Boisson v. Ariz. Bd. of Regents

• Decision Date: 10 March 2015
• Docket Number: No. 1 CA–CV 13–0588.,1 CA–CV 13–0588.
• Citation: 708 Ariz. Adv. Rep. 7,236 Ariz. 619,343 P.3d 931
• Parties: Elizabeth BOISSON, individually and on behalf of all statutory beneficiaries, Plaintiff/Appellant, v. ARIZONA BOARD OF REGENTS, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad, Defendants/Appellees.
• Court: Arizona Court of Appeals

236 Ariz. 619
343 P.3d 931
708 Ariz. Adv. Rep. 7

Elizabeth BOISSON, individually and on behalf of all statutory beneficiaries, Plaintiff/Appellant
v.
ARIZONA BOARD OF REGENTS, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad, Defendants/Appellees.

No. 1 CA–CV 13–0588.

Court of Appeals of Arizona, Division 1.

March 10, 2015.

343 P.3d 933

Knapp & Roberts, P.C. By Craig A. Knapp, Dana R. Roberts, David L. Abney, Scottsdale, Counsel for Plaintiffs/Appellants.

Garrey, Woner, Hoffmaster & Peshek, P.C. By Shawna M. Woner, Stephanie Kwan, Scottsdale, Counsel for Defendants/Appellees Arizona Board of Regents and State of Arizona.

Udall Law Firm, LLP By Peter Akmajian, Janet Linton, Tucson, Counsel for Defendants/Appellees Nanjing American University, L.L.C., dba Yangtze International Study Abroad.

Judge SAMUEL A. THUMMA delivered the decision of the Court, in which Presiding Judge MARGARET H. DOWNIE and Judge ANDREW W. GOULD joined.

OPINION

THUMMA, Judge:

236 Ariz. 621

¶ 1 Elizabeth Boisson appeals from a judgment dismissing a wrongful death negligence claim arising out of the death of her son Morgan Boisson. The judgment was based on the ground that Defendants owed no duty to Morgan when, while studying abroad in China, he traveled to Tibet and died of altitude sickness. Finding no error, this court affirms.

FACTS¹ AND PROCEDURAL HISTORY

¶ 2 Morgan was an undergraduate student at the University of Arizona, which is governed by the Arizona Board of Regents (ABOR). In the fall of 2009, Morgan and 16 other university students spent the semester studying in China at Nanjing American University (NAU). This study-abroad program, sometimes referred to as Yangtze International Study Abroad (YISA), was a collaborative effort between ABOR and NAU.

¶ 3 While in China, the study-abroad program included school-sponsored trips to various cities in China with NAU faculty. At other times, the students organized their own trips. During a student-organized trip, 14 study abroad students—including Morgan—flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

¶ 4 As relevant here, Elizabeth filed a complaint against the State of Arizona, ABOR and NAU (collectively Defendants), asserting a wrongful death negligence claim pursuant to Arizona Revised Statutes (A.R.S.) sections 12–611 to –613 (2015).² After discovery, motion practice and oral argument, the superior court granted Defendants' motions for summary judgment on the ground that Defendants “owed no affirmative duty of care to Morgan while he was a participant on the subject trip to Tibet.” After entry of judgment, Elizabeth timely appealed. This court has jurisdiction pursuant to the

236 Ariz. 622

343 P.3d 934

Arizona Constitution Article 6, Section 9, and A.R.S. §§ 12–120.21(A)(1) and –2101(A)(1).

DISCUSSION

I. Duty In An Arizona Common Law Negligence Claim.³

¶ 5 Although described in various ways, a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages. See, e.g., Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007) ; Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983) ; Wisener v. State, 123 Ariz. 148, 149, 598 P.2d 511, 512 (1979). “The first element, whether a duty exists, is a matter of law for the court to decide.” Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230 (citation omitted).

The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.”....

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.

Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted).

¶ 6 As noted by the Arizona Supreme Court, pre–2007 case law addressing duty “created ‘some confusion and lack of clarity ... as to what extent, if any, foreseeability issues bear on the initial legal determination of duty.’ ” Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (citation omitted). Gipson, however, expressly held “that foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in prior opinions.” 214 Ariz. at 144 ¶ 15, 150 P.3d at 231. Accordingly, foreseeability is not a part of the duty inquiry and those portions of pre-Gipson cases relying on foreseeability when addressing the issue are no longer valid.

¶ 7 Although a duty can arise in various ways, Elizabeth argues: (1) the student-school relationship imposes a duty on Defendants here and (2) public policy imposes such a duty. Recognizing the concept of duty is context dependent, Gipson indicates that duty may arise from the relationship between the parties or, alternatively, from public policy considerations. Gipson, 214 Ariz. at 145 ¶ 18, ¶ 23, 150 P.3d at 232; accord Monroe v. Basis School, Inc., 234 Ariz. 155, 157 ¶ 5, 159 ¶ 12, 318 P.3d 871, 873, 875 (App.2014) ; see also Randolph v. Ariz. Bd. of Regents, 19 Ariz.App. 121, 123, 505 P.2d 559, 561 (App.1973) (“No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.”).

A. Duty Based On The Student–School Relationship.

1. Context Of The Duty.

¶ 8 “The student-school relationship is one that can impose a duty within the context of the relationship.” Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873. Arizona case law shows the duty most clearly applies in on-campus activities in the primary and secondary school context, where the relationship is custodial. Monroe, 234 Ariz. at 158 ¶ 9, 318 P.3d at 874. Arizona case law is less clear whether and to what extent the duty applies in off-campus activities in the primary and secondary school context. See Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 41–42, 796 P.2d 470, 473–74 (1990) (holding school district owed duty to high school student injured in elementary school-created crosswalk); Collette v. Tolleson Unified Sch. Dist., No. 214, 203 Ariz. 359, 54 P.3d 828 (App.2002) (holding school owed no

236 Ariz. 623

343 P.3d 935

duty to third party who was injured by high school student who left campus in violation of school policy).

¶ 9 In the college and university context, courts in other jurisdictions “are split on whether a college owes an affirmative duty to its students.” Restatement (Third) of Torts: Physical and Emotional Harm § 40 Reporters' Notes cmt. 1 (2012) (Restatement) (citing cases). Arizona case law, however, indicates a college or university does owe its students a duty of reasonable care for on-campus activities. See Jesik v. Maricopa Cnty. Cmty. Coll. Dist., 125 Ariz. 543, 611 P.2d 547 (1980) ; see also Delbridge v. Maricopa Cnty. Cmty. Coll. Dist., 182 Ariz. 55, 58–59, 893 P.2d 55, 58–59 (App.1994) (holding college owed duty to student for injury incurred during college class, even though college did “not have a permanent campus”). It is undisputed that the Tibet trip was not an on-campus activity.

¶ 10 The parties have cited, and the court has found, no Arizona case addressing whether a college or university owes its students a duty of reasonable care for off-campus activities. Section 40(b)(5) of the Restatement, applied by the Arizona Supreme Court in a different context, imposes a “duty of reasonable care with regard to risks that arise within the scope of the relationship” for “a school with its students.” Restatement § 40(a), (b)(5).⁴ As framed by the parties, Restatement § 40 provides that a college or university may owe a duty to its student “to risks that occur while the student is at school or otherwise engaged in school activities. ” Restatement § 40 cmt. 1 (emphasis added). No Arizona case has recognized a duty by a university or a college in any context comparable to this case. In addition, Restatement § 40, in its final form, was promulgated in 2012, meaning there is comparatively little guidance in...