Ward v. Mount Calvary Lutheran Church
| Decision Date | 14 April 1994 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 178 Ariz. 350,873 P.2d 688 |
| Parties | Ken and Karen WARD, husband and wife; Timothy Ward, a minor, by and through Ken and Karen Ward, Plaintiffs-Appellants, v. MOUNT CALVARY LUTHERAN CHURCH, an Arizona corporation, Defendant-Appellee. 92-0416. |
| Court | Arizona Court of Appeals |
The primary issue in this appeal is whether the trial court correctly concluded that the doctrine of res ipsa loquitur did not apply to an accident involving a 4-year old who broke his femur while under the supervision of a day care center. Because we agree that plaintiffs failed to establish the requisite elements of res ipsa loquitur on this record, and because no question of fact remains regarding plaintiffs' other claims, we affirm the trial court's summary judgment in favor of the day care center.
On April 18, 1991, 4-year old Timothy Ward broke his femur while in the care of the Christian Children's Center, a day care center that is run by defendant Mount Calvary Lutheran Church (hereafter, "day care center"). The supervising caregiver at the time of the injury testified as follows regarding the incident:
At approximately 3:00 p.m., I led my group of [approximately 11 or 12] students out to the playground for recess. At that time, Timothy Ward was walking a short distance ahead of me and was under my direct supervision. The students were walking in a line until they reached the breezeway, which is part of the playground area. As Timothy Ward reached the playground, he began to run and when he was in the grass area of the playground he fell down.
Another version of the facts attributed by plaintiffs to the caregiver indicated that, as Timothy began to run, According to plaintiffs, no employee of the day care center actually witnessed Timothy's fall.
On August 14, 1991, Timothy's parents Ken and Karen Ward (hereafter, "plaintiffs") brought suit on behalf of Timothy against the day care center. The complaint alleged claims of negligence, negligent supervision, negligent rendering of emergency treatment, negligence per se for violation of administrative regulations designed to protect children, and breach of contract. Regarding negligence, the complaint alleged:
The facts or circumstances of the injuries sustained by the minor Plaintiff raise a presumption or permit the inference of negligence on the part of Defendant. The accident of the kind which the minor Plaintiff sustained does not occur ordinarily unless there is negligence. The instrumentality or agency which caused the injury to the minor Plaintiff was in the exclusive control of the Defendant. The injuries suffered by the minor Plaintiff [were] not due to any voluntary action or contributory negligence on the part of the minor Plaintiff. Defendant's negligence approximately caused the minor Plaintiff's injury.
(Emphasis added.) The day care center denied liability and moved for summary judgment on the basis that plaintiffs had not stated a claim for actionable negligence because the complaint did not allege that the day care center breached a duty of care that proximately caused Timothy to fall. Regarding the other claims in the complaint, the day care center concluded:
In this case, plaintiffs invoke a variety of legal doctrines rooted in conjecture and founded upon the illegitimate conclusion that someone else is to blame. No matter how the claim is denominated, however, plaintiffs have failed to establish that there is a breach of duty which created an unreasonable risk of harm and proximately caused the injury. Mount Calvary Lutheran Church is therefore entitled to summary judgment as a matter of law.
Plaintiffs offered no factual statement or evidence in support of their response to summary judgment. See generally Rule IV(f), Uniform Rules of Practice. 1 Rather, in response to the day care center's statement of facts in support of its motion, plaintiffs contested only the caregiver's statement that she was present when Timothy fell, pointing out that none of the employee caregivers had witnessed Timothy's fall. Plaintiffs concluded,
Plaintiffs' legal argument in response to the motion was that summary judgment must be denied because the day care center "has not met its burden of proof under the res ipsa loquitur doctrine, by failing to establish that it was not at fault in causing Plaintiffs' injuries." Plaintiffs contended that, when properly supervised, children "do not come home from the playground with a break in the largest bone in their body," because "[a] snapped femur is not the ordinary consequence of a small child running on a playground absent negligent supervision." Plaintiffs also stated they intended "to introduce expert testimony at trial ... that healthy femurs do not ordinarily break as a result of a fall." However, no affidavit or other evidence of such expert opinion was submitted to support that statement. Plaintiffs concluded that summary judgment must be denied because (1) the trier of fact could infer negligence under the doctrine of res ipsa loquitur, and (2) the motion for summary judgment failed to address the other claims in the complaint, including breach of contract and negligence in rendering first aid. 2
In reply, the day care center argued that the doctrine of res ipsa loquitur did not apply to this case, because, even if negligence could be inferred, plaintiffs had produced no evidence that such negligence proximately caused the injury. Moreover, the day care center contended, "children can fall without someone else being negligent," and pointed out that plaintiffs had failed to present any evidence to establish that "healthy femurs do not ordinarily break as the result of a fall."
Regarding the merits of the other claims, the day care center argued (1) plaintiffs had not sufficiently alleged negligence per se because they had not identified an administrative regulation that had been violated nor established how such a violation caused Timothy's injury; (2) plaintiffs' claim for negligent emergency aid or treatment was barred by the "Good Samaritan" statute, A.R.S. § 32-1471, AND (3)3 plaintiffs had produced no evidence of a contract with the day care center that had been breached to cause Timothy's injury.
After oral argument on the motion, 4 the trial court granted summary judgment in favor of the day care center. Regarding the negligence claim based on res ipsa loquitur, the court ruled:
Other jurisdictions have held that the doctrine [of res ipsa loquitur to infer negligence] may be invoked in cases where a child has been injured while under defendants' supervision at a nursery/day care when neither side can present evidence as to how the injury occurred.... In the present case, however, it is known that the plaintiff was injured as the result of a fall.
Plaintiff maintains that a snapped femur is not the ordinary consequence of a small child running on a playground absent negligent supervision. However, there are no facts in the record to support this allegation. In addition, the mere fact that an occurrence is rare does not lead to the application of the res ipsa loquitur doctrine. There must be evidence that the event or injury is more likely than not the result of negligence.... The circumstances in this case do not create any clear inferences that the accident would not have occurred if the defendant had not been negligent.
(Citations omitted, emphasis added.) Regarding the other claims in the complaint, the court ruled:
Plaintiff has alleged that defendant failed to adequately supervise plaintiff before the fall; was negligent in the rendering of emergency aid; was negligent in the treatment of plaintiff after the fall; was negligent per se due to violation of administrative regulations; and is in breach of contract. However, there are no facts in the record to support any of these allegations. Even if it could be assumed that defendant was in some way negligent or was in breach of contract, the record does not support the conclusion that any such negligence or breach was the proximate cause of plaintiff's injury.
IT IS THEREFORE ORDERED granting defendant's Motion for Summary Judgment.
Plaintiffs timely appealed.
On appeal from summary judgment, we view the facts in a light most favorable to plaintiffs, as the party opposing the motion. Chaparral Dev. v. RMED Int'l, Inc., 170 Ariz. 309, 823 P.2d 1317 (App.1991). In deciding a motion for summary judgment, the trial court applies the same standard as that used for a directed verdict: if the party with the burden of proof cannot respond to the motion with a showing of evidence creating an issue of fact on an essential element of the claim, then summary judgment should be granted. Orme School v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990).
On appeal, this court reviews the record de novo, applying the same standard as that used by the trial court. United Bank v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App.1990).
Res ipsa loquitur is "a theory of circumstantial evidence under which the jury may reasonably find negligence and causation from the facts of the accident and the defendant's relation to the accident."...
To continue reading
Request your trial
-
Downey v. Wood Dale Park Dist.
... ... and attention would not have prevented the injury." Ward v. Mount Calvary Lutheran Church, 178 Ariz. 350, 358, 873 ... ...
- Hutcherson v. City of Phoenix
-
Mann v. United States
... ... 2008) (quoting Ward v. Mount Calvary Lutheran Church, 178 Ariz. 350, 355, 873 ... ...
- Mann v. United States, CV-11-8018-PCT-LOA