Ramey v. Wadlington

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE SHAWN RAMEY, Plaintiff/Appellant, v. WILLIAM PERRY WADLINGTON, Defendant/Appellee. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/12/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0109 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Mohave County Cause No. CV 2007-0088 The Honorable Charles W. Gurtler, Jr., Judge AFFIRMED Vannah & Vannah By Matthew R. Vannah Attorneys for Plaintiff/Appellant Lewis Brisbois Bisgaard & Smith LLP By Stephen D. Hoffman and Ron Beach and Karen L. Karr Attorneys for Defendant/Appellee N O R R I S, Judge Las Vegas, NV Phoenix ¶1 son This appeal arises out of an aggravated assault by the of William Perry Wadlington ( Shawn ) in January, 2006. ( Bill ) on Shawn Ramey The superior court ruled, as a matter of law, Bill was not liable for his son s assault on Shawn under theories. either direct negligence or agency liability We agree with the superior court Bill was entitled to summary judgment and affirm its ruling. FACTS AND PROCEDURAL BACKGROUND1 ¶2 At the time of the assault, Bill was 89 years old and received in-home care from Cathy, Shawn s wife. Cathy began working for Bill at his home in late 2005. ¶3 Shawn worked out-of-town during the week, and returned and lived with Cathy and Bill on weekends. Bill was aware of this arrangement. ¶4 Cathy and Shawn knew Bill s 59-year-old son, William Mike Wadlington ( Mike ), and considered him a friend. Cathy testified Mike was disabled and needed assistance after taking ten or 12 steps. ¶5 Cathy s friend Roxanne stayed at Bill s home on the night of January 19, 2006. Cathy introduced Roxanne to Bill. Roxanne had also met Mike a few times. 1 We view the facts and reasonable inferences to be drawn from those facts in the light most favorable to Shawn, the nonmoving party. Verma v. Stuhr, ___ Ariz. ___, ___ ¶ 23, n.2, ___ P.3d ___, ___ n.2, 2009 WL 3517672 (Ariz. App. Oct. 29, 2009). 2 ¶6 Shawn arrived at Bill s home for his weekend visit with Cathy shortly after 3:00 p.m. on January 20, 2006. Around 4:00 p.m., Shawn, Cathy, and Roxanne left for McDonald s to buy dinner for themselves and Bill. ¶7 All three had been drinking. After they left, Bill called Mike. According to his police statement, Bill did not recognize a woman at his house and told [Mike] that someone was invading his home and he did not want her in the house whatsoever. Similarly, Mike told police Bill had called him and reported someone was invading his residence and he needed help. ¶8 Mike arrived at Bill s home before the three returned. Mike sat on a couch in the living room while Bill sat in a recliner across from Mike. According to his police statement, Mike had brought a knife for protection because he anticipated Roxanne was the uninvited woman and he would have to deal with her. ¶9 Bill told police that after Shawn, Cathy, and Roxanne returned, Mike told him the allegedly unknown woman was Roxanne, a friend of Cathy s. Roxanne left the living room for the bathroom and back bedroom. ¶10 Mike In her deposition, Cathy stated that upon her entrance right cleanliness away of Roxanne over. started Bill s house screaming and Cathy s at decision Mike told Cathy she was fired. 3 her about to the bring Cathy attempted to explain to Mike why Roxanne was there, stating Mike, it s only Roxanne and she stayed the night one night. ¶11 Shawn then told Cathy, Let s go, walked outside, and grabbed his bags. Mike continued to yell at Cathy for two or three minutes and at some point unsheathed his knife. Shawn then re-entered the home, got within inches of Mike s face and said: You re ungrateful, and you re not going to talk to my wife like this. She takes care of you and your father both. Mike interpreted Shawn s approach as an aggressive advancement and threat to my own safety. ¶12 Mike then stabbed Shawn. sat silently in his chair. During these events, Bill Mike was ultimately convicted of aggravated assault and incarcerated. ¶13 Shawn and Cathy sued Bill and Mike and alleged Bill negligently employ[ed] his son to evict the persons from his home and was vicariously liable because Mike was acting as Bill s agent or servant at the time of the stabbing. The Rameys ultimately obtained a default judgment against Mike; and Bill moved for summary judgment against them. In support of Bill s motion for summary judgment, Mike submitted an affidavit stating he acted alone and without direction or instruction from anyone. ¶14 Opposing summary judgment, Shawn argued Bill authorized Mike to confront the Rameys and the unknown woman, 4 and thus Mike functioned as Bill s agent. the stabbing was the natural and According to Shawn, probable consequence of Bill s call to Mike and it was inevitable Mike would confront Shawn. Consequently, the assault was foreseeable and Bill had a duty to protect Shawn. ¶15 In statements filed in support of the Rameys opposition to summary judgment, however, Bill and Shawn said Mike had had no previous altercations with Shawn, and Bill knew of no prior violent incidents between Mike and any other person. Bill remembered Mike used to have a Doberman Pincher and had been quite violent with the dog, but did not state when the incident had occurred. Further, Bill acknowledged Mike was disabled and stated Mike had no history of mental problems. ¶16 The superior court granted summary judgment to Bill, and signed a judgment stating there is no nexus between the telephone call and the incident, and there are no facts to support Bill either knew or should have known that Defendant William Michael Wadlington brought a knife with him or would have utilized the knife in the manner that he did. This appeal followed. DISCUSSION ¶17 On appeal, Shawn argues he presented sufficient evidence creating genuine issues of material fact Bill acted negligently in summoning Mike or 5 is responsible for Mike s attack under agency theories. judgment de novo. We review a grant of summary Wallace v. Casa Grande Union High Sch. Dist. No. 82, 184 Ariz. 419, 424, 909 P.2d 486, 491 (App. 1995). Summary judgment is warranted when 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. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990); see Ariz. R. Civ. P. 56(c)(1). A party opposing a summary judgment motion must supply sufficient competent evidence showing a genuine issue of fact. GM Dev. Corp. v. Cmty. Am. Mortgage Corp., 165 Ariz. 1, 5, 795 P.2d 827, 831 (App. 1990). I. Negligence ¶18 The necessary elements of a negligence claim are duty, breach, causation, and damages. 143, ¶ 9, 150 P.3d 228, Gipson v. Kasey, 214 Ariz. 141, 230 (2007). A jury ordinarily determines the issues of breach and causation, including whether the risk of harm is foreseeable. 231. Nevertheless, summary Id. at 144, ¶ 17, 150 P.3d at judgment is proper when the plaintiff fails to present sufficient evidence of forseeability and possible prevention of harm. Hill v. Safford Unified Sch. Dist., 191 Ariz. 110, 113, 952 P.2d 754, 757 (App. 1997) (citing 6 Martinez v. Woodmar IV Condominiums Homeowners Assoc., Inc., 189 Ariz. 206, 211, 941 P.2d 218, 223 (1997)). ¶19 On appeal, Shawn focuses his arguments on Bill s alleged breach of a specific duty as a landowner to warn Shawn, a guest, about a foreseeable assault or take other measures. Our review summary of the judgment complaint discloses and no Shawn s such response theory. opposing Accordingly, we decline to address Shawn s arguments concerning this theory of liability on appeal. See Webber v. Grindle Audio Prods., Inc., 204 Ariz. 84, 90, ¶ 26, 60 P.3d 224, 230 (App. 2002) (declining to consider an argument not raised in the superior court s summary judgment litigation). ¶20 But even assuming Bill owed Shawn a duty of care, Shawn failed to raise a triable issue of fact as to whether Bill breached that duty. was Mike s violence The essence of Shawn s negligence argument was foreseeable to Bill and thus Bill breached the standard of care by (1) summoning Mike to his home to help him, (2) allowing Mike to wait with a knife, and (3) allowing Mike to escalate a confrontation. evidence to the superior foreseeable, however. P.3d at 231 court Mike s Shawn presented no assault on Shawn was See Gipson, 214 Ariz. at 144, ¶ 16, 150 ( foreseeability often determines defendant acted reasonably under the circumstances ). 7 whether a ¶21 Specifically, was there violent is or nothing had the record propensity a in towards indicating Mike violence. The record contains no evidence Bill asked Mike to bring a knife, Mike unsheathed the knife in front of Bill before the three returned, or Bill and Mike discussed the knife or what Mike intended to do with the knife before the assault. Indeed, when asked by police whether Mike normally carried a knife, Bill replied: I, I can t answer that. admitted Mike did not have the I don t know. knife when the And, Shawn two men had visited Bill s home on prior occasions. ¶22 Nevertheless, Shawn argues Mike s violent behavior was foreseeable, pointing to Bill s acknowledgement previous vicious behavior with his dog. of Mike s In Arizona, a prior instance of aggressive conduct need not be the same type as the conduct at issue to create a triable issue of fact regarding foreseeability. Cf. Parsons v. Smithey, 109 Ariz. 49, 53, 504 P.2d 1272, 1276 (1973) ( Where it is alleged that the parents had knowledge of the child s particular disposition which was such that they should have known that he would commit a certain type of act, many types of evidence may be relevant ). However, Shawn failed to present the superior court with any evidence establishing Accordingly, when the Mike s superior conduct court with could the not dog occurred. determine whether Mike s prior conduct with his dog was relevant and capable of 8 creating a genuine issue of material fact. See Clark C.B. v. Fuller, 872 N.Y.S.2d 781, 781-82 (App. Div. 2009) (reversing denial of summary judgment; parent s knowledge of single prior altercation is not sufficient to establish knowledge of son s propensity to engage in violent or vicious conduct). ¶23 In light of this record, see also supra ¶ 15, the superior court properly granted negligence claim against Bill. summary judgment on the Cf. Pfaff By And Through Stalcup v. Ilstrup, 155 Ariz. 373, 374, 746 P.2d 1303, 1304 (App. 1987) (summary judgment to parent on negligent supervision theory based on absence of evidence child was violent or assaultive; thus, it cannot be said that there was a necessity to control the child or a foreseeable risk of injury of the type here involved ); Olson v. Staggs-Bilt Homes, Inc., 23 Ariz. App. 574, 577-78, 534 P.2d 1073, 1076-77 (1975) (home builder not liable as a matter of law for actions of its armed security guard who was not known to be vicious or careless). II. ¶24 Agency/Vicarious Liability Alternatively, Shawn argues he presented sufficient evidence of an agency relationship between Bill and Mike based on either actual authority or ratification. ¶25 We disagree. Agency is the fiduciary relationship that arises when one person (a principal) manifests assent to another person (an agent) that the agent shall act on [the principal s] behalf and 9 subject to [the principal s] control, and there is consent by the agent to act on behalf of the principal and subject to [the principal s] control. Dawson v. Withycombe, 216 Ariz. 84, 100, ¶ 43, 163 P.3d 1034, 1050 (App. 2007). A principal is subject to liability to a third party harmed by an agent s conduct when the conduct is within the scope of the agent s actual authority or ratified by the principal; and (1) the agent s conduct is tortious, or (2) . . . if [done by] the principal, would subject the principal to tort liability. § 7.04 (2006). Actual Restatement (Third) of Agency authority may be proved by direct evidence of express contract of agency between the principal and agent or by proof of ratification thereof. 215 Ariz. 589, 597, facts implying such contract or the Ruesga v. Kindred Nursing Ctrs., L.L.C., ¶ 29, 161 P.3d 1253, 1261 (App. 2007) (quoting Corral v. Fidelity Bankers Life Ins. Co., 129 Ariz. 323, 326, 630 P.2d 1055, 1058 (App. 1981)). ¶26 Agency is generally a question of fact to be determined by the jury. Schenks v. Earnhardt Ford Sales Co., 9 Ariz. 454 App. omitted). 555, 557, P.2d 873, 875 (1969) (citation If the facts viewed most favorably are insufficient to prove agency, it becomes a question of law for the court. Id. As the party asserting an agency relationship, Shawn had the burden of presenting a triable issue of fact that Mike was 10 Bill s agent. See Brown v. Ariz. Dep t of Real Estate, 181 Ariz. 320, 326, 890 P.2d 615, 621 (App. 1995). ¶27 Shawn produced no evidence of an express agency contract or any facts implying such a contract existed between Mike and Bill. Bill told Mike someone was invading his home and requested help but there is no evidence Bill expressly or impliedly authorized Mike to attack anyone. ¶28 Shawn also presented no evidence Bill ratified Mike s assault. Ratification occurs when a principal subsequently approves a previous unauthorized act by one claiming to act as an agent. Phoenix W. Holding Corp. v. Gleeson, 18 Ariz. App. 60, 66, 500 P.2d 320, 326 (1972) (quoting Young Mines Co. v. Citizens State Bank, 37 Ariz. 521, 528-29, 296 P. 247, 250 (1931)). Ratification is demonstrated by approval after the act, not during it or at any other time. Compare id. at 66, 500 P.2d at 326 (execution of deed did not constitute ratification because it States, 171 ratified occurred F. before Supp. managerial 2d alleged 566, employee s 577 act) with (M.D.N.C. assault Lee 2001) through v. United (employer affidavit of plant manager establishing plant manager believed employee was acting within assault).2 the scope of employment Here, Bill sat silently. 2 at the time of the Bill s silence during the Shawn relies on the Restatement (Second) of Agency § 94 cmt. a (1958) for the proposition silence can create an 11 assault cannot constitute a ratification, and, further, Shawn presented no evidence Bill approved of Mike s conduct after the incident. ¶29 But even if a material dispute of fact exists as to actual authority agency was invasion. to or help ratification, or protect the scope Bill from of a the alleged potential home The undisputed evidence, however, establishes Mike assaulted Shawn because Mike was upset with Cathy regarding the cleanliness of Bill s home and the guest she had invited over. Bill told police that after Shawn, Cathy, and Roxanne returned from McDonald s, Mike had told him the unknown woman was Roxanne and she had been to the house before. Cathy stated Mike yelled at her before Shawn confronted Mike. record shows confrontation. the stabbing for In her deposition, two or three See supra ¶ 11. occurred as a minutes Further, the result of this Thus, Mike s assault of Shawn was not within the scope of the alleged agency between Bill and Mike. Cf. Higgins v. Assmann Elecs., Inc., 217 Ariz. 289, 297, ¶ 29, 173 P.3d 453, 461 (App. 2007) (conduct within the scope of agency or employment may be either of the same nature as that authorized affirmation of an unauthorized transaction. The illustrations for this comment, however, involve contracts and sales in which a principal fails to speak up when an agent places an order in the principal s name or the agent agrees to board a horse in the principal s stable. Id. illus. 2 & 3. Nothing in the section, comments, or illustrations requires a principal to disavow a criminal assault. 12 or incidental to that authorized ) (quoting State Dept. of Admin. v. Schallock, 189 Ariz. 250, 257, 941 P.2d 1275, 1282 (1997)). CONCLUSION ¶30 For the foregoing reasons, we affirm summary judgment in favor of Bill. entitled to As the prevailing party on appeal, Bill is recover his costs on appeal, subject to his compliance with Arizona Rule of Civil Appellate Procedure 21. See Ariz. Rev. Stat. § 12-342 (2003). /s/ ___________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ ____________________________________ SHELDON H. WEISBERG, Judge /s/ ____________________________________ MARGARET H. DOWNIE, Judge 13

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