Opinion
1 CA-CV 22-0306
02-28-2023
ALLISON DAVIS, Plaintiff/Appellant, v. ASHLEY CASIDA, et al., Defendants/Appellees.
Ahwatukee Legal Office PC, Phoenix By David L. Abney Co-counsel for Plaintiff/Appellant Steven A. Cohen Esq. PLC, Scottsdale By Steven A. Cohen Co-counsel for Plaintiff/Appellant Nelson & Sullivan Attorneys at Law, Phoenix By Amanda E. Nelson Counsel for Defendant/Appellee Rai Duer PC, Phoenix By Tom Duer, Marcus McGillivray Counsel for Defendant/Appellee Sun Valley Hope Animal Hospital Corporation
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2020-006919 The Honorable Christopher A. Coury, Judge
Ahwatukee Legal Office PC, Phoenix By David L. Abney Co-counsel for Plaintiff/Appellant
Steven A. Cohen Esq. PLC, Scottsdale By Steven A. Cohen Co-counsel for Plaintiff/Appellant
Nelson & Sullivan Attorneys at Law, Phoenix By Amanda E. Nelson Counsel for Defendant/Appellee
Rai Duer PC, Phoenix By Tom Duer, Marcus McGillivray Counsel for Defendant/Appellee Sun Valley Hope Animal Hospital Corporation
Judge Randall M. Howe delivered the decision of the court, in which Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.
MEMORANDUM DECISION
HOWE, JUDGE
¶1 Allison Davis challenges the superior court's granting Sun Valley Hope Animal Hospital Corporation ("Sun Valley") summary judgment. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 The underlying facts are largely undisputed. Sun Valley is a veterinary clinic that provides low-cost services for pet owners with financial limitations. Dr. Ashley Casida, a veterinarian, serves as Sun Valley's medical director. Zoey Wood was Sun Valley's office manager.
¶3 On June 20, 2019, Wood and a few co-workers gathered around a picnic bench outside Sun Valley's facility after an evening staff meeting, which Dr. Casida had attended. When leaving for the day, Dr. Casida drove her truck over to the picnic bench area to say goodbye. One co-worker, Matthew Clarke, climbed into the truck bed. Wood then climbed on to the truck's driver-side running boards, and Dr. Casida started driving slowly around the parking lot. During the ride, Wood lost her grip, fell, and suffered serious injuries. She died six days later.
¶4 Davis, Wood's mother, filed this wrongful death action against Dr. Casida and Sun Valley, contending that Sun Valley was vicariously liable for Dr. Casida's alleged negligence. Dr. Casida testified during a deposition that the ride was not connected to any team-building efforts. She was "saying good night" to the staff, believing it "important to have mutual respect and be a kind human being and say good night" when she left for the day. Clarke testified during his deposition that Dr. Casida did not prompt him to climb in the back of her truck when she pulled up.
¶5 Sun Valley moved for summary judgment, arguing that the incident occurred outside of Sun Valley's control. The superior court granted summary judgment for Sun Valley, finding that Dr. Casida "was not acting in the course and scope of her employment . . . at the time of the injuries." Davis timely appealed. We have jurisdiction under A.R.S. § 12-2101(A)(1).
DISCUSSION
¶6 To obtain summary judgment, Sun Valley must show that no genuine dispute exists as to any material fact and that it is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). We review a grant of summary judgment de novo. Zambrano v. M & RC II LLC, 254 Ariz. 53, 58 ¶ 9 (2022). We review the evidence and any reasonable inferences from those facts in the light most favorable to Davis. Mesquite Power, LLC v. Ariz. Dept of Rev., 252 Ariz. 74, 79 ¶ 12 (App. 2021). Summary judgment should be granted for a defendant only "if the facts produced in support of [a] claim . . . have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim." Orme School v. Reeves, 166 Ariz. 301, 309 (1990).
I. Vicarious Liability
¶7 Generally, an employer will be held vicariously liable for its employees' negligent work-related acts. Engler v. Gulf Interstate Engineering, Inc., 230 Ariz. 55, 57 ¶ 9 (2012). Vicarious liability attaches if the employee is acting within the scope and course of employment when the tortious act occurs. Id. To determine scope and course of employment, we consider whether and to what extent the employee was subject to the employer's control. Id. at 57 ¶ 10. We apply the test set forth in Restatement (Third) of Agency § 7.07(2):
An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.See Engler, 230 Ariz. at 58 ¶ 13 (adopting Restatement (Third) of Agency § 7.07).
¶8 Davis contends that Restatement (Third) of Agency § 7.07 does not apply to torts committed by one employee against another employee and that we instead should apply Restatement of Employment Law § 4.03. But comment f to that section, which addresses vicarious liability, cites back to Restatement (Third) of Agency § 7.07. Restatement of Employment Law § 4.03, cmt. f. Moreover, the relevant test under § 4.03 is similar: an employer is subject to liability if the employee's acts were "authorized or ratified by the employer" or "undertaken within the scope of employment." Restatement of Employment Law § 4.03(a), (b).
¶9 Davis also contends that we should disregard Restatement (Third) of Agency § 7.07(2) in favor of a different set of factors set forth in Truck Ins. Exchange v. Indus. Comm'n, 22 Ariz.App. 158 (1974). Truck Ins. Exchange is a workers' compensation case, and Davis does not explain why workers' compensation principles should apply to this tort case. See Engler, 230 Ariz. at 59 ¶ 15 ("Workers' compensation and tort law differ in purpose and scope."); Robarge v. Bechtel Power Corp., 131 Ariz. 280, 283 (App. 1982) ("[T]he rules adopted for workmen's compensation cases should not be mechanically applied in negligence cases."). We therefore apply the Restatement (Third) of Agency test to determine whether Dr. Casida was acting within the scope and course of her employment.
II. Course and Scope of Employment
¶10 Davis contends that a jury could reasonably infer from the record that "Dr. Casida's invitation to [Wood] and others to take a slow-motion ride on her truck was an implicit effort to improve relations . . . with the important business-related underlying goal being promoting team building." Whether an employee acted within the course and scope of employment generally presents questions of fact, but the issue can be resolved as a matter of law if the undisputed facts show the employee's conduct was clearly outside the scope of employment. Higginbotham v. AN Motors of Scottsdale, 228 Ariz. 550, 552 ¶ 5 (App. 2012) (citing McCloud v. Ariz. Dept. of Pub. Safety, 217 Ariz. 82, 91 ¶ 29 (App. 2007)).
¶11 The record presents no evidence that Dr. Casida directly or implicitly compelled either Clarke or Wood to ride on her truck. To the contrary, Clarke testified that he climbed into the truck bed of his own accord. Dr. Casida testified - and Davis does not dispute-that she did not tell or ask Wood to climb on to the running boards.
¶12 Davis cites two workers' compensation cases, Lawrence v. Indus. Comm'n, 78 Ariz. 401 (1955), and Johnson Stewart Mining Co. v. Indus. Comm'n, 133 Ariz. 424 (App. 1982), for the proposition that an employer who directly or implicitly compels an employee to attend a recreational activity "has expanded the employment such as to include the . . . activity." Davis does not show that workers' compensation principles should govern this tort case. See supra ¶ 9; see also Robarge, 131 Ariz. at 284 ("[Respondeat superior is the standard . . ., and other concepts borrowed from the area of workmen's compensation law can be considered but will not be controlling.").
¶13 Davis also cites Ray Korte Chevrolet v. Simmons, 117 Ariz. 202 (App. 1977), to contend that an employee acts within the scope and course of employment if he is doing something "his employment expressly or impliedly authorizes him to do" or can "reasonably be said to have been contemplated by that employment as necessarily or probably incidental to the employment." There, we affirmed a jury verdict for the plaintiff based on "considerable evidence that [the employee] was acting within the scope of his employment at the time of the accident." Id. at 207. Here, Davis presented no evidence that Sun Valley ever authorized Dr. Casida to drive around the parking lot with Wood and Clarke, or evidence that Sun Valley had control over the activity. See Engler, 230 Ariz. at 58 ¶ 13 (stating that an employee is not acting within the scope and course of employment when she "engages in an independent course of action that does not further the employer's purposes and is not within the control or right of control of the employer").
¶14 Moreover, the ride was not "incidental to [Dr. Casida's] employment-related goal of positive teambuilding," as Davis argues. The only evidence she offered to establish any such company goal was Sun Valley's "Codes of Conduct," which state that the company "practice[s] team building and [is] committed to teamwork." The record shows no evidence that Sun Valley did specific team-building events. Moreover, Dr. Casida testified that the ride was not connected to any team-building efforts. She clarified that she "was saying good night." She testified that she believed it "important to have mutual respect and be a kind human being and say good night" when she left for the day.
¶15 Further, Davis argues that Dr. Casida's testimony "reflects someone who is seeking to ingratiate herself with her co-workers so as to improve the work environment for the benefit of her employer," but arguments of counsel are not evidence. See London v. Green Acres Tr., 159 Ariz. 136, 141 (App. 1988) ("A statement by counsel is not a finding by the court, nor is it evidence before the court.").
¶16 Finally, Davis argues that Dr. Casida's "implied invitation" was incidental to her "position and authority," citing State v. Schallock, 189 Ariz. 250 (1997). Again, the record provides no evidence to suggest that Dr. Casida made an "implied invitation" or show any such invitation would have been incidental to her position or authority as Sun Valley's medical director. The superior court did not err in granting summary judgment to Sun Valley.
CONCLUSION
¶17 For the foregoing reasons, we affirm. We decline to award Sun Valley its attorneys' fees on appeal because it does not "specifically state the statute, rule, decisional law, contract, or other authority" in its request. Ariz. R. Civ. App. Proc. 21(a)(2). As the prevailing party, however, Sun Valley may recover its taxable costs incurred in this appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.