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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL DOLAN,
Plaintiff/Appellant,

v.

STATE OF ARIZONA,
Defendant/Appellee.

No. 1 CA-CV 22-0219
FILED 12-22-2022

Appeal from the Superior Court in Maricopa County
No. CV2018-009634
The Honorable Jay R. Adleman, Judge

VACATED AND REMANDED

COUNSEL

Zapata Law, PLLC, Chandler
By Julio M. Zapata
Co-Counsel for Plaintiff/Appellant

Law Offices of Gil Negrete, PC, Phoenix
By Gil Negrete
Co-Counsel for Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix
By G. Michael Tryon, Rebecca Banes
Counsel for Defendant/Appellee
 DOLAN v. STATE
Decision of the Court

MEMORANDUM DECISION

Acting Presiding Judge James B. Morse Jr. delivered the decision of the
Court, in which Judge Michael J. Brown and Chief Judge Kent E. Cattani
joined.

M O R S E, Judge:

¶1 Michael Dolan ("Dolan") appeals the superior court's grant of
summary judgment to the State. For the following reasons, we vacate that
ruling and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 On July 7, 2017, at about 9:35 a.m., Dolan drove his motorcycle
eastbound on Interstate 40 near milepost 120.5 in Yavapai County. Shortly
after passing a commercial vehicle, Dolan lost control of the motorcycle
when the rear tire slipped on the pavement. Dolan went off the roadway
and over the right-shoulder of the highway. After the crash, the
commercial-vehicle's driver stopped to help Dolan, called 9-1-1, and waited
for the police to arrive.

¶3 The investigating officer walked the roadway near milepost
120 and noticed a "black coating" over a large portion of the travel lanes. In
his crash report, the officer noted that the roadway "had recently been
coated in a layer of oil." He also wrote that Dolan traveled straight on the
roadway and engaged in "no improper action" while operating the
motorcycle. An ambulance transported Dolan to Flagstaff Medical Center
to treat his injuries.

¶4 Dolan filed suit against the State alleging negligence and
vicarious liability for the acts of the Arizona Department of Transportation
("ADOT"). After the close of discovery, the State moved for summary
judgment. Following oral argument, the superior court granted the State's
motion, finding that no genuine issues of material fact existed because
Dolan provided no evidence of causation to support his negligence claim.

¶5 Dolan timely appealed. We have jurisdiction under A.R.S.
§ 12-2101(A)(1).

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DISCUSSION

¶6 Dolan argues that the superior court erred because material
questions of fact make summary judgment inappropriate.

I. Summary Judgment Standard.

¶7 Summary judgment is appropriate only if no genuine dispute
of material fact exists and the moving party is entitled to judgment as a
matter of law. Ariz. R. Civ. P. 56(a). The moving party bears the burden of
demonstrating both the absence of a genuine dispute of material fact and
why summary judgment should be entered in its favor. Nat'l Bank of Ariz.
v. Thruston, 218 Ariz. 112, 115, ¶ 14 (App. 2008). "Any evidence or
reasonable inference contrary to the material facts . . . will preclude
summary judgment." United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195 (App.
1990). Mere "speculation or insubstantial doubt as to the facts will not
suffice, but where the evidence or inferences would permit a jury to resolve
a material issue in favor of either party, summary judgment is improper."
Id. "Further, a court must view the evidence in a light most favorable to the
non-moving party and draw all justifiable inferences in its favor." Thruston,
218 Ariz. at 116, ¶ 17.

¶8 If "the moving party argues it is entitled to summary
judgment because the non-moving party lacks evidence to support its claim
or defense," then "the moving party must do more than make bald
assertions that the non-moving party cannot meet its burden of proof at trial
or has no evidence supporting its claim or defense." Thruston, 218 Ariz. at
118, ¶ 23. Generally, the "moving party's burden of persuasion on the
motion remains with that party; it does not shift to the non-moving party."
Id. at 115, ¶ 16. However, if "a moving party meets its initial burden of
production by showing that the non-moving party does not have enough
evidence to carry its ultimate burden of proof at trial," then the burden
"shifts to the non-moving party to present sufficient evidence
demonstrating the existence of a genuine factual dispute as to a material
fact." Id. at 119, ¶ 26.

¶9 We review an order granting summary judgment de novo,
Jackson v. Eagle KMC L.L.C., 245 Ariz. 544, 545, ¶ 7 (2019), and may affirm "if
it is correct for any reason apparent in the record," Forszt v. Rodriguez, 212
Ariz. 263, 265, ¶ 9 (App. 2006).

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II. Negligence.

¶10 Dolan cites to circumstantial evidence and reasonable
inferences therefrom to argue there are genuine issues of material fact that
should have precluded summary judgment on breach and causation. The
State responds that it is entitled to summary judgment because Dolan failed
to produce evidence that (1) the State "either placed oil on the roadway or
had notice of its presence there"; and (2) the State's actions caused Dolan's
injuries.

¶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." Cal-Am Props. Inc. v. Edais Eng'g Inc., 253 Ariz. 78, 81,
¶ 5 (2022) (quoting Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007)). The State
is not an insurer of the safety of highways under its control, but it has a duty
to maintain its roadways and keep them safe for travel. Ariz. State Highway
Dep't v. Bechtold, 105 Ariz. 125, 129 (1969); Livesay v. State, 126 Ariz. 345, 346
(1980). The State recognizes that it has a duty to keep its highways
reasonably safe for the traveling public and does not challenge the standard
of care on appeal.1

¶12 The State breaches its duty when it (1) knows, or in the
exercise of reasonable care should have known, that a roadway is unsafe
and negligently fails to remedy the situation; or (2) is negligent in the way
it attempts to remedy the situation. City of Phoenix v. Kenly, 21 Ariz. App.
394, 396 (1974). For the State to be "liable for a failure to repair, it must have
first received actual or constructive notice of the defect." Wisener v. State, 123 Ariz. 148, 150 (1979). "However, if the [State] itself caused the defect,
or if the repairs or improvements were defective when made, notice of the
defects is not a prerequisite to holding the [State] liable." Id. (citations
omitted).

1 The State argued in its summary judgment motion that Dolan had failed
to provide evidence of the "highway engineering maintenance standard of
care" and so Dolan could not show the State breached that standard. The
State does not pursue that argument on appeal. See Childress Buick Co. v.
O'Connell, 198 Ariz. 454, 459, ¶ 29 (App. 2000) ("Our policy, and the policy
of most appellate courts, is that issues not clearly raised in appellate briefs
are deemed waived.").

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¶13 The State argues that ADOT maintenance records show it
neither placed nor had notice of the flush coat2 on the eastbound lanes at
milepost 120 and that Dolan presented no contrary evidence. Dolan argues
that circumstantial evidence shows that ADOT placed flush coat on the
roadway or, at least, had constructive notice of the condition. See Crye v.
Edwards, 178 Ariz. 327, 329 (App. 1993) ("Arizona has long recognized 'that
direct and circumstantial evidence have equal probative worth'; and our
supreme court has long 'abandoned the rule that each link in a chain of
circumstantial inference must exclude every other reasonable hypothesis.'"
(quoting Lohse v. Faultner, 176 Ariz. 253, 259 (App. 1992))). Although
Dolan's brief suggests the State had "constructive notice" of the flush coat
on the roadway, he presents no argument or citation to the record to
support this claim. Therefore, we decline to address this issue. See In re
3567 E. Alvord Road, 249 Ariz. 568, 572, ¶ 11 n.5 (App. 2020) ("We do not
address this suggestion because [appellant] has failed to fully develop this
argument or meaningfully cite to relevant authority . . . .").

¶14 Dolan argues a reasonable jury could infer facts establishing
liability because (i) the "State is in charge of applying oil coatings to the
roadways," (ii) the State's internal documents show the oil coating is known
to be slippery, and (iii) by not ensuring the "oil coating had completely
dried and/or that no oil spots exist[ed]," the State breached its duty to
maintain safe roads. Aside from his own declaration, Dolan points to the
commercial-vehicle driver's statements that "the roadway had recently
been coated in a layer of oil," and he had reduced his speed due to the oil
on the roadway. Dolan also cites the investigating officer's statements that
"[ADOT] had put oil down at some point" over a large section of the
eastbound travel lanes. Both parties acknowledge that ADOT (1) applied
flush coat to the eastbound lanes between mileposts 132 and 134 on July 5
and the westbound lanes between mileposts 121 and 134 on July 5 and 6;
and (2) conducted a shoulder sweeping operation over the eastbound lanes
between mileposts 121 and 146 on July 3.

¶15 For purposes of summary judgment, the State does not
dispute that an "oil-like substance on the roadway caused" Dolan's crash
and that ADOT had been applying flush coat to other parts of Interstate 40

2 According to the ADOT Construction Manual, "flush coat," also referred
to as "fog coat," has "a petroleum resin oil base, emulsified in water" and in
"most cases the fog coat leaves the surface extremely slippery, so it is sanded
(blotted) in order to permit earlier use of the pavement." The road is
"[n]ever open to traffic without sufficiently blotting to eliminate the
slippery surface" and "[t]raffic is kept off fog coats for at least 2 hours . . . ."

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a couple of days prior. Though the State argues that the oil "could have
ended up on the roadway in any number of ways," it does not provide any
alternative explanation for oil on a large section of the eastbound travel
lanes on a roadway that ADOT is responsible for maintaining. Moreover,
ADOT admits that it has a duty to maintain the highway in a manner that
is reasonably safe for ordinary travel. See Livesay, 126 Ariz. at 346. The
undisputed evidence that ADOT had coated other nearby portions of
Interstate 40 at the time, and witness statements describing an oily "black
coating" on the road, could allow a reasonable jury to infer that ADOT had
also applied a flush coat at the scene of the accident and that ADOT's
records are incorrect or incomplete. In the absence of any competing
plausible explanation from ADOT for the presence of the alleged coating
on the roadway, such an inference is not unreasonable. See Robertson v.
Sixpence Inns of Am., Inc., 163 Ariz. 539, 546 (1990) ("Plaintiff need only
present probable facts from which the causal relationship reasonably may
be inferred."); Buzard v. Griffin, 89 Ariz. 42, 48 (1960)("An inference is a fact
which may be presumed from the proof of the existence or non-existence of
other facts."); cf. also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 596-97 (1986) (noting that "equally plausible explanations" may
defeat reasonable inferences drawn from circumstantial evidence).

¶16 Dolan also challenges the superior court's ruling that he did
not establish causation. The court concluded that summary judgment in
favor of the State on causation was appropriate because Dolan presented
no evidence to establish a causal link between the State's conduct and
Dolan's injuries.

¶17 The State acknowledges that Dolan has presented evidence
for purposes of summary judgment that an "oil-like substance on the
roadway caused or contributed to his crash" and that ADOT had been
applying flush coat to other nearby parts of Interstate 40 a couple of days
prior. As discussed above, because a jury could reasonably infer that ADOT
had applied that oil-like substance near milepost 120, supra ¶ 15, we
conclude that there is a genuine dispute of material fact regarding both
breach and causation. See Allyn, 167 Ariz. at 195 (noting that "where the
evidence or inferences would permit a jury to resolve a material issue in
favor of either party, summary judgment is improper"); see also Salica v.
Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 419, ¶ 16 (App. 2010)
("Causation is generally a question of fact for the jury unless reasonable
persons could not conclude that a plaintiff had proved this element."
(quoting Barrett v. Harris, 207 Ariz. 374, 378, ¶ 12 (App. 2004))).

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 DOLAN v. STATE
Decision of the Court

CONCLUSION

¶18 For the above-stated reasons, we vacate the superior court's
grant of summary judgment to the State and remand this case for further
proceedings. Further, we grant Dolan his costs upon compliance with
ARCAP 21.

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

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