Mauvis v. Scottsdale Christian Acad., Inc.

• Decision Date: 19 November 2020
• Docket Number: No. 1 CA-CV 19-0760,1 CA-CV 19-0760
• Citation: Mauvis v. Scottsdale Christian Acad., Inc., No. 1 CA-CV 19-0760 (Ariz. App. Nov 19, 2020)
• Parties: MARLEE MAUVIS, et al., Plaintiffs/Appellants, v. SCOTTSDALE CHRISTIAN ACADEMY, INC., Defendant/Appellee.
• Court: Arizona Court of Appeals

MARLEE MAUVIS, et al., Plaintiffs/Appellants, v. SCOTTSDALE CHRISTIAN ACADEMY, INC., Defendant/Appellee.

No. 1 CA-CV 19-0760

ARIZONA COURT OF APPEALS DIVISION ONE

November 19, 2020

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. CV2017-012631

The Honorable Rosa Mroz, Judge

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

COUNSEL

Riggs, Ellsworth and Porter, PLC, Mesa

By Robert L. Greer

Counsel for Plaintiffs/Appellants

Righi Fitch Law Group, P.L.L.C., Phoenix

By Elizabeth S. Fitch, Michael Grubbs

Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann joined.

WINTHROP, Judge:

¶1 Marlee Mauvis ("Marlee") challenges the superior court's dismissal of her wrongful death complaint alleging Scottsdale Christian Academy, Inc. ("SCA") was negligent in connection with the death of her husband, Gerard. We affirm the superior court's ruling that SCA did not owe a statutory duty of care under Arizona Revised Statutes ("A.R.S.") section 28-797. Nonetheless, we reverse and remand because (1) SCA owed Gerard a common law duty of care to provide a reasonably safe means of ingress and egress to its campus and (2) Marlee sufficiently alleged that SCA did not meet the applicable standard of care.

FACTS AND PROCEDURAL HISTORY

¶2 Because Marlee appeals from the grant of a motion to dismiss, we adopt the relevant fact allegations from her complaint and assume without deciding they are true for purposes of this appeal. Sw. Non-Profit Hous. Corp. v. Nowak, 234 Ariz. 387, 389, ¶ 4 (App. 2014).

¶3 In September 2016, the Mauvis family arrived at the SCA campus to attend a football game. Gerard turned their vehicle onto the campus from Tatum Boulevard ("Tatum") and searched for an unoccupied handicapped parking space to accommodate their then-nine-year-old child. Gerard did not see an unoccupied handicapped space, so he dropped off Marlee and the child near the main entrance to the field. Gerard then parked on Winchcomb Drive ("Winchcomb"), a residential street east of the SCA campus that forms a T-intersection with Tatum. The T-intersection does not have a crosswalk, and Gerard crossed Tatum—a multi-lane road with a 45-mile-per-hour speed limit and a raised median in the middle—on foot at "curb cuts" placed at and directly across from where Winchcomb intersects Tatum.

¶4 After Gerard walked to the ticket counter, he realized he had no cash to pay for the family's tickets. He returned to his car, drove to anATM to get cash, and again parked on Winchcomb. Once more, he crossed the three northbound lanes of Tatum on foot near the curb cuts at Winchcomb. As he attempted to next cross the southbound lanes of Tatum, Gerard was struck by a vehicle and died of his injuries soon afterward.

¶5 Marlee brought a wrongful death action against SCA and the City of Phoenix ("the City") both individually and on behalf of others.¹ She alleged SCA (1) "owed a duty of reasonable care to invitees to its campus to provide safe ingress and egress to its premises," (2) planned and built or caused to be built the "curb cuts" Gerard used to cross Tatum, and (3) knew or should have known visitors would use the curb cuts "as an unmarked crosswalk to reach SCA and the football field."

¶6 The superior court dismissed the complaint under Arizona Rule of Civil Procedure ("Rule") 12(b)(6). Although the court concluded SCA owed "a duty to provide a reasonably safe means of ingress and egress from [its] premises," the court also concluded that duty did not require SCA "to provide the shortest route or closest access to those coming to its campus." The court further concluded that, based on the allegations of the complaint, "the curbs, sidewalks and the roadway on both sides of Tatum Boulevard are controlled by and are the property of [the] City of Phoenix," not SCA. Additionally, the court determined that SCA, a private school, did not owe a statutory duty of care under A.R.S. § 28-797.

¶7 Marlee timely appealed the judgment, and we have jurisdiction over her appeal pursuant to A.R.S. § 12-2101(A)(1).

ANALYSIS

¶8 We review de novo the dismissal of a complaint under Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). We accept all well-pleaded facts as true and give Marlee the benefit of all inferences arising therefrom. Botma v. Huser, 202 Ariz. 14, 15, ¶ 2 (App. 2002). We will affirm the dismissal only if Marlee would not have been entitled to relief under any facts susceptible of proof in her complaint. Coleman, 230 Ariz. at 356, ¶ 8.

I. Fact Questions Remain As to Whether SCA Met the Applicable Standard of Care.

¶9 To establish a negligence claim, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certainstandard of care; (2) the defendant's breach of that standard; (3) a causal connection between the defendant's conduct constituting a breach and the resulting injury; and (4) actual damages. Quiroz v. ALCOA Inc., 243 Ariz. 560, 563-64, ¶ 7 (2018).

¶10 The superior court concluded SCA owed Gerard, an apparent invitee, a duty to provide a reasonably safe means of ingress and egress. See generally Ritchie v. Costello, 238 Ariz. 51, 54, ¶ 10 (App. 2015). SCA does not challenge Gerard's invitee status on appeal. Instead, SCA contends its duty did not extend "to prevent the harm or injury resulting from jaywalking" across Tatum at Winchcomb. Once the court found that a duty existed, its work was done. The court does not determine the content of a duty as a matter of law—that function is reserved for the jury. See Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 357 (1985), superseded by statute on other grounds as recognized in Maher v. United States, 56 F.3d 1039, 1042 n.4 (9th Cir. 1995).

¶11 Generally, 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.'" Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 10 (2007) (quoting Markowitz, 146 Ariz. at 354). "[I]n negligence cases, the duty if it exists is always the same—to conform to the legal standard of reasonable conduct in the light of the apparent risk." Coburn v. City of Tucson, 143 Ariz. 50, 52 (1984) (brackets omitted) (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 356 (5th ed. 1984)). As such, disputes over "what the defendant must do, or must not do," do not define duty; instead, they define the applicable standard of care. Gipson, 214 Ariz. at 143, ¶ 10 (brackets omitted) (quoting Coburn, 143 Ariz. at 52). Such disputes generally are for the trier of fact. See Ritchie v. Krasner, 221 Ariz. 288, 295, ¶ 11 (App. 2009) (stating that the elements of negligence besides duty "are factual issues, and are generally within the province of the jury").

¶12 SCA, like the superior court, relies on Nicoletti v. Westcor, Inc., 131 Ariz. 140 (1982). There, an employee of a store located within the defendant's mall was injured when she attempted a shortcut through an ornamental planter rather than use a lighted sidewalk. Id. at 141, 144. Our supreme court affirmed summary judgment for the defendant based on undisputed evidence that the plaintiff (1) had received a map indicating the location of the temporary employee parking; (2) knew or should have known of the lighted sidewalk; and (3) voluntarily attempted the shortcut through the planter, which "[a] reasonable person could not have thought . . . was an appropriate means of egress." Id. at 144. On these facts, westated that a landowner's "duty may be diluted or extinguished if the invitee engages in explicitly or impliedly unpermitted activities or goes beyond the area to which he or she is invited." Id. at 143.

¶13 Nicoletti is distinguishable for two reasons. First, the duty to provide reasonably safe ingress and egress to invitees was not at issue because the planter was on the defendant's property. Id. at 141. Second, Marlee sufficiently alleged that a reasonable person could have viewed the curb cuts as a permitted means of ingress, stating that they "mark[ed] an accessible route across Tatum for someone in a wheelchair or with other limitations." She also alleged SCA knew or should have known visitors would use the curb cuts as an unmarked crosswalk to reach its campus.

¶14 SCA also cites Shiells v. Kolt, 148 Ariz. 424 (App. 1986). There, a previously damaged railing along a walkway in front of the defendants' office collapsed when the plaintiff attempted to vault over it. Id. at 424. Concluding that "vaulting over the railing was surely an unpermitted use of that railing," we held the plaintiff's injury "was foreign to any risk the [defendants] had created by not repairing the damaged railing," and affirmed summary judgment. Id. at 425.

¶15 It is not clear from the complaint that Gerard's use of the curb cuts was "an unpermitted use." Marlee alleged SCA planned and built the curb cuts at Winchcomb, thereby "creat[ing] an accessible route . . . across Tatum to the SCA football field." She also alleged SCA knew or should have known its on-campus parking would not accommodate everyone who wanted to attend football games, and visitors likely "would park off campus, including on residential streets," such as Winchcomb. Shiells thus is distinguishable as well. See Stephens v. Bashas' Inc., 186 Ariz. 427, 431 (App. 1996) ("When the activities conducted on the business premises affect the risk of injury off-premises, the landowner may have an obligation 'to correct the condition or guard against foreseeable injuries.'" (citation omitted)).

¶16 SCA also cites Wickham v. Hopkins, 226 Ariz. 468 (App. 2011), arguing its duty expired when Gerard left the campus and chose to cross at Winchcomb. Wickham involved a licensee, to...