Doyle v. Bashas

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

SANDRA K. DOYLE, individually and as personal
representative of the Estate of Clayton William Doyle,
deceased, Plaintiff/Appellant,

v.

BASHAS’ INC., an Arizona Corporation, Defendant/Appellee.

No. 1 CA-CV 13-0195
FILED 3-20-2014

Appeal from the Superior Court in Maricopa County
No. CV2011-012506
The Honorable John Christian Rea, Judge

REVERSED AND REMANDED

COUNSEL

Sandra K. Doyle, Superior

Plaintiff/Appellant

Burch & Cracchiolo PA, Phoenix
By Ian Neale, Jessica Conaway

Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Maurice Portley joined.

N O R R I S, Judge:

¶1 Plaintiff/Appellant Sandra K. Doyle appeals the superior
court’s summary judgment for Defendant/Appellee Bashas’ Inc. on her
claim for the wrongful death of her husband, Clayton William Doyle
(“Bill”). 1 Because a genuine dispute of material fact precluded summary
judgment, we reverse and remand the judgment on Doyle’s wrongful
death claim for further proceedings consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 Bill injured his hip and lower back while working for a
contractor completing renovations at a Bashas’ store. Five months later,
he died from an overdose of pain medication. Doyle filed this action for
negligence and wrongful death, alleging Bill’s death was a direct and

1Doyle also appealed, on behalf of Bill’s estate, the superior
court’s grant of summary judgment for Bashas’ on the estate’s negligence
claim. An unrepresented litigant may not appear on behalf of an estate in
a court proceeding. Cf. Byers-Watts v. Parker, 199 Ariz. 466, 469, ¶ 13, 18
P.3d 1265, 1268 (App. 2001) (non-attorney parent or like fiduciary must be
represented by attorney to maintain lawsuit on behalf of child or
incompetent person); see also Hansen v. Hansen, 7 Cal. Rptr. 3d 688, 691
(Cal. Ct. App. 2003) (non-lawyer representing mother’s estate as personal
representative could not appear in propria persona for estate outside
probate proceedings); In re Marriage of Kanefsky, 260 P.3d 327, 329-30 (Colo.
App. 2010) (non-lawyer conservator could not represent party in divorce
action without attorney). Accordingly, we dismiss the estate’s appeal.

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proximate result of Bashas’ failure to exercise reasonable care in the
operation or maintenance of its premises. 2

¶3 Bashas’ moved for summary judgment, arguing that, as a
matter of law, Doyle could not establish that Bill’s fall had caused his
death. In response, Doyle argued a reasonable jury could find Bill’s fall
caused his death because the overdose resulted from the treatment of
injuries he sustained in the fall. The superior court agreed with Bashas’,
finding Doyle had failed to present any evidence that would raise a
genuine dispute of material fact as to whether Bill’s overdose was causally
related to his injury.

DISCUSSION

I. Jurisdiction

¶4 Before discussing the merits of Doyle’s appeal, we address
Bashas’ argument we lack jurisdiction over this appeal because Doyle
personally filed the notice of appeal while represented by counsel.

¶5 Although an attorney represented Doyle in the superior
court and did not formally withdraw as her counsel, she filed her notice of
appeal in propria persona. Arizona law prohibits a party who is
represented by counsel from personally conducting any aspect of the
litigation. Lincoln v. Lincoln, 155 Ariz. 272, 274, 746 P.2d 13, 15 (App. 1987)
(citations omitted). Nevertheless, Doyle contends she had difficulties
communicating with the attorney, he had abandoned her as a client, and
she would have lost her right to appeal if she had not filed the notice of
appeal. We also note the presiding disciplinary judge of the State Bar of
Arizona accepted the attorney’s consent to disbarment on May 2, 2013, to
be effective immediately. Doyle filed her opening brief with this court on
June 25, 2013, after the attorney’s disbarment. Under these circumstances,
and because Bashas’ has not alleged any prejudice, we determine Doyle’s
in propria persona notice of appeal was not defective. See McKillip v.
Smitty’s Super Valu, Inc., 190 Ariz. 61, 62, 945 P.2d 372, 373 (App. 1997)
(This court “review[s] notices of appeal liberally, disregarding technical,

2Doyle also alleged claims against two other defendants, and
the superior court granted summary judgment for the other defendants.
Those claims are not at issue in this appeal.

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harmless errors in favor of disposition on the merits.”); cf. Panzino v. City
of Phx., 196 Ariz. 442, 445-47, ¶¶ 8-15, 999 P.2d 198, 201-03 (2000) (in the
context of Rule 60(c) motion, defendant bound by attorney’s failure to act,
even when attorney had arguably neglected and abandoned the case).

II. Summary Judgment

¶6 Here, as in the superior court, the parties focus their
arguments regarding the appropriateness of summary judgment on the
issue of causation and, more specifically, on the doctrine of intervening,
superseding causation. “An intervening cause is an independent cause
that intervenes between defendant’s original negligent act or omission
and the final result and is necessary in bringing about that result.”
Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546, 789 P.2d 1040,
1047 (1990) (citations omitted). “Not all intervening acts are superseding
causes, however. A superseding cause . . . arises only when an
intervening force was unforeseeable and may be described, with the
benefit of hindsight, as extraordinary.” Id. (citations omitted).

¶7 Doyle argues the overdose was not a superseding cause and
Bill’s injury at the Bashas’ store remained the proximate cause of his death
because he would not have required the pain medication but for that
injury. She further asserts a reasonable jury could find the overdose was a
foreseeable, and not extraordinary, consequence of Bill’s injury. In
support of her argument, Doyle points to evidence in the record that Bill
suffered from a pre-existing liver disease that may have caused him to
become confused and ingest more than his prescribed amount of pain
medication or increased his sensitivity to “CNS-depressant drugs (alcohol,
muscle relaxants, pain medications)” leading to toxic levels in his
bloodstream and a fatal overdose. 3

¶8 Viewing this evidence and reasonable inferences in the light
most favorable to Doyle, see Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69
P.3d 7, 11 (2003), we agree with Doyle that a genuine dispute of material

3In responding to Bashas’ summary judgment motion, Doyle
submitted a letter from Bill’s treating doctor that discussed Bill’s pre-
existing liver disease. Bashas’ neither raised an evidentiary objection to
this letter nor moved to strike it. Cf. Airfreight Express Ltd. v. Evergreen Air
Ctr., Inc., 215 Ariz. 103, 112, ¶ 26, 158 P.3d 232, 241 (App. 2007) (holding
evidentiary deficiencies in affidavit supporting motion for summary
judgment waived for failure to either object or move to strike).

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fact exists as to whether the overdose was a superseding cause of Bill’s
death. 4 A reasonable jury could find Bashas’ alleged negligence was, at
least partially, the proximate cause of Bill’s death because his injury led to
his use of the prescription pain medication that ultimately killed him. See
Ritchie v. Krasner, 221 Ariz. 288, 299, ¶¶ 28-29, 211 P.3d 1272, 1283 (App.
2009) (holding jury did not err in finding physician’s misdiagnosis was
partially the proximate cause of decedent’s fatal overdose of pain
medication used to treat the overlooked condition); Barrett v. Harris, 207
Ariz. 374, 380-81, ¶¶ 24-26, 86 P.3d 954, 960-61 (App. 2004) (discussing
“substantial factor” test for proximate causation); Restatement (Second) of
Torts § 457 (1965) (negligent actor may be liable for additional harm
resulting from third persons’ acts -- whether proper or negligent -- in
rendering aid for the original injury).

¶9 Bashas’ argues that Bill’s death was not from the drug
overdose alone, but rather from the combined effect of taking the pain
medication with alcohol and anti-depressants and that this act constituted
an intervening, superseding cause. Bill’s act, however, would only relieve
Bashas’ from liability if it was both unforeseeable by a reasonable person
in Bashas’ position and, with the benefit of hindsight, extraordinary.
Robertson, 163 Ariz. at 546, 789 P.2d at 1047. Further, a reasonably
foreseeable event is one that “might reasonably be expected to occur now
and then, and would be recognized as not highly unlikely if it did suggest
itself to the actor’s mind.” Tellez v. Saban, 188 Ariz. 165, 172, 933 P.2d 1233,
1240 (App. 1996) (citation omitted) (internal quotation marks omitted).

¶10 The question presented by Bashas’ argument, thus, is
whether Bill’s act of ingesting the pain medication with alcohol and anti-
depressants might “reasonably be expected to occur now and then.” See
id. On this record, a reasonable jury could answer this question: “Yes.”
See Ritchie, 221 Ariz. at 299, ¶ 28, 211 P.3d at 1283 (jury could find
decedent’s physical deterioration and reliance on medication foreseeable);
Gipson v. Kasey, 212 Ariz. 235, 243, ¶ 34, 129 P.3d 957, 965 (App. 2006)
(reasonable jury could find decedent’s act of ingesting pain pills with
alcohol might be expected to occur now and then), vacated in part on other

4In the superior court, Bashas’ argued Bill had committed
suicide, and Doyle disputed this. Bashas’ offered no evidence in support
of its position, however, and instead maintained that the manner of Bill’s
death was irrelevant for purposes of its motion.

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grounds, 214 Ariz. 141, 150 P.3d 228 (2007). 5 Further, as we noted in
Gipson, “[i]n Arizona a court generally cannot grant summary judgment
or a directed verdict on the basis of plaintiff’s fault in causing an injury or
death.” 212 Ariz. at 243, ¶ 35, 211 P.3d at 965.

CONCLUSION

¶11 For the foregoing reasons, we reverse the superior court’s
summary judgment for Bashas’ on Doyle’s claims and remand for further
proceedings consistent with this decision.

:mjt

5Because a genuine dispute of material fact regarding
foreseeability exists, we do not need to decide whether Bill’s act, with the
benefit of hindsight, is “extraordinary.”

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