Helen Schirmer v. Avalon Health Care, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 2019
• Docket: 17-16183
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 20 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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. 2 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.