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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL DOLAN, 

Plaintiff/Appellant,

v.

STATE OF ARIZONA,

Defendant/Appellee.

No. 1 CA-CV 22-0219 

Appeal from the Superior Court in Maricopa County

No. CV2018-009634

The Honorable Jay R. Adleman, Judge

VACATED AND REMANDED

COUNSEL

Zapata Law, PLLC, Chandler

By Julio M. Zapata

Co-Counsel for Plaintiff/Appellant

Law Offices of Gil Negrete, PC, Phoenix

By Gil Negrete

Co-Counsel for Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix

By G. Michael Tryon, Rebecca Banes

Counsel for Defendant/Appellee

FILED 12-22-2022
DOLAN v. STATE

Decision of the Court

2

MEMORANDUM DECISION

Acting Presiding Judge James B. Morse Jr. delivered the decision of the 

Court, in which Judge Michael J. Brown and Chief Judge Kent E. Cattani

joined.

M O R S E, Judge:

¶1 Michael Dolan ("Dolan") appeals the superior court's grant of 

summary judgment to the State. For the following reasons, we vacate that 

ruling and remand for further proceedings. 

FACTS AND PROCEDURAL BACKGROUND

¶2 On July 7, 2017, at about 9:35 a.m., Dolan drove his motorcycle 

eastbound on Interstate 40 near milepost 120.5 in Yavapai County. Shortly 

after passing a commercial vehicle, Dolan lost control of the motorcycle

when the rear tire slipped on the pavement. Dolan went off the roadway 

and over the right-shoulder of the highway. After the crash, the 

commercial-vehicle's driver stopped to help Dolan, called 9-1-1, and waited 

for the police to arrive.

¶3 The investigating officer walked the roadway near milepost 

120 and noticed a "black coating" over a large portion of the travel lanes. In 

his crash report, the officer noted that the roadway "had recently been 

coated in a layer of oil." He also wrote that Dolan traveled straight on the 

roadway and engaged in "no improper action" while operating the 

motorcycle. An ambulance transported Dolan to Flagstaff Medical Center 

to treat his injuries.

¶4 Dolan filed suit against the State alleging negligence and 

vicarious liability for the acts of the Arizona Department of Transportation 

("ADOT"). After the close of discovery, the State moved for summary 

judgment. Following oral argument, the superior court granted the State's 

motion, finding that no genuine issues of material fact existed because 

Dolan provided no evidence of causation to support his negligence claim.

¶5 Dolan timely appealed. We have jurisdiction under A.R.S. 

§ 12-2101(A)(1).
DOLAN v. STATE

Decision of the Court

3

DISCUSSION

¶6 Dolan argues that the superior court erred because material 

questions of fact make summary judgment inappropriate.

I. Summary Judgment Standard.

¶7 Summary judgment is appropriate only if no genuine dispute 

of material fact exists and the moving party is entitled to judgment as a 

matter of law. Ariz. R. Civ. P. 56(a). The moving party bears the burden of 

demonstrating both the absence of a genuine dispute of material fact and 

why summary judgment should be entered in its favor. Nat'l Bank of Ariz. 

v. Thruston, 218 Ariz. 112, 115, ¶ 14 (App. 2008). "Any evidence or 

reasonable inference contrary to the material facts . . . will preclude 

summary judgment." United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195 (App. 

1990). Mere "speculation or insubstantial doubt as to the facts will not 

suffice, but where the evidence or inferences would permit a jury to resolve 

a material issue in favor of either party, summary judgment is improper." 

Id. "Further, a court must view the evidence in a light most favorable to the 

non-moving party and draw all justifiable inferences in its favor." Thruston, 

218 Ariz. at 116, ¶ 17. 

¶8 If "the moving party argues it is entitled to summary 

judgment because the non-moving party lacks evidence to support its claim

or defense," then "the moving party must do more than make bald 

assertions that the non-moving party cannot meet its burden of proof at trial 

or has no evidence supporting its claim or defense." Thruston, 218 Ariz. at 

118, ¶ 23. Generally, the "moving party's burden of persuasion on the 

motion remains with that party; it does not shift to the non-moving party." 

Id. at 115, ¶ 16. However, if "a moving party meets its initial burden of 

production by showing that the non-moving party does not have enough 

evidence to carry its ultimate burden of proof at trial," then the burden 

"shifts to the non-moving party to present sufficient evidence 

demonstrating the existence of a genuine factual dispute as to a material 

fact." Id. at 119, ¶ 26. 

¶9 We review an order granting summary judgment de novo,

Jackson v. Eagle KMC L.L.C., 245 Ariz. 544, 545, ¶ 7 (2019), and may affirm "if 

it is correct for any reason apparent in the record," Forszt v. Rodriguez, 212 

Ariz. 263, 265, ¶ 9 (App. 2006).
DOLAN v. STATE

Decision of the Court

4

II. Negligence.

¶10 Dolan cites to circumstantial evidence and reasonable 

inferences therefrom to argue there are genuine issues of material fact that 

should have precluded summary judgment on breach and causation. The 

State responds that it is entitled to summary judgment because Dolan failed 

to produce evidence that (1) the State "either placed oil on the roadway or 

had notice of its presence there"; and (2) the State's actions caused Dolan's 

injuries.

¶11 To establish a claim for negligence, a plaintiff must prove four 

elements: "(1) a duty requiring the defendant to conform to a certain 

standard of care; (2) a breach by the defendant of that standard; (3) a causal 

connection between the defendant's conduct and the resulting injury; and 

(4) actual damages." Cal-Am Props. Inc. v. Edais Eng'g Inc., 253 Ariz. 78, 81, 

¶ 5 (2022) (quoting Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007)). The State 

is not an insurer of the safety of highways under its control, but it has a duty 

to maintain its roadways and keep them safe for travel. Ariz. State Highway 

Dep't v. Bechtold, 105 Ariz. 125, 129 (1969); Livesay v. State, 126 Ariz. 345, 346 

(1980). The State recognizes that it has a duty to keep its highways 

reasonably safe for the traveling public and does not challenge the standard 

of care on appeal.1 

¶12 The State breaches its duty when it (1) knows, or in the 

exercise of reasonable care should have known, that a roadway is unsafe 

and negligently fails to remedy the situation; or (2) is negligent in the way 

it attempts to remedy the situation. City of Phoenix v. Kenly, 21 Ariz. App. 

394, 396 (1974). For the State to be "liable for a failure to repair, it must have 

first received actual or constructive notice of the defect." Wisener v. State, 

123 Ariz. 148, 150 (1979). "However, if the [State] itself caused the defect, 

or if the repairs or improvements were defective when made, notice of the 

defects is not a prerequisite to holding the [State] liable." Id. (citations 

omitted).

1 The State argued in its summary judgment motion that Dolan had failed 

to provide evidence of the "highway engineering maintenance standard of 

care" and so Dolan could not show the State breached that standard. The 

State does not pursue that argument on appeal. See Childress Buick Co. v. 

O'Connell, 198 Ariz. 454, 459, ¶ 29 (App. 2000) ("Our policy, and the policy 

of most appellate courts, is that issues not clearly raised in appellate briefs 

are deemed waived.").
DOLAN v. STATE

Decision of the Court

5

¶13 The State argues that ADOT maintenance records show it 

neither placed nor had notice of the flush coat2 on the eastbound lanes at 

milepost 120 and that Dolan presented no contrary evidence. Dolan argues 

that circumstantial evidence shows that ADOT placed flush coat on the 

roadway or, at least, had constructive notice of the condition. See Crye v. 

Edwards, 178 Ariz. 327, 329 (App. 1993) ("Arizona has long recognized 'that 

direct and circumstantial evidence have equal probative worth'; and our 

supreme court has long 'abandoned the rule that each link in a chain of 

circumstantial inference must exclude every other reasonable hypothesis.'"

(quoting Lohse v. Faultner, 176 Ariz. 253, 259 (App. 1992))). Although 

Dolan's brief suggests the State had "constructive notice" of the flush coat 

on the roadway, he presents no argument or citation to the record to 

support this claim. Therefore, we decline to address this issue. See In re 

3567 E. Alvord Road, 249 Ariz. 568, 572, ¶ 11 n.5 (App. 2020) ("We do not 

address this suggestion because [appellant] has failed to fully develop this 

argument or meaningfully cite to relevant authority . . . .").

¶14 Dolan argues a reasonable jury could infer facts establishing 

liability because (i) the "State is in charge of applying oil coatings to the 

roadways," (ii) the State's internal documents show the oil coating is known 

to be slippery, and (iii) by not ensuring the "oil coating had completely 

dried and/or that no oil spots exist[ed]," the State breached its duty to 

maintain safe roads. Aside from his own declaration, Dolan points to the 

commercial-vehicle driver's statements that "the roadway had recently 

been coated in a layer of oil," and he had reduced his speed due to the oil 

on the roadway. Dolan also cites the investigating officer's statements that 

"[ADOT] had put oil down at some point" over a large section of the 

eastbound travel lanes. Both parties acknowledge that ADOT (1) applied 

flush coat to the eastbound lanes between mileposts 132 and 134 on July 5 

and the westbound lanes between mileposts 121 and 134 on July 5 and 6;

and (2) conducted a shoulder sweeping operation over the eastbound lanes 

between mileposts 121 and 146 on July 3.

¶15 For purposes of summary judgment, the State does not 

dispute that an "oil-like substance on the roadway caused" Dolan's crash 

and that ADOT had been applying flush coat to other parts of Interstate 40 

2 According to the ADOT Construction Manual, "flush coat," also referred 

to as "fog coat," has "a petroleum resin oil base, emulsified in water" and in 

"most cases the fog coat leaves the surface extremely slippery, so it is sanded 

(blotted) in order to permit earlier use of the pavement." The road is 

"[n]ever open to traffic without sufficiently blotting to eliminate the 

slippery surface" and "[t]raffic is kept off fog coats for at least 2 hours . . . ." 
DOLAN v. STATE

Decision of the Court

6

a couple of days prior. Though the State argues that the oil "could have 

ended up on the roadway in any number of ways," it does not provide any 

alternative explanation for oil on a large section of the eastbound travel 

lanes on a roadway that ADOT is responsible for maintaining. Moreover, 

ADOT admits that it has a duty to maintain the highway in a manner that 

is reasonably safe for ordinary travel. See Livesay, 126 Ariz. at 346. The 

undisputed evidence that ADOT had coated other nearby portions of 

Interstate 40 at the time, and witness statements describing an oily "black 

coating" on the road, could allow a reasonable jury to infer that ADOT had 

also applied a flush coat at the scene of the accident and that ADOT's 

records are incorrect or incomplete. In the absence of any competing 

plausible explanation from ADOT for the presence of the alleged coating 

on the roadway, such an inference is not unreasonable. See Robertson v. 

Sixpence Inns of Am., Inc., 163 Ariz. 539, 546 (1990) ("Plaintiff need only 

present probable facts from which the causal relationship reasonably may 

be inferred."); Buzard v. Griffin, 89 Ariz. 42, 48 (1960)("An inference is a fact 

which may be presumed from the proof of the existence or non-existence of 

other facts."); cf. also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 

U.S. 574, 596-97 (1986) (noting that "equally plausible explanations" may 

defeat reasonable inferences drawn from circumstantial evidence). 

¶16 Dolan also challenges the superior court's ruling that he did 

not establish causation. The court concluded that summary judgment in 

favor of the State on causation was appropriate because Dolan presented 

no evidence to establish a causal link between the State's conduct and 

Dolan's injuries.

¶17 The State acknowledges that Dolan has presented evidence 

for purposes of summary judgment that an "oil-like substance on the 

roadway caused or contributed to his crash" and that ADOT had been 

applying flush coat to other nearby parts of Interstate 40 a couple of days 

prior. As discussed above, because a jury could reasonably infer that ADOT 

had applied that oil-like substance near milepost 120, supra ¶ 15, we 

conclude that there is a genuine dispute of material fact regarding both 

breach and causation. See Allyn, 167 Ariz. at 195 (noting that "where the 

evidence or inferences would permit a jury to resolve a material issue in 

favor of either party, summary judgment is improper"); see also Salica v. 

Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 419, ¶ 16 (App. 2010) 

("Causation is generally a question of fact for the jury unless reasonable 

persons could not conclude that a plaintiff had proved this element." 

(quoting Barrett v. Harris, 207 Ariz. 374, 378, ¶ 12 (App. 2004))). 
DOLAN v. STATE

Decision of the Court

7

CONCLUSION

¶18 For the above-stated reasons, we vacate the superior court's 

grant of summary judgment to the State and remand this case for further 

proceedings. Further, we grant Dolan his costs upon compliance with 

ARCAP 21.