Opinion
No. 1 CA-CV 21-0080
12-28-2021
Clarissa HALE, Mother to, D.K.H., Plaintiffs/Appellants, v. WINDOW ROCK UNIFIED SCHOOL DISTRICT, Defendant/Appellee.
The Law Offices of David R. Jordan PC, Gallup, NM, By David R. Jordan, Counsel for Plaintiffs/Appellants Wright Welker & Pauole, Phoenix, By David K. Pauole, Counsel for Defendant/Appellee
The Law Offices of David R. Jordan PC, Gallup, NM, By David R. Jordan, Counsel for Plaintiffs/Appellants
Wright Welker & Pauole, Phoenix, By David K. Pauole, Counsel for Defendant/Appellee
Presiding Judge Randall M. Howe delivered the opinion of the court, in which Judge Brian Y. Furuya and Judge Michael J. Brown joined.
HOWE, Judge:
¶1 Plaintiffs Clarissa Hale and her minor son ("the Hales") appeal the superior court's order granting defendant Window Rock Unified School District summary judgment on their claim that the District was negligent in protecting the son—then a middle-school student in the District—from sexual assaults by another student. The court concluded that, although the District had a duty to protect the son from unreasonable risks of harm, summary judgment was warranted because no evidence showed that the District had notice of an unreasonable risk of harm to the son.
¶2 The superior court erred in so ruling, however, and we reverse the grant of summary judgment for the District. The issue was not whether the District was on notice that the son could be a victim of another student's assault, but whether it breached its standard of care in protecting the son from the risk of sexual assault. The Hales presented evidence that the District did not follow its safety procedures in protecting students, and the District did not dispute the evidence, presenting only the former principal's affidavit as contrary evidence about the level of security needs at the middle school. Consequently, a genuine issue of material fact existed, and the court should have denied summary judgment.
FACTS AND PROCEDURAL HISTORY
¶3 In late 2017, an eighth-grade student allegedly sexually assaulted the son at the middle school during school hours on three separate occasions. Soon after, the son identified the student as the attacker while his mother was present. In August 2018, the Hales sued the District for negligence, alleging that it had breached its duty to protect the son from the student, who had a history of violence at school. They claimed that the middle school had inadequate security and supervision when the assault took place, while the District's high school down the street had stricter security.
¶4 In June 2020, the District moved for summary judgment, arguing that (1) because the son could not identify the student when he was deposed, the Hales had offered no evidence showing that the student sexually assaulted the son; (2) even if the assault occurred, no evidence demonstrated the District was on notice that a recognizable risk existed that such an assault might occur; and (3) the District had absolute immunity from liability for exercising administrative functions. According to the evidence that the parties presented in connection with the motion, he could not identify the student from a photograph during the son's deposition two years after the assaults. Further, Elissa James, principal of the school at the time of the assault, attested that the student whom the Hales alleged assaulted the son had no record of misconduct or discipline. She also explained that the District's high school and alternative education program had higher security needs than the middle school, and the District assigned one or two security guards to roam between the lower-security-risk campuses, which included the son's middle school, during school hours. The son's mother attested that she was a former administrative employee for the District and was aware of many disciplinary incidents at the middle school. She also attested that Dan Smith, the District's head of security, told her that no security guards were present at the middle school around the time of the attack. The son attested that he witnessed at least two physical altercations between other students at the school before his attack, and while he would notice school faculty in the halls, he never saw security guards.
¶5 The court rejected the District's first argument because it determined that a genuine issue of material fact existed about the identification of the offender; the son identified the student with Mother present around the time of the last assault. The court nevertheless granted the District summary judgment, concluding that although the District had a general duty of care to its students, the Hales presented no evidence that the District was on notice of a recognizable risk of harm to the son. The court found that the student had no history of misconduct and that the Hales’ argument had shifted from alleging that the student had such a history to alleging that altercations generally are foreseeable in middle schools. It concluded that this more general argument was not enough to establish the District's liability under standards established in Jesik v. Maricopa County Community College District , 125 Ariz. 543, 611 P.2d 547 (1980) ; and Hill v. Safford Unified School District , 191 Ariz. 110, 952 P.2d 754 (App. 1997). Because the court granted summary judgment on that basis, it declined to consider the District's absolute immunity argument. The court then entered a final judgment, dismissing the complaint and all causes of action with prejudice. The Hales timely appealed.
DISCUSSION
¶6 The Hales argue that the superior court erred in granting the District summary judgment. We review a grant of summary judgment de novo, "viewing the facts and inferences in the light most favorable to the non-prevailing party." BMO Harris Bank, N.A. v. Wildwood Creek Ranch, LLC , 236 Ariz. 363, 365 ¶ 7, 340 P.3d 1071, 1073 (2015). A court properly grants summary judgment 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.
¶7 The court erred in granting summary judgment because it did not apply the current law on foreseeability in negligence actions involving a school's duty to its students. In a negligence action, the plaintiff must prove that (1) the defendant had a duty to conform to a certain standard of care, (2) the defendant breached that duty, (3) the breach caused (both factually and legally) the resulting injury, and (4) actual damages resulted. Quiroz v. ALCOA Inc. , 243 Ariz. 560, 563–64 ¶ 7, 416 P.3d 824, 827–28 (2018). The standards for determining these elements have evolved in Arizona, however, especially in school-student relationships.
¶8 Under past cases, foreseeability of harm was often considered a factor in determining whether the defendant owed a duty to the plaintiff. Gipson v. Kasey , 214 Ariz. 141, 144 ¶ 14, 150 P.3d 228, 231 (2007). Thus, in cases such as this, courts considered whether the defendant had notice that the plaintiff was in danger. For example, our supreme court held in a case involving a shooting on a school campus that a school's "statutory duty of adequate supervision[,] coupled with notice [of a third party's threat,] imposed a specific duty to exercise reasonable care to protect the decedent." Jesik , 125 Ariz. at 547, 611 P.2d at 551. The record in Jesik showed that the school had "specific and repeated notice" of the shooter and of the act that eventually occurred because the decedent had notified a security guard that the shooter threatened to kill him. Id. While foreseeability and notice are distinct legal terms, they function similarly here in determining the school's liability: notice to the security guard in Jesik made the school aware that the shooting was a foreseeable risk. Id. at 546–47, 611 P.2d at 550–51 (record showed school's awareness of the risk in contrast with the record in Chavez v. Tolleson Elementary School District , 122 Ariz. 472, 595 P.2d 1017 (App. 1979), which did not "indicat[e] that school personnel should have been aware of the potential for criminal conduct").
¶9 Later, in Hill , this court found that the school did not breach its duty to the victim of an off-campus shooting because his death was not "reasonably foreseeable and did not result from an unreasonable risk created by the school." 191 Ariz. at 117, 952 P.2d at 761. This court noted that the school had a duty to protect students from "foreseeable and unreasonable risks" of harm, but no evidence supported a finding that the school was aware of, among other things, the student-shooter's violent tendencies, that students brought weapons to school, or that the student-shooter posed a danger to the decedent during or after school. Id. at 112, 114–15, 952 P.2d at 756, 758–59. Although in that case we ultimately analyzed foreseeability to determine the school's breach, foreseeability was still part of its duty determination. Id. at 112–13, 116, 952 P.2d at 756–57, 760.
¶10 After Gipson , Arizona law has since departed from using foreseeability within the analysis of duty that had been employed in older decisions. In Gipson , our supreme court held that "foreseeability is not a factor to be considered by courts when making determinations of duty" and is "more properly applied to the factual determinations of breach and causation." 214 Ariz. at 144 ¶¶ 15, 17, 150 P.3d at 231. In 2018, Quiroz affirmed this new framework for addressing foreseeability issues in negligence cases, where the court noted that Gipson "enacted a sea change" in Arizona. 243 Ariz. at 563, 565 ¶¶ 2, 12, 416 P.3d at 827, 829. More recently, the supreme court again applied the new framework in Dinsmoor v. City of Phoenix , a school-student negligence case, where it clarified Hill in holding that a school has a duty to protect students from unreasonable risks of harm off-campus if the threat of harm arose within the school-student relationship, that is, while the student at risk remains in the school's control. 251 Ariz. 370, 375 ¶ 20, 492 P.3d 313, 318 (2021).
¶11 In Dinsmoor , the supreme court recognized that duty of care is based not on foreseeability of harm but on special relationships or public policy exclusively. Id. at 373 ¶ 14, 492 P.3d at 316. A school's duty to its students is predicated upon the various roles it fills as custodian, land possessor, and quasi-parental figure, id. at 375 ¶ 20, 492 P.3d at 318 ; is "tied to expected activities within the relationship[;]" and "encompass[es] risks such as those that occur while the student is at school or otherwise under the school's control," id . at 375 ¶ 18, 492 P.3d at 317 (quoting Monroe v. Basis Sch. Inc. , 234 Ariz. 155, 157–58 ¶ 6, 318 P.3d 871, 873–74 (App. 2014) ). The special relationship between a school and its students imposes an "affirmative duty on schools to protect students from unreasonable risks of harm" when they are at school or under its control, although this duty is "not limitless." Id. at 373–74 ¶¶ 15, 17, 492 P.3d at 316–17 ; see also A.R.S. § 15–341(A)(16) (requiring "adequate supervision over pupils"); Vreeland v. State Bd. of Regents , 9 Ariz. App. 61, 62, 449 P.2d 78 (1969) (observing that students have the status of invitees vis-à-vis schools when on school property). Unreasonable risks are not only those "created by the individual at risk [but also] those created by a third party's conduct." Dinsmoor , 251 Ariz. at 373 ¶ 14, 492 P.3d at 316 (quoting Nunez v. Prof'l Transit Mgmt. of Tucson, Inc. , 229 Ariz. 117, 121 ¶ 17, 271 P.3d 1104, 1108 (2012) ). Thus, pre- Gipson cases are no longer valid to the extent that they rely on foreseeability to determine duty. Quiroz , 243 Ariz. at 565 ¶ 12, 416 P.3d at 829. The continued usefulness of those cases depends upon what remains when they are interpreted through the lenses of Gipson , Quiroz , and Dinsmoor .
¶12 The superior court here concluded that, pursuant to the standards in Jesik and Hill , the Hales did not establish that a "recognizable risk existed creating a duty on the part of the school to prevent the alleged attacks" because the alleged attacker did not have a prior record of misconduct to give the school notice of the risk of harm. While courts are still permitted to "consider facts to determine whether a duty exists based on the presence of an unreasonable risk of harm that arose within the scope of a special relationship," Dinsmoor , 251 Ariz. at 376 ¶ 27, 492 P.3d at 319–320, the superior court's application of a "recognizable risk" standard in this case utilized a pre- Gipson foreseeability analysis; it impermissibly focused on whether the son was a foreseeable victim of the alleged tortfeasor, see Quiroz , 243 Ariz. at 564 ¶ 9, 416 P.3d at 828. Here, a special relationship existed between the District and the son. The son was under the District's care when the assaults occurred, thereby establishing that the District had a duty to take reasonable measures to protect him from incidents such as the assaults. Thus, although the court properly found a duty to exist, it erred in not applying the modern duty of care analysis.
¶13 Foreseeability, however, remains a factor in examining issues of breach and causation. Quiroz , 243 Ariz. at 565 ¶ 13, 416 P.3d at 829. Specifically, Gipson instructs that "foreseeability often determines whether a defendant acted reasonably under the circumstances or proximately caused injury to a particular plaintiff." 214 Ariz. at 144 ¶ 16, 150 P.3d at 231. Thus, foreseeability in a breach and causation analysis focuses on "whether the injury was foreseeable, and not whether the plaintiff was foreseeable." Quiroz , 243 Ariz. at 564 ¶ 9, 416 P.3d at 828. Such an inquiry was the object of the superior court's analysis in this case. But issues of breach and causation necessarily implicate factual determinations that are reserved to designated fact finders, making summary judgment inappropriate when disputed issues of material fact exist. Gipson , 214 Ariz. at 144 ¶¶ 16–17, 150 P.3d at 231.
¶14 Here, examined under the appropriate summary judgment standard, the evidence established that violence existed among students at the middle school. The middle school's former principal also attested that one or two security guards are assigned to roam among campuses, including the middle school, that have low-security needs. The son's mother attested that the District's head of security told her that security guards were not present on campus at the time of the assault. Mother further explained that, as a former administrative employee at the middle school, she was privy to information about disciplinary incidents between students at the school. The son attested that he witnessed fights between other students on campus. Although he saw faculty and staff in the hallways, he said that he never saw a security guard on campus leading up to the attacks. The District did not dispute this evidence and presented no contradicting evidence apart from the former principal's affidavit that it had been following its security and safety protocols. Taken together, the evidence on the issue of breach establishes disputes of material fact sufficient to withstand summary judgment. Whether the Hales presented evidence to withstand summary judgment on other elements of the negligence claim is not before this court.
CONCLUSION
¶15 For the foregoing reasons, we vacate the summary judgment ruling and remand for further proceedings.