Jesik v. Maricopa County Community College Dist.

• Decision Date: 09 April 1980
• Docket Number: No. 14448,14448
• Citation: Jesik v. Maricopa County Community College Dist., 611 P.2d 547, 125 Ariz. 543 (Ariz. 1980)
• Parties: Peter P. JESIK, father of Peter P. Jesik, II, Deceased, and Personal Representative of the Estate of Peter P. Jesik, II, Appellant, v. MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT; Governing Board of the Maricopa County Community College District; Dwight Patterson, Paul J. Wright, W. James Miller, Kenneth R. Badertscher, and Jeremy E. Butler, Individually and as members of the Governing Board of Maricopa County Community College District; Estate of W. James Miller, Deceased; Mildred G. Miller, Personal Representative of the Estate of W. James Miller, Deceased; Mildred B. Miller, wife and widow of W. James Miller; Jane Doe Patterson, wife of Dwight Patterson; Jane Doe Wright, wife of Paul J. Wright; Jane Doe Badertscher, wife of Kenneth R. Badertscher; Jane Doe Butler, wife of Jeremy E. Butler; State Board of Directors for Community Colleges of Arizona, a body corporate; Phoenix College, a community college; John F. Prince and Jane Doe Prince, his wife; William E. Berry and Jane Doe Berry, his wife; Steven E. Carson and Jane Doe Carson, his wife, Appellees.
• Court: Arizona Supreme Court

Page 547

611 P.2d 547

125 Ariz. 543

Peter P. JESIK, father of Peter P. Jesik, II, Deceased, and Personal Representative of the Estate of Peter P. Jesik, II, Appellant, v. MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT; Governing Board of the Maricopa County Community College District; Dwight Patterson, Paul J. Wright, W. James Miller, Kenneth R. Badertscher, and Jeremy E. Butler, Individually and as members of the Governing Board of Maricopa County Community College District; Estate of W. James Miller, Deceased; Mildred G. Miller, Personal Representative of the Estate of W. James Miller, Deceased; Mildred B. Miller, wife and widow of W. James Miller; Jane Doe Patterson, wife of Dwight Patterson; Jane Doe Wright, wife of Paul J. Wright; Jane Doe Badertscher, wife of Kenneth R. Badertscher; Jane Doe Butler, wife of Jeremy E. Butler; State Board of Directors for Community Colleges of Arizona, a body corporate; Phoenix College, a community college; John F. Prince and Jane Doe Prince, his wife; William E. Berry and Jane Doe Berry, his wife; Steven E. Carson and Jane Doe Carson, his wife, Appellees.

No. 14448.

Supreme Court of Arizona, In Banc.

April 9, 1980.

Rehearing Denied May 23, 1980.

William G. Barnes and Herbert Mallamo, Phoenix, for appellant.

Jones, Teilborg, Sanders, Haga & Parks by Neil C. Alden, Phoenix, for appellees.

HOLOHAN, Vice Chief Justice.

Appellant Peter Jesik appeals from the entry of summary judgment in favor of the defendants on all counts of the wrongful death claim, brought pursuant to A.R.S. § 12-612, for the death of his son, Peter Jesik, II. The defendants on appeal are: Maricopa County Community College District, its Governing Board, the individual members of the Governing Board, the President of the District, the Executive Dean of Phoenix College and the Dean of Students of Phoenix College. We took jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S.

Both the original motion and the supplementary motion for summary judgment were based solely upon the allegations in the complaint. No affidavits were filed. In reviewing such a case on appeal the appellate court will accept the allegations of the complaint as being true. Grimm v. Arizona Board of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977). The facts alleged in summary are:

On August 22, 1973, the decedent Peter Jesik, II, was registering as a student for the fall semester at Phoenix College. In the late morning, Charles Doss after having "words" with the decedent told decedent that he was going home to get a gun and coming back to the college campus to kill him. The decedent reported this threat to Scott Hilton, a security guard employed by Phoenix College, and received assurances of help and protection. The decedent then continued with his registration. Hilton, the complaint alleges, failed to arm himself or take any other precautionary measures. Approximately an hour later Doss returned to campus carrying a briefcase. He proceeded to be gymnasium where the decedent was continuing his registration. The decedent again contacted Hilton and pointed out Doss and the briefcase. Again the decedent was assured of help and protection, and he remained in the gymnasium in reliance on these assurances. Hilton approached Doss, questioned him and, apparently satisfied, turned his back on Doss and walked away. Doss immediately pulled a gun from his briefcase and shot and killed the decedent. Doss was subsequently convicted of murder. See State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977).

The complaint alleged that the security force of the college was inadequate in size, numbers, training and qualifications and was incompetent to perform security functions and that a duty was owed by the college to protect the decedent either by virtue of his position as a student-invitee or by the security guard's affirmative conduct in assuring the decedent of help and protection. Summary judgment was granted in favor of all defendants except the security guard, Hilton who is not a party to this appeal.

While a number of contentions were advanced below, the issues on appeal have been narrowed by appellant to the following:

1) Did appellees have a duty to protect invitees from third party criminal acts? 2) Did the security guard's affirmative conduct create a duty to protect decedent?

3) Is respondeat superior applicable so as to create liability on the part of appellees for the acts and omissions of the security guard?

4) Do appellees have immunity?

These issues are reducible to the question: Did appellees owe a duty to the decedent under the facts as alleged?

In order for liability to attach, a duty must be owed to the particular individual beyond the general duty owed to the public. Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969).

As to the individual defendants, the Executive Dean and Dean of Students of Phoenix College, the President of the District and the individual board members, appellant asserts that they are liable because they control, maintain, operate and administer Phoenix College, including its security force. The Dean of Students in particular allegedly has direct supervisory responsibility over the college security operations and personnel. Appellant concludes that because these defendants controlled an inadequate and incompetent security force, they are liable for any breach of duty by that security force.

In asserting this argument appellant relies primarily ¹ upon A.R.S. § 15-679, ² former A.R.S. § 13-1092 ³ and former A.R.S. § 13-1093. ⁴ However, these statutes only set forth a general duty to provide security to members of the public on school property. This is directly analogous to the police function discussed in the Massengill line of cases in which we have held police protection to be a general duty owed to the public, not to an individual. See Massengill v. Yuma County, supra; Ivicevic v. City of Glendale, 26 Ariz.App. 460, 549 P.2d 240 (1976); McGeorge v. City of Phoenix, 117 Ariz. 272, 572 P.2d 100 (App.1977); DeHoney v. Hernandez, 122 Ariz. 367, 595 P.2d 159 (1979); cf. Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973); Delarosa v. State, 21 Ariz.App. 263, 518 P.2d 582 (1974); Besserman v. Town of Paradise Valley, Inc., 116 Ariz. 471, 569 P.2d 1369 (App.1977); Bagley v. State, 122 Ariz. 365, 595 P.2d 157 (1979).

State v. Superior Court of Maricopa County, 123 Ariz. 324, 599 P.2d 777 (1979) does not support appellant's argument because there the statutes enumerated the Corporation Commission's duties specifically and were clearly directed to the protection of the thrift company depositors, a particular class of persons. A reading of the statutes in the case at bar indicates concern for the protection of all persons on the college campus. Thus, a general duty is owed and a breach of that duty is a public wrong, not actionable by an individual. We therefore affirm the trial court's grant of summary judgment in favor of the individual appellees.

Next we turn to the duty owed by the College District, via the Governing Board. As we stated above, in order for liability to attach the general duty must somehow be narrowed to a duty owed to the individual. State v. Superior Court of Maricopa County, supra.

Appellant asserts that the Restatement of Torts, Second, §§ 344 and 318 are applicable. However, we follow the Restatement only in the absence of Arizona authority to the contrary. MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958); Barnum v. Rural Fire Protection Co., 24 Ariz.App. 233, 537 P.2d 618 (1975). In the instant case there is both statutory and case authority which set forth the duties owed by a school district to its students.

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); Vreeland v. State Board of Regents, 9 Ariz.App. 61, 449 P.2d 78 (1969) established that students are invitees and that schools have a duty to make the premises reasonably safe for their use. If a dangerous condition exists, the invitee must show that the employees of the school knew of or created the condition at issue. Vreeland, supra.

In addition to the above tort duties, the legislature has by statute imposed upon school boards a specific duty of protection for students against torts. The Court of Appeals in Chavez v. Tolleson Elementary School District, 122 Ariz. 472, 595 P.2d 1017 (App.1979), held that A.R.S. § 15-442(A)(14) ⁵ set forth such a duty. ⁶ Chavez, supra, also involved a third party criminal act. The Chavez court recognized that while ordinarily a third party's intentional tort or criminal act is not part of the recognizable risk, liability will be imposed if the school "realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime." 122 Ariz. at 477-478, 595 P.2d at 1022-23, quoting from the Restatement of Torts, Second, § 448.

In Chavez there were no facts in the record indicating that school personnel should have been aware of the potential for criminal conduct. The complaint in the case at bar, however, alleges that school personnel, i. e. the security guard, had specific and repeated notice of both the actor and the exact type of harm that did in fact occur. We hold, therefore, that the statutory duty of adequate supervision coupled with notice imposed a specific duty to exercise reasonable care to protect the decedent.

Because of our holding, we do not find it necessary to discuss appellant's alternative theories of assumed duty and narrowing a general duty by conduct.

The corollary to the imposition of a duty is, who is liable if at trial appellant proves a breach of that duty? We have repeatedly held that respondeat superior is applicable to the breach of a duty by a governmental employee...