Mitchell v. Gamble

Decision Date31 March 2004
Docket NumberNo. 2 CA-CV 2003-0131.,2 CA-CV 2003-0131.
Citation86 P.3d 944,207 Ariz. 364
PartiesKaren M. MITCHELL, Plaintiff/Appellant, v. John D. GAMBLE and Aaron Jensen, Defendants/Appellees.
CourtArizona Court of Appeals

Piccarreta & Davis, P.C., By Carl A. Piccarreta, Tucson, for Plaintiff/Appellant.

Goering, Roberts, Rubin, Brogna, Enos & Hernandez, By William L. Rubin and Laura Huntwork, Tucson, for Defendant/Appellee Gamble.

Law Office of James E. Abraham, By Cynthia L. Choate, Tucson, for Defendant/Appellee Jensen.


PELANDER, Presiding Judge.

? 1 In this personal injury action, the primary issue on appeal is whether students who perform a routine errand at a teacher's request on school grounds during school hours can be deemed school "employees" under Arizona's Workers' Compensation Act. Although its facts and procedural history are simple, this case presents rather complicated legal issues of first impression in Arizona.

? 2 Plaintiff/appellant Karen Mitchell, a middle school teacher, appeals from the trial court's grant of summary judgment in favor of defendants/appellees John Gamble and Aaron Jensen, both minors who attended the school where Mitchell taught. Mitchell argues the trial court erred in determining that appellees were "employed" by their school at the time of the incident in question and, therefore, that A.R.S. ? 23-1022(A) precludes her negligence claims against them. We conclude that the limited record before us and the applicable law do not support summary judgment in favor of appellees and, accordingly, reverse the trial court's judgment.


? 3 In reviewing a grant of summary judgment, we view the facts and all reasonable inferences therefrom in the light most favorable to the party against whom summary judgment was entered. See Town of Miami v. City of Globe, 195 Ariz. 176,

? 2, 985 P.2d 1035, 1037 (App.1998). Although the material facts in the sparse record before us are undisputed, they are amenable to different inferences. On February 15, 2001, appellees were eighth grade students and student council members at Townsend Middle School. During that day's student council meeting, one of appellees' teachers asked them to retrieve a "paper cart" from another room and bring it back to the student council room. As appellees were pushing the cart down the hallway about to pass the door to a classroom in which Mitchell had been eating lunch, Mitchell opened the door to leave the room. The cart hit the door which, in turn, struck Mitchell and injured her.

? 4 Mitchell later sought and obtained workers' compensation benefits as a result of the incident. In addition, she filed this action against appellees, claiming they had pushed the cart in a "negligent and reckless manner" and were personally liable for her injuries.1 Appellees moved for summary judgment, arguing that, at the time of the incident, they had been acting as Mitchell's "co-employees," as defined in A.R.S. ? 23-901(3), and within the scope of their employment. Thus, appellees argued, ? 23-1022(A) barred Mitchell's tort action against them. In granting appellees' motion, the trial court found that they "were co-employees of [Mitchell] and `employed' by Townsend Middle School at the time of the accident." Consequently, the court ruled, Mitchell's "exclusive remedy for any injuries she sustained was workers' compensation pursuant to A.R.S. ? 23-1022(A)."


? 5 Subject to certain exceptions, ? 23-1022(A) provides: "The right to recover [workers'] compensation ... for injuries sustained by an employee ... is the exclusive remedy against the employer or any co-employee acting in the scope of his employment."2 See also A.R.S. ? 23-1024(A) ("An employee ... who accepts compensation waives the right to exercise any option to institute proceedings in court against his employer or any co-employee acting within the scope of his employment ...."). Pursuant to those statutes, unless an employee who is injured on the job has previously rejected the workers' compensation system, the superior court lacks subject matter jurisdiction over any common law tort action that the employee files against a coemployee acting within the scope of his or her employment. See Smithey v. Hansberger, 189 Ariz. 103, 106, 938 P.2d 498, 501 (App.1996)

; see also Ringling Bros. & Barnum & Bailey Combined Shows, Inc. v. Superior Court, 140 Ariz. 38, 41, 46, 680 P.2d 174, 177, 182 (App.1983). Thus, by finding ? 23-1022(A)'s exclusivity provision applicable, the trial court essentially determined it lacked subject matter jurisdiction of this case.

? 6 Our standard of review for that ruling requires some discussion. We generally review de novo orders dismissing cases for lack of subject matter jurisdiction. Satterly v. Life Care Ctrs. of Am., Inc., 204 Ariz. 174, ? 5, 61 P.3d 468, 471 (App.2003); Hill v. Peterson, 201 Ariz. 363, ? 5, 35 P.3d 417, 419 (App.2001). Although a trial court may consider and resolve jurisdictional fact issues when, as here, they are not intertwined with the merits of the case, we review the court's ultimate legal conclusion de novo. See Swichtenberg v. Brimer, 171 Ariz. 77, 82, 828 P.2d 1218, 1223 (App.1991)

; see also Bonner v. Minico, Inc., 159 Ariz. 246, 256, 766 P.2d 598, 608 (1988). In any event, the parties did not request the trial court to resolve any jurisdictional fact issues, but rather, the case was disposed of on summary judgment.

? 7 The ultimate issue raised here is purely legal?€”whether ? 23-1022(A) renders Arizona's workers' compensation system Mitchell's "exclusive remedy," thereby barring her tort action against appellees and depriving the trial court of subject matter jurisdiction. Resolution of that issue, however, hinges on whether appellees were acting as school employees and, therefore, as Mitchell's coemployees, at the time of her injury. This latter issue, though properly addressed by the trial court, see Swichtenberg, is a mixed question of law and fact. Accordingly, we review de novo whether the trial court properly applied ? 23-1022 and on that basis entered summary judgment in favor of appellees. See Andrews v. Blake, 205 Ariz. 236,

? 12, 69 P.3d 7, 11 (2003) ("We review de novo a grant of summary judgment ...."); Gamez v. Brush Wellman, Inc., 201 Ariz. 266, ? 4, 34 P.3d 375, 378 (App.2001) ("We review questions of law, including the interpretation of statutes and ... mixed questions of fact and law de novo."); Diaz v. Magma Copper Co., 190 Ariz. 544, 547, 950 P.2d 1165, 1168 (App.1997) (same).

? 8 Summary judgment is proper only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c), 16 A.R.S., Pt. 2; see also Orme Sch. v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990)

. When, as here, the material facts are undisputed, "we determine whether the trial court correctly applied the substantive law to the undisputed facts." Carden v. Golden Eagle Ins. Co., 190 Ariz. 295, 296, 947 P.2d 869, 870 (App.1997). And, "[e]ven when the facts are undisputed, summary disposition is unwarranted if different inferences may be drawn from those facts." Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505, 508, 794 P.2d 138, 141 (1990).


? 9 In cases such as this, the various issues bearing on jurisdiction include whether an employer-employee relationship exists. Arizona Workers' Compensation Handbook ? 12.2.5, at 12-15 (Ray Jay Davis et al. eds., 1992) (hereafter "Handbook"). "The courts have struggled with the questions of what tribunal makes these decisions and how they are to be made." Id. It is relatively clear, however, that the Industrial Commission and the courts have concurrent jurisdiction to determine employment status. Id.; see also Uzoh v. Indus. Comm'n, 158 Ariz. 313, 314, 762 P.2d 600, 601 (App.1988)


? 10 In addressing the issue of whether appellees were acting as school "employees" at the time of the accident, both the motion papers below and the parties' briefs on appeal focused primarily on Restatement (Second) of Agency ? 220 (1958) and cases such as Santiago, Bond v. Cartwright Little League, 112 Ariz. 9, 536 P.2d 697 (1975), and Love v. Liberty Mutual Insurance Co., 158 Ariz. 36, 760 P.2d 1085 (App.1988). On appeal, the contour of the relevant legal issues changed somewhat. This court, sua sponte, scheduled the case for oral argument, distributed a draft decision several weeks before that date,3 and permitted the parties to file supplemental briefs if they so chose. Neither side did so. At oral argument, the parties adjusted their stance by anchoring their arguments in the workers' compensation statutes discussed in the draft decision, and appellees essentially abandoned their earlier reliance on Restatement ? 220 or other common law principles to support the summary judgment. In view of that shift in position, we summarily address and dispose of the common law issues discussed in the briefs.

? 11 Restatement ? 220 lists several factors, including the master's right to control performance of services, bearing on whether one person is the servant of another. See Santiago, 164 Ariz. at 508,

794 P.2d at 141 (noting that Arizona has "adopted" ? 220); see also Ringling Bros.,

140 Ariz. at 42-43,

680 P.2d at 178-79 (applying ? 220 in workers' compensation context). Appellees emphasize the right-to-control element and assert that is "[w]hat matters" here. As Mitchell concedes, appellees' teacher clearly had the right to control their actions in performing the errand for her.

? 12 The right-to-control element, however, is but one relevant factor in determining whether an employment relationship existed and is not singularly dispositive. See Santiago, 164 Ariz. at 509,

794 P.2d at 142; see also Restatement ? 220 cmt. c. Rather, in determining whether an employment relationship exists, courts consider the totality of the circumstances. See Ringling Bros.,

140 Ariz. at 45,

680 P.2d at 181 (...

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