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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   STEPHEN CUTTER, Plaintiff/Appellant,

                                        v.

              ANNE CROWNINSHIELD, Defendant/Appellee.

                             No. 1 CA-CV 15-0780
                              FILED 1-31-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2015-005453
                 The Honorable Patricia A. Starr, Judge

                                  AFFIRMED


                                   COUNSEL

Stephen Cutter, Tonawanda, NY
Plaintiff/Appellant

Anne Crowninshield, Los Angeles, CA
Defendant/Appellee



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.
                     CUTTER v. CROWNINSHIELD
                        Decision of the Court

J O N E S, Judge:

¶1           Stephen Cutter appeals the trial court’s order dismissing his
complaint for failure to state a claim. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In April 2015, Cutter filed a complaint against Anne
Crowninshield, John Whyte, and an unknown “John Doe” defendant,
seeking compensatory and punitive damages arising under theories of
negligence and strict liability for ultrahazardous activity.1 According to
Cutter’s complaint, he was exposed to “nanoparticles, nanoparticle matter,
nano material and nano products” in 2002 when the defendants were
involved in a “business venture that was experimental in nature” that
required them to “us[e], handl[e] and manipulat[e] nanoparticles,
nanoparticle matter, nano material and nano products.”2 Cutter contends
the defendants knew or should have known exposure to these
nanoparticles could have an adverse effect on his health but did not warn
him of those risks. And, as a result of his exposure, Cutter reportedly
suffered “illness and health problems.”

¶3             Crowninshield moved to dismiss the complaint for failure to
state a claim upon which relief could be granted. See Ariz. R. Civ. P.
12(b)(6). Cutter filed a response but did not address Crowninshield’s
arguments regarding the deficiencies in his complaint; nor did Cutter
request leave to amend the complaint.            The trial court granted
Crowninshield’s motion and entered judgment in her favor. Cutter timely
appealed, and we have jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1)3 and -2101(A)(1).




1     Neither Whyte nor Doe are parties to this appeal; Cutter did not
serve Whyte with the complaint and never discovered Doe’s true identity.

2      A “nanoparticle” is “[a]ny of various microscopic particles,
especially a single molecule . . . with dimensions in the nanometer range.”
The Am. Heritage Dictionary 1170 (5th ed. 2000). A nanometer is one billionth
of a meter. Id.

3     Absent material changes from the relevant date, we cite a statute’s
current version.


                                     2
                      CUTTER v. CROWNINSHIELD
                         Decision of the Court

                               DISCUSSION

¶4             We review the dismissal of a complaint for failure to state a
claim de novo. See Vortex Corp. v. Denkewicz, 235 Ariz. 551, 556, ¶ 17 (App.
2014) (citing Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-8 (2012)). In
doing so, we assume the truth of the well-pleaded facts of the complaint
and indulge all reasonable inferences therefrom. Coleman, 230 Ariz. at 356,
¶ 9 (citing Cullen v. Auto-Owners Ins., 218 Ariz. 417, 419, ¶ 7 (2008)). But
“we do not accept as true allegations consisting of conclusions of law,
inferences or deductions that are not necessarily implied by well-pleaded
facts, unreasonable inferences or unsupported conclusions from such facts,
or legal conclusions alleged as facts.” Jeter v. Mayo Clinic Ariz., 211 Ariz.
386, 389, ¶ 4 (App. 2005) (citing Shannon v. Butler Homes, Inc., 102 Ariz. 312,
315 (1967), Dockery v. Cent. Ariz. Light & Power Co., 45 Ariz. 434, 439 (1935),
and Kellogg v. Neb. Dep’t of Corr., 690 N.W.2d 574, 578 (Neb. 2005)). We will
affirm dismissal where the plaintiff is not entitled to relief under any facts
susceptible of proof under the claims stated. Mohave Disposal, Inc. v. City of
Kingman, 186 Ariz. 343, 346 (1996) (citing Menendez v. Paddock Pool Constr.
Co., 172 Ariz. 258, 261 (App. 1991)).

¶5             Arizona follows a notice pleading standard, intended to “give
the opponent fair notice of the nature and basis of the claim.” Cullen, 218
Ariz. at 419, ¶ 6 (quoting Mackey v. Spangler, 81 Ariz. 113, 115 (1956)). Here,
Cutter alleges Crowninshield performed unknown activities involving
microscopic particles of an unknown nature with two other persons, one of
whom’s identity is unknown, for an unknown business operating from a
private residence whose owner is not identified. The mechanism by which
those particles entered Cutter’s bloodstream is unknown but, he alleges,
they have caused him an, if known, unspecified illness. Cutter’s vague and
conclusory statements are not sufficient to provide Crowninshield fair
notice of the nature and basis of the claim.

¶6             Moreover, despite bringing a negligence claim, Cutter does
not allege a special relationship with Crowninshield that would give rise to
a duty of care. See Sullivan v. Pulte Home Corp., 237 Ariz. 547, 549-50, ¶ 6
(App. 2015) (identifying manners by which a duty of care may arise) (citing
Gipson v. Kasey, 214 Ariz. 141, 145, ¶¶ 18, 23 (2007)). He does not elaborate
on what specific risk the particles posed; nor does he provide any facts upon
which we could infer that possessing or transporting these particles
constituted an ultrahazardous activity, see Restatement (Second) of Torts
§ 520 and cmt. f. (1977) (discussing circumstances to be considered in
determining whether an activity is abnormally dangerous) (cited favorably
by Correa v. Curbey, 124 Ariz. 480, 481 (App. 1979)), or evidenced an “evil


                                       3
                      CUTTER v. CROWNINSHIELD
                         Decision of the Court

hand . . . guided by an evil mind,” as required for punitive damages, Sobieski
v. Am. Std. Ins. Co. of Wis., 240 Ariz. 459, 463, ¶ 17 (App. 2016) (quoting
Rawlings v. Apodaca, 151 Ariz. 149, 162-63 (1986)).

                               CONCLUSION

¶7           Cutter failed to state a claim for negligence, strict liability for
an ultrahazardous activity, or punitive damages, and we find no error.
Accordingly, the trial court’s order dismissing Cutter’s complaint is
affirmed.




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




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