Collette v. Tolleson Unified School District

• Decision Date: 12 September 2002
• Docket Number: No. 1 CA-CV 01-0490.,1 CA-CV 01-0490.
• Citation: 203 Ariz. 359,54 P.3d 828
• Parties: Barbara C. COLLETTE and Scott E. MacFarland, wife and husband; Holly L. Scofield, a single woman, Plaintiffs-Appellants, v. TOLLESON UNIFIED SCHOOL DISTRICT, NO. 214; Stephen Knight and Joyce Lee Knight, husband and wife; Kino Flores and Anna Flores, Defendants-Appellees.
• Court: Arizona Court of Appeals

54 P.3d 828

203 Ariz. 359

Barbara C. COLLETTE and Scott E. MacFarland, wife and husband; Holly L. Scofield, a single woman, Plaintiffs-Appellants, v. TOLLESON UNIFIED SCHOOL DISTRICT, NO. 214; Stephen Knight and Joyce Lee Knight, husband and wife; Kino Flores and Anna Flores, Defendants-Appellees.

No. -0490.

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

September 12, 2002.

Shughart Thomson Kilroy Goodwin Raup, P.C. By Brian M. Goodwin, Rudolph J. Gerber, Lori V. Berke, Phoenix, Attorneys for Appellants Collette and MacFarland.

Herzog and O'Connor, P.C. By Mark O'Connor, Jody Buzicky, Scottsdale, Attorneys for Appellant Scofield.

Sanders & Parks, P.C. By Steven D. Leach, J. Steven Sparks, Michele L. Forney, Phoenix, Attorneys for Defendant-Appellees.

OPINION

RAYES, Judge Pro Tempore.¹

¶ 1 This appeal stems from three consolidated actions. Barbara Collette and Scott MacFarland, wife and husband, and Holly L. Scofield ("appellants") appeal from the trial court's grant of summary judgment to defendants-appellees Tolleson Unified School District No. 214, Stephen Knight, and Kino Flores (collectively "the District").² For the reasons that follow, we affirm.

STANDARD OF REVIEW

¶ 2 Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). Our review of summary judgment is de novo. Great Am. Mortgage, Inc. v. Statewide Ins. Co., 189 Ariz. 123, 125, 938 P.2d 1124, 1126 (App.1997). In conducting our review, we view the facts in the light most favorable to the party against whom summary judgment was entered. Id. at 124, 938 P.2d at 1125.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 Appellants were injured in an automobile accident on November 19, 1998, at approximately 12:10 p.m., when the car Scofield was driving was struck by a car operated by Zachary Thomason, a student at Westview High School. Four other students were passengers in Thomason's car. The students were returning to school from Desert Sky Mall, about five miles away, where they had driven during their school lunch break. The scheduled lunch period for these students began at 11:20 a.m. and ended fifty minutes later at 12:10 p.m.

¶ 4 Westview had a modified closed-campus policy. That is, students were not to leave campus during the day without checking out and, in order to check out, needed specific parental permission. Students who violated the policy were subject to disciplinary action. Freshmen were not permitted to leave during school hours, including lunch; sophomores, juniors, and seniors with at least a 3.0 grade point average and their parents' permission were permitted to leave campus at lunch. An identification card or "lunch pass" was required to be presented by the students upon leaving and re-entering campus. The policy was intended to reward students for academic achievement and good behavior.

¶ 5 Thomason did not have a lunch pass and neither did two other members of the group. After the students decided to drive to the mall for lunch, Thomason went to get his car, which was parked off campus. He proceeded to a campus entrance where a security guard was stationed. When the guard asked Thomason for his pass, he admitted he did not have one. As Thomason continued to walk on, the guard told him he could not leave. Thomason told the guard he needed some books from his car for his next class. The guard again told him he could not leave campus, and Thomason replied, "Well, I need the books, so, basically, I'm going off." The guard made no further attempt to stop Thomason, but did admonish him to come back quickly. The other members of the group left campus through an unguarded gate and joined Thomason, who drove to the mall.

¶ 6 The students ate lunch at the mall food court and then began the trip back to campus. The students gave conflicting testimony as to whether they were in a hurry to get back to class on time. Because we must view the record most favorably to appellants, we accept as true that Thomason was in a hurry. The accident happened while Thomason was driving westbound on Thomas Road when he pulled into the eastbound lane to pass other westbound vehicles. As he attempted to return to his lane of travel, he lost control of his vehicle, which then collided with Scofield's eastbound car. The investigating officer estimated Thomason's speed prior to impact was approximately seventy-two miles per hour.

¶ 7 The District sought summary judgment, alleging a lack of duty to appellants, and the trial court agreed. Appellants timely appealed.

DISCUSSION

¶ 8 Appellants contend the trial court erred by granting summary judgment, and raise two arguments on appeal. First, they claim that the District, by virtue of its modified closed-campus policy, had a duty to protect the general public from the negligent driving of students who left campus. Second, they argue that the District created an unreasonable risk of harm to the motoring public by placing rigid time constraints on student lunch breaks. We first consider the duty issue.

Determining the Existence of a Duty

¶ 9 A negligence action may not be maintained in the absence of a duty recognized by law, and the existence of a duty is a question of law for the court. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). "Duty" is a concept that arises from the recognition that relations between individuals may impose upon one person a legal obligation for the benefit of another. Ontiveros v. Borak, 136 Ariz. 500, 508, 667 P.2d 200, 208 (1983). It is an expression of the sum total of those policy considerations that lead the law to grant protection to a particular plaintiff from a particular defendant. Id. Courts will find a duty, in general, if reasonable persons would recognize it and agree that it exists. Id.

¶ 10 The relationship between individuals that results in a legal obligation is usually a direct one between the plaintiff and defendant. Id. In this case, appellants do not contend that they had any direct relationship with the District. They maintain, however, that the parties need not be connected or know each other for a duty to arise, citing Rudolph v. Arizona B.A.S.S. Federation, 182 Ariz. 622, 898 P.2d 1000 (App.1995).

¶ 11 This argument misconstrues Rudolph. Admittedly, there is no requirement that a foreseeable plaintiff be personally known to the defendant for a duty to exist. Id. at 624, 898 P.2d at 1002. For example, when one motorist negligently injures another on a public highway, liability is obviously not dependent upon whether they know each other. Id. at 625, 898 P.2d at 1003. Their relationship begins with their joint status as motorists, which places them within the foreseeable risk of negligent driving by other motorists. The general duty of reasonable care arises from this relationship and becomes fixed when it is breached and causes damage. The result is a direct relationship between tortfeasor and injured victim. Id. Rudolph applied these concepts to find that the organizer of a fishing tournament had a duty to exercise reasonable care in designing and conducting the tournament so as not to injure other users of the lake. Id.

¶ 12 In this case, the District did not directly injure appellants; they were injured by Thomason, one of the District's students. We therefore must determine whether to recognize a legal relationship between appellants and the District that gives rise to a duty. Appellants contend that the District's special relationship with Thomason imposed a duty upon the District to control Thomason's conduct so as to prevent injury to them under the circumstances of this case.

¶ 13 There is no common law duty to control the conduct of a third person so as to prevent harm from befalling another. Restatement (Second) of Torts ("Restatement") § 314 (1965); Davis v. Mangelsdorf, 138 Ariz. 207, 208, 673 P.2d 951, 952 (App.1983). Knowledge of a risk of harm and the ability to take some action to ameliorate that risk do not alone impose a duty to act. Restatement § 314; see also Markowitz, 146 Ariz. at 356, 706 P.2d at 368 (no consequences for negligence even in light of foreseeable risk if there is no duty).

¶ 14 Section 315 of the Restatement provides an exception to the general rule of non-liability when "a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct." Restatement § 315 (1965); Cooke v. Berlin, 153 Ariz. 220, 224, 735 P.2d 830, 834 (App.1987), disapproved on other grounds by Dunn v. Carruth, 162 Ariz. 478, 481, 784 P.2d 684, 687 (1989).

¶ 15 Appellants do not argue that they had a special relationship with the District that gave them a right to the District's protection. Rather, their claim is predicated upon section 315(a) of the Restatement—the special relationship between the District and its students. Appellants ask us to find that relationship as one which imposed a duty upon the District to control Thomason and prevent him from harming them.³ Appellants argue, and we agree, that a school district has a statutory and common law duty to its students.⁴ While the standard of care that must be met to fulfill that duty has been the subject of several Arizona cases, no reported Arizona case has yet considered the question raised here.

¶ 16 The only conduct of the District at issue here is the alleged negligent enforcement of its modified closed-campus policy. Nothing happened to Thomason while at school that affected his ability to drive a car. Nor was Thomason's driving part of any school activity. Cf. Bishop v. State Dep't of Corrections, 172 Ariz. 472, 476, 837 P.2d 1207, 1211 (App.1992) (because school recruited students for youth conference, it thereby assumed a duty of care to them). The car Thomason was driving had not been provided to him by the...