Gipson v. Kasey

Decision Date02 March 2006
Docket NumberNo. 1 CA-CV 05-0119.,1 CA-CV 05-0119.
Citation212 Ariz. 235,129 P.3d 957
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 Court of Appeals

James F. Brook and Associates, James F. Brook, John N. Vingelli, Scottsdale, Attorneys for Appellant.

The Cavanagh Law Firm, R. Corey Hill, Ginette M. Hill, Christopher Robbins, Phoenix, Attorneys for Appellees.



¶ 1 Petitioner Susan Gipson is the surviving parent of decedent Nathan Followill. Gipson filed a wrongful death action against defendant Larry Kasey pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-612 and -613 (2003), alleging that Kasey negligently caused Followill's death by furnishing prescription Oxycontin pills to Followill. The trial court granted Kasey's motion for summary judgment, from which Gipson appeals. We conclude that Kasey owed Followill a duty of reasonable care and that Kasey is not entitled to summary judgment on the issue of proximate cause. We therefore reverse the summary judgment and remand for further proceedings.


¶ 2 In reviewing a decision on a motion for summary judgment, we view the facts and reasonable inferences to be drawn from those facts in a light most favorable to the party against whom judgment was entered. Maycock v. Asilomar Dev., Inc., 207 Ariz. 495, 496, ¶ 2, 88 P.3d 565, 566 (App.2004). The pertinent facts, viewed most favorably to Plaintiff Gipson, are as follows.

¶ 3 Kasey and Followill were employees of Streets of New York Pizza. On December 16, 2002, Kasey, Followill, and Followill's girlfriend, Sandy Watters, attended an employee Christmas party at one of the Streets of New York restaurants. An "open beer bar" was provided.

¶ 4 Kasey possessed a quantity of prescription pain pills. On prior occasions, he had provided some of these pills to various young employees of Streets of New York Pizza, apparently for recreational purposes.1 During the party Watters asked Kasey for one of his pain pills. Kasey knew that Watters and Followill were dating, and he had socialized with them previously. In response to Watters' request, Kasey gave her eight pills and told her only that he was giving her two different strengths of pills. He did not tell Watters the name of the pills, the proper dosage to take, nor did he give her any instructions or warnings about mixing the pills with alcohol. The pills were Oxycontin, which is the trade name for the controlled-release form of Oxycodone.

¶ 5 Watters told Followill that Kasey had given her eight pain pills. Followill took the pills from Watters. That evening Followill told Brian Watters that he had gotten pills from Kasey. Brian saw two pills in Followill's possession-one that had dropped on the floor and one in Followill's hand. Kasey later testified that Followill had asked him on three prior occasions for pain pills, but Kasey had declined to give him any because Kasey thought he was "too stupid and immature to take drugs like that."

¶ 6 During the party Kasey provided shots of Crown Royal whiskey to several people attending the party, including Followill. Kasey also offered a shot of Crown Royal to Watters after he had given her the eight pills.

¶ 7 Throughout the evening Followill became increasingly intoxicated. Followill told a friend that "Kasey's pills were f* * *ing [me] up."

¶ 8 Watters and Followill left the party at approximately 1:00 a.m. and Followill went to bed around 2:00 a.m. The next morning, Watters could not awaken Followill and discovered he had died in his sleep. According to the Maricopa County Medical Examiner's report, Followill's cause of death was "acute combined toxicity of alcohol and Oxycodone." A forensic toxicologist opined that the level of Oxycodone in Followill's system was consistent with ingestion of six Oxycontin pills. The expert also explained that the Oxycodone in Followill's system, combined with the alcohol, was the cause of Followill's death. The alcohol alone would not have been fatal.

¶ 9 As the surviving parent of Followill, Gipson filed a wrongful death action against Kasey. After initial discovery, Kasey filed a motion for summary judgment. He argued that as a matter of law, he owed no duty of care to Followill and his conduct was not a proximate cause of Followill's death. The trial court granted Kasey's motion for summary judgment, explaining:

IT IS ORDERED granting Defendant's Motion for Summary Judgment. The Doctrine of Negligence Per Se does not apply because the decedent, Mr. Followill harmed himself by ingesting the pills. This distinguishes case law discussing situations where an innocent third party is harmed. The Court also determines that the Defendant had no special relationship with the decedent. The Defendant gave the pills to Sandy Watters. Therefore, two acts intervened after the Defendant's act of giving the pills[:] I. Sandy Watters chose to give some of the pills to the decedent. II. The decedent chose to take the pills after consuming alcohol.

¶ 10 Gipson filed a motion for reconsideration, which was denied. The trial court entered final judgment and Gipson appeals. We have jurisdiction pursuant to A.R.S. §§ 12-2101(B) and -120.21(A)(1) (2003).


¶ 11 Gipson's wrongful death claim against Kasey is based on his alleged negligence in providing Oxycodone pills to Followill, either directly or through Watters. A plaintiff may maintain a negligence action if she proves duty, breach of duty, proximate cause, and damages. See Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983). Kasey argued in his motion for summary judgment, and the trial court agreed, that Kasey could not be liable to Gipson because he owed no duty to Followill and also because Kasey's conduct did not proximately cause Followill's death.


¶ 12 We review de novo the trial court's ruling on the existence of duty in a negligence action. See Martin v. Schroeder, 209 Ariz. 531, 536, ¶ 20, 105 P.3d 577, 582 (App.2005). The issue of duty is usually determined by the court as a matter of law. Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985).

¶ 13 "`[D]uty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty [if it exists] is always the same-to conform to the legal standard of reasonable conduct in the light of the apparent risk." Coburn v. City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed.1984)). "The question of duty ... is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff." Markowitz, 146 Ariz. at 356, 706 P.2d at 368. A defendant who does not owe a duty to a plaintiff cannot be liable for the plaintiff's injury even if the defendant acted negligently. Mack v. McDonnell Douglas Helicopter Co., 179 Ariz. 627, 629, 880 P.2d 1173, 1175 (App.1994). We must determine whether Kasey owed a duty of care to Followill.

¶ 14 Kasey argues that he owed no duty to Followill because they had no direct relationship from which a duty could arise. He contends that he did not give pain pills directly to Followill and that he and Followill were "simply two people attending the same holiday party."

¶ 15 We conclude, on this record, that Kasey owed a duty to Followill when he gave the pills to Watters. Our recognition of a duty is 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.

¶ 16 First, recognition of a duty here is supported by the relationship between Kasey and Followill. They were co-workers and friends; they had socialized previously; Followill had asked Kasey for pills in the past; and Kasey knew that Followill and Watters were dating and were together at the party.

¶ 17 Second, recognition of a duty here is supported by a consideration of foreseeability. Although Kasey contends otherwise, we conclude that foreseeability is a factor in determining duty. See Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 42, 796 P.2d 470, 474 (1990) (finding school district owed duty to foreseeable user of marked crosswalk); Rager v. Superior Coach Sales & Serv. of Ariz., 111 Ariz. 204, 210, 526 P.2d 1056, 1062 (1974) ("Whether or not there is a duty on the part of the defendant to protect the plaintiff from the injury of which he complains is based on foreseeability."); Riddle v. Ariz. Oncology Servs., Inc., 186 Ariz. 464, 466, 924 P.2d 468, 470 (App. 1996) ("As plaintiff correctly notes, foreseeability of harm appears to be an element of duty under Arizona case law."); Fedie v. Travelodge Int'l, Inc., 162 Ariz. 263, 266, 782 P.2d 739, 742 (App.1989) ("One element of duty is foreseeability."); City of Scottsdale v. Kokaska, 17 Ariz.App. 120, 124-27, 495 P.2d 1327, 1331-34 (1972) (explaining that foreseeability is a factor in determining duty).

¶ 18 Kasey cites Martinez v. Woodmar IV Condominiums Homeowners Association, 189 Ariz. 206, 211, 941 P.2d 218, 223 (1997) and its progeny. These cases suggest that foreseeability is no longer a factor in determining duty under Arizona law. See Martin, 209 Ariz. at 535-36, ¶ 18, 105 P.3d at 581-82; Collette v. Tolleson Unified Sch. Dist. No. 214, 203 Ariz. 359, 363, ¶ 13, 54 P.3d 828, 832 (App.2002); Bloxham v. Glock Inc., 203 Ariz. 271, 276-77, ¶ 15, 53 P.3d 196, 201-02 (App. 2002); Knauss v....

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