Acosta v. State

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ADAM A. ACOSTA, Plaintiff/Appellant,

v.

STATE OF ARIZONA, et al., Defendants/Appellees.

No. 1 CA-CV 20-0388
FILED 3-25-2021

Appeal from the Superior Court in Maricopa County
No. CV 2016-009903
The Honorable Danielle J. Viola, Judge

AFFIRMED

COUNSEL

Watters Law PLLC, Tucson
By Andrea E. Watters
Counsel for Plaintiff/Appellant

Metzger Law Firm PLLC, Phoenix
By Nathan T. Metzger, Perry E. Casazza
Counsel for Defendant/Appellee, State of Arizona

Grasso Law Firm PC, Chandler
By Robert Grasso Jr., N. Patrick Hall
Counsel for Defendant/Appellee Gap Ministries, et al.
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MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 While living in a group foster home as a minor ward of the
State, Adam Acosta sustained a serious physical injury when another child
in foster care pierced his eye with a pencil. The superior court dismissed
Acosta’s claims against the State and other defendants, finding, as a matter
of law, that the defendants did not breach a duty of care that caused the eye
injury. Acosta appeals the superior court’s grant of summary judgment and
two disclosure rulings. For the following reasons, we affirm.

BACKGROUND

¶2 At the time of their physical altercation (“the pencil
incident”), 16-year-old Acosta and 14-year-old Michael had shared a
bedroom in a Gap Ministries’ group home for nearly one year.1 On that day,
Dawn Pratt, the group home foster mother, asked Acosta to clean his
portion of the shared bedroom. When Acosta later announced that he had
cleaned his half of the room, Pratt inspected his work.

¶3 After Acosta had cleaned his share of the mess, Pratt called
downstairs to Michael, asking him to clean his portion of the room. While
Pratt stood in the doorway, Michael brushed by and began cleaning the
bedroom closet. As he did so, he and Acosta began what became a heated
exchange, including profanity. To defuse the situation, Pratt repeatedly
asked Acosta to leave the room, but he ignored her requests.

¶4 Before long, Acosta crossed the room and pushed Michael.
Pratt could not see Michael because of Acosta’s larger physical stature and
position in the room (at the time of the incident, Acosta was considerably
taller and more than a hundred pounds heavier than Michael). Seconds
later, Pratt saw both boys roll onto a bed, locked in a physical struggle. Pratt
immediately moved toward the boys and ordered them to separate. By the

1 To protect his privacy and for ease of reference, we refer to the foster
child by a pseudonym.

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time she reached the bed, however, Michael had already punctured
Acosta’s eye with a pencil. As a result of the injury, Acosta was blinded in
one eye.

¶5 Acosta filed a complaint against the State, the Arizona
Department of Economic Security, the Division of Child Safety and Family
Services (collectively, “the State Defendants”), Gap Ministries, Inc., Harold
and Dawn Pratt, and Gregory and Pamela Ayers (collectively, “the Gap
Defendants”), alleging negligence, negligence per se, negligent hiring and
supervision, and premises liability. After separately answering Acosta’s
complaint, denying liability, the State Defendants and the Gap Defendants
moved for summary judgment, both separately and joining in each other’s
motions. Together, the defendants argued, among other things, that as a
matter of law, they neither breached a duty owed to Acosta nor proximately
caused his injury.

¶6 With their motions pending, the defendants challenged
Acosta’s disclosure of his expert’s declaration as untimely because it was
submitted in response to their motions for summary judgment. After
considering the fully briefed motions and oral argument, the superior court:
(1) granted summary judgment in favor of the State Defendants on Acosta’s
claim for negligence per se, finding the statute upon which the claim was
predicated, A.R.S. § 8-529(A)(2), by its express terms, does not “establish
any legally enforceable right or cause of action on behalf of any person”; (2)
granted summary judgment in favor of the State Defendants on Acosta’s
claim of premises liability, finding the State had no ownership interest in
the Gap Ministries’ foster care home; (3) granted summary judgment in
favor of the Gap Defendants on Acosta’s claim of negligence per se, finding
neither A.R.S. §§ 8-516 nor -529 imposes anything other than a “general
standard of care”; (4) granted summary judgment in favor of the Gap
Defendants on Acosta’s claim of premises liability, finding Acosta
presented no evidence of an unreasonably dangerous condition at the foster
home at the time he sustained his eye injury; and (5) concluded Acosta
failed to timely supplement the disclosure of his expert but declined to
preclude Acosta’s reliance on the expert’s testimony; instead, imposing
sanctions under Arizona Rule of Civil Procedure (“Rule”) 37(c)(3)(A),
allowing the defendants to depose the expert or conduct any other
associated discovery at Acosta’s expense. The court denied the remainder
of the defendants’ motions for summary judgment without prejudice,
inviting the defendants to renew their motions after discovery was
complete.

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¶7 Once the parties completed discovery, the defendants
renewed their motions for summary judgment. Citing Parsons v. Smithey, 109 Ariz. 49 (1973), the superior court found, as a matter of law, that it was
not foreseeable that Michael would pierce Acosta’s eye with a pencil.
Accordingly, the court granted summary judgment in favor of both the
State Defendants and the Gap Defendants on Acosta’s negligence claim.
Because the Pratts completed all the training required by the State, the court
also granted summary judgment in favor of the Gap Defendants on
Acosta’s negligent hiring and supervision claim. Having so found, the court
dismissed all of Acosta’s remaining claims.

¶8 After denying Acosta’s motion for new trial, the superior
court entered separate final judgments dismissing the defendants from the
action with prejudice and awarding the defendants’ their taxable costs and
a portion of their attorneys’ fees as sanctions. Acosta timely appealed.

DISCUSSION

I. Summary Judgment Rulings

¶9 Acosta challenges the dismissal of his negligence claim,
asserting disputed issues of material fact precluded summary judgment. He
contends the superior court incorrectly applied Parsons and invaded the
province of the jury when it determined, as a matter of law, that it was
unforeseeable that Michael would puncture his eye with a pencil. First,
Acosta argues the defendants “knew or should have known” that Michael
had a history of violence and were therefore negligent when they placed
him in a shared bedroom. Second, Acosta asserts that given the length of
his confrontation with Michael, Pratt was negligent by failing to intervene
and prevent the injury.

¶10 In reviewing a grant of summary judgment, we view the facts
and the reasonable inferences to be drawn from those facts in the light most
favorable to the non-moving party and affirm “if the evidence produced in
support of the defense or claim has so little probative value that no
reasonable person could find for its proponent.” State Comp. Fund v. Yellow
Cab Co. of Phoenix, 197 Ariz. 120, 122, ¶ 5 (App. 1999). “We review de novo
the [superior] court’s application of the law and its determination whether
genuine issues of material fact preclude summary judgment.” Id.; see also
Ariz. R. Civ. P. 56(a) (“The court shall grant summary judgment if 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.”). We will
affirm the court’s “decision if it is correct for any reason, even if that reason

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was not considered by the [] court.” Glaze v. Marcus, 151 Ariz. 538, 540 (App.
1986).

¶11 “To establish a claim for negligence, a plaintiff must prove
four elements: (1) a duty requiring the defendant to conform to a certain
standard of care; (2) a breach by the defendant of that standard; (3) a causal
connection between the defendant’s conduct and the resulting injury; and
(4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). While
the “first element, whether a duty exists,” is a question of law, breach,
causation, and damages “are factual issues usually decided by [a] jury.” Id.
Nonetheless, summary judgment is “appropriate if no reasonable juror
could conclude that the standard of care was breached or that the damages
were proximately caused by the defendant’s conduct.” Id. at 143, ¶ 9 n.1.

¶12 Foreseeability is not part of “our duty framework,” but it may
“be used to determine whether the defendant breached the relevant
standard of care or caused the plaintiff’s injury.” Quiroz v. ALCOA Inc., 243
Ariz. 560, 564–65, ¶¶ 9, 12 (2018). Applying a foreseeability analysis to the
elements of “breach and causation determines whether the injury was
foreseeable, [] not whether the plaintiff was foreseeable.” Id.

¶13 As noted by Acosta, the superior court relied extensively on
Parsons to inform its foreseeability analysis. In that case, the defendants’
minor son broke into the plaintiffs’ home and awakened one of the plaintiffs
by “beating her over the head with a hammer.” 109 Ariz. at 50. The plaintiffs
sued the defendants for parental negligence, claiming they failed to exercise
proper control over their son and prevent him from inflicting the plaintiffs’
injuries. Id. The superior court entered a directed verdict in favor of the
defendants, finding no liability for their son’s conduct. Id.

¶14 On appeal, the supreme court applied the parental liability
standard set forth in Restatement (Second) of Torts, § 316 (1965),
establishing that a parent has “a duty to exercise reasonable care” to control
his minor child and prevent him from “intentionally harming others” if the
parent “(a) knows or has reason to know that he has the ability to control
his child, and (b) knows or should know of the necessity and opportunity
for exercising such control.” Parsons, 109 Ariz. at 52. In assessing whether a
parent has breached this duty, the supreme court explained that “ordinary
rules of negligence” apply: “[T]he injury must have been the natural and
probable consequence of the negligent act, that is, a consequence which,
under the surrounding circumstances, might and ought reasonably to have
been foreseen as likely to flow from such act.” Id. at 52 (internal quotation
omitted).

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¶15 To be liable for failure to control one’s child, the supreme
court held that a parent must have “had knowledge of the child’s particular
disposition which was such that they should have known that he would
commit a certain type of act.” Id. at 53. In considering the plaintiffs’
contention that the defendants’ breached their duty to exercise reasonable
control over their minor son, the supreme court recounted evidence that the
defendants’ son had, prior to the underlying assault: threatened to throw
rocks at a woman on the street; “acted aggressively toward other children”
at school; broken into a classmate’s home and shoved her; committed arson;
and committed theft. Id. at 52. Notwithstanding these prior acts, the
supreme court concluded that the evidence “was not sufficient to send the
case to the jury on the issue of whether [the defendants] should have had
knowledge of [their son’s] propensity to commit” the underlying offenses.
Id. at 54. Clarifying the legal standard, the supreme court reiterated that as
a matter of law, a parent is not liable for the acts of his child unless there is
evidence that the parent “should have reasonably foreseen” that his child
“had a disposition to perform such a violent act.” Id.

¶16 Arguing the superior court incorrectly applied Parsons,
Acosta contends the case is factually distinct because, here, the State owed
a duty of care to both boys. While Acosta’s point is well-taken, there is no
dispute that the defendants owed him a duty of care to protect against
unreasonable risks of harm, and the superior court expressly recognized
that duty in its summary judgment ruling. See A.R.S. § 8-529(A)(2)
(recognizing that a foster child has a right “[t]o live in a safe, healthy and
comfortable placement where the child can receive reasonable protection
from harm”).

¶17 Instead of applying Parsons as part of a duty framework, the
superior court looked to Parsons to assess whether the defendants had
breached their duty and caused Acosta’s eye injury, concluding they did not
because the injury was unforeseeable. We agree with the superior court.

¶18 To demonstrate foreseeability, Acosta presented two police
reports documenting Michael’s prior conduct. Approximately 18 months
before the pencil incident, Michael punched and choked a classmate at
school. As reflected in the police report detailing the assault, the victim
refused medical attention and had no visible marks or bruises. The police
officer also noted in his report that when the assistant principal discussed
the matter with Michael’s biological father, he disclosed that Michael had
similar fights with his siblings. Despite the father’s statement, the assistant
principal expressed “surprise[]” that Michael had been involved in an
altercation, stating Michael “did not have a history of violence or fighting.”

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Three months after the school incident, Michael punched his foster father
in the stomach. Again, the victim was not injured. The police report
documenting Michael’s altercation with his former foster father did not
mention any other incidents.

¶19 Citing these reports, Acosta contends the defendants were
negligent by placing him in the same bedroom with Michael. We disagree.
While Michael had two, documented physical altercations before residing
at the Gap Ministries’ foster home, and a report of other similar fights with
his siblings, none of the incidents involved a weapon or a resulting injury.
Guided by Parsons, we conclude the nature of Michael’s prior physical
altercations were not such that the defendants should have reasonably
foreseen he might use a weapon to inflict a serious physical injury on a
roommate if placed in a shared room.2

¶20 Alternatively, Acosta contends the defendants were negligent
because Pratt, who was present for the entire confrontation, failed to
prevent the verbal dispute from escalating to a physical altercation,
notwithstanding that the argument spanned several minutes, providing her
“ample” time to intervene. During his deposition, Acosta initially testified
that Michael pierced his eye with a pencil about two minutes after he
pushed Michael in the closet. But when he was questioned about that
timeline, Acosta conceded that only the verbal exchange lasted for a few
minutes and the push and stabbing happened “back-to-back.” In fact, like
Pratt, he testified that the two events happened very “quickly” and may
have been separated by only “a few seconds.”

¶21 In the year before the pencil incident, Michael had no
reported physical altercations, and although he and Acosta had numerous
verbal disagreements, it is uncontroverted that those disputes were never
physical and that Michael never hurt or threatened Acosta before the pencil
incident. Perhaps more important, Acosta admitted that he “provoked”
Michael immediately before Michael struck him with the pencil by crossing
the room, standing between him and the doorway, and pushing him. In
other words, by Acosta’s account, Michael did not initiate the physical
conflict; rather, he responded to it.

¶22 Moreover, contrary to his assertion that she “did nothing,” it
is undisputed that Pratt repeatedly asked Acosta to leave the room to

2 Acosta also claims that undisclosed evidence created a factual issue
precluding summary judgment under this theory of negligence. We
separately address this argument.

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deescalate the situation, but he refused. When Acosta cornered him in the
closet, Pratt momentarily lost sight of Michael, but it is uncontroverted that
she immediately rushed to separate the boys once they emerged from the
closet in a physical struggle.

¶23 Given the non-injurious nature of Michael’s prior physical
altercations, the boys’ history of verbal disputes without physical violence,
and Michael’s small stature relative to Acosta’s size, there was no basis for
Pratt to believe that Michael presented a threat of serious physical injury to
Acosta during the few minutes that preceded the push and stabbing.
Therefore, no reasonable juror could find that Pratt was negligent by using
only verbal commands to deescalate the verbal dispute before Acosta
pushed Michael. And because the record reflects that mere seconds
separated the push and the stabbing, there is no evidence to substantiate
Acosta’s claim that Pratt could have intervened to prevent his injury once
the dispute turned physical. Put simply, because it was unforeseeable that
Michael would inflict serious physical injury on Acosta, the superior court
did not err by dismissing Acosta’s negligence claim against all defendants
under both theories of liability.

II. Disclosure Rulings

¶24 Acosta also challenges two of the superior court’s disclosure
rulings. We review rulings on general discovery and disclosure issues for
an abuse of discretion. State v. Mahoney, 246 Ariz. 493, 495, ¶ 7 (App. 2019).

A. Caseworker Notes

¶25 In response to their renewed motions for summary judgment,
Acosta contended for the first time that the defendants failed to comply
with their disclosure obligations under Rule 26.1(a)(9). Acosta argued this
alleged violation precluded summary judgment. Specifically, he asserted
that the undisclosed caseworker notes documenting Michael’s conduct may
have revealed troubles Michael had before the pencil incident, rendering
Michael’s underlying conduct foreseeable. In its summary judgment ruling,
the superior court declined to address Acosta’s allegation of “missing
records,” citing his failure to raise the issue during the preceding five years
of litigation.

¶26 On appeal, Acosta contends the superior court erroneously
relieved the defendants of their affirmative duty to comply with Rule 26.1’s
disclosure requirements. He asserts the defendants’ breached their duty to
disclose by failing to produce the caseworker notes that were compiled
during the time the boys resided at the Gap Ministries’ foster home.

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¶27 As prescribed by statute and relevant here, “all personally
identifiable information concerning” a foster child “is confidential and shall
not be released unless ordered by a superior court judge.” A.R.S. § 41-
1959(A). To obtain this confidential information, a party “may petition a
judge of the superior court” to order its release. A.R.S. § 8-807(K); see also
A.R.S. § 41-1959(A). When presented with such a request, the court shall
review the records in camera and balance the rights of the parties who are
entitled to confidentiality . . . against the rights of the parties who are
seeking the release of the [confidential] information.” A.R.S. § 8-807(K).

¶28 Contrary to Acosta’s contention, the State did not have an
affirmative duty to disclose the caseworker notes under Rule 26.1. In fact,
absent a court order, the State was statutorily barred from disclosing the
notes. To obtain the caseworker notes, Acosta needed to comply with A.R.S.
§ 8-807(K) and petition the court for access, but he failed to do so.

¶29 Moreover, if Acosta wanted to oppose summary judgment
based on an inadequate or incomplete disclosure, he “should have
requested a continuance or filed an affidavit in compliance with [Rule
56(d)], explaining why he was [] unable to present facts essential to justify
his opposition.” Heuisler v. Phoenix Newspapers, Inc., 168 Ariz. 278, 281 (App.
1991). By failing to do so, Acosta “in effect conceded that he had sufficient
facts to withstand the motion for summary judgment” and waived any
claim that the superior court’s ruling was premature. Id. at 282.

¶30 Finally, contrary to Acosta’s repeated claim that the
undisclosed caseworker notes would “likely show that [Michael] had a
history of violent and injurious conduct,” the record reflects no evidence
that Michael ever engaged in such conduct. In fact, Michael had no physical
altercations of any kind while residing at the Gap Ministries’ foster home the
year before the pencil incident. When deposed, Pratt testified,
unequivocally, that Michael had never previously engaged in conduct that
caused concern while residing at the Gap Ministries’ foster home.
Consistent with this testimony, Acosta conceded that Michael had never
threatened or harmed him in any way before the pencil incident.

¶31 On this record, Acosta’s contention that the undisclosed
caseworker notes may have revealed that Michael engaged in a pattern of
violent conduct involving weapons or resulting in injuries is completely
unfounded. “Sheer speculation is insufficient . . . to defeat summary
judgment.” Badia v. City of Casa Grande, 195 Ariz. 349, 357, ¶ 29 (App. 1999).
Therefore, the superior court correctly determined that Acosta’s claim of a

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discovery violation, raised in response to the defendants’ renewed motions
for summary judgment, did not preclude dismissal of his negligence action.

B. Expert Declaration

¶32 Next, Acosta contends that he timely and adequately
disclosed his expert witness as required under Rule 26.1. He asserts the
superior court’s finding that he failed to provide a sufficiently detailed
disclosure impermissibly required him to “script” his expert’s opinion. For
this reason, he argues that the court improperly ordered him to pay, as
sanctions, the defendants’ fees and costs associated with investigation into
his expert’s opinion.

¶33 To comply with its obligations under Rule 26.1(d), a party
must disclose the identity of any expert witness it may use at trial. The party
must also state “the substance of the facts and opinions to which the expert
is expected to testify” and “a summary of the grounds for each opinion.”
Ariz. R. Civ. P. 26.1(d)(3)(C), (D).

¶34 In his first supplemental disclosure statement, submitted 18
months before the defendants initially moved for summary judgment,
Acosta disclosed that Timothy Turner would testify as “an expert in child
protective service and social service work.” Without specifying the alleged
standard of care or a factual basis for the alleged breach, Acosta stated that
Turner would testify regarding the defendants’ “failures . . . that resulted
in” his eye injury and opine that the injury could have been avoided had
the defendants not placed Acosta “in such a dangerous situation” or
provided proper supervision. Appearing to recognize the inadequacy of the
disclosure, Acosta stated that the “opinions of this witness will be
supplemented.” Nonetheless, Acosta failed to supplement the expert’s
opinion, despite numerous requests from defense counsel to do so.

¶35 After the defendants moved for summary judgment, Acosta
disclosed Turner’s declaration. Unlike the initial disclosure statement,
Turner’s declaration cited Michael’s prior physical altercations,
documented in police records, and opined that Michael’s history of violence
in response to “mild provocation” rendered it foreseeable that his verbal
dispute with Acosta would escalate with a “potential risk for a violent
assault.”

¶36 We disagree with Acosta’s assertion that his initial, general
disclosures were sufficient under Rule 26.1. Without question, Rule 26.1(d)
does not require “scripting” of an expert’s testimony, Solimeno v. Yonan, 224
Ariz. 74, 78, ¶ 14 (App. 2010), but the superior court did not impose such a

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standard here. Rather, the court found that Acosta’s initial disclosure failed
to state the full, developed opinions to which his expert was expected to
testify. We agree.

¶37 Notwithstanding its finding, the superior court did not
preclude Turner from testifying. Instead, the court permitted the
defendants to investigate the expert’s updated opinion and sanctioned
Acosta with the associated discovery expenses, ultimately ordering him to
pay $1,500 in attorneys’ fees to both the Gap Defendants and the State
Defendants.

¶38 Under Rule 37(c)(3)(A), the court may order a party to pay
“the reasonable expenses, including attorney’s fees, caused by the failure”
to timely disclose as required by Rule 26.1. “The determination of whether
the amount of attorney’s fees is reasonable is a matter peculiarly within the
discretion of [the superior] court.” Solimeno, 224 Ariz. at 82, ¶ 36 (internal
quotation omitted). Absent a ruling that “exceed[s] the bounds of reason,”
we will affirm. Id.

¶39 Applying these principles here, we find no abuse of
discretion. Although Acosta contends the sanctions present a hardship, he
does not otherwise challenge the amount of the award and we do not
conclude that it exceeds the bounds of reason.

CONCLUSION

¶40 For the foregoing reasons, we affirm. The State Defendants
request sanctions under A.R.S. § 12-349(A)(3) and the Gap Defendants
request sanctions under ARCAP 25. In our discretion, we deny both
requests. We award the defendants their costs incurred on appeal,
conditioned upon compliance with ARCAP 21.

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

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