Avitia v. Crisis Preparation

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

SAMUEL AVITIA, Plaintiff/Appellant,

v.

CRISIS PREPARATION AND RECOVERY INC, Defendant/Appellee.

No. 1 CA-CV 21-0083
FILED 11-8-2022

Appeal from the Superior Court in Maricopa County
Nos. CV2016-051180
CV2017-050265
The Honorable Sally Schneider Duncan, Judge Retired

AFFIRMED

COUNSEL

McCain & Bursh Attorneys at Law, P.C., Scottsdale
By Darius O. Bursh, Marc D. McCain
Co-Counsel for Plaintiff/Appellant

Kennedy Kemmet PLLC, Phoenix
By Jill M. Kennedy
Co-Counsel for Plaintiff/Appellant

Resnick & Louis PC, Scottsdale
By Carol M. Romano, Mitchell J. Resnick
Counsel for Defendant/Appellee

Greenberg Traurig LLP, Phoenix
By Jon T. Neumann, Adrianna Griego Gorton
Counsel for Intervenor
 AVITIA v. CRISIS PREPARATION, et al.
Opinion of the Court

OPINION

Presiding Judge Cynthia J. Bailey delivered the opinion of the Court, in
which Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

B A I L E Y, Judge:

¶1 Samuel Avitia, the father of infant twin boys drowned by
their mother (“Mother”), filed a wrongful death suit against various
defendants, including Crisis Preparation and Recovery, Inc. (“Crisis Prep”).
Avitia claimed Crisis Prep’s employees were in part responsible for the
twins’ deaths. Finding Crisis Prep owed no duty, the superior court
granted summary judgment in its favor, and Avitia appealed.

¶2 As discussed below, Crisis Prep did not owe (1) a tort duty
arising under a statute to report Mother to a peace officer or the Department
of Child Safety (“DCS”) under Arizona Revised Statutes (“A.R.S.”) section
13-3620 or (2) a duty to warn caregivers and protect the twins as
“foreseeable” victims within the “zone of danger.” Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3 Avitia’s twins were born in 2013. Avitia and Mother never
married and lived separately.

¶4 In accordance with a custody order, the twins were in Avitia’s
care half the time. Mother lived primarily in her mother’s extended-family
home and, at times, in her father’s apartment. The twins were often cared
for by their maternal grandmother. Mother and her family had told Avitia
that Mother had serious mental health issues, including suicidal ideations,
had been hospitalized to address those issues, and that the twins were cared
for by Mother’s family when necessary.

¶5 Mother had suffered from mental health problems for several
years, and she had been seen and treated by numerous mental health
professionals. Crisis Prep, which performs pre-petition emergent
screenings of persons for court-ordered involuntary evaluation and
treatment, evaluated Mother on multiple occasions.

¶6 In May 2011, Crisis Prep personnel twice sought to evaluate
Mother while she was receiving mental health treatment at a behavioral

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hospital, but they could not do so due to Mother’s mental state and refusal
to participate. In October 2013, Joanne Sanderl, a Crisis Prep licensed
professional counselor, evaluated Mother and determined that she did not
meet the criteria for seriously mentally ill (”SMI”) status while receiving
inpatient mental health treatment from another provider.

¶7 In April 2014, Mother suffered an extreme psychotic episode,
and Sanderl evaluated her in an emergency room. Mother’s mother told
Sanderl she was “terrified” for Mother to be alone with the twins and that
the family was concerned as to how she would behave with them. Sanderl
advised Mother that if she did not voluntarily agree to be transferred for
additional inpatient evaluation, treatment, and stabilization, Sanderl would
petition for involuntary treatment. Mother then tried unsuccessfully to
leave the hospital, assaulting hospital personnel in the process.

¶8 The next day, another Crisis Prep licensed professional
counselor, Ann Williams, initiated the process for Mother to receive
involuntary court-ordered evaluation and treatment, alleging that Mother
was a danger to herself and others. Mother’s mother and stepfather had
told Williams that Mother had threatened to harm the twins’ babysitters
and, as a result, Mother’s mother was caring for the twins. Mother was
transferred to another provider, which petitioned for court-ordered
evaluation based on allegations that she was a danger to self, a danger to
others, and persistently or acutely disabled. Mother was eventually taken
to a behavioral health center for evaluation and treatment.

¶9 Mother was then evaluated by several doctors and, in early
May 2014, a licensed master social worker from Crisis Prep, Erin O’Toole,
performed a level-of-care assessment. O’Toole noted that Mother was able
to care for herself and the twins most of the time, and that when compliant
with her medications she functioned well. O’Toole determined that Mother
did not qualify for SMI status and instead qualified for General Mental
Health Services. A Regional Behavioral Health Authority evaluator
reviewing the decision disagreed, however, concluding Mother was SMI,
had poor insight into her illness, needed treatment, and “[i]f left untreated
she will likely have more episodes, and may be a serious risk of harm to
herself and others.”

¶10 A few days later, the superior court held an evidentiary
hearing—at which Williams testified—on a petition for court-ordered
treatment. The court found Mother was a danger to herself and persistently
or acutely disabled, but not a danger to others, then ordered Mother to
undergo combined inpatient and outpatient treatment until she was no

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Opinion of the Court

longer a danger to herself or persistently or acutely disabled. The record
does not reflect that Crisis Prep employees saw or provided any
professional mental health services to Mother after May 2014.

¶11 More than fifteen months later, in August 2015, Mother
drowned the two-year-old twins in a bathtub after hearing voices in her
head telling her to do so. She was found guilty except insane for the first
degree murder of the twins and attempted murder of another family
member, and she was ordered confined to the Arizona State Hospital.

¶12 One year after the twins’ deaths, Avitia filed this wrongful
death complaint against the state, the county, and numerous health care
providers. As to Crisis Prep, Avitia’s claims included negligence; medical
negligence; negligent oversight, training, retention, and supervision; and
respondeat superior (vicarious liability). Avitia asserted Crisis Prep had a
duty to report Mother’s abuse or neglect of the twins, including
endangerment, and had not done so, and that Crisis Prep had also failed in
a duty to warn and protect the twins.

¶13 After the completion of discovery, co-defendant Dignity
Health d/b/a St. Joseph’s Hospital and Medical Center (“Dignity”) moved
for summary judgment. Crisis Prep joined the motion, arguing (1) it had
no statutory duty to report Mother to DCS or the police under A.R.S. § 13-
3620 because there was no evidence that abuse or neglect had occurred; (2)
there was no common law duty to warn others or protect the twins, and to
the extent there was, Crisis Prep had fulfilled it by recommending inpatient
mental health treatment for Mother; (3) given the length of time that passed,
Avitia could show no causal link between Crisis Prep’s actions and the
twins’ deaths; and (4) public policy considerations supported granting
summary judgment.

¶14 After oral argument on the Dignity and Crisis Prep motions,
the superior court granted summary judgment in favor of both defendants,1

1 On appeal, Crisis Prep has attached as an appendix to its answering
brief a copy of a reply in support of its joinder in Dignity’s motion for
summary judgment that is not part of the record on appeal. Crisis Prep
states it filed this reply under seal on June 23, 2020, served the reply on the
parties via e-mail on the same date, and it attaches correspondence showing
the list of recipients. According to Crisis Prep, it is not clear why this reply
is not part of the record on appeal or to what extent, if any, the superior
court considered it before granting summary judgment. We gather from

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explaining that “Mother was undergoing court-ordered treatment,” and
they had no “duty to report [M]other’s condition to [DCS] or any other State
agency.” The court declined to reach the causation issue because its ruling
was focused solely on whether the defendants owed a duty to report.

¶15 Avitia then filed (1) a motion for reconsideration and/or
clarification, and (2) an objection to Crisis Prep’s notice of lodging a
proposed form of judgment, both of which the superior court denied. The
court then entered a partial final judgment dismissing all claims against
Crisis Prep. See Ariz. R. Civ. P. (“Rule”) 54(b).

¶16 Avitia timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 12-2101(A)(1) and 12-
120.21(A)(1).

DISCUSSION

I. Standard of Review and Applicable Law

¶17 We review de novo the superior court’s grant of summary
judgment, construing the facts and reasonable inferences in the light most
favorable to Avitia, the opposing party. Andrews v. Blake, 205 Ariz. 236, 240,
¶ 12 (2003); Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons
Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13 (2002). Summary
judgment is appropriate when “the moving party shows that there is no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” Ariz. R. Civ. P. 56(a); accord Orme Sch. v.
Reeves, 166 Ariz. 301, 305 (1990). We will affirm summary judgment if the
superior court’s ruling is correct for any reason. Melendez v. Hallmark Ins.
Co., 232 Ariz. 327, 330, ¶ 9 (App. 2013) (citation omitted); Rowland v. Great
States Ins. Co., 199 Ariz. 577, 581, ¶ 6 (App. 2001).

¶18 To establish an Arizona common law negligence claim, a
plaintiff must prove four elements: (1) a legal 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 breach and the
plaintiff’s resulting injury; and (4) damages. Quiroz v. ALCOA Inc., 243

Crisis Prep’s inclusion of this item that it wishes us to consider it on appeal.
We decline to do so. The reply is not part of the record on appeal, and the
record does not show that Crisis Prep sought to supplement or correct the
record in the superior court. See ARCAP 11(g)(1); Lewis v. Oliver, 178 Ariz.
330, 338 (App. 1993). Accordingly, we disregard it.

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Ariz. 560, 563-64, ¶ 7 (2018); Ontiveros v. Borak, 136 Ariz. 500, 504 (1983)
(citing William L. Prosser, Handbook of the Law of Torts § 30, at 143 (4th ed.
1971); Wisener v. State, 123 Ariz. 148, 149 (1979)).

¶19 Generally, a duty is an “obligation, recognized by law, which
requires the defendant to conform to a particular standard of conduct in
order to protect others against unreasonable risks of harm.” Gipson v. Kasey,
214 Ariz. 141, 143, ¶ 10 (2007) (quoting Markowitz v. Ariz. Parks Bd., 146 Ariz.
352, 354 (1985), superseded by statute on other grounds as recognized in Maher v.
United States, 56 F.3d 1039, 1042 n.4 (9th Cir. 1995)). “[I]n negligence cases,
the duty if it exists is always the same—to conform to the legal standard of
reasonable conduct in the light of the apparent risk.” Coburn v. City of
Tucson, 143 Ariz. 50, 52 (1984) (brackets omitted) (quoting W. Page Keeton
et al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed. 1984)).

¶20 Unlike duty, the other elements of an Arizona common law
negligence claim typically are questions of fact. Thus, disputes over “what
the defendant must do, or must not do” do not define duty; instead, they
define the applicable standard of care. Gipson, 214 Ariz. at 143, ¶ 10
(brackets omitted) (quoting Coburn, 143 Ariz. at 52). “Whether the
defendant has met the standard of care—that is, whether there has been a
breach of duty—is an issue of fact that turns on the specifics of the
individual case.” Id. Such disputes generally are for the trier of fact. See
Ritchie v. Krasner, 221 Ariz. 288, 295, ¶ 11 (App. 2009) (stating that the
elements of negligence besides duty “are factual issues, and are generally
within the province of the jury” (citing Gipson, 214 Ariz. at 143, ¶ 9)).

¶21 In Arizona, a defendant may be held liable “if the result
would not have occurred but for defendant’s conduct, even if that conduct
contributed ‘only a little’ to plaintiff’s injuries.” Ontiveros, 136 Ariz. at 505
(quoting Markiewicz v. Salt River Valley Water Users’ Ass’n, 118 Ariz. 329, 338
n.6 (App. 1978)).

II. Motion for Judgment on the Pleadings

¶22 Avitia argues the superior court “already determined the
issue of duty” in his favor when it denied an earlier motion for judgment
on the pleadings filed by a co-defendant. Avitia argues we should apply
the “law of the case” doctrine, see Sholes v. Fernando, 228 Ariz. 455, 458-59,
¶¶ 7-9 (App. 2011), to preclude Crisis Prep from arguing that no duty
existed.

¶23 The court’s ruling on that motion is not dispositive on
whether summary judgment with regard to Crisis Prep—a different

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party—is appropriate. Even assuming the facts relating to the co-defendant
parallel those involving Crisis Prep, the legal standards for deciding a
motion for judgment on the pleadings under Rule 12(c) and a motion for
summary judgment under Rule 56(a) are different.

¶24 A Rule 12(c) motion “tests the sufficiency of the complaint,
and judgment should be entered for the defendant if the complaint fails to
state a claim for relief.” Giles v. Hill Lewis Marce, 195 Ariz. 358, 359, ¶ 2
(App. 1999) (citations omitted). In contrast, motions for summary judgment
generally involve the parties presenting, and the court considering,
additional evidentiary material beyond the allegations in the complaint, see
Workman v. Verde Wellness Ctr., Inc., 240 Ariz. 597, 601, ¶ 10 (App. 2016), and
summary judgment is proper when “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of
law,” Ariz. R. Civ. P. 56(a). Rule 12(c) motions are resolved without
reference to any discovery, while a motion for summary judgment typically
is not filed until discovery is complete. Orme Sch., 166 Ariz. at 309 & n.10.
Thus, the superior court’s ruling on a co-defendant’s Rule 12(c) motion was
not law of the case prohibiting entry of summary judgment for Crisis Prep.

III. Statutory Duty to Report Under A.R.S. § 13-3620

¶25 “[D]uty in Arizona is based on either recognized common law
special relationships or relationships created by public policy.” Quiroz, 243
Ariz. at 565, ¶ 14 (citing Guerra v. State, 237 Ariz. 183, 187, ¶ 20 (2015);
Gipson, 214 Ariz. at 144-45, ¶¶ 18, 23). Public policy creating a duty is based
on statutes and the common law. Id. at ¶ 15. “A statute reflecting public
policy may create a duty when a plaintiff ‘is within the class of persons to
be protected by the statute and the harm that occurred . . . is the risk that
the statute sought to protect against.’” Id. (quoting Gipson, 214 Ariz. at 146,
¶ 26); see also Ontiveros, 136 Ariz. at 510 (“[A] duty of care and the attendant
standard of conduct may be found in a statute silent on the issue of civil
liability.” (citations omitted)). State statutes are the primary source for
identifying a duty based on public policy in Arizona. Quiroz, 243 Ariz. at
566, ¶ 18.

¶26 Avitia notes Crisis Prep and its licensed healthcare workers
had a statutory duty to report ongoing or prior child abuse or neglect to a
peace officer or DCS under A.R.S. § 13-3620, and he contends the superior
court erred in finding it was “not clear how [Crisis Prep] violated A.R.S.
§ 13-3620” and in concluding Crisis Prep had no “duty to report [M]other’s
condition to [DCS] or any other State agency.”

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¶27 Section 13-3620 requires behavioral health professionals to
report child abuse or neglect to specified authorities:

A. Any person who reasonably believes that a minor is or has been
the victim of physical injury, abuse, child abuse, a reportable offense
or neglect that appears to have been inflicted on the minor by
other than accidental means or that is not explained by the
available medical history as being accidental in nature . . . shall
immediately report or cause reports to be made of this information
to a peace officer [or] to the department of child safety . . . . For the
purposes of this subsection, “person” means:

1. Any . . . behavioral health professional, . . . counselor or
social worker who develops the reasonable belief in the
course of treating a patient . . . .

(Emphasis added). When construing a statute, we “effectuate the text if it
is clear and unambiguous.” BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244
Ariz. 17, 19, ¶ 9 (2018) (citing State v. Burbey, 243 Ariz. 145, 147, ¶ 7 (2017)).

¶28 Under A.R.S. § 13-3620(A), Crisis Prep personnel had a duty
in April or May of 2014 to report to peace officers or DCS if they reasonably
believed the twins were being, or had been, abused or neglected by Mother.
However, Crisis Prep’s contacts with Mother did not disclose any
information that the twins were, or had been, victims of abuse or neglect or
that Mother even made any threats to harm them. Thus, any potential duty
under § 13-3620(A) was not implicated because when Crisis Prep personnel
had contact with Mother (and thereafter, until the twins’ deaths), there was
no abuse or neglect to report. In fact, Avitia himself stated that before the
twins’ deaths, he saw no signs of abuse or neglect and believed the twins
were well cared for and safe.

¶29 Avitia argues that Crisis Prep‘s evaluators had sufficient
information at the time of their contacts with Mother from which they could
have surmised that the twins might have been neglected through a lack of
supervision, food, clothing, shelter, or medical care causing unreasonable
risk of harm to their health or welfare, or otherwise placed in a situation
where they were endangered by Mother. See generally A.R.S. §§ 8-
201(25)(a), 13-3620(P)(3), 13-3623(A)-(B). Avitia’s argument, however,
relies on speculation that is not supported by the facts presented, and
speculation is insufficient to defeat summary judgment. Badia v. City of Casa
Grande, 195 Ariz. 349, 357, ¶ 29 (App. 1999) (citation omitted); Menendez v.
Paddock Pool Constr. Co., 172 Ariz. 258, 269 (App. 1991) (citing Orme Sch., 166

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Ariz. at 311). See also Ariz. R. Civ. P. 56(e) (“[A]n opposing party may not
rely merely on allegations or denials of its own pleading.”); State ex rel.
Corbin v. Challenge, Inc., 151 Ariz. 20, 26 (App. 1986) (“Conclusory
statements are simply insufficient to raise any genuine issues of material
fact under Rule 56(e) . . . .”). Accordingly, the superior court did not err in
granting summary judgment on this issue.2

IV. Common Law Duty to Warn and Protect

¶30 Avitia also contends that Crisis Prep had a common law duty
to warn and protect foreseeable victims, including the twins, against
physical harm caused by its patients.

¶31 Before Gipson and its progeny, Arizona case law “created
‘some confusion and lack of clarity . . . as to what extent, if any,
foreseeability issues bear on the initial legal determination of duty.’”
Gipson, 214 Ariz. at 144, ¶ 15 (quoting Riddle v. Ariz. Oncology Servs., Inc.,
186 Ariz. 464, 466 n.3 (App. 1996)).

¶32 In Hamman v. County of Maricopa, 161 Ariz. 58 (1989), our
supreme court relied on foreseeability to recognize a common law duty of
psychiatrists to warn or protect: “When a psychiatrist determines, or under
applicable professional standards reasonably should have determined, that
a patient poses a serious danger of violence to others, the psychiatrist has a
duty to exercise reasonable care to protect the foreseeable victim of that
danger.” Id. at 64 (adopting Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334
(Cal. 1976)). The court also held “that the duty extends to third persons
whose circumstances place them within the reasonably foreseeable area of
danger where the violent conduct of the patient is a threat.” Id. at 65.

¶33 Later, this court recognized Hamman as addressing a mental
health care provider’s duty to protect others against a patient’s conduct. Little
v. All Phoenix S. Cmty. Mental Health Ctr., Inc., 186 Ariz. 97, 101 (App. 1995).
The Little court held that the plaintiff provided sufficient evidence to
support a prima facie liability claim under Hamman when the mental health
care providers and counselors knew or should have known that their
patient “posed a serious danger of violence to others, and that [the] plaintiff
was a foreseeable victim . . . and therefore was ‘within the zone of danger.’”
Id. at 103 (quoting Hamman, 161 Ariz. at 64) (additional citations omitted).

2 Avitia waived his argument focusing on Crisis Prep’s contracts with
the Arizona Department of Health Services by failing to develop it. See
Polanco v. Indus. Comm’n, 214 Ariz. 489, 491, ¶ 6 n.2 (App. 2007).

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¶34 Hamman (and implicitly Little) relied on the special
relationship between a patient and a healthcare provider, recognizing the
provider took on a duty when it provided care to the patient. See Hamman,
161 Ariz. at 62. Both Hamman and Little then relied on foreseeability to
extend the existence of a duty to others. Hamman, 161 Ariz. at 64-65; Little,
186 Ariz. at 103-05.

¶35 Subsequently, however, in Gipson, our supreme court
expressly held “that foreseeability is not a factor to be considered by courts when
making determinations of duty, and we reject any contrary suggestion in prior
opinions.” 214 Ariz. at 144, ¶ 15 (emphasis added).

¶36 Later, in Quiroz, our supreme court affirmed that
“foreseeability is not a factor in determining duty.” 243 Ariz. at 563, ¶ 2
(citing Gipson, 214 Ariz. at 144, ¶ 15). The court explained that “[f]or many
years, Arizona, like most jurisdictions, used foreseeability as a factor in
determining duty,” but “Gipson enacted a sea change in Arizona tort law by
removing foreseeability from our duty framework.” Id. at 564-65, ¶¶ 8, 12
(citing Guerra, 237 Ariz. at 185, ¶ 8; Barkhurst v. Kingsmen of Route 66, Inc.,
234 Ariz. 470, 475, ¶ 17 (App. 2014)). Accordingly, post-Gipson, to the extent
prior Arizona cases relied on foreseeability to determine duty, such cases
are “no longer valid.” Id. at 565, ¶ 12 (citing Boisson v. Ariz. Bd. of Regents,
236 Ariz. 619, 622, ¶ 6 (App. 2015)); Delci v. Gutierrez Trucking Co., 229 Ariz.
333, 336, ¶ 11 (App. 2012).

¶37 More recently, in Dinsmoor v. City of Phoenix, 251 Ariz. 370
(2021), our supreme court further clarified the limitations placed on the
imposition of a duty. A high school student shot his girlfriend, another
student, after school and while at a friend’s house. Id. at 371-72, ¶ 1. The
girl’s mother sued the school district, the City of Phoenix, and various
school personnel based on a duty to protect. Id. at 373, ¶ 11. The superior
court entered summary judgment for all defendants, reasoning they owed
no duty to protect the victim under the circumstances. Id. Our supreme
court affirmed summary judgment, rejecting a duty based on the school-
student relationship. Id. at 377, ¶ 29. Although the school-student
relationship imposes an affirmative duty on a school to protect its students
from unreasonable risks of harm, id. at 373-74, ¶ 15, such a duty is not
limitless, and is instead “bounded by geography and time, encompassing
risks such as those that occur while the student is at school or otherwise
under the school’s control,” id. at 374, ¶¶ 17-18 (citing Monroe v. Basis Sch.,
Inc., 234 Ariz. 155, 157-58, ¶ 6 (App. 2014)). The court explained that “[t]he
key consideration is whether a known and tangible risk of harm arose that
endangered the student while under the school’s custody and control.” Id.

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at 376, ¶ 24 (citing Restatement (Third) of Torts: Liability for Physical Harm
§ 40(a) cmt. l (Am. L. Inst. 2012)). The court also rejected any argument that
“effectively injects foreseeability into the duty calculus, which this Court
has repeatedly cautioned against.” Id. (citing Quiroz, 243 Ariz. at 563, ¶ 2;
Gipson, 214 Ariz. at 144, ¶ 15). Consequently, through Gipson, Quiroz, and
Dinsmoor, our supreme court has made clear that courts should not
recognize a duty to others based on foreseeability.

¶38 Of course, we recognize we have no authority to overrule
Hamman. See Myers v. Reeb, 190 Ariz. 341, 342 (App. 1997) (“[W]e are bound
by decisions of the Arizona Supreme Court and have no authority to
overrule, modify, or disregard them . . . . Whether prior decisions of the
Arizona Supreme Court are to be disaffirmed is a question for that court.”
(quoting City of Phoenix v. Leroy’s Liquors, Inc., 177 Ariz. 375, 378 (App.
1993))). But, to the extent Hamman and Little recognized a duty to other
persons based solely on foreseeability, as Avitia advocates here, we
question the extent of their viability given our supreme court’s subsequent
opinions in Gipson, Quiroz, and Dinsmoor.

¶39 Here, Avitia alleges Crisis Prep assumed a duty based on a
special relationship to competently evaluate Mother when she was
admitted to healthcare facilities. But we cannot expand this duty into one
to warn and protect others based solely on foreseeability as Avitia proposes
without disregarding our supreme court’s admonitions in Gipson, Quiroz,
and Dinsmoor. Accordingly, we affirm the superior court’s summary
judgment based on the lack of a common law duty to warn and protect.

V. Summary Judgment as to All Claims

¶40 Avitia argues the superior court erred in granting summary
judgment on his remaining claims—medical negligence; negligent
oversight, training, retention, and supervision; and respondeat superior
(vicarious liability). Crisis Prep moved for summary judgment on all claims
against it, and although neither Dignity nor Crisis Prep offered any
additional legal or factual basis for dismissing those claims in their motions
for summary judgment, and the court provided no further explanation for
granting summary judgment on those claims, the clear underlying rationale
was a lack of duty, a required element of proof for each of the remaining
claims. Because no duty existed, we affirm that portion of the judgment
dismissing the remaining claims.

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CONCLUSION

¶41 Avitia did not establish that there were facts implicating a
duty of care under § 13-3620. And Crisis Prep had no common law duty to
warn and protect the twins as potentially foreseeable victims. We therefore
affirm the superior court’s summary judgment dismissing Avitia’s
complaint. Crisis Prep may recover its taxable costs incurred in this appeal
upon compliance with Arizona Rule of Civil Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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