In its ruling on a plaintiff’s appeal of the trial court’s order granting of the State of Arizona’s motion for summary judgment, the Court of Appeals clarified the applicable burden of proof.[i] As explained by the court, the party moving for summary judgment must do more than make bald assertions that the non-moving party cannot meet its burden of proof or does not have evidence supporting its claim or defense. It is only if the initial burden is met that the burden then shifts to the non-moving party to present sufficient evidence demonstrating the existence of a genuine factual dispute as to a material fact.
In this case, the plaintiff had been riding his motorcycle on Interstate 40 near milepost 120 when his rear tire slipped on the pavement causing him to lose control of the motorcycle and travel off the roadway and over the right-shoulder of the highway. The investigating officer noted that the roadway had been recently coated in a layer of oil.
The plaintiff filed suit against the State alleging negligence and vicarious liability for the acts of the Arizona Department of Transportation (hereinafter “ADOT”). The trial court granted the State’s motion for summary judgment, finding no genuine issues of material fact existed because the plaintiff produced no evidence of causation to support his negligence claim.
The State argued it was entitled to summary judgment because the plaintiff failed to produce evidence that: (1) the State either placed the oil on the roadway or had knowledge of the placement on the roadway; and (2) the State’s actions caused his injuries.
However, the plaintiff argued circumstantial evidence showed ADOT placed flush coat (a petroleum resin oil bas emulsified in water that, in most cases, leaves the surface extremely slippery) on the roadway or at least had constructive notice of its application at or near the location of the accident. In support of this argument, the plaintiff pointed to the statement of a commercial driver who had been driving on the same roadway, who said he slowed down due to recently applied oil on the roadway. The plaintiff also relied on the conclusion of the investigating officer that ADOT had put down oil on the roadway at some point. In addition, the evidence demonstrated that ADOT had been applying flush coat to other parts of Interstate 40 a few days prior to the accident.[ii]
The plaintiff contended that a reasonable jury could infer liability from the circumstantial evidence because: (1) the State is in charge of applying oil coating on roadways; (2) the State’s internal documents noted that flush coat is known to be slippery; and (3) by not ensuring the flush coat had dried and/or that no oil spots existed, the State breached its duty to maintain road safety.[iii]
The plaintiff also challenged the order granting summary judgment due to what the lower court determined to be the plaintiff’s failure to establish causation.
The State argued oil could have gotten on the roadway in a number of ways. It did not, however, provide an explanation for how the oil got on a large section of the roadway ADOT is responsible for maintaining.
The Court of Appeals concluded that the evidence that ADOT had applied flush coat to other parts of Interstate 40, combined with witness statements of an oily black substance on the roadway, could allow a reasonable jury to infer that ADOT had applied the flush coat at or near milepost 120 where the accident occurred, and that ADOT’s records which indicated that area was not flush coated were incomplete or incorrect. As the court explained, the plaintiff only needed to present probable facts from which the jury could reasonably infer the causal relationship.[iv]
Moreover, because a reasonable jury could conclude that ADOT applied the oil-like flush coat at or near milepost 120 there was a genuine dispute of material fact regarding both breach and causation. Causation is generally a question of fact for a jury unless a reasonable person could not conclude that a plaintiff had proved that element.[v]
Based on the foregoing conclusions, the court vacated the order granting summary judgment, remanded the case for further proceedings, and awarded the plaintiff costs.
Before considering a motion for summary judgment, one must ensure there is more than just the allegation that the other party has failed to present evidence in support of their claim or defense. As the court made clear here, if a reasonable inference can be drawn based upon either direct or circumstantial evidence in support of the non-moving parties claim or defense, the motion for summary judgment will be denied.[vi] Defendants and their counsel should ensure that a motion for summary judgment is well-supported by the record and available evidence.
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[i] Dolan v. State of Arizona, No. 1 CA-CV 22-0219. Under Supreme Court Rule 111(c), this decision is not predential.
[ii] ADOT’s records did not show flash coating had been applied in the area of the accident.
[iii] The State did not contest the applicable standard of care.
[iv] Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546 (1990).
[v] Barrett v. Harris, 207 Ariz. 374, 378 (App. 2004).
[vi] Arizona has long recognized that direct and circumstantial evidence have equal probative worth and has long abandoned the rule requiring each link in a chain of circumstantial inference to exclude all other reasonable hypotheses. Crye v. Edwards, 178 Ariz. 327, 329 (App. 1993).