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Gibson v. Kasey - 3/7/2006

Arizona Court of Appeals Division One Reverses Grant of Summary Judgment in Favor of Defendant in Wrongful Death Action on Issues of Duty and Proximate Cause.


Plaintiff, a surviving parent of decedent Nathan Followill, brought a wrongful death action against defendant Larry Kasey, alleging that Kasey negligently caused Followill’s death by furnishing prescription Oxycontin pills to Followill. During a party, Kasey had given Followill’s girlfriend, Sandy Watters, eight Oxycontin pills consisting of two different strengths. Followill later took the pills from Watters and ingested some of the pills. During the same evening, Kasey served alcohol to Followill which Followill drank. Followill died in his sleep the same night from “acute combined toxicity of alcohol and Oxycodone.” The trial court granted summary judgment to Kasey, finding as a matter of law that Kasey owed no duty to Followill and that intervening acts cut off Kasey’s liability.

Reviewing the question of legal duty de novo, Division One reversed the grant of summary judgment on the issue of duty, noting that “the duty [if it exists] – is always the same – to conform to the legal standard of reasonable conduct in light of the apparent risk.” The court concluded that a duty was present because of the totality of the circumstances; in particular, the relationship between Kasey and Followill, the foreseeability of harm to a foreseeable victim as a result of Kasey giving eight pills to Watters, and the existence of statutes making it unlawful to furnish one’s prescription drugs to another person not covered by the prescription.

As to the first factor, the court noted that Kasey and Followill were co-workers and friends who had socialized previously, that Followill had previously asked Kasey for pills, and that Kasey knew Followill and Watters were dating. Regarding foreseeability, the court observed that Kasey knew the pills were not prescribed for anyone else and knew that they could be dangerous if taken in overdose or in combination with alcohol, thus it was foreseeable to Kasey that some of the eight pills he gave to Watters might be given by her to Followill and thereafter consumed by Followill. Finally, the court cited several Arizona statutes, both civil and criminal, as well as the federal Controlled Substances Act, which make it unlawful to a person to furnish his prescription drugs to another.

The court also reversed on the issue of proximate cause. The trial court found two superceding acts broke the chain of proximate cause -- Watters’ act of giving the pills to Followill, or Followill’s act of ingesting the pills along with alcohol. The appellate court disagreed, noting that on the record, reasonable jurors could differ on the issue of superceding cause; specifically, whether “the intervening force was unforeseeable and may be described, with the benefit of hindsight, as extraordinary.”

Judge Gemmill authored the opinion; Judge Winthrop, and Judge Pro Tempore Arrellano concurred.

Posted On: 3/7/2006