Haines v. Get Air Tucson Incorporated et al

Filing 276

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED that Defendant's 269 Objection is overruled, and Judge Markovich's 266 Report and Recommendation is accepted and adopted as set forth. IT IS FURTHER ORDERED that Defendant's 238 Motion for Summary Judgment is GRANTED as to Plaintiff's punitive damages claim only and is otherwise DENIED. Signed by Judge Rosemary Marquez on 10/19/18.(BAC)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Blake Haines,

No. CV-15-00002-TUC-RM (EJM)
Plaintiff,

10
11

v.

12

ORDER

Get Air Tucson Incorporated, et al.,

13

Defendants.

14
15

Pending before the Court is Defendant Get Air, LLC’s (“Defendant” or

16

“GALLC”) Motion for Summary Judgment. (Doc. 238.) On August 2, 2018, Magistrate

17

Judge Eric J. Markovich issued a Report and Recommendation (Doc. 266),

18

recommending that the Motion for Summary Judgment be granted as to Plaintiff’s

19

punitive damages claim but otherwise denied. Defendant filed an Objection (Doc. 269),

20

to which Plaintiff responded (Doc. 273).

21

I.

Standard of Review

22

A district judge “may accept, reject, or modify, in whole or in part, the findings or

23

recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district

24

judge must “make a de novo determination of those portions” of the magistrate judge’s

25

“report or specified proposed findings or recommendations to which objection is made.”

26

Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure

27

state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there

28

is no clear error on the face of the record in order to accept the recommendation” of a

1

magistrate judge. Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition. See

2

also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or

3

only partial objection is made, the district court judge reviews those unobjected portions

4

for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D.

5

Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and

6

Recommendation).

7

II.

GALLC’s Objection to Judge Markovich’s Report and Recommendation

8

As previously found by this Court, Plaintiff has presented evidence that GALLC

9

developed a generic employee handbook (“EH”) for use in other Get Air trampoline

10

parks as part of its support for the expansion of the Get Air business enterprise, and that

11

the EH was used by Get Air Tucson. (See Doc. 158 at 12-14; Doc. 172 at 5.)1 Plaintiff

12

claims that his injuries were caused by allegedly deficient safety rules contained in the

13

EH. (See Doc. 84 at 6, 10, 12-13.) In its Motion for Summary Judgment, Defendant

14

argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent

15

because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer

16

has any potential legal liability because the employee involved in the creation of the EH

17

was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s

18

claim for punitive damages is factually unsupported. (Doc. 238 at 1-2.)

19

Judge Markovich recommended that Defendant’s Motion for Summary Judgment

20

be granted with respect to Plaintiff’s punitive-damages claim. (Doc. 266 at 17.) Judge

21

Markovich rejected Defendant’s other arguments. He found that, as a result of “the

22

special business-customer relationship that was created when GALLC performed an

23

undertaking to develop the EH as part of its support work for the Get Air entities,”

24

GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules

25

in the EH. (Id. at 10.) Judge Markovich found that summary judgment on the issue of

26

breach of the standard of care is precluded because there is a material factual dispute

27

concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit

28

1

Record citations refer to the page numbers generated by the Court’s electronic filing
system.
-2-

1

the flip maneuver attempted by Plaintiff. (Id. at 7-8.) Judge Markovich also found that

2

the dismissal of Val Iverson does not preclude Plaintiff from pursuing this action against

3

GALLC, because a stipulated dismissal with prejudice no longer operates as an

4

adjudication on the merits under Arizona law, and because Plaintiff’s claims are based on

5

GALLC’s own negligence and piercing the corporate veil rather than on vicarious

6

liability.

7

connection argument is “belied by other evidence previously considered by the Court.”

8

(Id. at 16-17.)

(Id.

at 16.)

Finally, Judge Markovich found that Defendant’s causal-

9

Defendant argues that Judge Markovich erred in finding that GALLC owed

10

Plaintiff a duty, in finding a material factual dispute with respect to the issue of breach of

11

the standard of care, and in finding that GALLC can be held liable despite the dismissal

12

of Val Iverson.

13

Recommendation does not address Judge Markovich’s finding on causation. The parties

14

do not object to Judge Markovich’s finding that Plaintiff’s punitive-damages claim is

15

factually unsupported.

16

III.

(Doc. 269 at 1-10.)

GALLC’s Objection to the Report and

Discussion

17

As no specific objections have been made to Judge Markovich’s recommendations

18

regarding Plaintiff’s punitive-damages claim and Defendant’s causation argument, the

19

Court has reviewed those portions of the Report and Recommendation for clear error, and

20

has found none.

21

recommendation to grant Defendant’s Motion for Summary Judgment with respect to

22

Plaintiff’s punitive damages claim and to deny the Motion for Summary Judgment to the

23

extent it argues a lack of evidence of causation.

Accordingly, the Court will accept and adopt Judge Markovich’s

24

A.

25

“To establish a defendant’s liability for a negligence claim, a plaintiff must prove:

26

(1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of

27

that standard; (3) a causal connection between the breach and the resulting injury; and (4)

28

actual damages.”

Existence of Duty

Quiroz v. Alcoa Inc., 416 P.3d 824, 827-28 (Ariz. 2018).

-3-

The

1

existence of a duty is determined by the Court as a matter of law. See id. at 828. A duty

2

may “arise from a special relationship between the parties,” including a special

3

relationship finding its basis in “undertakings.” Stanley v. McCarver, 92 P.3d 849, 851

4

(Ariz. 2004); see also Quiroz, 416 P.3d at 829.

5

Although there is evidence that the various Get Air enterprises were operated as a

6

closely linked network, the Court does not find that Plaintiff and GALLC had a

7

traditional business-customer relationship. However, even though there was no direct

8

business-customer relationship, Plaintiff and GALLC nevertheless had a special

9

relationship based on GALLC undertaking to create safety rules for other Get Air

10

trampoline parks, which GALLC included in a generic EH developed as part of its

11

support work for the Get Air entities.

12

relationship is supported by Arizona case law as well as sections 323 and 324A of the

13

Restatement (Second) of Torts.

Imposition of a duty based on this special

14

In McCarver, the Arizona Supreme Court imposed a duty of reasonable care on a

15

radiologist contracted by the plaintiff’s employer to interpret an x-ray of the plaintiff’s

16

chest, despite the lack of a traditional doctor-patient relationship. 92 P.3d at 853. In

17

imposing a duty, the Court analyzed “whether the doctor was in a unique position to

18

prevent harm, the burden of preventing harm, whether the plaintiff relied upon the

19

doctor’s diagnosis or interpretation, the closeness of the connection between the

20

defendant’s conduct and the injury suffered, the degree of certainty that the plaintiff has

21

suffered or will suffer harm, the skill or special reputation of the actors, and public

22

policy.” Id. Though the facts at issue in McCarver differ from those at issue in the

23

present case, the factors supporting imposition of a duty in McCarver also support

24

imposition of a duty here. By including safety rules in a generic EH developed for use in

25

other Get Air parks, GALLC placed itself in a unique position to prevent harm to

26

customers of those other Get Air parks. Get Air Tucson customers such as Plaintiff relied

27

upon the safety rules developed by GALLC and enforced by Get Air Tucson. Plaintiff

28

alleges that his injuries were caused by deficiencies in those safety rules. GALLC’s

-4-

1

experience in the field of trampoline-park operations gave it special skill and a special

2

reputation with respect to the creation of safety rules for other Get Air parks. Deficient

3

safety rules increase the risk of harm to trampoline park customers, and the burden of

4

developing sufficient safety rules is minimal.

5

The Court in McCarver also found that imposition of a duty in that case

6

comported with Restatement (Second) of Torts § 324A. See McCarver, 92 P.3d at 853-

7

54. Defendant argues in its Objection that Restatement (Second) of Torts § 324A “can

8

appear to be the basis of the holding” in McCarver “but it is not.” (Doc. 269 at 3.) The

9

import of Defendant’s argument is unclear. Whether it forms the basis of the holding in

10

McCarver or not, Restatement (Second) of Torts § 324A has been adopted by Arizona

11

courts.

12

1997). Section 324A provides:

13

One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical
harm resulting from his failure to exercise reasonable care to protect his
undertaking, if
(a) his failure to exercise reasonable care increases the risk of
such harm, or
(b) he has undertaken to perform a duty owed by the other to
the third person, or
(c) the harm is suffered because of reliance of the other or the
third person upon the undertaking.

14
15
16
17
18
19

See Tollenaar v. Chino Valley Sch. Dist., 945 P.2d 1310, 1312 (Ariz. App.

Restatement (Second) of Torts § 324A (1965).

20

Restatement (Second) of Torts § 324A supports the existence of a duty in this

21

case.2 GALLC undertook to render services to Get Air Tucson (e.g., development of an

22
2

23
24
25
26
27
28

Defendant argues that § 324A is no longer a permissible basis of duty in Arizona
because it is based on foreseeability. (Doc. 269 at 8.) Defendant cites no authority in
support of the proposition that Arizona courts no longer follow § 324A. (See Doc. 247 at
1-4; Doc. 269 at 8.) Arizona courts have rejected the concept of duty based on the
creation of an unreasonable risk of harm to “a foreseeable plaintiff,” meaning a plaintiff
“who is within the orbit or zone of danger created by a defendant’s conduct.” Quiroz,
416 P.3d at 828 (internal quotation marks omitted). Here, however, GALLC owed a duty
to Get Air customers based on the special relationship created as a result of GALLC
undertaking to develop safety rules for the protection of those customers. The duty arises
from the special relationship rather than “zone of danger” foreseeability. See id. at 829
(given the elimination of foreseeability from the duty framework, “the duty analysis”
under Arizona law is limited to “common law special relationships or relationships
created by public policy”).
-5-

1

EH containing safety rules) which were necessary for the protection of Get Air Tucson’s

2

customers.

3

development of the EH’s safety rules; if so, the failure increased the risk of harm to Get

4

Air Tucson’s customers. See Restatement (2d) of Torts § 324A(a) (1965). Furthermore,

5

GALLC undertook to perform a duty—development of reasonable safety rules—which

6

Get Air Tucson owed to its customers. See id. at § 324A(b). Plaintiff alleges he was

7

injured as a result of his reliance upon the safety rules developed by GALLC and

8

enforced by Get Air Tucson. See id. at § 324A(c).

Plaintiff alleges that GALLC failed to exercise reasonable care in the

9

Restatement (Second) of Torts § 323 has also been adopted by Arizona courts, see

10

Tollenaar, 945 P.2d at 1312, and it also supports the existence of a duty here. Section

11

323 provides:

12

16

One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the
other’s person or things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care, increases the risk of such
harm, or
(b) the harm is suffered because of the other’s reliance upon
the undertaking.

17

Restatement (2d) of Torts § 323 (1965). GALLC’s creation of safety rules was a service

18

rendered not only to Get Air parks but to the customers of those parks, including Get Air

19

Tucson customers.

13
14
15

20

The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to

21

exercise reasonable care in the development of the safety rules contained in the generic

22

EH supplied to Get Air Tucson.

23

B.

24

The Court also agrees with Judge Markovich that there is a genuine issue of

25

material fact precluding summary judgment on the issue of whether GALLC breached its

26

duty to exercise reasonable care in the creation of the EH’s safety rules. Specifically,

27

there is a factual dispute regarding the definition of “somersault,” as used in the EH’s

28

safety rules and, therefore, a dispute regarding whether the flip maneuver attempted by

Breach

-6-

1

Plaintiff was prohibited by the safety rules. The evidence identified by Plaintiff and

2

Defendant indicates that there may be differing technical and layperson definitions of the

3

term “somersault.” Even if the maneuver attempted by Plaintiff falls within a technical

4

definition of the term “somersault,” as Defendant argues, Plaintiff has identified evidence

5

showing that Get Air employees did not consider flips to be encompassed by the EH’s

6

safety rule prohibiting somersaults. (See Doc. 246 at 4-5; Doc. 246-1.) Accordingly,

7

there is evidence from which a reasonable jury could find that the EH’s safety rules were

8

defective for not clearly prohibiting the flip maneuver that led to Plaintiff’s injuries.

9

C.

Liability of GALLC

10

Defendant argues that the only act of negligence alleged by Plaintiff is GALLC’s

11

creation of allegedly defective safety rules, that Val Iverson was solely responsible for

12

the creation of those safety rules, and that GALLC cannot be held vicariously liable for

13

the conduct of Val Iverson because he has been dismissed with prejudice. However, as

14

Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff

15

alleges that GALLC is independently negligent for undertaking to create a generic EH for

16

use in other Get Air parks, including Get Air Tucson, and including allegedly deficient

17

safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude

18

Plaintiff from asserting a claim against GALLC for its own independent negligence, even

19

if establishing the independent negligence of GALLC may require proof of Val Iverson’s

20

negligence. See Kopp v. Physician Grp. of Ariz., Inc., 421 P.3d 149, 150 (Ariz. 2018).

21

IT IS ORDERED that Defendant’s Objection (Doc. 269) is overruled, and Judge

22

Markovich’s Report and Recommendation (Doc. 266) is accepted and adopted as set

23

forth above.

24

....

25

....

26

....

27

....

28

....

-7-

1

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment

2

(Doc. 238) is granted as to Plaintiff’s punitive damages claim only and is otherwise

3

denied.

4

Dated this 19th day of October, 2018.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-8-