Williams v. Developers
| Decision Date | 31 March 2011 |
| Docket Number | 1 CA-CV 10-0469 |
| Parties | VINCENT WILLIAMS, a single man, Plaintiff/Appellant, v. H.A. DEVELOPERS; MONUMENT HOMES, INC.; D&M FRAMING; DON MATTHEWS, Defendants/Appellees. |
| Court | Arizona Court of Appeals |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Not for Publication-Rule 28, Arizona Rules of Civil Appellate Procedure)
Cause No. CV2007-022539 and CV2008-010417 (Consolidated)
The Honorable Bethany G. Hicks, Judge
Law Offices of John Greg Pain and
By John Gregg Pain
Phoenix
and
Law Offices of Fred J. Pain, Jr.
By Fred J. Pain, Jr.
Co-counsel Attorneys for Plaintiff/Appellant
Phoenix
Holloway Odegard Forrest & Kelley, PC
Phoenix
By Peter C. Kelly, II
Charles M. Callahan
Jesse M. Showalter
Attorneys for Defendants/Appellees H.A. Developers and Monument
Homes, Inc.
Allen & Lewis, PLC
By Robert K. Lewis
Shannon O'Connell
Jamie Tanner
Attorneys for Defendants/Appellees D&M Framing and Don Matthews
Phoenix
¶1 Plaintiff/Appellant Vincent Williams (Williams) appeals the superior court's summary judgment in favor of Defendants/Appellees H.A. Developers/Monument Homes, Inc. (collectively, Monument), D&M Framing, and Don Matthews (collectively, D&M Framing) on his negligence claims arising out of personal injuries Williams suffered when he fell from a makeshift ladder. For the following reasons, we affirm the superior court's summary judgment in favor of Monument, but reverse its judgment for D&M Framing and remand for further proceedings consistent with this decision.
¶2 Monument was the general contractor in charge of constructing a residence in Phoenix. Monument employed D&M Framing as a subcontractor to perform framing work at the property. Monument also contracted with Sexton Pest Control forservices at the property during the construction. Williams worked for Sexton as a pest control technician.
¶3 In late April 2007, Monument contacted Sexton to request that it address a problem with bees at the property. On April 27, Sexton dispatched Williams to the residence. When Williams arrived, a D&M Framing foreman directed him to the location of the beehive, on the side of the house approximately eighteen feet off the ground. Williams realized that the ladder he had brought to the site was not tall enough to allow him to reach the hive. D&M Framing's foreman suggested he use their makeshift ladder, which was constructed from two 2x4 wooden beams, with rungs made from 2x6 planks. The foreman told Williams that D&M Framing's employees used the makeshift ladder themselves. Williams climbed the ladder and treated the hive.
¶4 Shortly thereafter, the bees returned and Monument requested Sexton re-treat the property. On May 9, Sexton again dispatched Williams. Although D&M Framing was still performing work at the residence, none of its employees were present when Williams returned and no other Monument employees were present. Williams found the makeshift ladder he had previously used to access the beehive lying on the porch of the residence near the hive. He propped it against the house and ascended it. When he stepped on the top rung of the makeshift ladder, it gave out and Williams fell approximately eighteen feet to the ground and suffered serious physical injuries.
¶5 Williams filed this action for negligence against Monument and D&M Framing.2 Monument filed a notice of non-party at fault, alleging that Williams' "claimed injuries and damages were caused (wholly or partially) by the fault of non-party Sexton Pest Control, Inc." Monument moved for summary judgment on the grounds that Williams had produced no evidence that Monument had caused his injuries. D&M Framing joined the motion. In response, Williams argued that D&M Framing's conduct was the cause of his injuries and that Monument, as the possessor of the land, was vicariously liable for D&M Framing's negligence. The court granted summary judgment for Monument and D&M Framing and subsequently denied Williams' motion for new trial.
¶6 Williams timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101.B. (2003).
¶7 Williams contends the superior court erred in granting summary judgment for Monument Homes and D&M Framing.3
¶8 A court may grant summary judgment when "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c). We view the evidence in the light most favorable to Williams, against whom judgment was entered, and determine de novo whether there are genuine issues of material fact and whether the trial court erred in its application of the law. Unique Equip. Co., Inc., 197 Ariz. at 52, ¶ 5, 3 P.3d at 972. We will affirm the entry of summary judgment if it is correct for any reason. Hawkins v. State, 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (App. 1995).
¶9 To establish a claim for negligence, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) the defendant's breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injury, and (4) actual damages. Gipson v.Kasey, 214 Ariz. 141, 143, 1 9, 150 P.3d 228, 230 (2007). D&M Framing moved for summary judgment on the grounds that Williams had not offered sufficient evidence to create a material question of fact on the issue of causation.
¶10 D&M Framing first argued that Williams had not presented any evidence that D&M Framing's acts were a proximate cause of his injury.
¶11 "A plaintiff proves proximate cause... by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred." Barrett v. Harris, 207 Ariz. 374, 378, 1 11, 86 P.3d 954, 958 (App. 2004). A defendant's act is a cause-in-fact of an injury if it helped cause the final result and that result would not have happened without the defendant's act. Ontiveros v. Borak, 136 Ariz. 500, 505, 667 P.2d 200, 205 (1983). Thus, a defendant may be liable for negligence even if his conduct contributed "only a little" to the plaintiff's injury if the injury would have not happened "but for" the defendant's conduct. Id. Causation is a question of fact for the jury in all but "rare instances." See Martinez v. Woodmar IV Condos. Homeowners Ass'n, Inc., 189 Ariz. 206, 212, 941 P.2d 218, 224(1997) (citing Petefish v. Dawe, 137 Ariz. 593, 599, 672 P.2d 937, 943 (App. 1982)); Diaz v. Phoenix Lubrication Serv., Inc., 224 Ariz. 335, 338, 1 12, 230 P.3d 718, 721 (App. 2010) ().
¶12 Williams argues he offered sufficient evidence to create a material question of fact on the issue of proximate cause. He cites the statements in his affidavit that D&M Framing's foreman gave him the makeshift ladder to use on his first visit to the property and told him that D&M Framing's employees used the ladder; the fact that the ladder was left in plain view near the beehive hive when he returned on May 9; and his avowal that he used the makeshift ladder on May 9 because he believed D&M Framing's employees had left it for him to use.
¶13 Viewing this evidence in the light most favorable to Williams, see Unique Equip. Co., Inc., 197 Ariz. at 52, 1 5, 3 P.3d at 972, a reasonable jury could determine that D&M Framing's act of leaving the makeshift ladder unsecured at the property was a proximate cause of Williams' injuries. We therefore cannot affirm the superior court's summary judgment in favor of D&M Framing on the grounds that, as a matter of law, its actions were not a proximate cause of Williams' injuries.
¶14 Next, D&M Framing contended that William's use of the makeshift ladder on May 9 was not foreseeable and therefore constituted a superseding cause that broke the chain of proximate cause and relieved it of any liability for his injury. It argues it could not have anticipated that Williams would return to the property to re-treat for bees and use the makeshift ladder.
¶15 A superseding cause occurs "when, and only when, an intervening act of another was unforeseeable by a reasonable person in the position of the original actor and when, looking backward, after the event, the intervening act appears extraordinary." Ontiveros, 136 Ariz. at 506, 667 P.2d at 206. To determine whether an event was extraordinary, the court will consider all of the facts, including those about which the defendant knew nothing at the time of the event. Restatement (Second) of Torts (Restatement), § 435, cmt. d (1965).
¶16 Williams' conduct was not sufficiently unforeseeable to constitute a superseding cause. A D&M Framing employee gave Williams the makeshift ladder to use on his first visit to the property and told him that D&M Framing's employees used the ladder themselves. When Williams returned to the property, the ladder was next to the beehive in the same location where he had previously used it, unsecured and in plain sight, with no warning sign or other indication that it should not be used as a ladder. Under such circumstances, we cannot say as a matter of law that it was unforeseeable and extraordinary that Williams returned to the property to treat a recurrence of the bee problem and climbed the makeshift ladder to reach the hive.4
¶17 The superior court's summary judgment for D&M Framing cannot be sustained on the grounds that Williams' actions were a superseding cause of his injuries.
¶18 ...
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