Martin v. Schroeder

• Decision Date: 09 February 2005
• Docket Number: No. 2 CA-CV 2004-0092.,2 CA-CV 2004-0092.
• Citation: 105 P.3d 577,209 Ariz. 531
• Parties: David MARTIN, an individual, Plaintiff/Appellant, v. Matt SCHROEDER and Jane Doe Schroeder, husband and wife; Grant Schroeder and Cathy Schroeder, husband and wife, Defendants/Appellees.
• Court: Arizona Court of Appeals

105 P.3d 577

209 Ariz. 531

David MARTIN, an individual, Plaintiff/Appellant, v. Matt SCHROEDER and Jane Doe Schroeder, husband and wife; Grant Schroeder and Cathy Schroeder, husband and wife, Defendants/Appellees.

No. -0092.

Court of Appeals of Arizona, Division 2, Department A.

February 9, 2005.

Grabb & Durando, P.L.C., By Robert M. Grabb, Nann Novinski Durando and Stephen Kimble, Tucson, for Plaintiff/Appellant.

Slutes, Sakrison & Hill, P.C., By David E. Hill and Diana L. Kanon, Tucson, for Defendants/Appellees.

OPINION

HOWARD, Presiding Judge.

¶ 1 Appellant David Martin challenges the trial court's denial of his motion for summary judgment and grant of appellees Grant and Cathy Schroeder's motion for summary judgment in Martin's personal injury action against the Schroeders. Martin argues the trial court erred by finding that the Schroeders did not owe a common law duty to Martin and had not violated 18 U.S.C. § 922(d) when they gave a gun to their adult son, Matt Schroeder. Because the trial court correctly decided these issues, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Link v. Pima County, 193 Ariz. 336, ¶ 12, 972 P.2d 669, 673 (App.1998). While in high school, Grant and Cathy Schroeders' son, Matt, used marijuana regularly. When the Schroeders discovered his marijuana use, they sent Matt for treatment both in and out of state. Following Matt's completion of drug treatment, the Schroeders continued to monitor him for marijuana use. The Schroeders required Matt to take random urinalysis tests to detect drugs and the tests showed that Matt was no longer using marijuana. ¶ 3 Matt moved out of the Schroeders' home at the age of eighteen, and subsequently married and had a child. Matt then became employed as a security guard. Because he was not yet twenty-one years old and could not legally purchase a handgun from a dealer himself, he asked the Schroeders to purchase a gun for him so he could receive an increase in pay. Cathy Schroeder purchased the gun and gave it to Matt as a present. Despite Matt's use of marijuana in the past, Cathy Schroeder believed that Matt was no longer using marijuana when she purchased the handgun for him. After receiving the handgun, Matt was to receive at least two firearm training sessions, one from the sheriff's department and one from his employer.

¶ 4 Approximately nine months after the Schroeders gave the gun to Matt, Martin and Matt were smoking marijuana together and Matt accidentally shot Martin in the head, injuring him. Martin sued the Schroeders, alleging they were liable for his injuries because they had purchased the gun that was used in the shooting and had given it to Matt, knowing he was a drug abuser. The trial court granted summary judgment in favor of the Schroeders and denied Martin's motion for summary judgment.

NEGLIGENT ENTRUSTMENT¹

¶ 5 Martin first argues that the trial court erred by denying his motion for summary judgment on the issue of duty. But, generally, the denial of a motion for summary judgment is not appealable, and not subject to review after judgment. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 7, 965 P.2d 47, 50 (App.1998). Martin has not asserted any considerations mandating a review of the denial of his motion, and we therefore decline to do so.

¶ 6 Martin next argues that the trial court erred by concluding that the Schroeders did not owe him any common law duty and granting them summary judgment. We review the grant of summary judgment de novo. Link, 193 Ariz. 336, ¶ 12, 972 P.2d at 673. We also review the question of duty in a negligence action de novo. Bloxham v. Glock, Inc., 203 Ariz. 271, ¶ 6, 53 P.3d 196, 199 (App.2002).

¶ 7 "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 v. Ariz. Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985). As a general rule, an individual has no duty to control the acts of another, unless there is a special relationship between the individual and the actor or between the individual and the injured party. Bloxham, 203 Ariz. 271, ¶ 7, 53 P.3d at 199. Martin claims the special relationship arises because the Schroeders knew Matt was incompetent to own a gun, given that they knew that Matt previously had been addicted to marijuana and that he was using marijuana at the time of the incident, relying on Restatement (Second) of Torts § 390 (1965), and Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d 213 (1983).

¶ 8 Section 390 of the Restatement states as follows:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for the physical harm resulting to them.

In Brannigan, our supreme court, relying on § 390, held "that a supplier of liquor is under a common law duty of reasonable care in furnishing liquor to those who, by reason of immaturity or previous over-indulgence, may lack full capacity of self-control and may therefore injure themselves, as well as others." 136 Ariz. at 516,667 P.2d at 216. Martin's reliance on § 390 is misplaced for several reasons.

¶ 9 First, as to Matt's prior addiction, Martin has not cited any authority for the proposition that anyone who was once addicted to marijuana is forever incompetent to own a gun.² We decline to so hold as a matter of law and rather conclude that knowledge of Matt's prior addiction to marijuana, without more, is not sufficient to create a special relationship with the Schroeders imposing a duty on them for Martin's benefit.

¶ 10 Second, as to the Schroeders' knowledge of Matt's contemporaneous marijuana use, Martin admitted at oral argument that he could only succeed on appeal if a genuine issue of fact existed as to whether Matt's drug tests taken after completion of his treatment showed that he had continued to use marijuana. The record, however, establishes that, although Matt had been addicted to marijuana in the past, the Schroeders had sent him to treatment, he had completed the treatment program, and his urine tests after the treatment had been negative for drugs. Since the time Matt had completed his drug treatment, he had reached the age of majority, moved out of his parents' home, married, had a child and obtained a job. Based on the record before the trial court, to the best of the Schroeders' knowledge, Matt was not using marijuana when they gave him the gun. Therefore, Martin has failed to raise a genuine issue of material fact concerning whether the Schroeders knew or should have known Matt was contemporaneously using marijuana. Accordingly, we conclude Martin has failed to provide any factual basis to support a special relationship with the Schroeders based on their alleged knowledge of Matt's contemporaneous unlawful marijuana use.³

¶ 11 At oral argument, Martin stressed that Cathy Schroeder, in her deposition, had stated that she had "felt very comfortable that Matt was only doing marijuana because of the drug test that we did on him. Marijuana was the only drug that ever showed up." Martin further noted that Greg Schroeder had testified in his deposition that they had tested Matt for drugs after Matt returned from treatment. Martin interprets these statements to mean that the testing Matt had been given after he finished his treatment still showed he was using marijuana, which, Martin asserts, raises at least an issue of fact as to whether the Schroeders knew or should have known that Matt was using marijuana at the time of the transfer of the gun.

¶ 12 Because Martin is the party opposing summary judgment and bears the burden of proof at trial, he was required to present evidence creating genuine issues of material fact as to each element of his case. See Ruelas v. Staff Builders Pers. Servs., Inc., 199 Ariz. 344, ¶ 7, 18 P.3d 138, 140 (App.2001). A "genuine" issue is one that a reasonable trier of fact could decide in favor of the party adverse to summary judgment on the available evidentiary record. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App.1990). "Mere speculation" or "insubstantial doubt as to the facts" is insufficient to defeat a summary judgment motion. Boomer v. Frank, 196 Ariz. 55, 58, 993 P.2d 456, 459 (App.1999), quoting Allyn, 167 Ariz. at 195,

805 P.2d at 1016.

¶ 13 Despite Martin's contention, the context surrounding Cathy's statement clearly shows that Cathy was referring to the period of time before Matt's treatment, not after the treatment. Further, Cathy had unequivocally testified previously in her deposition that Matt's urinalyses after treatment had been "clean," that she "felt very comfortable that he was on the right track," and that she felt "Matt had no longer a drug problem." Additionally, she stated that if she had had any knowledge Matt was using drugs while an adult, she would not have purchased the gun. Martin did not attempt to clarify her statement concerning Matt's marijuana use in any way to show that the use had occurred after treatment, and we do not find that to be a reasonable interpretation of the statement. Therefore, taken in context, this one statement fails to raise any genuine issue of fact.

¶ 14 Further, Greg's statement does not support Martin's interpretation. Greg stated in his deposition that the Schroeders had required Matt to take drug tests after he returned from his treatments. But he was not asked nor did he state that those were the first and only drug tests they had required Matt to take, nor was there any inquiry about the...