Capp v. Welch

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLOTTE CAPP, Plaintiff/Appellant,

v.

ALLEN WELCH, III, Defendant/Appellee.

No. 1 CA-CV 21-0018
FILED 11-2-2021

Appeal from the Superior Court in Yavapai County
No. P1300CV202000055
The Honorable Michael P. McGill, Judge

AFFIRMED

COUNSEL

Ayon Law, PLLC, Phoenix
By Luis A. Ayon Jr.
Counsel for Plaintiff/Appellant

Wright Welker & Pauole PLC, Phoenix
By Dominic L. Verstegen
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Peter B. Swann and Judge David D. Weinzweig joined.

M c M U R D I E, Judge:

¶1 Charlotte Capp appeals from the superior court’s summary
judgment to Allen Welch III on her personal-injury complaint. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Capp was struck by an all-terrain vehicle (“ATV”) while
walking on the sidewalk of South Main Street in Cottonwood. The police
determined that Welch owned the ATV, but he was not driving it at the
time of the accident because he was working in Bagdad. Welch typically
kept the ATV at his father’s property in Cottonwood.

¶3 According to Welch’s father, around 20 to 30 people attended
a bonfire on his property the night of the accident. While he did not know
who used the ATV, he speculated that one of the bonfire attendees may
have taken it without permission. Unfortunately, the driver was never
identified.

¶4 Capp sued Welch, alleging (1) Welch is liable under the
family purpose doctrine; (2) Welch negligently entrusted the ATV to the
driver; and (3) “Welch was negligent in supervising his [ATV].”

¶5 The superior court granted summary judgment to Welch.
Noting the facts were largely undisputed, the court found that the family
purpose doctrine did not apply, no evidence showed Welch had negligently
entrusted the ATV to his father or the driver, and Welch did not owe Capp
a duty of care. Capp appealed, and we have jurisdiction under A.R.S.
§ 12-2101(A)(1).

DISCUSSION

¶6 We review de novo whether summary judgment is warranted,
including whether genuine issues of material fact exist and whether the trial
court correctly applied the law. Am. Furniture Warehouse Co. v. Town of
Gilbert, 245 Ariz. 156, 159, ¶ 9 (App. 2018). We typically view the evidence

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Decision of the Court

in the light most favorable to the non-moving party. Normandin v. Encanto
Adventures, LLC, 246 Ariz. 458, 460, ¶ 9 (2019). But Capp did not file a
controverting statement of facts, relying instead on Welch’s evidence. We,
therefore, may accept Welch’s evidence as accurate if only one inference can
be drawn from it. Tilley v. Delci, 220 Ariz. 233, 237, ¶ 11 (App. 2009); see also
Ariz. R. Civ. P. 56(e).

A. Welch Did Not Owe Capp a Duty to Supervise the ATV.

¶7 Capp contends the superior court erred by finding Welch
owed her no duty to supervise his ATV. A duty of care can arise out of
either the relationship between the parties or public policy. Gipson v. Kasey, 214 Ariz. 141, 144–46, ¶¶ 18–26 (2007). There is no evidence of any
preexisting relationship between Capp and Welch. Thus, Capp relies on
public policy to argue Welch owed her a duty to “ensur[e] that those using
the vehicle are competent to drive.”

¶8 This court addressed a similar public policy argument in Delci
v. Gutierrez Trucking Co., 229 Ariz. 333 (App. 2012). In Delci, an unknown
thief stole a tractor-trailer and injured the plaintiffs in a collision. Id. at 334,
¶¶ 2–3. The plaintiffs sued the tractor-trailer owner, claiming he
negligently failed to secure the vehicle. Id. at 334, ¶ 4. The plaintiffs argued
public policy should require all vehicle owners to take reasonable measures
to prevent theft. Id. at 336, ¶ 13. But we reasoned that, absent a special
relationship, there is no duty “to control the conduct of a third person as to
prevent him from causing physical harm to another[.]” Id. at 337, ¶ 16
(quoting Restatement (Second) of Torts § 315 (1965)). We affirmed the rule
that “the duty of a [vehicle] owner to exercise reasonable care in the
management of his [vehicle] does not include a duty to protect others from
the negligent driving of a thief.” Delci, 229 Ariz. at 338, ¶ 17.

¶9 Capp tries to distinguish this case from Delci by arguing the
driver was not “a thief or some unknown person,” but “a partygoer at
[Welch’s] father’s home who had consent to take the ATV at any time.” But
the only evidence the driver was a partygoer is Welch’s father’s speculation
that someone at the bonfire may have taken the ATV without his
permission. And Capp offered no evidence to support her contentions on
appeal that the bonfire attendees “had consent to take the ATV at any time.”
Nor is there evidence that Welch, who was in Bagdad, gave anyone at the
bonfire permission to ride the ATV that night.

¶10 Thus, the reasoning in Delci applies here. Welch owed Capp
no duty to protect her from the harm caused by the unknown driver.

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B. Capp’s Negligent Entrustment Claim Fails.

¶11 Capp also contends Welch negligently entrusted the ATV to
his father. Arizona recognizes a cause of action for negligent entrustment
as described in Restatement (Second) of Torts § 390 (1965):

One who supplies directly or through a third person a chattel
for the use of another whom the supplier knows or has reason
to know to be likely because of his youth, inexperience, or
otherwise, to use it in a manner involving unreasonable risk
of physical harm to himself and others whom the supplier
should expect to share in or be endangered by its use, is
subject to liability for physical harm resulting to them.

Verduzco v. Am. Valet, 240 Ariz. 221, 224, ¶ 8 (App. 2016).

¶12 To prevail, Capp must show (1) Welch owned or controlled
the ATV; (2) Welch permitted the driver to operate the ATV; (3) the driver,
because of his physical or mental condition, was incompetent to drive
safely; (4) Welch knew or should have known that the driver, because of his
physical or mental condition, was incompetent to drive safely;
(5) causation; and (6) damages. See id.

¶13 Capp presented no evidence that Welch gave the unidentified
driver permission to use the ATV. She also offered no evidence to suggest
the driver was incompetent to operate the ATV safely or that Welch should
have known the driver was incompetent. See Ward v. Mount Calvary
Lutheran Church, 178 Ariz. 350, 355 (App. 1994) (“[T]he fact that an accident
occurred is not enough to permit an inference of negligence.”). Her
negligent entrustment claim therefore fails.

C. The Family Purpose Doctrine Does Not Apply.

¶14 Capp also urges us to apply the family purpose doctrine,
under which liability “arises (1) when there is a head of the family, (2) who
maintains or furnishes a vehicle for the general use, pleasure, and
convenience of the family, and (3) a family member uses the vehicle with
the family’s head’s express or implied permission for a family purpose.”
Young v. Beck, 227 Ariz. 1, 8, ¶ 28 (2011).

¶15 Capp concedes Welch “is not . . . the ‘head of the family’ at his
father’s household,” and she presented no evidence to suggest the
unidentified driver was Welch’s family member using the ATV with his
permission for a family purpose.

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CONCLUSION

¶16 We affirm. Welch may recover his 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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