Helen Schirmer v. Avalon Health Care, Inc. ( 2019 )

FILED
NOT FOR PUBLICATION
JUN 20 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HELEN SCHIRMER, surviving spouse of No. 17-16183
decedent CARL SCHIRMER, for and on
her own behalf and on behalf of the D.C. No. 2:15-cv-01550-GMS
decedent’s estate and on behalf of all who
may have a statutory right of recovery,
MEMORANDUM*
Plaintiff-Appellant,
v.
AVALON HEALTH CARE, INC., DBA
Avalon Care Center Shadow Mountains, a
Utah corporation; UNKNOWN PARTIES,
named as: John Does I-X, Jane Does I-X,
ABC Corporations I-X, and XYZ
Partnerships I-X,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted June 12, 2019
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER and M. SMITH, Circuit Judges, and RAKOFF,** District
Judge.
Plaintiff Helen Schirmer, surviving spouse of Carl Schirmer, appeals the
district court’s order granting summary judgment for defendant Avalon Health
Care, Inc. (“Avalon”). We affirm.
Avalon, headquartered in Utah, is the great grand-parent corporation to
Avalon Care Center—Shadow Mountain (“Shadow Mountain”), a nursing home in
Scottsdale, Arizona. Plaintiff claims that because Avalon controls Shadow
Mountain’s budget, Avalon should be liable for the neglect and carelessness that
caused Carl’s fall and his death.
The district court correctly concluded that Avalon was insufficiently
involved in Carl’s care to trigger liability under Arizona’s Adult Protection Act
(“APSA”). APSA protects vulnerable adults from abuse and neglect at the hands
of direct caregivers and managers of those caregivers. See Corbett v. ManorCare
of Am., Inc., 146 P.3d 1038 (Ariz. Ct. App. 2006) (explaining that APSA liability
extends to those who “cause or permit” the abuse or neglect) (original emphasis;
citation omitted). Plaintiff has not identified an Avalon employee or agent that
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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might have provided, supervised, or known about Carl’s care. Nor has plaintiff
shown corporate mingling that could trigger liability under an alter-ego theory.
For similar reasons, plaintiff’s remaining claims for negligence, wrongful
death, loss of consortium and punitive damages cannot survive. Liability on each
claim depends on Avalon owing Carl a duty of care. See A.R.S. § 12-563;
Ferguson v. Cash, Sullivan and Cross Ins. Agency, 831 P.2d 380, 383 (Ariz. Ct.
App. 1991) (“[I]n order to maintain a negligence action there must be a duty or
obligation recognized by law.”) (citation omitted); Ontiveros v. Borak, 136 Ariz.
500, 508 (1983) (explaining that there must be a sufficient relationship between the
plaintiff and defendant or third party to trigger such a duty). Since there are no
allegations that any Avalon employee or agent even knew about Carl’s care, there
is no basis to conclude that Avalon formed the requisite care-providing relationship
with Carl.
AFFIRMED.
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