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Schirmer v. Avalon Health Care Inc.

United States District Court, D. Arizona

May 9, 2017

Helen Schirmer, Plaintiff,
v.
Avalon Health Care Incorporated, et al., Defendants.

          ORDER

          Honorable G. Murray Snow United States District Judge.

         Pending before the Court is Defendant Avalon Health Care Incorporated's (“Avalon”) Motion for Summary Judgment. (Doc. 61.) For the following reasons, the Court grants the motion.

         BACKGROUND

         Plaintiff Helen Schirmer (“Mrs. Schirmer”) is the widow of Carl Schirmer, who suffered a hip fracture after falling at his nursing home facility, Avalon Care Center- Shadow Mountain (“Shadow Mountain”). (Doc. 64 at 3; Doc. 72 at 2.) As a result of his fall, Mr. Schirmer was admitted to Scottsdale Health Care Shea Hospital to undergo surgery on his hip. (Doc. 72 at 3; Doc. 64 at 3.) Mr. Schirmer passed away soon after his hip surgery. (Doc. 72 at 3; Doc. 62 at 4.) Ms. Schirmer alleges that his fall and subsequent death is the result of Avalon's “negligence, carelessness, and breach of duty.” (Doc. 1, Ex. A at 5.)

         Avalon “owns a company that is the great-grandparent company” of Shadow Mountain.[1] (Doc. 62 at 2, Ex. A at 2.) Mrs. Schirmer alleges that while Shadow Mountain was the entity that provided the care to Mr. Schirmer, Shadow Mountain was effectively controlled by a separate “corporate” entity that made hiring, salary, equipment and other budget decisions. Schirmer fails to identify this “corporate” entity in any of the motion papers, and none of her witnesses actually testify that Avalon is the corporate entity to which they answered. (Doc. 64.) Avalon asserts that there is no evidence to suggest that it is the corporate entity making these decisions on behalf of Shadow Mountain. (Doc. 61 at 2.) However, it acknowledges that it provides some medical forms to various Avalon facilities, including Shadow Mountain. (Doc. 72 at 3; Doc. 64 at 4.) Avalon filed this motion for summary judgment to assert that Mrs. Schirmer's case against it should be dismissed because 1) Avalon did not provide any care to Mr. Schirmer and 2) Mrs. Schirmer failed to provide any evidence to support her alter ego theory of liability. (Doc. 61.) Alternatively, Avalon asserts that wrongful death and negligence claims (counts one, two and four) must be dismissed under Arizona law because Plaintiff failed to provide an expert opinion sufficient to meet the requirements of A.R.S. § 12-563. (Doc. 61.)

         DISCUSSION

         I. Legal Standard

         Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).[2] Substantive law determines which facts are material and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the nonmoving party must show that the genuine factual issues “‘can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'” Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (quoting Anderson, 477 U.S. at 250).

         Although “[t]he evidence of [the non-moving party] is to be believed, and all justifiable inferences are to be drawn in [its] favor, ” the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). “A trial court can only consider admissible evidence in ruling on a motion for summary judgment, ” and evidence must be authenticated before it can be considered. Orr v. Bank of Am., 285 F.3d 764, 773-74 (9th Cir. 2002).

         II. Analysis

         Mrs. Schirmer alleges that Avalon's actions amount to malpractice as well as a violation of Arizona's Adult Protective Services Act (“APSA”).[3] Because Mrs. Schirmer cannot establish that Avalon provided care to Mr. Schirmer, and has failed to establish liability based on alter ego under Arizona law, her claims are dismissed.

         A. APSA and the Definition of Care

         APSA provides a cause of action for “vulnerable adult[s] whose life or health is being or has been endangered or injured by neglect, abuse or exploitation” to obtain damages against “any person or enterprise that has been employed to provide care, that has assumed a legal duty to provide care or that has been appointed by a court to provide care to such vulnerable adult for having caused or permitted such conduct.” A.R.S. § 46-455(B). Therefore, to obtain relief, the plaintiff must demonstrate that the defendant was providing care to Plaintiff's decedent. Id. APSA itself does not define the term “care, ” but Arizona courts have ruled that the term should be interpreted according to its ordinary meaning. See In re Estate of Wyatt, 235 Ariz. 138, 140, 329 P.3d 1040, 1042 (2014) (“We disagree that ‘provide care' is ambiguous. Although APSA does not define the term, we construe it according to its common meaning.”). “‘Care' is ordinarily understood to mean ‘CHARGE, SUPERVISION, MANAGEMENT: responsibility for or attention to safety and well-being.'” Id. at 140 (quoting Webster's New Int'l Dictionary 338 (3d ed. 1976)).

         In Corbett v. ManorCare of Am., Inc., 213 Ariz. 618, 146 P.3d 1027 (Ct. App. 2006), the Court of Appeals of Arizona addressed whether employees of a parent corporation that had no personal interaction with the patient at issue could be sued under APSA. Id. It ruled that the trial court did not err in granting summary judgment on behalf of the employees of the parent corporation that had no interaction with the patient, because they “were not even in the State of Arizona at the time of [the plaintiff's] stay at the facility, ” “were not employed by any of the subsidiaries, ” “never met, spoke to, or had any personal contact with Ms. Loucks, ” and “they had no personal knowledge” of the plaintiff “her condition, her care, or her treatment while she was a patient at the facility.” Id. ...


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