Chavez v. Tolleson Elementary School Dist.

• Decision Date: 22 March 1979
• Docket Number: No. 1,CA-CIV,1
• Citation: 595 P.2d 1017,122 Ariz. 472
• Parties: , 1 A.L.R.4th 1089 Antonio M. CHAVEZ, personal representative and father of Deceased, Regina Chavez, Appellant and Cross-Appellee, v. TOLLESON ELEMENTARY SCHOOL DISTRICT and Ida Moriarity, Appellees and Cross-Appellants. 3794.
• Court: Arizona Court of Appeals

Page 1017

595 P.2d 1017

122 Ariz. 472, 1 A.L.R.4th 1089

Antonio M. CHAVEZ, personal representative and father of Deceased, Regina Chavez, Appellant and Cross-Appellee, v. TOLLESON ELEMENTARY SCHOOL DISTRICT and Ida Moriarity, Appellees and Cross-Appellants.

No. 1 CA-CIV 3794.

Court of Appeals of Arizona, Division 1, Department B.

March 22, 1979.

Rehearing Denied April 27, 1979.

Review Denied May 22, 1979.

Charles Christakis, Phoenix, for appellant and cross-appellee.

Robbins, Green, O'Grady & Abbuhl, P. A. by Michael J. O'Grady, Harriet C. Babbitt, Phoenix, for appellees Moriarity and Tolleson Elementary School District.

Jennings, Strouss & Salmon by William T. Birmingham, Jack E. McCall, Phoenix, for appellee and cross-appellant Moriarity.

Dix W. Price and James A. Ullman, P. C. by James A. Ullman, Phoenix, for amicus curiae.

OPINION

FROEB, Judge.

On the morning of September 17, 1973, ten year old Regina Chavez left the school grounds of Tolleson Elementary School, Unit Two, and was abducted and slain by John Cuffle. Her body was found some three months later in a field a few miles from the school. This wrongful death action, brought by her father Antonio M. Chavez (plaintiff), against the Tolleson Elementary School District and certain school personnel (defendants), is based upon negligence.

On the day this tragic event occurred, Tolleson Elementary School, Unit Two, had been in fall session about one week. Shortly after school began that day, a puppy walked through the open door of the fifth grade classroom and down the aisle, causing the pupils to whisper and giggle. The teacher, Ida Moriarity, inquired if the dog belonged to anyone in the class. Several children raised their hands, including Regina Chavez, who told the teacher that the dog belonged to a neighbor. Regina asked if she could take the puppy home. In response, the teacher sent Regina to the principal's office with the dog to get permission. The school office is located inside the school grounds some thirty feet from the classroom. On arrival at the office with the dog, Regina was instructed by the school secretary, Sally Pina, to place the dog outside the office along the breezeway and to return to her classroom. Regina did not argue with the secretary, and left the office with the puppy. She was observed leaving the office by the custodian, James Arnett, and subsequently by a student, Melissa Chavez, and a passerby, Petra Ledesma. The only other evidence pertaining to the disappearance of Regina was the tape-recorded statement of her abductor, John Cuffle (later convicted and sentenced for the crime). Cuffle stated he abducted Regina outside the school grounds about 10:30 A.M. and took her to a field some six miles from the school. Cuffle further stated that after the killing, he left the area and arrived home in Phoenix at 11:30 or 12:00 noon.

The trial of the case resulted in a jury verdict of $400,000 for plaintiff. After the trial, the defendants brought a motion for judgment notwithstanding the verdict, and, in the alternative, a motion for new trial. The trial court granted the former and denied the latter. Plaintiff thereafter filed motions to set aside the order granting judgment notwithstanding the verdict and for a new trial, which were denied.

Plaintiff appealed from the judgment N.O.V. and the orders denying his post-trial motions. Defendants filed a cross-appeal from the order denying their alternative motion for new trial.

The order of the trial court granting judgment notwithstanding the verdict stated: "The judgment notwithstanding the verdict is granted because plaintiffs failed to establish by the evidence the standard of care required by the school district and by the teacher, Ida Moriarity."

The plaintiff asserts basically three issues on appeal. First, the trial court erred in granting judgment N.O.V. on a ground not specifically raised on defendants' prior motion for directed verdict. Second, the plaintiff was not, in any event, required to establish by the evidence a specific standard of care required by the school district and by the teacher beyond that of ordinary care. Third, the plaintiff is entitled to a new trial on the ground of surprise, since the ruling on the judgment N.O.V. "changed the substantive law."

The defendants respond by asserting first, lack of proof of the standard of care was raised in the motion for directed verdict, however imprecisely; second, standard of care is part of the larger question of duty which Was raised with precision on the motion for directed verdict and is again asserted on appeal to sustain the judgment N.O.V.; third, evidence to prove the standard of care owned by the school district and its personnel was required; and, fourth, the trial court did not premise the judgment N.O.V. on new substantive law so as to warrant a new trial on the basis of surprise.

A public school district in Arizona is liable for negligence when it fails to exercise ordinary care under the circumstances. Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652 (1968) is the leading Arizona case on the subject. In this decision, Justice Struckmeyer pointed out, "Negligence is, of course, the failure to act as a reasonable and prudent person would act in like circumstances." 103 Ariz. at 121, 437 P.2d at 654. The well-settled standard of liability is based upon a duty owed to the plaintiff and a breach of the duty which is the proximate cause of the injury. Crouse v. Wilbur-Ellis Co., 77 Ariz. 359, 272 P.2d 352 (1954).

There can be little question that a school district and a classroom teacher owe a duty of ordinary care toward a student during the time the student is under their charge. Beyond the common law declaration of that duty is a statutorily imposed duty arising out of A.R.S. § 15-442 A(14) which directs the board of trustees of a school district to "provide for adequate supervision over pupils in all instructional and noninstructional activities."

The duty is breached when conduct falls below the standard of ordinary care by creating an unreasonable risk of harm to the plaintiff. Prosser, Law of Torts, 4th Ed., § 31; Harper & James, The Law of Torts, Vol. 2, § 16.9; Restatement of Torts, Second, §§ 282, 284; Downs v. Sulphur Springs Valley Electric Cooperative, Inc., 80 Ariz. 286, 279 P.2d 339 (1956); Powder Horn Nursery, Inc. v. Soil and Plant Laboratory, Inc., 119 Ariz. 78, 579 P.2d 582 (App.1978).

The existence of a duty toward the plaintiff and the standard of care owed by the defendant are initially questions of law for decision by the trial judge. Rodriguez v. Besser Co., 115 Ariz. 454, 565 P.2d 1315 (App.1977); Barnum v. Rural Fire Protection Company, 24 Ariz.App. 233, 537 P.2d 618 (1975). The issue of whether a breach of the duty has occurred is also initially a question of law for decision by the trial judge. If reasonable men would differ as to the breach of a duty, the question becomes one for the jury based upon the evidence. Moore v. Maricopa County, 11 Ariz.App. 505, 466 P.2d 56 (1970).

STANDARD OF CARE

In their motion for judgment N.O.V., defendants argued that plaintiff failed to prove (1) a duty owed by the defendants to protect Regina Chavez; (2) a failure by the defendants to perform that duty; and (3) injury which was a proximate result of such failure. The motion emphasized the argument that "plaintiffs failed to present any evidence as to the specific duty owed by the educational institution in question or its professional employees." In support of the need for such evidence, defendants relied heavily upon the decision of the Arizona Supreme Court in Maricopa County v. Cowart, 106 Ariz. 69, 471 P.2d 265 (1970), a wrongful death case involving the standard of care owed by the Maricopa County Juvenile Home to its inmates. The court there held that "the standard required for the protection of juveniles placed in (the custody of the juvenile home) is that the institution exercises the skill and knowledge normally possessed by like institutions in similar communities handling juveniles." 106 Ariz. at 71, 471 P.2d at 267. The defendants argued to the trial court in this case that plaintiff had the burden of presenting evidence relating to a specific standard of care owed by personnel of a public elementary school to its students. In support of this argument, defendants contended that teachers must be certified personnel; they require professional training; they must follow prescribed statutory duties; and, therefore, the standard of care to which they must be held falls outside of the common knowledge of the general public and must be proven by evidence. We find that the facts of this case, unlike Cowart, do not require that a specific standard of care be proven in order to establish negligence. We hold that the duty of the school personnel in this case as to the supervision of students in their charge was one of ordinary care. Morris v. Ortiz, above. The standard is not one which requires specific proof in order to be correctly applied by a jury. The common knowledge and experience of a jury provides the guide to ordinary care in a public elementary school setting and suffices in the determination of whether particular conduct meets or falls below the standard. There is, however, an additional ground for rejecting defendants' argument.

In later motion proceedings, plaintiff argued that judgment N.O.V. on this ground was unavailable since it was never presented to the trial court in defendants' motion for directed verdict. Plaintiff is correct on this point, both as to the law and the facts.

Rules of Civil Procedure, Rule 50(b), reads in part:

Motion for judgment notwithstanding the verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later...