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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLOTTE CAPP, Plaintiff/Appellant,

v.

ALLEN WELCH, III, Defendant/Appellee.

No. 1 CA-CV 21-0018 

Appeal from the Superior Court in Yavapai County

No. P1300CV202000055

The Honorable Michael P. McGill, Judge

AFFIRMED

COUNSEL

Ayon Law, PLLC, Phoenix

By Luis A. Ayon Jr.

Counsel for Plaintiff/Appellant

Wright Welker & Pauole PLC, Phoenix

By Dominic L. Verstegen

Counsel for Defendant/Appellee

FILED 11-2-2021
CAPP v. WELCH

Decision of the Court

2

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding 

Judge Peter B. Swann and Judge David D. Weinzweig joined.

M c M U R D I E, Judge:

¶1 Charlotte Capp appeals from the superior court’s summary 

judgment to Allen Welch III on her personal-injury complaint. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Capp was struck by an all-terrain vehicle (“ATV”) while 

walking on the sidewalk of South Main Street in Cottonwood. The police 

determined that Welch owned the ATV, but he was not driving it at the 

time of the accident because he was working in Bagdad. Welch typically 

kept the ATV at his father’s property in Cottonwood.

¶3 According to Welch’s father, around 20 to 30 people attended

a bonfire on his property the night of the accident. While he did not know 

who used the ATV, he speculated that one of the bonfire attendees may 

have taken it without permission. Unfortunately, the driver was never 

identified.

¶4 Capp sued Welch, alleging (1) Welch is liable under the 

family purpose doctrine; (2) Welch negligently entrusted the ATV to the 

driver; and (3) “Welch was negligent in supervising his [ATV].”

¶5 The superior court granted summary judgment to Welch.

Noting the facts were largely undisputed, the court found that the family 

purpose doctrine did not apply, no evidence showed Welch had negligently 

entrusted the ATV to his father or the driver, and Welch did not owe Capp 

a duty of care. Capp appealed, and we have jurisdiction under A.R.S.

§ 12-2101(A)(1).

DISCUSSION

¶6 We review de novo whether summary judgment is warranted, 

including whether genuine issues of material fact exist and whether the trial 

court correctly applied the law. Am. Furniture Warehouse Co. v. Town of 

Gilbert, 245 Ariz. 156, 159, ¶ 9 (App. 2018). We typically view the evidence 
CAPP v. WELCH

Decision of the Court

3

in the light most favorable to the non-moving party. Normandin v. Encanto 

Adventures, LLC, 246 Ariz. 458, 460, ¶ 9 (2019). But Capp did not file a 

controverting statement of facts, relying instead on Welch’s evidence. We,

therefore, may accept Welch’s evidence as accurate if only one inference can 

be drawn from it. Tilley v. Delci, 220 Ariz. 233, 237, ¶ 11 (App. 2009); see also

Ariz. R. Civ. P. 56(e).

A. Welch Did Not Owe Capp a Duty to Supervise the ATV.

¶7 Capp contends the superior court erred by finding Welch 

owed her no duty to supervise his ATV. A duty of care can arise out of 

either the relationship between the parties or public policy. Gipson v. Kasey, 

214 Ariz. 141, 144–46, ¶¶ 18–26 (2007). There is no evidence of any 

preexisting relationship between Capp and Welch. Thus, Capp relies on

public policy to argue Welch owed her a duty to “ensur[e] that those using 

the vehicle are competent to drive.”

¶8 This court addressed a similar public policy argument in Delci

v. Gutierrez Trucking Co., 229 Ariz. 333 (App. 2012). In Delci, an unknown 

thief stole a tractor-trailer and injured the plaintiffs in a collision. Id. at 334, 

¶¶ 2–3. The plaintiffs sued the tractor-trailer owner, claiming he 

negligently failed to secure the vehicle. Id. at 334, ¶ 4. The plaintiffs argued 

public policy should require all vehicle owners to take reasonable measures 

to prevent theft. Id. at 336, ¶ 13. But we reasoned that, absent a special 

relationship, there is no duty “to control the conduct of a third person as to 

prevent him from causing physical harm to another[.]” Id. at 337, ¶ 16 

(quoting Restatement (Second) of Torts § 315 (1965)). We affirmed the rule 

that “the duty of a [vehicle] owner to exercise reasonable care in the 

management of his [vehicle] does not include a duty to protect others from 

the negligent driving of a thief.” Delci, 229 Ariz. at 338, ¶ 17.

¶9 Capp tries to distinguish this case from Delci by arguing the 

driver was not “a thief or some unknown person,” but “a partygoer at 

[Welch’s] father’s home who had consent to take the ATV at any time.” But

the only evidence the driver was a partygoer is Welch’s father’s speculation 

that someone at the bonfire may have taken the ATV without his 

permission. And Capp offered no evidence to support her contentions on 

appeal that the bonfire attendees “had consent to take the ATV at any time.”

Nor is there evidence that Welch, who was in Bagdad, gave anyone at the 

bonfire permission to ride the ATV that night.

¶10 Thus, the reasoning in Delci applies here. Welch owed Capp 

no duty to protect her from the harm caused by the unknown driver.
CAPP v. WELCH

Decision of the Court

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B. Capp’s Negligent Entrustment Claim Fails.

¶11 Capp also contends Welch negligently entrusted the ATV to 

his father. Arizona recognizes a cause of action for negligent entrustment

as described in Restatement (Second) of Torts § 390 (1965):

One who supplies directly or through a third person a chattel 

for the use of another whom the supplier knows or has reason 

to know to be likely because of his youth, inexperience, or 

otherwise, to use it in a manner involving unreasonable risk 

of physical harm to himself and others whom the supplier 

should expect to share in or be endangered by its use, is 

subject to liability for physical harm resulting to them.

Verduzco v. Am. Valet, 240 Ariz. 221, 224, ¶ 8 (App. 2016).

¶12 To prevail, Capp must show (1) Welch owned or controlled 

the ATV; (2) Welch permitted the driver to operate the ATV; (3) the driver, 

because of his physical or mental condition, was incompetent to drive 

safely; (4) Welch knew or should have known that the driver, because of his 

physical or mental condition, was incompetent to drive safely; 

(5) causation; and (6) damages. See id.

¶13 Capp presented no evidence that Welch gave the unidentified 

driver permission to use the ATV. She also offered no evidence to suggest 

the driver was incompetent to operate the ATV safely or that Welch should 

have known the driver was incompetent. See Ward v. Mount Calvary 

Lutheran Church, 178 Ariz. 350, 355 (App. 1994) (“[T]he fact that an accident 

occurred is not enough to permit an inference of negligence.”). Her 

negligent entrustment claim therefore fails.

C. The Family Purpose Doctrine Does Not Apply.

¶14 Capp also urges us to apply the family purpose doctrine, 

under which liability “arises (1) when there is a head of the family, (2) who 

maintains or furnishes a vehicle for the general use, pleasure, and 

convenience of the family, and (3) a family member uses the vehicle with 

the family’s head’s express or implied permission for a family purpose.” 

Young v. Beck, 227 Ariz. 1, 8, ¶ 28 (2011).

¶15 Capp concedes Welch “is not . . . the ‘head of the family’ at his 

father’s household,” and she presented no evidence to suggest the 

unidentified driver was Welch’s family member using the ATV with his

permission for a family purpose.
CAPP v. WELCH

Decision of the Court

5

CONCLUSION

¶16 We affirm. Welch may recover his taxable costs incurred in 

this appeal upon compliance with Arizona Rule of Civil Appellate 

Procedure 21.