Carroll v. Robinson, 1

CourtCourt of Appeals of Arizona
Citation874 P.2d 1010,178 Ariz. 453
Docket NumberCA-CV,No. 1,1
Parties, 91 Ed. Law Rep. 676 Robert CARROLL, Plaintiff-Appellant, v. Nina T. ROBINSON and John Doe Robinson, wife and husband, Darwin J. Cox and Jane Doe Cox, husband and wife, Ted Williams and Jane Doe Williams, husband and wife, Arizona Department of Health Services; Arizona Department of Economic Security, State of Arizona, Defendants-Appellees. 91-0593.
Decision Date12 May 1994

GRANT, Judge.

Appellant Robert Carroll ("plaintiff") appeals from the trial court's grant of summary judgment for the defendants and from the denial of a Motion for a New Trial. He alleges that the defendants' actions: 1) defamed him; 2) tortiously interfered with the business relationship between him and his employer; 3) inflicted severe emotional distress; and 4) deprived him of constitutionally protected property and liberty interests without due process. We affirm in part, reverse in part, and remand.


Plaintiff became the director of the Sunshine Montessori School in 1979 when he signed an at-will employment contract with his mother, Sibyl Carroll, the owner of the school. Plaintiff remained in that position until late Spring, 1987, when the State Departments of Human Services (DHS) and Economic Security (DES) were notified of three separate allegations of child sexual abuse against him. Since Sunshine Montessori was under the licensing authority of DHS and had a contract with DES to provide day care services, both agencies investigated these charges.

The first two allegations against plaintiff were classified as "unable to determine" and "not substantiated." Neither charge was pursued past the initial investigation. The third allegation proved more serious. On June 11, 1987, the mother of the child informed the Yuma Police Department that she believed her son had been molested by "Bob Carroll." The next day, Myrna Bowles, a DHS employee, and Norma Flanagan, a DES employee, talked to the child's mother about the allegations, and received a medical report by Dr. Jane Wilson that indicated that the child had in fact been molested. Bowles and Flanagan interviewed the child, who said "Mr. Bob" touched him. Bowles and Flanagan were also working cooperatively with the Yuma Police Department and were aware that the child told the police he had been touched by another man named Virgil. By June 15, DHS and DES requested that plaintiff be kept away from the school until their investigation was completed.

On June 19, 1987, defendant Darwin J. Cox, a DES employee, wrote Sibyl Carroll at the Sunshine Montessori School to inform her that the school's agreement with DES was canceled due to "allegations of sexual abuse by a member of your staff." On September 11, 1987, Nina Robinson sent a letter to Sibyl Carroll demanding that she either remove plaintiff as director or face legal action by DHS. Sibyl Carroll removed her son as director of Sunshine Montessori. Plaintiff then attempted, through a third party, to have his case reviewed and reversed by defendant Ted Williams, Director of the Department of Health Services. Williams declined to change any decision or judgment of the Department and informed plaintiff that there was no avenue for appeal. Plaintiff then filed this action.


The appellant/plaintiff raises the following issues:

1. Was plaintiff entitled to proceed to trial on his state law tort claims?

2. Did the trial court err in granting summary judgment to defendants on the section 1983 civil rights claim?

3. Did the trial court abuse its discretion in denying plaintiff's Motion For New Trial?


On appeal from a grant of summary judgment, we view the facts in the light most favorable to the party against whom the judgment was taken. Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 388, 710 P.2d 1025, 1043 (1985). Furthermore, we may review the entire record to determine whether the trial court abused its discretion in denying plaintiff's Motion For New Trial. State v. Mecham, 173 Ariz. 474, 478, 844 P.2d 641, 645 (App.1992).

A. State Tort Claims

The first issue raised on appeal is whether the trial court correctly granted the defendants' Motion For Summary Judgment on plaintiff's state law claims of defamation, interference with a business relationship, and intentional infliction of emotional distress. The trial court found that the plaintiff failed to present evidence that could convince a reasonable person that the defendants acted with actual malice, and thus the defendants were entitled to qualified immunity. "Once an immunity defense has been raised properly, the court determines whether defendants are entitled to immunity." Chamberlain v. Mathis, 151 Ariz. 551, 554, 729 P.2d 905, 908 (1986); Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984). The question is therefore one of law, which we review de novo.

Qualified immunity protects state officers and employees from liability for the good faith exercise of their discretionary authority. The general rule of governmental immunity from tort liabilities was abandoned by the Arizona Supreme Court in 1963. Stone v. Arizona Highway Comm'n, 93 Ariz. 384, 387, 381 P.2d 107, 109 (1963). The court continued to recognize governmental immunity in some areas. Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982). In Ryan the supreme court said:

Employing the spirit of the Stone decision, we propose to endorse the use of governmental immunity as a defense only when its application is necessary to avoid a severe hampering of a governmental function or thwarting of established public policy. Otherwise, the state and its agents will be subject to the same tort law as private citizens.

Id. at 311, 656 P.2d at 600.

There is limited governmental immunity for discretionary administrative actions. Ariz.Rev.Stat.Ann. ("A.R.S.") § 41-621(I) (Supp.1993) 1; Chamberlain, 151 Ariz. [178 Ariz. 457] at 555-59, 729 P.2d at 909-13; Evenstad v. State, 178 Ariz. 578, 585, 875 P.2d 811, 818 (App.1993). State officials are within their discretionary authority when they set policy or perform an act that inherently requires the exercise of their judgment or discretion. Chamberlain, 151 Ariz. at 555, 729 P.2d at 909; Evenstad, 178 Ariz. at 585, 875 P.2d at 818.

This protection from liability is often described as "privilege." Thus qualified immunity is parallel to conditional privilege particularly regarding defamatory communications. This privilege protects the public's interest "in the honest discharge of their duties by public officers...." Restatement (Second) of Torts § 598, comment d (1977). Conditional privileges are limited to particular occasions requiring the exchange of information reasonably thought to be true. Absolute privileges are created by law based on a recognition that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interest. Restatement (Second) of Torts, Ch. 25, topic 2, Title B, "Absolute Privilege Irrespective of Consent," at 242-43. Conditional privilege does not establish an absolute defense. A plaintiff may establish abuse of a conditional privilege by showing actual malice, i.e., that the defendant acted with knowledge of a statement's falseness or with reckless disregard of whether the statement was true. Lewis v. Oliver, 178 Ariz. 330, 335, 873 P.2d 668, 673 (App.1993).

Since the plaintiff specifically alleges that the defendants acted "within the course and scope of their duties as officials of the State of Arizona," no fact question required a jury determination before the trial court could rule on the application of immunity. See Chamberlain, 151 Ariz. at 554, 729 P.2d at 908 ("If the existence of immunity turns on disputed factual issues, the jury determines the facts and the court then determines whether those facts are sufficient to establish immunity."). Instead, the trial court could resolve the legal issue whether the defendants' actions were discretionary. Whether to revoke the license or contract of a day care provider inherently requires some judgment on the part of those making the decisions. In this case, the defendants considered the molestation allegations and made a discretionary decision regarding the plaintiff. While that decision may well have been based on an assumption that the allegation was true, the purpose of qualified immunity in this context is to allow state employees to exercise their discretion in good faith to protect the welfare of children in day care facilities without fearing that their actions will subject them to civil liability. See id. at 555, 729 P.2d at 909; Lewis v. Oliver, 178 Ariz. at 335, 873 P.2d at 673. "The state is immune to the same extent as the agents because the caseworkers' defense is not a personal one but rather relates to their role as agents of the state." Cox v. Fast, 154 Ariz.Adv.Rep. 15, 17, 1993 WL 513196 (App. Dec. 14, 1993) (quoting Babcock v. State, 112 Wash.2d 83, 768 P.2d 481, 493 (1989)).

Qualified immunity like conditional privilege can be forfeited, however, if the plaintiff can show that the defendants did not act in good faith. See A.R.S. § 41-621(I); Chamberlain, 151 Ariz. at 560, 729 P.2d at 914 (immunity does not protect official who acts with malice, i.e., if official acts in reckless disregard of the truth or based on information official knew was false). The trial court ruled that there was insufficient evidence to support a finding of malice and granted the defendants' Motion For Summary Judgment. In denying the Motion For New Trial the trial court confirmed this decision after considering new evidence...

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