother's belief that the children would be safe and Carr's indication that she would no longer participate in services, Arney sought guidance from her superiors about whether she should close the case. Arney's supervisor, Michelle Slater, discussed with Arney the option of continuing the case, but ultimately decided against continuation. Following this discussion, DCS decided to close the case for multiple reasons. Although DCS knew that service providers thought Carr would continue to need services, the offered services were only voluntary. Additionally, Carr would have support taking care of the children because she was living with her grandparents and other relatives.
¶6 On May 14, two days after paternal grandmother returned the children to Carr, Destin died from what appeared to have been accidental positional asphyxiation while sleeping in a papasan chair.
¶7 Earl sued the defendants for the wrongful death of Destin, arguing that by returning him to his mother's custody he was subject to a foreseeable risk of harm, which ultimately resulted in his abuse, neglect, and death. Before trial, both parties stipulated to the admission of Exhibit 9 into evidence. That exhibit was a June 2014 DCS report that described the circumstances of Destin's death. In the report, the DCS employee noted her belief that Destin's death might have been preventable and also set forth the reasons why its author believed DCS should pursue a dependency for Destin's brother. The DCS employee stated that while the death was accidental, it had come about as a result of the mother's choice of sleeping arrangements for the child. At trial, Earl presented the testimony of three DCS employees to establish that DCS had options other than returning Destin to Carr's custody.
¶8 After Earl rested his case, the trial court asked for any motions, and DCS moved for a judgment as a matter of law pursuant to Arizona Rule of Civil Procedure 50. Shortly after DCS began its argument, the court stated, "I don't mean to cut you off, but let me short-circuit this," and then asked if DCS was "moving under Rule 50 because [the plaintiff] failed to prove their case?" DCS agreed. The trial court noted that the burden of proof rested on plaintiff to show that (i) Ms. Carr's negligence caused the child's death, and then (ii) DCS was responsible for that death by failing to take action that would have removed the child from his mother's care. The court then asked Earl's counsel what evidence Earl had submitted to prove that DCS or Carr caused Destin's death. Earl argued that Exhibit 9 contained sufficient evidence to satisfy each of those elements. The trial court disagreed and found insufficient evidence had been presented to prove the elements. The court ultimately granted DCS's motion for judgment as a matter of law.
DISCUSSION
1. Rule 50 Motion
¶9 Earl first argues that the Rule 50 motion was not properly brought before the court. We review this question of law de novo. See League of Ariz. Cities & Towns v. Brewer, 213 Ariz. 557, 559 ¶ 7, 146 P.3d 58, 60 (2006) (questions of law reviewed de novo). Earl contends that the trial court initiated the motion and abused its discretion by intervening. After the plaintiff rested, the trial court asked for motions, and DCS moved for judgment as a matter of law. The trial court asked if DCS based its motion on Earl's failure to prove his case, and DCS agreed. While Rule 50(a)(2) describes how to bring a motion for a judgment as a matter of law, technical precision is not required so long as the trial court is sufficiently informed of the moving party's position. A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cty., 222 Ariz. 515, 524 ¶ 13 n.8, 217 P.3d 1220, 1229 n.8 (App. 2009). The record shows that the trial court asked Earl's counsel numerous questions about the evidence Earl had provided to prove the causation element of the negligence claim. This clearly indicates that the court understood where Earl's claim lacked sufficient evidence.
¶10 In this case, the trial court allowed DCS to briefly articulate its argument why Earl had not proved his case before articulating the court's view of why the evidence was insufficient to submit the case to the jury based on proximate causation. We disagree with Earl's contention that the court in essence became an advocate for DCS. Rather, the court was only trying to have Earl efficiently address what the court saw as the deficiency in Earl's case-in-chief. While it might have been advisable to at least allow DCS to fully articulate the reasons it thought judgment as a matter of law was proper, on this record we find no error.
2. Negligence Claim
¶11 Earl next argues that the trial court erred by granting DCS's motion because he provided sufficient evidence for the jury to conclude that DCS negligently caused him injury. We review the trial court's grant of a Rule 50 judgment as a matter of law de novo, and view the evidence in the light most favorable to the party opposing the motion. Cty. of La Paz v. Yakima Compost Co., 224 Ariz. 590, 596 ¶ 5, 233 P.3d 1169, 1175 (App. 2010). We will uphold a trial court's ruling "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 117 ¶ 21 n.5, 180 P.3d 977, 282 n.5 (App. 2008). Because Earl provided insufficient evidence to establish proximate causation, DCS was entitled to judgment as a matter of law.
¶12 "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, 150 P.3d 228, 230 (2007). Proximate cause and causation in fact are defined as "that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produced an injury, and without which the injury would not have occurred." Salica v. Tucson Heart Hosp.-Carondelet, LLC, 224 Ariz. 414, 418 ¶ 13, 231 P.3d 946, 950 (App. 2010). Causation is usually a question of fact for the jury to decide "unless reasonable persons could not conclude that a plaintiff had proved this element." Id. at 419 ¶ 16, 231 P.3d at 951. Additionally, the occurrence of an accident that results in injury, does not, in and of itself, constitute proof that someone's negligence caused the accident. See Ward v. Mount Calvary Lutheran Church, 178 Ariz. 350, 355, 873 P.2d 688, 693 (App. 1994).
¶13 Here, causation is at issue. For Earl to prevail, he must first present sufficient evidence to establish that Carr's negligence proximately caused Destin's death. Earl does not dispute this and agrees that if Destin died through no fault of Carr, then DCS would not be at fault. To show that Carr negligently caused Destin's death, Earl relies solely on Exhibit 9. Exhibit 9, authored by a DCS employee, states that the cause of death was accidental positional asphyxiation. However, a DCS employee is clearly not authoritative concerning the cause of death. Earl argues that Exhibit 9 provided evidence that Carr was negligent because a DCS employee thought the death was preventable due to Destin's sleeping arrangements. But because the cause of death is at issue, Earl needed to provide sufficient evidence to a reasonable degree of probability that Destin died from positional asphyxiation, which was caused by the way he was put in the papasan chair.
¶14 Earl did not, however. Earl provided insufficient evidence establishing that the way Carr allowed Destin to sleep led to his death and no evidence excluding other possible explanations for Destin's death. Although jurors are allowed to make inferences from the evidence, the evidence here is insufficient to establish causation because it shows only a possibility that Destin's death was caused by his sleeping position. See Butler v. Wong, 117 Ariz. 395, 396, 573 P.2d 86, 87 (App. 1977) (recognizing that testimony establishing only the possibility that an act or omission caused injury, without more, is insufficient to establish causation); see also Badia v. City of Casa Grande, 195 Ariz. 349, 357 ¶ 29, 988 P.2d 134, 142 (App. 1999) ("Sheer speculation is insufficient to establish the necessary element of proximate cause"). Because Earl failed to provide evidence to a reasonable degree of probability that the sleeping arrangement caused Destin's death, the trial court did not err by finding that Earl failed to show sufficient evidence that Carr proximately caused the death. Additionally, because Earl provided insufficient evidence to show causation of death, we need not opine on whether Earl needed to prove a successful dependency action.
CONCLUSION
¶15 For the foregoing reasons, we affirm.