Neary v. Abor


                                     IN THE
                                 DIVISION ONE

                    DOUGLAS NEARY, Plaintiff/Appellant,


       ARIZONA BOARD OF REGENTS, et al., Defendants/Appellees.

                              No. 1 CA-CV 20-0360
                                 FILED 4-29-2021

            Appeal from the Superior Court in Maricopa County
                           No. CV2017-013261
                The Honorable Roger E. Brodman, Judge



Manolio & Firestone, PLC, Scottsdale
By Veronica L. Manolio
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Deborah Garner, Daniel P. Schaack
Counsel for Defendant/Appellee ABOR

Gust Rosenfeld, PLC, Phoenix
By Charles W. Wirken, Barry M. Markson
Counsel for Defendants/Appellees Lane and Lopez

Bergin, Frakes, Smalley & Oberholtzer, PLLC, Phoenix
By Brian M. Bergin
Counsel for Defendants/Appellees Blank, Woo, Bauer, Akerele-Ale
                          NEARY v. ABOR, et al.
                           Decision of the Court

                        MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maria Elena Cruz joined.

P E R K I N S, Judge:

¶1            Douglas Neary sued to recover money damages after an
opposing rugby player, Christopher Crawford, kicked him in the face.
Neary obtained a default judgment against Crawford, who is not a party to
this appeal. Neary now challenges the superior court’s entry of judgment
for the Arizona Board of Regents (“ABOR”), two coaches, and five students.
For the following reasons, we affirm.


¶2           Neary played rugby for the University of Arizona (“UofA”)
club rugby team. During a match against Arizona State University (“ASU”),
Neary took advantage of a lull in play to tie his cleats. Crawford, who
played for ASU, approached Neary as he knelt and kicked him in the face.
Crawford’s kick knocked Neary unconscious, caused a concussion, and
broke multiple bones in Neary’s face, requiring emergency surgery.

¶3             The original complaint alleged assault and negligence per se
against Crawford and alleged negligence against an array of defendants
related to the rugby programs. Neary filed multiple amended pleadings to
name the correct parties. His second amended complaint alleged one count
of negligence against: ABOR; ASU rugby coaches Gary Lane and Carlos
Lopez (collectively “Coaches”); UofA rugby coach Sean Duffy; and ASU
students Aaron Blank, Ethan Blank, Peter Akerele-Ale, Kevin Woo, and
Kevin Bauer (collectively “Students”).

¶4            Neary’s claims against ABOR, Coaches, Students, and Duffy
are rooted in Crawford’s ineligibility to participate in ASU’s club rugby
program. ASU requires club sport participants to register through Sun
Devil Fitness and an online platform, “DoSportsEasy.” Crawford properly
registered in 2014 while attending ASU, but he continued to play after
disenrolling. When Crawford blindsided Neary, he was not registered for

                           NEARY v. ABOR, et al.
                            Decision of the Court

¶5             Neary’s claims against ABOR, Coaches, Students, and Duffy
asserted they owed and breached their duty to ensure match participants
met all registration requirements. He further argued Crawford would not
have attacked him but for these defendants’ failure to police player
eligibility because Crawford’s ineligibility would have prevented him from
participating in the match in the first place.

¶6             All defendants (except Crawford) separately moved for
summary judgment, disputing the existence of any duty owed to Neary and
asserting that none of their actions proximately caused Neary’s injuries.
Students, ABOR, and Duffy also argued that even if the court disagreed as
to duty, the claim remained deficient because no breach occurred.

¶7            The superior court granted summary judgment for Duffy in
January 2020, finding Duffy did owe a duty to the players he coached but
that Neary failed to indicate how Duffy breached that duty. The court also
ruled that Neary failed to establish causation. The superior court granted
the remaining summary judgment motions two months later. The court
found that the Coaches and Students owed Neary a duty because they
maintained the ASU rugby rosters and could exclude ineligible players like
Crawford. But the superior court found no such duty on ABOR’s part
because it did not exert control over the rosters. The court did not address
whether a breach occurred, ruling instead that “Crawford’s conduct was an
intervening and superseding cause” of Neary’s injuries. Duffy resolved all
claims with Neary.

¶8            Neary timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1).


¶9            We review the superior court’s summary judgment ruling de
novo and view the facts and inferences in the light most favorable to Neary.
See Lennar Corp. v. Transamerica Ins. Co., 

227 Ariz. 238

, 242, ¶ 7 (App. 2011).
Neary argues on appeal that the superior court erred in finding he failed to
establish causation, and in concluding ABOR owed no duty to Neary.

¶10           A negligence claim requires proof of four elements: “(1) a
duty requiring the defendant to conform to a certain standard of care; (2)
breach of that standard; (3) a causal connection between the breach and the
resulting injury; and (4) actual damages.” Quiroz v. ALCOA Inc., 

243 Ariz.

, 563–64, ¶ 7 (2018). Because we affirm summary judgment on causation,
we need not resolve whether ABOR owed Neary a duty.

                           NEARY v. ABOR, et al.
                            Decision of the Court

¶11            The causation element requires a two-step analysis into
whether the defendant’s conduct was the actual cause and proximate cause
of the plaintiff’s injuries. Dupray v. JAI Dining Servs. (Phx.), Inc., 

245 Ariz.

, 583, ¶ 17 (App. 2018).

¶12             Actual cause exists when the defendant’s conduct contributes
to a plaintiff’s injuries, which “would not have occurred but for defendant’s
conduct.” See Ontiveros v. Borak, 

136 Ariz. 500

, 505 (1983) (internal
quotations omitted). Neary asserts “[t]here was absolutely no dispute in the
trial court that cause-in-fact was established.” This description of the
superior court’s findings misses the mark; the court focused its analysis on
whether Crawford’s conduct amounted to an intervening and superseding
cause, breaking the causal chain.

¶13            “An event that contributes to the [plaintiff’s] injuries is
intervening if it has an independent origin for which the defendant is not

Dupray, 245 Ariz. at 584

, ¶ 17. “A superseding cause, sufficient
to become the proximate cause of the final result and relieve defendant of
liability for his original negligence, arises only when an intervening force
was unforeseeable and may be described, with the benefit of hindsight, as
extraordinary.” Robertson v. Sixpence Inns of Am., Inc., 

163 Ariz. 539

, 546
(1990). A third person’s criminal act is a superseding cause when the illegal
conduct does not fall “within the recognizable risk that made the conduct
negligent.” See Barrett v. Harris, 

207 Ariz. 374

, 382, ¶ 28 (App. 2004); see also
Cent. Alarm of Tucson v. Ganem, 

116 Ariz. 74

, 76–77 (App. 1977).

¶14          Crawford’s actions occurred independently from any of the
defendants’ conduct. Neary argues that Crawford’s kick is not a
superseding cause because the defendants should have foreseen the assault.
He specifically contends Crawford’s kick was foreseeable because the
enrollment and registration requirements are designed to ensure player
safety. Player safety may be a general concern, but the eligibility
requirements are meant to control who can represent ASU or UofA in club
rugby—not act as a precautionary measure to inhibit attacks like

¶15           Neary asserts that one player kicking another is a foreseeable
act inherent to the risks of rugby. We disagree the defendants should have
foreseen Crawford’s criminal assault simply because the rules contemplate
some physically harmful acts. ASU Rugby subscribed to USA Rugby’s
regulations so players could participate in an organized collegiate activity.
The rules are crafted to facilitate play by providing boundaries for
acceptable (and unacceptable) behavior. Crawford’s criminal assault falls

                           NEARY v. ABOR, et al.
                            Decision of the Court

well beyond what the rules regulate. The assault occurred during a
stoppage of play as Neary bent down to tie his cleat. Crawford approached
Neary and intentionally kicked his face with maximum force. While some
kicking is expected to occur during play, the rules do not anticipate such a
severe attack. Crawford’s maliciousness represents an extraordinary
deviation from what one might expect to occur during a rugby match. We
conclude Crawford’s criminal assault was a superseding cause of Neary’s

¶16             Neary also contends the superior court erred by granting
summary judgment because proximate cause should be determined by the
jury. “[W]hether proximate cause (and an intervening and superseding
cause) exists is a question of fact for the jury; however, summary judgment
. . . should be granted when the plaintiff’s evidence fails to establish a non-
speculative causal connection or when reasonable persons could not
differ.” Torres v. Jai Dining Servs. (Phx.) Inc., 

250 Ariz. 147

, 151, ¶ 20 (App.
2020). In Torres, we determined a third party’s conduct, which we
concluded was an intervening and superseding cause, justified a directed
verdict in the defendant’s favor.

Id. at 155, ¶ 33–34.

Because intervening and
superseding conduct similarly occurred here, the superior court did not err
in granting summary judgment for the defendants.


¶17          We affirm the superior court’s entry of judgment. We grant
the Coaches’ request for costs upon compliance with ARCAP 21.

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


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