Propst v. Farnsworth

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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 JAYDEN PROPST, a minor, by and through ) ) his Next Friends, ROBERT A. PROPST ) and LISA M. PROPST, his parents, ) ) Plaintiffs/Appellants, ) ) v. ) JAY FARNSWORTH and CONNIE FARNSWORTH, ) ) husband and wife, ) ) Defendants/Appellees. _______________________________________ ) DIVISION ONE FILED: 09/16/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CV 09-0355 DEPARTMENT B MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2007-090009 The Honorable Joseph C. Kreamer, Judge AFFIRMED Skousen, Gulbrandsen & Patience, PLC By Richard M. Gulbrandsen and Ja Nelle L. Jenkins Attorneys for Plaintiffs/Appellants The Cavanagh Law Firm By R. Corey Hill and Ginette M. Hill Mesa Phoenix and Ehmann DeCiancio, PLLC By Christopher Robbins Attorneys for Defendants/Appellees Tempe S W A N N, Judge ¶1 Jayden Propst, a minor, was injured in an accident when the Farnsworths six-year-old1 son, Joseph, spilled hot food on him. Jayden brought this negligence action against his grandfather, claiming that he acted unreasonably in supervising Joseph. The superior court granted summary judgment against Jayden after concluding that the actions of his mother, Lisa, constituted a superseding cause of his injuries. Though we disagree with the superior court s ruling concerning superseding cause, we conclude that summary judgment was warranted because no duty existed as a matter of law in the circumstances of this case. FACTS AND PROCEDURAL HISTORY ¶2 Jay Farnsworth put a TV dinner in the microwave for his six-year-old son, Joseph. Jay instructed Joseph that when the microwave bell went off, he was to put a plate under the TV dinner, take it out, and put it on the top of the stove to cool before he tried to eat it. two of his other children. Jay then left the house to pick up Although Connie, Joseph s mother, was at home at the time, she did not feel well and was lying 1 Although the parties briefs refer to Joseph as a six-yearold, the portions of Jay s deposition that are in the record on appeal state that Joseph was seven at the time of the incident. Here, we use the age argued by the parties in their briefs. 2 down in the bedroom. After Jay left, Lisa, Joseph s adult sister, arrived at the Farnsworths house with her three-weekold son, Jayden. As she had in the past when visiting the Farnsworths, she set Jayden down in his car seat in the hallway between the kitchen and family room. Lisa saw Joseph sitting on the kitchen stove next to his cooked TV dinner and asked him what he was doing. Lisa had seen Joseph sitting on the stove in the past to use the microwave and had complained about this to her parents, who had then yelled at him. Joseph told her he had just gotten his food out of the microwave and wanted to take it into the family room to eat while he watched television; he also asked her to remove the plastic film. Lisa told Joseph to wait, because it was too hot, and indicated that she would take his TV dinner into the family room for him after she made a bottle for Jayden. While she prepared the bottle for Jayden, Lisa took the film wrap off the TV dinner, which (consistent with Joseph s instructions) was on a plate on the stove. She stirred the mashed potatoes and then turned her attention away from the TV dinner. Jayden began screaming, and as Lisa turned around, Joseph said he was sorry several times. Joseph had retrieved the plate containing his TV dinner from the stove, and when he leaned over Jayden while walking past him, the TV dinner 3 slipped off the plate and onto Jayden. Jayden sustained severe burns. ¶3 Jayden, through his parents, filed a negligence action against his grandparents, the Farnsworths, and other defendants.2 The Farnsworths moved for summary judgment asserting, inter alia, that Lisa s actions were an intervening and superseding cause of Jayden s injuries. The superior court agreed and entered judgment for the Farnsworths. DISCUSSION I. DUTY ¶4 As an initial matter, the Farnsworths contend that Jayden failed to establish, and the superior court improperly concluded, that they owed Jayden a duty of care. ¶5 We agree.3 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 2 The other original defendants settled and were dismissed from the case. 3 We review a trial court s grant of summary viewing the facts and reasonable inferences light most favorable to the nonmoving party. Hosp., 211 Ariz. 427, 432, ¶ 13, 122 P.3d 6, 11 4 judgment de novo, therefrom in the Hourani v. Benson (App. 2005). 228, 230 (2007). Duty is an obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. Id. at ¶ 10 (quoting Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985)). ¶6 Whether a duty exists is a matter of law for the court to decide, id. at ¶ 9, and duty may arise from the relationship of the parties or public policy.4 232. Before Gipson, Id. at 145, ¶ 18, 150 P.3d at Arizona courts foreseeability issues in determining duty. ¶ 15, 150 P.3d at 231. expressly held that often considered See id. at 144, In Gipson, however, our supreme court foreseeability is not a factor to considered by courts when making determinations of duty. be Id. Foreseeability . . . is more properly applied to the factual determinations of breach and causation . . . . Id. at ¶ 17. Against this background, we consider the two potential sources 4 The Restatement (Third) of Torts: Liability for Physical Harm § 7(a) (Proposed Final Draft No. 1, 2005) adopts an arguably more expansive concept of duty, which assumes that duty generally exists absent a legal reason to the contrary. See id. §§ 7, 41; Gipson, 214 Ariz. at 147-48, ¶¶ 34-41, 150 P.3d at 234-35 (Hurwitz, J., concurring). In Gipson, however, the court stopped short of adopting the Third Restatement and found it unnecessary to resolve whatever tension may exist between Ontiveros [v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983)], the Third Restatement and its earlier cases. Id. at 146 n.4, ¶ 24, 150 P.3d at 233 n.4. Though we are mindful of a potential trend toward adoption of the Third Restatement, we base our decision upon current law. 5 of duty in this case -- the duty to supervise a child and the duty of a landowner to licensees. A. Parent s Duty to Control Minor Child ¶7 not Under Arizona law, a mere parental relationship will impose children. liability upon parents for the torts of their Parsons v. Smithey, 109 Ariz. 49, 51, 504 P.2d 1272, 1274 (1973). Instead, the law imposes on parents an independent duty to exercise reasonable supervisory care in certain limited circumstances. ¶8 To See id. at 51-52, 504 P.2d at 1274-75. define these circumstances, Arizona courts have relied on the test established by the Restatement (Second) of Torts ( Restatement ) § 316 (1965). Ariz. App. 483, 460 P.2d 19 (1969). See Seifert v. Owen, 10 Under the Restatement, [a] parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of necessity and opportunity exercising such control. the for This section does not impose vicarious liability -- it imposes an independent duty on the parent to exercise reasonable care when the parent knows or should 6 know that there is an opportunity to exercise control. The Restatement viewed this duty narrowly: drafters of the The duty of a parent is only to exercise such ability to control his child as he in fact has at the time when he has the opportunity to exercise it and knows the necessity of so doing. (emphases added). Restatement § 316 cmt. b In other words, the law does not impose a general duty to educate and supervise children to prevent all foreseeable harm -- it imposes a duty to react reasonably in the moment. And the Restatement test does not require the court to venture into determine the whether now-forbidden a duty realm existed. of The foreseeability dispositive to question under section 316 is not whether the parent should have foreseen a future need for control -- the question is whether the parent exercised reasonable opportunity to do so. control at the moment he had the When there is no opportunity to exercise control, the duty imposed by section 316 simply does not apply. ¶9 We recognize that, independent of section 316, a parent has a duty to avoid placing a child in a situation in which the child is likely to cause harm, much as any person has a duty to act reasonably to avoid dangerous situations. But that general duty does not have any application to these facts. Even assuming arguendo that Jay acted negligently by allowing Joseph to take the dinner out of the microwave and remove the 7 wrapping, it was the act of spilling the food -- not preparing it -- that caused the injury. The fact that Joseph had a role in cooking the dinner had nothing to do with the events that led to Jayden s injuries -- if Jay or Lisa had prepared the dinner (and indeed Lisa was the last person to participate in its preparation), Joseph s act of spilling it would have injured Jayden. ¶10 If there was any duty, therefore, it must flow from section 316 s separate recognition that parents must sometimes control their children even in ordinary circumstances. Yet here it is undisputed that Jay was not home at the time of the accident, and Jay therefore control at that moment. had no opportunity to exercise And because he was not home, he could not have had the knowledge of Jayden s whereabouts or the fact that control was necessary to prevent the spill. We therefore conclude that Jay s status as Joseph s parent furnishes no basis for the imposition of a duty to Jayden on these facts. B. ¶11 Duty to Licensees A landowner owes a duty of care to a licensee, i.e., a person who is privileged to enter or remain on the land only by virtue of the possessor s consent. Hicks v. Superstition Mountain Post No. 9399, 123 Ariz. 518, 521, 601 P.2d 281, 284 (1979) (quoting Restatement § 330). 8 Generally, a homeowner has a duty to warn a licensee of hidden dangers and refrain from willfully causing a licensee harm. Shaw v. Petersen, 169 Ariz. 559, 561, 821 P.2d 200, 222 (App. 1991). A homeowner breaches his duty to his guests when he fails to adequately warn them of known hidden dangers.5 See Shannon v. Butler Homes, Inc., 102 Ariz. 312, 316, 428 P.2d 990, 994 (1967). licensees, however, insurer his of does guests not transform safety, and we a The duty to warn landowner find into nothing on an this record to suggest that a lack of warning contributed to Jayden s injuries. ¶12 Here, even assuming existed, Jayden was warning. Lisa placed Jayden on the floor in his car seat while an infant arguendo that incapable of a hidden danger understanding a Jay was out of the house, and Jay therefore had no knowledge of any danger Jayden faced by virtue of his physical placement.6 And Joseph s participation in the preparation of the dinner was 5 There is no duty to warn of open and obvious dangers. Robles v. Severyn, 19 Ariz. App. 61, 64, 504 P.2d 1284, 1287 (1973). 6 Though Lisa was substantially involved in events and circumstances that led to Jayden s injury, we reject the trial court s conclusion that her actions constituted a superseding cause. An intervening cause qualifies as a superseding cause, and thereby relieves a defendant of liability for his original negligence, only if the intervening force was unforeseeable and may be described, with the benefit of hindsight, as extraordinary. Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546, 789 P.2d 1040, 1047 (1990). The record does not support a conclusion as a matter of law that Lisa s actions were unforeseeable or extraordinary. 9 not a hidden danger about which a warning was required. Lisa was fully aware of Joseph s preparation of the dinner, and she assisted Joseph by removing the plastic cover from the dinner and stirring prevented the it. harm Because no in case, this warning there from is Jay no could triable have issue concerning Joseph s reasonableness in failing to warn, and the duty to warn is simply inapposite to these facts. We therefore conclude that the landowner s duty to licensees furnishes no basis for liability in this case. CONCLUSION ¶13 For the foregoing reasons, we affirm. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ________________________________ ANN A. SCOTT TIMMER, Chief Judge N O R R I S, Judge, concurring in part, dissenting in part. ¶14 The Farnsworths, superior concluding court as granted a summary matter of judgment law Lisa to was the a superseding cause of the accident that injured her son, Jayden. The majority rejects the superior court s ruling on that issue, see supra note 6, ¶ 12, and I agree. 10 I part company with the majority s conclusion, however, that summary judgment was still proper because no duty [of care] existed as a matter of law in the circumstances of this case. ¶15 Our supreme court and See supra ¶ 1. the Restatement (Second) of Torts ( Restatement ) (1965) have long recognized that duties of care may arise from various special relationships. Gipson v. Kasey, 214 Ariz. 141, 144-45, ¶¶ 18-19, 150 P.3d 228, 231-32 (2007) (citing cases and Restatement § 315). One such relationship is between a parent and his or her minor child. That relationship subjects a parent to a duty of reasonable care to protect another person from the unreasonable risk of bodily harm caused by his or her minor child. See Restatement § 316, cited in Parsons v. Smithey, 109 Ariz. 49, 52, 504 P.2d 1272, 1275 (1973); see also Seifert v. Owen, 10 Ariz. App. 483, 484, 460 P.2d 19, 20 (1969) (analyzing Restatement § 316). The Restatement states a parent is under a duty of reasonable care to control the conduct of his or her minor child if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control. Although not stated expressly in the Restatement, its formulation of duty appears to rest on principles of foreseeability. 11 ¶16 In Gipson, our supreme court held, however, that a court should not consider foreseeability of harm in determining duty. do 214 Ariz. at 144, ¶ 15, 150 P.3d at 231. not believe it is possible formulation of duty with Gipson. to square Accordingly, I the Restatement s The majority does not address this conflict and instead bases its conclusion the Farnsworths did not have a duty to control Joseph, see supra ¶¶ 7-10, principally on the Restatement s formulation of a parent s duty, which appears to be premised on the foreseeability of the harm. ¶17 In light of Gipson, whether, under the Restatement, a parent has the ability to control his child and knows or should know of the necessity control are factors exercised reasonable and opportunity that should care under bear the for on exercising whether a circumstances, whether a duty of care exists in the first place. such parent not on Therefore, applying the Restatement through the lens of Gipson, I believe the Farnsworths owed a duty of reasonable care to protect third parties, such as Jayden, from the risk of harm posed by Joseph.7 ¶18 The question then becomes whether Jayden presented sufficient evidence to establish a triable issue of fact on breach. 7 Viewing the record in a light most favorable to Jayden Because I believe the Farnsworths owed a duty of reasonable care as parents under the Restatement and Gipson, I express no opinion on the applicability to this case of the duty of reasonable care a landowner owes to a licensee. 12 as the non-moving party, I conclude he did. Not only did Jayden present evidence Jay had the ability to control Joseph -- after all, Jay instructed Joseph what to do with the TV dinner and the microwave -- but he also presented evidence of a foreseeable risk of harm and the necessity of taking steps to prevent this risk. Specifically, Jayden presented evidence the Farnsworths knew Joseph had handled hot microwave food in the past and had decided he was not capable of doing so: Lisa testified her parents had yelled at Joseph when she had reported to them she had seen him getting into the microwave. In addition, Jayden presented evidence Jay could reasonably anticipate Jayden would be present when Jay decided to leave Joseph by himself with the microwave and hot TV dinner. Lisa testified she and Jayden visited the Farnsworths nearly every day, generally just after 2:30 p.m., when she picked up her other son from school. ¶19 at Finally, the majority reasons that because Jay was not home at the time of the accident he neither had the opportunity to exercise control over Joseph nor the knowledge he needed to do so. Thus, the majority reasons, the Farnsworths owed no duty of care. I disagree. these factors go to breach, not duty. First, as discussed above, Second, Jayden presented evidence Jay had both the opportunity to exercise control over Joseph and knew of the necessity of doing so. 13 Third, a parent cannot evade his or her duty of reasonable care by ignoring his or her child s behavior and the risk of harm I would that behavior presents to a third party. ¶20 For the foregoing reasons, reverse the superior court s summary judgment in favor of the Farnsworths and remand for further proceedings. /s/ ___________________________________ PATRICIA K. NORRIS, Presiding Judge 14

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