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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


   ANDREW MUSCAT, an incompetent person, by Marcie Berman, his
            permanent guardian, Plaintiff/Appellant,

                                         v.

   CREATIVE INNERVISIONS, an Arizona limited liability company;
  TEMITAYO AKANDE and JOHN DOE AKANDE, wife and husband,
                     Defendants/Appellees.

                              No. 1 CA-CV 19-0555
                                FILED 8-18-2020


            Appeal from the Superior Court in Maricopa County
                           No. CV2014-014300
                The Honorable Sherry K. Stephens, Judge

                                   AFFIRMED


                                    COUNSEL

Law Offices of Robert A. Butler, P.L.L.C., Phoenix
By Robert A. Butler
Co-Counsel for Plaintiff/Appellant

Law Office of Dennis A. Sever, P.L.L.C., Mesa
By Dennis A. Sever
Co-Counsel for Plaintiff/Appellant
Grasso Law Firm, P.C., Chandler
By Robert Grasso, Jr.
Counsel for Defendant/Appellee Creative Innervisions

Metzger Law Firm, P.L.L.C., Phoenix
By Nathan T. Metzger
Counsel for Defendants/Appellees Temitayo Akande and John Doe Akande




                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.


C R U Z, Judge:

¶1           Andrew Muscat (“Muscat”) appeals the superior court’s
order dismissing his complaint for claims of abuse and neglect under the
Adult Protection Services Act (“APSA”). For the following reasons, we
affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2           Muscat is a profoundly disabled person who requires
constant supervision because of his lack of impulse control and his inability
to make decisions to protect himself from abuse, neglect, or exploitation.

¶3            In 2008, Muscat inappropriately touched a child in a
restroom, resulting in a conviction for child abuse. Muscat was eventually
placed in a group home owned by Creative Innervisions (“Creative”).
Creative, along with a state disabilities agency, created an individual
support plan that required Creative always have one-on-one supervision of
Muscat, even in the bathroom.

¶4           A few years later, Temitayo Akande, a Creative employee,
drove Muscat to a local church for an event. Upon arrival, Akande
instructed Muscat to get out of the car and go into the church. Akande then
drove away and left Muscat at the church without supervision. At the
church, Muscat followed a child into the restroom and sexually molested
the child. Muscat was arrested about a year later and charged with child


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                    MUSCAT v. CREATIVE/AKANDE
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molestation. Muscat pleaded guilty to attempted child molestation and
attempted kidnapping; he was sentenced to an eight-year prison term.

¶5            Muscat filed a civil complaint against Creative and Akande
for his injuries, including loss of freedom and quality of life, while
incarcerated. Muscat asserted claims for negligence and APSA claims of
abuse and neglect of a vulnerable adult. The superior court dismissed all
of Muscat’s claims.

¶6            Muscat appealed to this court in Muscat v. Creative Innervisions
LLC (“Muscat I”), 244 Ariz. 194 (App. 2017). In Muscat I, we held “that a
person who has been properly incarcerated for a criminal conviction has
not suffered a legally cognizable injury—for purposes of establishing a
negligence claim—when the alleged harm flows solely from the
incarceration.” Id. at 199, ¶ 19. We, therefore, affirmed the dismissal of
Muscat’s negligence claims because all injuries, such as loss of freedom,
stemmed from his incarceration. Id. As it pertains to the APSA claims, we
declined to address them because Creative had not addressed the claim in
its motion for judgment on the pleadings, neither Creative nor Muscat
provided meaningful analysis of the vulnerable adult statutes, and the
superior court did not analyze the claims in its dismissal order. Id. at 200,
¶ 22. We remanded to the superior court noting, “[w]hether Muscat has
stated a viable claim under [Arizona Revised Statutes (“A.R.S.”) section] 46-
455(B) must be considered by the superior court in the first instance.” Id.

¶7            On remand, Muscat was permitted to file an amended
complaint. Muscat alleged that while he was incarcerated, he was deprived
of medication, medical services, and other services needed to maintain his
minimum physical and mental health. He asserts he suffered from
delusions. Muscat also alleges he was given medication that was known to
cause aggressive behaviors, and that during a resulting “fit of aggression,”
he was tackled by a corrections officer, resulting in physical injuries
including a broken pelvis. Muscat also alleged general mental and
emotional injuries. Muscat sought to hold Creative and Akande liable for
his injuries based on their failure to supervise him, causing him to be
incarcerated and suffer said injuries.

¶8             The superior court found Muscat failed to prove under APSA
that he suffered a legally recognized injury and that his injuries were caused
by Creative’s and Akande’s abuse or neglect. Therefore, the superior court
dismissed Muscat’s first amended complaint. Muscat timely appealed, and
we have jurisdiction under A.R.S. § 12-2101(A)(1).


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                               DISCUSSION

¶9             Dismissal of a complaint under Arizona Rule of Civil
Procedure (“Rule”) 12(b)(6) is appropriate if as a matter of law, the plaintiff
“would not be entitled to relief under any interpretation of the facts
susceptible of proof.” Fid. Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224, ¶ 4
(1998). “In determining if a complaint states a claim on which relief can be
granted, courts must assume the truth of all well-pleaded factual
allegations and indulge all reasonable inferences from those facts, but mere
conclusory statements are insufficient.” Coleman v. City of Mesa, 230 Ariz.
352, 356, ¶ 9 (2012). We review questions of law and the grant of a dismissal
under Rule 12(b)(6) de novo. Id. at 356, ¶ 8.

I.     APSA Claim

¶10           We note at the outset that “because APSA is remedial in
nature, it warrants a broad interpretation.” Est. of Braden ex rel. Gabaldon v.
State, 228 Ariz. 323, 325, ¶ 9 (2011). “But ‘[a] liberal construction is not
synonymous with a generous interpretation,’ and we will not impose ‘[a]
burden or liability not within the terms or spirit of the law.’” Id. (first
quoting Nicholson v. Indus. Comm’n, 76 Ariz. 105, 109 (1953); and then
quoting Goodyear Aircraft Corp. v. Indus. Comm’n, 62 Ariz. 398, 402 (1945)).

¶11            Section 46-455(B) provides that “[a] vulnerable adult whose
life or health is being or has been endangered or injured by neglect, abuse
or exploitation may file an action in superior court against any person or
enterprise that has been employed to provide care.” A.R.S. § 46-455(B). By
its terms, the statute divides the causes of action into claims for being: (1)
endangered by abuse, neglect, or exploitation from a caregiver; and (2)
injured by abuse, neglect, or exploitation from a caregiver. See, e.g., Delgado
v. Manor Care of Tucson AZ, LLC, 242 Ariz. 309, 313, ¶¶ 17, 19 (2017). Muscat
asserts APSA claims for both being injured and endangered by abuse and
neglect.

¶12          As a preliminary matter, Muscat, Creative, and Akande are
proper parties to an APSA claim. To prevail in an APSA action, Muscat
must first demonstrate he is a vulnerable adult. A.R.S. § 46-455(B). A
vulnerable adult is “an individual who is eighteen years of age or older and
who is unable to protect himself from abuse, neglect or exploitation by
others because of a physical or mental impairment.” A.R.S. § 46-451(A)(10).
The parties do not dispute that Muscat qualifies as a vulnerable adult.
Additionally, a claim may only be brought against those who provide care
to a vulnerable adult. A.R.S. § 46-455(B). Creative and Akande do not

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dispute they were both employed to provide care for Muscat, and the
complaint’s allegations establish the same.

       A.     Injury Claims

¶13            Abuse is defined as “[i]njury caused by negligent acts or
omissions,” among other definitions.              A.R.S. § 46-451(A)(1)(b).
Harmonizing this definition of abuse with the section defining what
constitutes a claim, A.R.S. § 46-455(B), our supreme court has held one must
prove an injury to bring an actionable APSA claim for such abuse. Delgado,
242 Ariz. at 313, ¶ 19. Similarly, one must prove an injury to bring an
actionable APSA claim for injuries suffered by neglect. A.R.S. § 46-455(B).

¶14            Muscat’s alleged injuries fall into three distinct categories: (1)
injuries flowing exclusively from the fact of being incarcerated; (2) injuries
incurred from the time of his criminal conduct and up to the time of his
incarceration; and (3) injuries stemming from the Department of
Corrections’ (“DOC”) alleged misconduct while Muscat was incarcerated.

              1.      Inherent Consequences of Incarceration

¶15            As in Muscat I, Muscat continues to advance the allegation of
certain injuries that stem solely from his legally imposed incarceration,
including loss of freedom. Muscat asserts the superior court erred when it
interpreted our decision in Muscat I to mean he had not suffered a legally
recognizable injury and when it dismissed his APSA claims solely on that
basis. But in Muscat I, we did not decide the viability of Muscat’s APSA
claims. Instead, we remanded that issue for the superior court to consider
in the first instance, see Muscat I, 244 Ariz. at 200, ¶ 22, and no inference
regarding the proper analysis of an APSA claim may be drawn from such
action.

¶16            Now that the superior court has properly considered
Muscat’s APSA claims of injury flowing from the consequences of his
criminal offense, we decide that issue on its merits. In determining whether
Muscat suffered injury for purposes of an APSA claim, we first ascertain
the meaning of “injury” within APSA. APSA does not define the term
“injury.” Therefore, we look to the commonly accepted meaning of injury.
See State v. Reynolds, 170 Ariz. 233, 234 (1992). Muscat relies on Walker v.
Mart, 164 Ariz. 37, 41 (1990), which states “[a]n injury is simply an invasion
of some right possessed by the plaintiff.” In Muscat I, we discussed the
commonly accepted meaning of injury while also citing Walker. See Muscat
I, 244 Ariz. at 198, ¶¶ 12-15. We further stated:


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                     MUSCAT v. CREATIVE/AKANDE
                         Decision of the Court

       It is undisputed that Muscat was properly incarcerated,
       meaning he was sentenced to prison (with presentence
       incarceration credit) after he was found competent to stand
       trial and found guilty of the offenses set forth in the plea
       agreement. Given that his alleged injuries arise only out of a
       legally imposed incarceration, Muscat alleges no injury that is
       distinct from the consequences of his prison sentence.
       Criminal defendants have legally protected interests that may
       be affected during criminal proceedings, but no properly-
       convicted criminal has a legally protected interest in being
       free from the inherent consequences of the resulting sentence.

Id. at ¶ 15 (emphasis added). Accordingly, we held “a person who has been
properly incarcerated for a criminal conviction has not suffered a legally
cognizable injury—for purposes of establishing a negligence claim—when
the alleged harm flows solely from the incarceration.” Id. at 199, ¶ 19.

¶17             Here, given the legislature did not expressly define the
meaning of injury within APSA, and because it does not appear from
APSA’s context that a special meaning was intended, we apply the common
meaning of the term injury to Muscat’s APSA claims. Reynolds, 170 Ariz. at
234. In his first amended complaint, Muscat again alleges injuries that stem
solely from his legally imposed incarceration. For example, Muscat alleges
he suffered injuries including “loss of freedom” and not being able to
“participat[e] in all of life’s activities he enjoyed prior to incarceration.” As
it pertains to the inherent consequences of his incarceration, Muscat has not
suffered a legally-recognizable harm within the commonly accepted
meaning of injury. The superior court properly dismissed Muscat’s APSA
abuse and neglect claims for injuries alleged relating to his incarceration.

              2.      Inherent Consequences of Criminal Conduct

¶18            Muscat also asserts “for the year from the incident up to the
time of his incarceration he suffered mental and emotional anguish and
anxiety as a result of the incident.” Therefore, Muscat contends, the
superior court erred when it determined that all of Muscat’s injuries
stemmed from his legally imposed incarceration and dismissed his claims
for failure to allege a legally cognizable injury.

¶19            As alleged, the mental and emotional anguish and anxiety
are not injuries limited to Muscat’s incarceration; however, the injuries
alleged do all stem from his own criminal conduct. That is, any mental and
emotional harm, pain, suffering, distress, and anxiety occurring prior to his

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                    MUSCAT v. CREATIVE/AKANDE
                        Decision of the Court

incarceration naturally flow from Muscat’s criminal act and are a result of
fear of consequences within the criminal justice system. In Muscat I, we
concluded harms that “arise solely from the consequences of [Muscat’s]
own criminal conduct . . . do not constitute legally cognizable injuries.”
Muscat I, 244 Ariz. at 196, ¶ 1. We hold Muscat’s purely mental and
emotional anguish and anxiety during the year between his commission of
the criminal act and the date of his incarceration flow from Muscat’s own
criminal conduct and do not constitute a compensable injury under APSA.
Therefore, Muscat’s APSA claims for injuries alleged to have occurred prior
to incarceration must also be dismissed.

             3.     Injuries Caused by DOC’s Misconduct

¶20            APSA requires proof that a caregiver’s neglect or abuse
caused the alleged injuries sustained by a vulnerable adult. A.R.S. § 46-
455(B); see also Delgado, 242 Ariz. at 313, ¶¶ 17-19. Creative and Akande
assert their conduct did not proximately cause Muscat’s alleged injuries
stemming from DOC’s misconduct. Muscat counters that any proximate
cause issue must be decided by a jury. “Generally, proximate cause is a
question of fact for the jury.” Petolicchio v. Santa Cruz Cnty. Fair & Rodeo
Ass’n, 177 Ariz. 256, 262 (1994). “However, the court may properly decide
proximate cause if, after reviewing the facts, there is ‘no reasonable chance
or likelihood that the conclusions of reasonable persons would differ.’” Id.
“Accordingly, courts may also decide whether a superseding cause exists,
requiring dismissal of a claim as a matter of law.” Id. In Barrett v. Harris,
207 Ariz. 374, 378, ¶ 11 (App. 2004), we said the following about proximate
cause:

      A plaintiff proves proximate cause, also referred to as legal
      cause, by demonstrating a natural and continuous sequence
      of events stemming from the defendant’s act or omission,
      unbroken by any efficient intervening cause, that produces an
      injury, in whole or in part, and without which the injury
      would not have occurred. An “efficient intervening cause” is
      an independent cause that occurs between the original act or
      omission and the final harm and is necessary in bringing
      about that harm.         An intervening cause becomes a
      superseding cause, thereby relieving the defendant of liability
      for the original negligent conduct, “when [the] intervening
      force was unforeseeable and may be described, with the
      benefit of hindsight, as extraordinary.”



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                    MUSCAT v. CREATIVE/AKANDE
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Id. (alteration in original) (footnote omitted) (internal citations omitted)
(quoting Robertson v. Sixpence Inns of Am., 163 Ariz. 539, 546 (1990)).

¶21            In this case, Muscat alleges the DOC deprived him of
medication, medical services, and other necessary services, administered
inappropriate medication to him, and caused him to sustain a broken
pelvis. The alleged misconduct on the part of DOC occurred long after
Creative’s and Akande’s failure to supervise Muscat, and the misconduct
was necessary in bringing about the harm because all of Muscat’s alleged
injuries flow from DOC’s alleged misconduct. As such, any failure by DOC
to provide proper medical care to Muscat was an efficient intervening
cause. It was also a superseding cause. Reasonable minds would not differ
in concluding Muscat’s incarceration and subsequent deprivation of proper
medical services were unforeseeable when Creative and Akande failed to
supervise Muscat and were an extraordinary result of any negligence on
Creative’s or Akande’s part. Accordingly, Muscat cannot, as a matter of
law, state a claim against Creative and Akande for his injuries at the hands
of DOC.

       B.     Endangerment Claims

¶22           Muscat asserts that he was endangered when he was
unreasonably confined. Under APSA, abuse includes “unreasonable
confinement.” A.R.S. § 46-451(A)(1)(c). As mentioned above, Muscat must
prove a caregiver unreasonably confined him. See supra ¶¶ 11-12. The
complaint does not allege Creative or Akande confined Muscat, or caused
him to be confined, in any way other than the subsequent legal
incarceration, for which he cannot recover damages. The superior court did
not err in dismissing Muscat’s claim for allegedly being endangered by
abuse as a result of unreasonable confinement.

¶23           Muscat’s complaint also alleges he was endangered by
Creative’s and Akande’s neglect. Neglect means “a pattern of conduct
without the person’s informed consent resulting in deprivation of food,
water, medication, medical services, shelter, cooling, heating or other
services necessary to maintain minimum physical or mental health.” A.R.S.
§ 46-451(A)(6). On appeal, Muscat contends he was endangered by
Creative’s and Akande’s conduct but provides no facts or analysis as to
what endangerment he faced because of the alleged neglect. Muscat,
therefore, has abandoned this argument, and we deem it waived. See State
v. Moody, 208 Ariz. 424, 452, ¶ 101 n.9 (2004). Assuming arguendo that
Creative’s and Akande’s failure to supervise was a demonstrable pattern of
conduct, that conduct did not result in the deprivation of any services listed

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                    MUSCAT v. CREATIVE/AKANDE
                        Decision of the Court

in the applicable statute. As such, there was no neglect, within the statutory
definition of A.R.S. § 46-451(A)(6), on the part of Creative and Akande.
Accordingly, the superior court did not err in dismissing Muscat’s claim for
being endangered by neglect.

                              CONCLUSION

¶24           For the foregoing reasons, we affirm the superior court’s
dismissal of Muscat’s APSA claims.




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




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