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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 DONALD E. WILSON, Plaintiff/Appellant,

                                        v.

           RAYMOND LEONARD HUBER, Defendant/Appellee.

                             No. 1 CA-CV 16-0410
                               FILED 4-18-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2015-001168
             The Honorable J. Richard Gama, Judge Retired

                                  AFFIRMED


                                   COUNSEL

Law Office of Robert N. Edwards, Anoka, MN
By Robert N. Edwards
Counsel for Plaintiff/Appellant

Bleaman Law Firm, PC, Tucson
By Marc D. Bleaman, Elizabeth L. Warner
Counsel for Defendant/Appellee
                           WILSON v. HUBER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in
which Judge Kent E. Cattani and Judge Donn Kessler joined.


S W A N N, Judge:

¶1           Donald E. Wilson sued Raymond Leonard Huber for injuries
arising out of a multi-vehicle accident. Wilson appeals the entry of
summary judgment on his negligence claim. Because Wilson has failed to
present any evidence of causation, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In February 2013, Huber and Wilson were involved in a
multi-vehicle crash at the intersection of Mountain Road and Apache
Trail. They agree that the chain of events leading to the accident started
when Charles Varnes failed to yield the right-of-way to Huber and
crossed the westbound lanes of Apache Trail. Huber collided with the
right side of Varnes’s rear bumper and Varnes spun clockwise, impacting
a stopped truck which in turn hit Wilson, injuring him.

¶3            Wilson sued Varnes and Huber for negligence in January
2015. He settled with Varnes. Huber was out of state in a long-term-care
facility when the action commenced. He died during discovery, and was
never deposed. Huber’s counsel successfully moved for summary
judgment. After the superior court summarily denied his motion for
reconsideration, Wilson appealed.

                               DISCUSSION

¶4             We review grants of summary judgment de novo, viewing
the facts in the light most favorable to the party against whom judgment
was entered to determine if there are any genuine issues of material fact.
Acosta v. Phoenix Indem. Ins. Co., 214 Ariz. 380, 381, ¶ 2 (App. 2007). In a
negligence action, the plaintiff must show that the defendant breached a
legal duty, causing injuries to the plaintiff. Gipson v. Kasey, 214 Ariz. 141,
143, ¶ 9 (2007). The court granted summary judgment because it found
that Wilson offered no evidence of causation, and we agree.




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                             WILSON v. HUBER
                             Decision of the Court

¶5             Wilson argues that Huber admitted during a call with his
insurance company that he failed to watch his surroundings and thus
failed to take action to avoid the collision. The transcript reads in relevant
part:

       Q: Do you remember seein’ that vehicle prior to you guys
       havin’ an accident?

       ....

       A. Well, it-, it-, it was so funny. I couldn’t, uh, see him, like
       somebody dropped a big blanket, uh, down on-, from
       heaven . . . (inaudible) . . . he-, he mm-, he must have been
       goin’ real fast, comin’ to get acrossed. And he didn’t make
       it, see, and, uh, I suppose if I woulda been lookin’ to the south,
       but I don’t-, I was drivin’, and I don’t look around.

       Q. And so, when you ss-, saw his vehicle, what did you do?
       Did you try to, you know, get out of the way, or did you try
       to stop?

       A. No, no.

       ....

       A. I-, I stopped, but I, uh . . .

       ....

       A. . . . I couldn’t have got outta the way. I was drivin’ 35
       miles an hour. And he cut-, cut me-, right in front of me.
       When I see him, I hh-, hit him. That, uh . . .

(Emphasis added.) Huber later stated that there was nothing he could do
to avoid the collision. Wilson argues that a reasonable jury could
conclude from this interview that Huber was unfit to drive a motor
vehicle. But even assuming that this transcript was admissible, and
indulging the inference that Huber was driving poorly, the statements
Huber made do not give rise to an inference that he breached any duty
that caused the accident.1


1     Wilson challenges the admissibility and authenticity of some of
Huber’s evidence. We need not address those arguments because even



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                            WILSON v. HUBER
                            Decision of the Court

¶6            No other witness suggested Huber had time to react. Wilson
stated in a deposition that “in my mind, he -- he probably could have
reacted quicker . . . and not had an accident.” But he also testified that
within “a split second” of Varnes pulling onto the road he knew there
would be an accident, and he was unsure how far Huber was from
Varnes. This testimony, if admitted at trial, would be insufficient to
permit a reasonable jury to find by a preponderance of the evidence that
any negligence on the part of Huber caused the accident. See Orme Sch. v.
Reeves, 166 Ariz. 301, 309 (1990) (“[A]ffidavits that contain inadmissible
evidence, that are internally inconsistent, that tend to contradict the
affiant’s sworn testimony at deposition, and similar items of evidence may
provide a ‘scintilla’ or create the ‘slightest doubt’ and still be insufficient
to withstand a motion for summary judgment.”).

¶7            In a deposition, Ray Czumaj testified that he had been
driving westbound in the right lane on Apache Trail behind Huber for at
least a mile before the accident; he stated that Huber was going the speed
limit and driving appropriately for the driving conditions. Czumaj was
about 50 feet behind Huber when he noticed Varnes (traveling the
opposite way) “make a quick swerve into the left turn lane.” Czumaj
eased off the gas. Varnes then drove across the street in front of Huber.
Varnes was 75 to 125 feet in front of Czumaj when he started to cross the
road, and Huber was seven or eight car-lengths ahead of Czumaj. Czumaj
saw the impact and swerved left to avoid the debris, then went off the
road and stopped in an embankment.

¶8            Czumaj testified that there was nothing Huber could have
done to avoid the accident. Wilson contends that Czumaj’s “conclusory
statement” only creates a dispute of fact because a jury could listen to the
recording of Huber’s call to his insurance company and conclude he
should not have been driving. We are mindful that the trial court cannot
weigh questions of credibility to resolve conflicting evidence on summary
judgment. But here, there is no conflict to resolve on the issue of causation
— no evidence suggests that Huber had the opportunity to avoid the
accident or that he was driving improperly at the time of the accident.
And Wilson’s own testimony that “in his mind” Huber could have reacted
more quickly is contradicted by his own admission that he knew in “a
split second” that there would be an accident.



without the disputed evidence, Wilson has failed to prove Huber caused
or contributed to this accident.



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                            WILSON v. HUBER
                            Decision of the Court

¶9            “The proximate cause of an injury is that which, in a natural
and continuous sequence, unbroken by any efficient intervening cause,
produces an injury, and without which the injury would not have occurred.”
Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546 (1990) (citation
omitted) (emphasis added). Here, there is simply no evidence on the
record that anyone (of any degree of mental capacity) could have avoided
hitting Varnes, or that without negligence on Huber’s part the injury
would not have occurred, much less evidence from which a reasonable
jury could find by a preponderance of the evidence that Huber was a
cause of the accident.2

                              CONCLUSION

¶10         Because Wilson has failed to present any evidence of
causation, we affirm. Huber is entitled to his costs on appeal upon
compliance with ARCAP 21.




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




2      We note that Art. 18, Section 5 of the Arizona Constitution, which
provides that “[t]he defense of contributory negligence or of assumption
of risk shall, in all cases whatsoever, be a question of fact and shall, at all
times, be left to the jury,” does not preclude summary judgment here,
because comparative fault is not at issue as a defense.



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