Mammo v. State, 1

Decision Date04 October 1983
Docket NumberNo. 1,CA-CIV,1
PartiesLegesse MAMMO, surviving father of Messeret Mammo, a deceased minor, Plaintiff-Appellee/Cross-Appellant, v. STATE of Arizona and Department of Economic Security, Defendants-Appellants/Cross-Appellees. 5781.
CourtArizona Court of Appeals
Langerman, Begam, Lewis & Marks by Stanley Marks, Noel Fidel, Elliot Wolfe, Phoenix, for plaintiff-appellee/cross-appellant
OPINION

FROEB, Judge.

In this wrongful death action, appellee, Legesse Mammo, recovered a $1,000,000 jury verdict against appellants, State of Arizona and the Department of Economic Security (DES), for the death of his minor daughter, Messeret Mammo. An order was later entered by the trial court remitting the verdict to $300,000. The State and DES appeal from the judgment and Mammo cross-appeals from the order granting the remittitur.

The issues on appeal include whether the trial court had subject matter jurisdiction, whether appellants could be liable for Messeret Mammo's death, whether a new trial should have been granted, and whether the amount of the judgment is appropriate.

Viewing the evidence and inferences to be drawn therefrom in a light most favorable to upholding the judgment, Gann v. Morris, 122 Ariz. 517, 596 P.2d 43 (App.1979), the undisputed facts are as follows. Appellee married Barbara Mammo in 1967 and was divorced from her in 1976. The marriage produced three children, Sirgute, Tamiru and Messeret, custody of whom was awarded to Barbara Mammo. Appellee was granted weekly visitation, which he exercised one day each weekend. He normally would visit with Messeret for only a short time at her mother's home because of her young age and would keep the two older children for a whole day.

Over the course of two weekends in late June and early July of 1977, appellee observed bruises on the bodies of the two older children. He learned from Tamiru that all three children had been beaten by their mother and her live-in boyfriend. Appellee became concerned for Messeret, whom he had not been allowed to see for the past two weeks. Appellee took the two older children and reported his fears and concern for Messeret's immediate well-being to the police. The investigating officer relayed appellee's allegations to DES and told appellee to retain custody of the two older children. A DES agent was to call him the next day.

The following day, appellee called DES himself and spoke with an intake unit supervisor for Child Protective Services. DES took no action except to recommend that appellee retain an attorney to contest Barbara's custody of the children.

Appellee did consult with an attorney, which resulted in an action being immediately filed to restrain Barbara Mammo from exercising custody over the children. Messeret Mammo, however, remained in her mother's custody. Barbara Mammo did not appear for the July 15, 1977, hearing. Her counsel advised the court that she and Messeret were on a vacation in the East. The hearing was reset for July 28, 1977.

Messeret Mammo died on July 24, 1977, the victim of an apparent homicide. On June 22, 1979, appellee filed a claim with DES for the wrongful death of Messeret as a result of DES's negligence and breach of its duties. The notice of claim specified that suit would be filed against the State if no response was received within fifteen days. No action was taken on the claim and appellee filed suit against appellants on July 16, 1979.

Following trial, the jury returned its verdict in favor of appellee for $1,000,000. The trial court granted a remittitur reducing the recovery to $300,000 which appellee accepted. When appellants filed their appeal, appellee was entitled to cross-appeal and, by doing so, his consent to the remittitur was thereby deemed revoked. Rule 59(i)2, Arizona Rules of Civil Procedure.

Appellants' first argument is that appellee failed to comply with the notice of claims statute, A.R.S. § 12-821, and therefore the trial court was without subject matter jurisdiction. A.R.S. § 12-821 requires presentation of a claim and disallowance before suit may be brought against the state. See Grimm v. Arizona Board of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977); Dassinger v. Oden, 124 Ariz. 551, 606 P.2d 41 (App.1979); State v. Brooks, 23 Ariz.App. 463, 534 P.2d 271 (1975). It is undisputed that appellee made a proper claim in accordance with A.R.S. § 12-821. It is also undisputed that DES did not disallow the claim prior to suit. Appellants claim the failure to do so denied the trial court of subject matter jurisdiction.

Although appellants failed to raise it below, the issue is properly before us since subject matter jurisdiction may be raised at any time and is never waived. Hughes Aircraft Co. v. Industrial Commission, 125 Ariz. 1, 606 P.2d 819 (App.1979).

Appellee offers two arguments in response. First, he urges that appellants' answer to the merits of his suit amounted to a constructive disallowance of his claim. Alternatively, appellee urges us to adopt the rule in California which holds that disallowance is not a jurisdictional prerequisite. See Petersen v. City of Vallejo, 259 Cal.App.2d 757, 66 Cal.Rptr. 776 (1968); Cory v. City of Huntington Beach, 43 Cal.App.3d 131, 117 Cal.Rptr. 475 (1974). Because we agree with appellee's first argument, we do not reach the latter.

Appellee correctly points out that because there is no tolling provision contained in A.R.S. § 12-821, the state could effectively bar all claims simply by refusing to act until after the applicable statute of limitations has run. We do not think the legislature intended such a result.

The purpose behind A.R.S. § 12-821 is threefold: (1) to afford the agency the opportunity to investigate the claim and assess its liability; (2) to afford the agency the opportunity to attain a settlement and avoid costly litigation; and (3) to advise the legislature where settlement could not be achieved. State v. Brooks.

The statute does not provide when the state must act upon a claim which has been filed. Since it does not, we do not think the absence of disallowance can have jurisdictional significance, although it may afford the state a ground to stay the suit for a reasonable time until the claim can be reviewed. We hold that the superior court has jurisdiction any time after the notice of claim is filed. When, as here, appellants filed their answer to the complaint, the claim is constructively denied and the case may proceed. Although there is language in Grimm v. Arizona Board of Pardons and Paroles referring to "disallowance" as a jurisdictional prerequisite to suit, "disallowance" was not an issue in the case and we do not believe the decision stands for that principle. State v. Brooks is in the same category. On the other hand, the notion of constructive disallowance seems to have been adopted by the Arizona Supreme Court in State v. Superior Court, 123 Ariz. 324, 599 P.2d 777 (1979), overruled on other grounds, State v. Gunnison, 127 Ariz. 110, 113, 618 P.2d 604, 607 (1980).

Appellants next argue that appellee's claim is not actionable under the test set forth in Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969) for governmental tort liability. Massengill established the rule that a breach of duty by the government owed to the public is not actionable unless the conduct involved gave rise to a special relationship which narrowed the public duty to a private duty owed to the plaintiff. Appellants suggest that applying this test, they cannot be held liable on appellee's claim. 1

We hold the trial court correctly determined that a duty arose on the part of DES to act with reasonable care when it received information from appellee concerning the threatened child. The duty emerges from A.R.S. § 8-546.01, which states, in part:

A. Protective services workers shall be employed by the state department of economic security.

B. The department may cooperate with county agencies and community social services agencies to achieve the purposes of this section.

C. A protective services worker shall:

1. Be prepared to receive reports of dependent, abused or abandoned children and be prepared to provide temporary foster care for such children on a twenty-four hour basis.

2. Receive from any source oral or written information regarding a child who may be in need of protective services. A worker shall not interview a child without the prior written consent of the parent guardian or custodian of the child unless:

(a) The child initiates contact with the worker.

(b) The child interviewed is the subject of or the sibling of or living with the child who is the subject of an abuse or abandonment investigation pursuant to paragraph 3, subdivision (b) of this subsection.

3. After receipt and initial screening pursuant to regulations promulgated by the department under title 41, chapter 6, article 1 of any report or information pursuant to paragraph 1 or 2 of this subsection immediately:

(a) Notify the municipal or county law enforcement agency; and

(b) Make a prompt and thorough investigation of the nature, extent and cause of any condition which would tend to support or refute the allegation that the child should be adjudicated dependent and the name, age and condition of other children in the home.

4. Take a child into temporary custody as provided in § 8-223. Law enforcement officers shall cooperate with the department to remove a child from the custody of his parents, guardian or custodian when necessary. (emphasis added)

Appellants do not strenuously contend that they had no duty to act, but say that their duty was one owed to the general public and not to an individual. Massengill v. Yuma County. We disagree. The statute in question is quite specific and sets forth...

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