Alhambra School Dist. v. Superior Court In and For County of Maricopa, CV-89-0249-PR

• Court: Supreme Court of Arizona
• Writing for the Court: FELDMAN; GORDON; CAMERON
• Citation: 796 P.2d 470,165 Ariz. 38
• Parties: , 62 Ed. Law Rep. 743 ALHAMBRA SCHOOL DISTRICT, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Honorable Cecil Patterson, a Judge thereof, Respondent Judge, Brenda NICHOLS, a minor, By and Through her father, Russell NICHOLS; Russell Nichols, individually; and Louise Klein, Real Parties in Interest.
• Docket Number: No. CV-89-0249-PR,CV-89-0249-PR
• Decision Date: 12 July 1990

Page 470

796 P.2d 470 165 Ariz. 38, 62 Ed. Law Rep. 743 ALHAMBRA SCHOOL DISTRICT, Petitioner,
v.
SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Honorable Cecil Patterson, a Judge thereof, Respondent Judge,
Brenda NICHOLS, a minor, By and Through her father, Russell NICHOLS; Russell Nichols, individually; and Louise Klein, Real Parties in Interest. No. CV-89-0249-PR. Supreme Court of Arizona, In Banc. July 12, 1990.
Reconsideration Denied Sept. 18, 1990.

Page 471

[165 Ariz. 39] Teilborg, Sanders & Parks, P.C. by John C. Gemmill, Alison Lewis, Jean E. Huffington, Phoenix, for petitioner.

The Langerman Law Offices by Amy G. Langerman, Richard W. Langerman, and Langerman, Begam, Lewis and Marks by Elliot G. Wolfe, Phoenix, for real parties in interest.

OPINION

FELDMAN, Vice Chief Justice.

Brenda Nichols petitions this court to review a court of appeals' opinion holding that the school district owed her no duty of care and directing entry of summary judgment in favor of the district. See Alhambra School District v. Superior Court, 161 Ariz. 568, 780 P.2d 401 (Ct.App.1989).

The court of appeals accepted jurisdiction of a petition for special action to review the trial court's order denying summary judgment. We granted review to decide whether the court of appeals erred in finding that the school district had neither a common law nor statutory duty of care to protect foreseeable users of a school crosswalk from unreasonable risks of harm. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

Brenda Nichols (Brenda), a student at Alhambra High School, was struck by a motor vehicle and injured as she was crossing North 35th Avenue in a school crosswalk that abutted Cordova Elementary School (Cordova) in Phoenix's Alhambra School District (District). Cordova is located at North 35th Avenue and West Montebello Street. Pursuant to A.R.S. § 28-797, the Arizona School Crosswalk Statute, the City of Phoenix and the District agreed before the accident to establish a crosswalk across 35th Avenue. In its application for

Page 472

[165 Ariz. 40] the abutting school crossing, the District stated:

In event of approval and subsequent establishment by markings and appropriate signs, the undersigned school authority agrees to administer all duties as prescribed in Section 28-797 of the Arizona Revised Statutes, and to operate the crossing in conformance to the Arizona School Crossing Manual as adopted by the Arizona Highway Commission July 7, 1965. ¹

The application was approved with the provision that "the portable signs will be in place within the roadway between 7:45 a.m. and 4:00 p.m. during all days the school is in session." In addition, although not required to do so, the District hired a crossing guard to supplement the marking and signing required by A.R.S. § 28-797--yellow striping, 15 m.p.h. speed limit, no passing zones, and portable school crossing signs. Generally, the school did not place the portable signs in the road until between 7:50 and 8:00 a.m., and the crossing guard did not arrive until 8:00 a.m.

Brenda attended Cordova until she graduated from the eighth grade in 1986. She then attended Alhambra High School, which is part of the Phoenix Union High School District. On October 16, 1986, she was walking to the home of a friend who was to give her a ride to Alhambra. She was crossing 35th Avenue from east to west when she was struck by a southbound car.

Brenda's parents brought a damage action on her behalf against the District, alleging it negligently failed to post signs or provide a guard at the crossing during a time when such action should have been taken. ²

The District moved for summary judgment on the ground that it owed no duty of care to Brenda, who was not a student at Cordova. For purposes of summary judgment, it was assumed that Brenda was struck in the crosswalk between 7:45 and 8:00 a.m., at a time when the portable 15 m.p.h. school zone signs should have been in place but were not, and before the crosswalk guard arrived. The trial court denied the motion, as well as the motion for reconsideration that followed.

The District then petitioned the court of appeals for special action relief. The court of appeals accepted jurisdiction and granted the requested relief, ordering the trial judge to grant summary judgment in favor of the District. ³ See Alhambra School Dist., 161 Ariz. at 573, 780 P.2d at 406. A majority of the court held that the District owed a duty of care only to Cordova students. Id. at 572, 780 P.2d at 405. Thus, according to the court, the District did not owe Brenda, a student at Alhambra, a duty of care even though Brenda was legally using a crosswalk established by the District.

Because the court held no common law duty was owed to Brenda, it concluded that if any duty existed, it must have been created by statute pursuant to the crosswalk agreement and the manual issued by ADOT. Id. at 570, 780 P.2d at 403. The court believed the construction of A.R.S. § 28-797, entitled "School Crossings," ⁴

Page 473

[165 Ariz. 41] was at the crux of the appeal. The majority held that § 28-797 did not impose a duty of care on the District with respect to any persons other than students at Cordova because it believed "the term 'persons' as used in (C) was intended to mean only children inasmuch as 'the portable signs' to be placed by the District must use the word 'children' rather than 'persons.' " Id. at 572, 780 P.2d at 405. In the majority's view, because Brenda was not a student at Cordova, no relationship existed between Brenda and the District that gave the District power to "require" Brenda to use any designated crosswalk. Id. at 571, 780 P.2d at 404. Accordingly, the court remanded the case for entry of summary judgment in favor of the District. Id. at 573, 780 P.2d at 405. DISCUSSION

A. Duty

1. Did the District Owe Brenda a Common Law Duty of Care?

In a negligence action the plaintiff must establish that the defendant has a duty to conform to a particular standard of conduct to protect the plaintiff against unreasonable risks of harm. See Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985); Ontiveros v. Borak, 136 Ariz. 500, 667...