Orme School v. Reeves

Decision Date06 December 1990
Docket NumberNo. CV-89-0403-SA,CV-89-0403-SA
Citation166 Ariz. 301,802 P.2d 1000
Parties, 64 Ed. Law Rep. 1221 ORME SCHOOL, Petitioner/Defendant/Cross-defendant, v. Honorable Kenneth W. REEVES, III, Judge Pro Tem of the Maricopa County Superior Court, Respondent, COLLEGE WORLD SERVICES, INC., Real Party in Interest/Defendant/Cross-defendant.
CourtArizona Supreme Court

FELDMAN, Vice Chief Justice.

Orme School (Orme) initiated an original special action 1 proceeding in this court, claiming that the trial judge abused his discretion and acted without legal authority in denying its motion for summary judgment. We accepted jurisdiction to reconsider our present standards for summary judgment in light of recent United States Supreme Court decisions interpreting the federal analog of Rule 56, Ariz.R.Civ.P., 16 A.R.S.

We have jurisdiction under article 6, § 5(1) of the Arizona Constitution and Rule 7(a), Ariz.R.P.Spec.Act., 17B A.R.S.


We decide whether to accept jurisdiction in special action proceedings on a number of grounds. See United States v. Superior Court, 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985). We generally disapprove of special action proceedings asking the appellate system to review trial court denial of motions for summary judgment. See, e.g., Ft. Lowell-NSS Ltd. Partnership v. Kelly, 166 Ariz. 96, 800 P.2d 962 (1990). We continue to believe that in all but the exceptional case, e.g., King v. Superior Court, 138 Ariz. 147, 150 n. 3, 673 P.2d 787, 790 n. 3 (1983), the appellate system should exercise its discretion to refuse jurisdiction of cases in which it is asked to review the factual or even legal basis of the trial court's denial of a motion for summary judgment. See Alhambra School Dist. v. Superior Court, 165 Ariz. 38, 40 n. 3, 796 P.2d 470, 472 n. 3 (1990).

We believe, however, this case is one of the exceptions that illustrates the rule. The question presented here is a pure issue of law, requiring neither factual review nor interpretation. The issue presented is not peculiar to this or any particular case. Rather, it involves the analytical framework or construct to be applied to all cases and is therefore of general concern to litigants and the judicial system. New standards for adjudicating motions for summary judgment were recently adopted by the United States Supreme Court, but have not yet been considered by this court outside of the first amendment context. See Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562 (1986).

Our appellate courts have considered these new standards and have cited them with approval. See United Bank v. Allyn, Dkt. 1 CA-CIV 88-474 (Ct.App. April 17, 1990); Burrington v. Gila County, 159 Ariz. 320, 767 P.2d 43 (Ct.App.1988). The appellate courts have noted, however, that Arizona law is unsettled as to the proper standard for summary judgment and that this court has not issued any guidance outside of the defamation area. See Scottsdale Publishing, Inc. v. Superior Court, 159 Ariz. 72, 83 n. 8, 764 P.2d 1131, 1142 n. 8 (Ct.App.1988) (citing Dombey, 150 Ariz. at 490, 724 P.2d at 576); United Bank v. Allyn, supra. Finally, because orders denying motions for summary judgment are not appealable, special action is the only method by which the issue can be presented.

Given the nature of the question, the need to review and reconsider interpretations of our own rules, and the possible need to revise many cases from this court, the action is appropriately brought directly to us. See Rule 7(a), Ariz.R.P.Spec.Act., 17B A.R.S. For these reasons, we accept jurisdiction.


Orme is a private boarding school located near Mayer, Arizona that provides secondary education to its students. Ryan W. Mills (Mills) was a student at Orme in the fall of 1987 when he contracted salmonella food poisoning. The infection was evidently quite serious and has attacked Mills' spine. Mills brought a damage action against Orme, which had provided its students with meals during the period in which Mills contracted salmonella. He also joined College World Services, Inc. (CWS) as a defendant, alleging that CWS, the school's food service contractor, had provided the food Orme served its students.

Orme cross-claimed (see Rule 13(g), Ariz.R.Civ.P., 16 A.R.S.), alleging in effect that if Mills had contracted salmonella from a meal provided at Orme, the food would have been prepared by CWS. Thus, Orme argued, it was at most a passive wrongdoer and was entitled to indemnity from CWS, the active wrongdoer whose act had caused the injury. See generally Busy Bee Buffet, Inc. v. Ferrell, 82 Ariz. 192, 310 P.2d 817 (1957). The parties do not argue the substantive law relating to rights of indemnity asserted by one tortfeasor against another, and we assume, for purposes of this opinion only, that Orme would be entitled to indemnity if Mills did contract salmonella from a meal served by Orme and prepared by CWS.

The facts relevant to that determination are uncontested and very simple. Mills could have contracted salmonella during a period of approximately six weeks while he was at Orme. During that period of time, Mills consumed 100 to 120 meals provided by Orme. All of these meals were prepared by CWS, with the exception of a single meal prepared by Orme. There was no direct evidence that the salmonella infestation was attributable to a particular meal. Nor was there any circumstantial evidence from which the finder of fact could make such an inference. Thus, if Mills prevails in his personal injury claim, it will be on the theory that the medical evidence establishes that the salmonella probably was contracted from one of the meals he ingested during the six-week period he was at Orme, but there will be no evidence inculpating a particular meal. In that event, as between Orme and CWS, the mathematical odds from this record would be over one hundred to one in favor of the conclusion that the "culpable meal" was prepared by CWS rather than Orme. Conversely, there is certainly a remote possibility (one out of one hundred) that Mills contracted salmonella from the meal prepared by Orme.

Orme moved for summary judgment on its indemnity claim against CWS. The trial judge denied the motion, stating he believed that under Arizona law, a genuine issue of material fact existed, precluding summary judgment in Orme's favor. The judge concluded that

if the test for granting summary judgment adopted by the United States Supreme Court for application of Federal Rule of Civil Procedure 56 had been adopted in Arizona ... summary judgment in favor of Orme School would have been appropriate.

Following that ruling, Orme filed a direct petition in this court seeking special action relief. Orme argues that the standard requiring that summary judgment be denied if there is the "slightest doubt" as to the facts is incorrect and destroys the salutary purposes underlying Rule 56. It argues that the existence of a "mere scintilla of evidence" against the movant does not create a genuine issue of material fact. Rather, Orme urges us to follow the United States Supreme Court in applying the standard used for directed verdicts, which would grant the motion where "reasonable people could not differ" as to the facts presented by the evidence or the inferences to be drawn therefrom. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (where possible, we refer to these cases collectively as "the trilogy"). CWS agrees with Orme's views regarding the proper interpretation of the standards to be applied for Rule 56 consideration.

Lacking the benefit of a true adversary presentation, we narrow the range of decision to that necessary to decide the issues arising from Orme's motion for summary judgment on its indemnity claim against CWS, leaving to another day the question of adopting the trilogy in its entirety. 2 In this case we construe Rule 56, Ariz.R.Civ.P., 16 A.R.S. Federal cases, dealing with the federal counterpart, are instructive, persuasive, but not binding in the construction of our rule. See Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 463-64, 799 P.2d 801, 804-05 (1990). We do, however, subscribe to the principle that uniformity in interpretation of our rules and the federal rules is highly desirable. Id.; see State ex rel. Miller v. Tucson Assocs. Ltd. Partnership, 165 Ariz. 519, 799 P.2d 860 (Ct.App.1990) (overruling Ferguson v. Cessna Aircraft Co., 132 Ariz. 47, 643 P.2d 1017 (Ct.App.1981), because of subsequent interpretation of Rule 803(8)(C), Ariz.R.Evid., 17B A.R.S., in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)). Accordingly, we turn first to the policy underlying the summary judgment rule, then to a brief consideration of the trilogy, and finally to an application of the proper summary judgment rule to the portion of the case before us: Orme's indemnity claim against CWS.

A. The Policy of the Summary Judgment Rule

We live in what is widely perceived as a time of great increase in litigation and one in which many meritless cases are filed, vastly increasing the dockets before our trial judges. 3 As a result, the courts of this country have been urged to liberalize the standards so as to permit summary judgment in a larger number of cases. See, e.g., Report of the Commission on the Courts, The Future of Arizona Courts, at 62 (1989). 4

The essence of the summary judgment rule is as follows:

The judgment sought shall be rendered forthwith if the pleadings, deposition,...

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