United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge.
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.
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
“owns a company that is the great-grandparent
company” of Shadow Mountain. (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.)
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). 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).
“[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).
Schirmer alleges that Avalon's actions amount to
malpractice as well as a violation of Arizona's Adult
Protective Services Act (“APSA”). 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.
APSA and the Definition of Care
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)).
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.”