Gipson v. Kasey

Decision Date22 January 2007
Docket NumberNo. CV-06-0100-PR.,CV-06-0100-PR.
Citation214 Ariz. 141,150 P.3d 228
PartiesSusan GIPSON, individually and as surviving parent of Nathan Kim Followill, deceased, Plaintiff/Appellant, v. Larry KASEY and Jane Doe Kasey, a married couple, Defendants/Appellees.
CourtArizona Supreme Court

James F. Brook and Associates by James F. Brook, John N. Vingelli, Scottsdale, Attorneys for Susan Gipson.

Cavanagh Law Firm by R. Corey Hill, Ginette M. Hill, Christopher Robbins, Phoenix, Attorneys for Larry Kasey and Jane Doe Kasey.

Law Office of JoJene Mills, P.C., by JoJene E. Mills, Tucson, and Adelman German, P.L.C. by Daniel J. Adelman, Scottsdale, Attorneys for Amicus Curiae Arizona Trial Lawyers Association.


BALES, Justice.

¶ 1 The issue presented is whether persons who are prescribed drugs owe a duty of care, making them potentially liable for negligence, when they improperly give their drugs to others. We conclude that such a duty is owed.


¶ 2 Because we are reviewing a decision granting summary judgment in favor of Larry Kasey, we describe the facts, some of which are disputed, in the light most favorable to Susan Gipson, the non-moving party. See Orme Sch. v. Reeves, 166 Ariz. 301, 309-10, 802 P.2d 1000, 1008-09 (1990).

¶ 3 Kasey attended an employee holiday party hosted by the restaurant where he worked. Also present were his co-worker, Nathan Followill, and Followill's girlfriend, Sandy Watters. The restaurant provided beer for the guests. Kasey brought whiskey to the party and he gave shots to others present, including Followill, who was twenty-one years old. Kasey also brought pain pills containing oxycodone, a narcotic drug, which he had been prescribed for back pain. On prior occasions, Kasey had given pain pills to other co-workers for their recreational use.

¶ 4 During the party, Watters asked Kasey for one of his pain pills. Kasey gave Watters eight pills, noting that they were of two different strengths, but not identifying them by name. Although Kasey knew that combining the pills with alcohol or taking more than the prescribed dosage could have dangerous side effects, including death, he did not tell Watters this information.

¶ 5 When Kasey gave the pills to Watters, he knew that she was dating Followill. Kasey also knew that Followill was interested in taking prescription drugs for recreational purposes because Followill had on prior occasions asked Kasey for some of his pills, but Kasey had refused because he thought Followill was "too stupid and immature to take drugs like that."

¶ 6 Shortly after she obtained the pills from Kasey, Watters told Followill she had them, and Followill took the pills from her. As the night progressed, Followill became increasingly intoxicated. Around 1:00 a.m., Watters and Followill left the party. The next morning, Watters awoke to find that Followill had died in his sleep. The cause of death was the combined toxicity of alcohol and oxycodone.

¶ 7 Gipson, Followill's mother, filed a wrongful death action against Kasey. The superior court granted summary judgment for Kasey, finding that he owed Followill no duty of care and that Kasey's conduct had not proximately caused Followill's death because of the intervening acts of Watters and Followill.

¶ 8 The court of appeals reversed, holding that Kasey did owe Followill a duty of care and that disputed facts precluded summary judgment on the issue of proximate cause. Gipson v. Kasey, 212 Ariz. 235, 244 ¶ 37, 129 P.3d 957, 966 (App.2006). We granted review only with regard to the issue of duty. We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 12-120.24 (2003).


¶ 9 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. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983) (citing William L. Prosser, Handbook of the Law of Torts § 30, at 143 (4th ed.1971)). The first element, whether a duty exists, is a matter of law for the court to decide. Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985). The other elements, including breach and causation, are factual issues usually decided by the jury. See id. at 358, 706 P.2d at 370.1

¶ 10 The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as 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 354, 706 P.2d at 366 (citing Ontiveros, 136 Ariz. at 504, 667 P.2d at 204). The standard of care is defined as "[w]hat the defendant must do, or must not do . . . to satisfy the duty." Coburn v. City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed.1984)). Whether the defendant has met the standard of care— that is, whether there has been a breach of duty—is an issue of fact that turns on the specifics of the individual case.

¶ 11 Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Markowitz, 146 Ariz. at 354, 706 P.2d at 366. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct. See id. at 356, 706 P.2d at 368.2

¶ 12 In this case, the court of appeals held that Kasey owed Followill a duty of care,

based on the totality of the circumstances as reflected in the following factors: (1) the relationship that existed between Kasey and Followill, (2) the foreseeability of harm to a foreseeable victim as a result of Kasey giving eight pills to Watters, and (3) the presence of statutes making it unlawful to furnish one's prescription drugs to another person not covered by the prescription.

Gipson, 212 Ariz. at 238-39 ¶ 15, 129 P.3d at 960-61.

¶ 13 Kasey argues that none of these factors support a finding that he owed a duty of care to Followill. Although we disagree with aspects of the analysis of the court of appeals, that court correctly concluded that Kasey owed a duty of care.

A. Foreseeability

¶ 14 Kasey argues that the court of appeals erred by relying on foreseeability of harm because this Court held in Martinez v. Woodmar IV Condominiums Homeowners Ass'n, Inc. that foreseeability should no longer be a factor in determining whether a duty exists. 189 Ariz. 206, 211, 941 P.2d 218, 223 (1997). Gipson, on the other hand, argues that our prior cases have relied on foreseeability in determining whether a duty is owed. See, e.g., Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 187, 677 P.2d 1292, 1295 (1984) ("Duty and liability are only imposed where both the plaintiff and the risk are foreseeable to a reasonable person.").

¶ 15 We acknowledge that our case law has created "some confusion and lack of clarity . . . as to what extent, if any, foreseeability issues bear on the initial legal determination of duty." Riddle v. Ariz. Oncology Servs., Inc., 186 Ariz. 464, 466 n. 3, 924 P.2d 468, 470 n. 3 (App.1996). To clarify, we now expressly hold that foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in prior opinions.

¶ 16 Whether an injury to a particular plaintiff was foreseeable by a particular defendant necessarily involves an inquiry into the specific facts of an individual case. See W. Jonathan Cardi, Purging Foreseeability: The New Version of Duty and Judicial Power in the Proposed Restatement (Third) of Torts, 58 Vand. L.Rev. 739, 801 (2005). Moreover, foreseeability often determines whether a defendant acted reasonably under the circumstances or proximately caused injury to a particular plaintiff. Such factual inquiries are reserved for the jury. The jury's fact-finding role could be undermined if courts assess foreseeability in determining the existence of duty as a threshold legal issue. See id. at 741. Reliance by courts on notions of "foreseeability" also may obscure the factors that actually guide courts in recognizing duties for purposes of negligence liability. Id.

¶ 17 Foreseeability, as this Court noted in Martinez, is more properly applied to the factual determinations of breach and causation than to the legal determination of duty. 189 Ariz. at 211, 941 P.2d at 223 ("[F]oreseeable danger [does] not dictate the existence of duty but only the nature and extent of the conduct necessary to fulfill the duty."); cf. Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99, 102 (1928) (Andrews, J., dissenting) (arguing that foreseeability does not determine duty but is a factor in determining proximate cause). We believe that such an approach desirably recognizes the jury's role as factfinder and requires courts to articulate clearly the reasons, other than foreseeability, that might support duty or no-duty determinations. See Restatement (Third) of Torts: Liability for Physical Harm § 7 cmt. j (Proposed Final Draft No. 1, 2005) ("Third Restatement") (rejecting foreseeability as a factor in determining duty).

B. Relationship Between the Parties

¶ 18 Kasey also argues that he did not owe Followill a duty of care because they had no "direct" or "special" relationship. Duties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant. Stanley v....

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