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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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.
WILSON v. HUBER

Decision of the Court

3

¶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 
WILSON v. HUBER

Decision of the Court

4

¶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.
WILSON v. HUBER

Decision of the Court

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¶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.

 

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.