Gann v. State

• Decision Date: 29 September 2022
• Docket Number: 1 CA-CV 21-0675
• Parties: RICHARD LEWIS GANN, Plaintiff/Appellant, v. STATE OF ARIZONA et al., Defendants/Appellees.
• Court: Arizona Court of Appeals

RICHARD LEWIS GANN, Plaintiff/Appellant,
v.
STATE OF ARIZONA et al., Defendants/Appellees.

No. 1 CA-CV 21-0675

Court of Appeals of Arizona, First Division

September 29, 2022

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2021-002745 The Honorable John R. Hannah, Jr., Judge.

Ahwatukee Legal Office, P.C., Phoenix

By David L. Abney

Co-Counsel for Plaintiff/Appellant

Breyer Law Office, P.C., Phoenix

By Mark P. Breyer, Rob Kleinschmidt, Edward M. Ladley

Co-Counsel for Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix

By Deborah L. Garner, Stephanie Elliott, Daniel P. Schaack

Counsel for Defendant/Appellee, State of Arizona

1

Vice Chief Judge David B. Gass delivered the decision of the court, in which Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.

MEMORANDUM DECISION

GASS, VICE CHIEF JUDGE.

¶1 Richard Lewis Gann appeals the superior court's dismissal of a negligence claim against the State for his son's death. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Gann's son tragically died while riding in a 15-passenger school van returning from a high school field trip. The driver was not school-bus certified. On the return trip, the van veered into oncoming traffic, ran off the highway, and rolled over. Gann's son was ejected from the van and died at the scene.

¶3 Gann filed a negligence claim for wrongful death against seven named defendants. Gann alleged the following were liable under "respondeat superior and agency principles[:]" the State of Arizona; the organizing community college and its district; the hosting community college; and Gann's son's high school and its district. Gann also named the driver as a defendant. Gann claimed the accident would not have happened but for the other defendants' hiring the driver.

¶4 Gann's amended complaint named only the State as a defendant, relying on "respondeat superior and agency principles." Gann voluntarily dismissed with prejudice all other defendants. During oral argument before this court, Gann clarified he does not allege a common law theory of respondeat superior. Instead, he relies on a direct duty, based on either a statute, a special relationship, or a voluntary undertaking.

¶5 The State moved to dismiss for failure to state a claim upon which relief can be granted. See Ariz. R. Civ. P. 12(b)(6). After briefing and oral argument, the superior court granted the motion, finding Gann failed to allege the State owed a cognizable duty to his son. In granting the motion, the superior court also ruled the State's decision not to ban schools' use of 15-passenger vans was an administrative policy decision subject to absolute immunity from liability under A.R.S. § 12-820.01.A.

2

¶6 Gann timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 and 12-2101.A.1.

DISCUSSION

¶7 This court reviews de novo a Rule 12(b)(6) dismissal. Acri v. State, 242 Ariz. 235, 238, ¶ 5 (App. 2017). For motions to dismiss, this court considers only the pleadings and well-pleaded factual allegations, and it construes all reasonable inferences in plaintiffs favor. See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008). This court need not accept "allegations consisting of conclusions of law, inferences or deductions that are not necessarily implied by well-pleaded facts, unreasonable inferences or unsupported conclusions from such facts, or legal conclusions alleged as facts." Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4 (App. 2005). This court affirms the dismissal "if as a matter of law . . . plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof." Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8 (2012) (citation omitted).

¶8 Gann argues the State owed his son a duty to ban schools' use of 15-passenger vans based on (1) statutes, (2) the special relationship doctrine, and (3) the voluntary undertaking doctrine. To prevail on a negligence claim, a party must prove "(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Bottomlee v. State, 248 Ariz. 231, 234, ¶ 8 (App. 2020) (quoting Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007)). Gann also argues absolute immunity does not shield the State.

¶9 Whether a duty exists is a threshold legal question this court reviews de novo. Quiroz v. ALCOA Inc., 243 Ariz. 560, 564, ¶ 7 (2018). "A duty is 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." Acri, 242 Ariz. at 238, ¶ 7 (cleaned up). Duty relates to the existence of an obligation between parties, not the standard of care, which relates to whether a defendant breached an established duty. See Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 41 (1990). A duty can arise in various ways, including (1) common or statutory law, (2) special relationships between parties, and (3) a party's decision to engage in certain conduct. Quiroz, 243 Ariz. at 563, ¶ 2.

3

I. The Arizona Enabling Act, Arizona Constitution, and Arizona and Federal Statutes Do Not Impose a Tort Duty on the State to Ban Schools' Use of 15-Passenger Vans.

¶10 Because the legislature, not the judiciary, has the power to declare public policy, the courts "exercise great restraint in declaring public policy" absent a statute. Quiroz, 243 Ariz. at 566, ¶ 19. To interpret statutes, this court first considers the statute's plain language. Glazer v. State, 244 Ariz. 612, 614, ¶ 9 (2018). Yet, this court does not read statutes in isolation. Id. at ¶ 10. Instead, this court reads them in context. Id.

¶11 A statute typically creates a tort duty only if designed "to protect [a] class of persons" against a "type of harm." Sullivan v. Pulte Home Corp., 237 Ariz. 547, 550, ¶ 9 (App. 2015). The duty extends only to individuals within the class of persons injured from the statute's violation. Id. Gann argues the Enabling Act, Arizona Constitution, and state and federal statutes create a tort duty extending to his son. The State disagrees.

A. Enabling Act and Constitution

¶12 Gann argues the State owes his son a nondelegable duty to supervise school transportation services based on Arizona's Enabling Act, Constitution, and laws. To support this argument, Gann begins with the Enabling Act, which says, "the schools, colleges, and universities provided for in this Act shall forever remain under the exclusive control of the said State." See Arizona-New Mexico Enabling Act, Act of June 20, 1910, Pub. L. No. 219, ch. 310, 36 Stat. 557, § 26. Gann then goes to article XX, section 7 of the Arizona Constitution, which says, "Provisions shall be made by law for the establishment and maintenance of a system of public schools . . . ." Next, Gann mentions article XI, section 2 of Arizona's Constitution, which adds, "The general conduct and supervision of the public school system shall be vested in a state board of education, a state superintendent of public instruction, county school superintendents, and such governing boards for the state institutions as may be provided by law."

¶13 In making his argument, Gann cites - and this court found -no case relying on any of those authorities for the proposition they imposed a relevant non-delegable tort duty on the State. Indeed, to the extent cases cited reference these provisions, they do so for wholly different reasons. See, e.g., In re Gen. Adjudication of All Rts. to Use Water in Gila River Sys. & Source, 231 Ariz. 8 (2012) (interpreting the extent of federal control over land grants under the...