Randolph v. Arizona Bd. of Regents, 2

• Citation: 19 Ariz.App. 121,505 P.2d 559
• Decision Date: 25 January 1973
• Docket Number: No. 2,CA-CIV,2
• Parties: Lester RANDOLPH, Jr., Appellant, v. ARIZONA BOARD OF REGENTS, Appellee. 1219.
• Court: Court of Appeals of Arizona

Page 559

505 P.2d 559

19 Ariz.App. 121

Lester RANDOLPH, Jr., Appellant, v. ARIZONA BOARD OF REGENTS, Appellee.

No. 2 CA-CIV 1219.

Court of Appeals of Arizona, Division 2.

Jan. 25, 1973.

Rehearing Denied March 13, 1973.

Review Denied April 10, 1973.

W. Edward Morgan by Paul T. Willis, Tucson, for appellant.

Mays & Dees by Willis R. Dees, Tucson, for appellee.

KRUCKER, Judge.

On August 21, 1970, appellant, plaintiff below, filed a complaint designated as 'Tort-Unclassified' against appellee, defendant below. Appellee, subsequent to filing an answer, filed a motion to dismiss, alleging, in part, that the complaint failed to state a claim for relief. The motion was granted and from the judgment of dismissal, this appeal is taken.

The single question to be determined on appeal is whether the trial court erred in granting the motion to dismiss.

Accepting the well-pleaded allegations of the complaint as true, as is our duty, we find the following facts are alleged: that plaintiff, a Black male, while a New Jersey resident applied to the University of Arizona in Tucson, Arizona, for admission as a freshman student; that prior to receiving his application, the University undertook the activity of soliciting and accepting applications for admission from prospective students throughout the country; that Tucson, Arizona was an endemic area for common coccidioidomycosis (commonly referred to as Valley Fever); that said disease is very prevalent, particularly among males in the 15 to 25 age group such as plaintiff; that the primary common infection of coccidioidomycosis may fail to localize and dissemination may occur; that such disease when disseminated is catastrophic; that disseminated coccidioidomycosis occurs some twenty to thirty times more frequently in Black persons than in Caucasian persons; that defendant knew or should have known this and failed to so notify the plaintiff.

Plaintiff first argues that having pleaded these facts and noting that in considering a motion to dismiss the facts must be taken as true, it is a factual matter as to whether there is a duty to warn him of the menace of disseminated coccidioidomycosis. We do not agree.

To constitute actionable negligence, three elements must be present: (1) A duty owing to plaintiff to protect him from injury, (2) Failure of defendant to perform that duty, and (3) Injury to the plaintiff resulting from such failure. Berne v. Greyhound Parks of Arizona, 104 Ariz. 38, 448 P.2d 388 (1968); Kiser v. A. J. Bayless, 9 Ariz.App. 103, 449 P.2d 637 (1969). We are concerned here with the first requirement which is clearly a matter of law for the court to decide. W. Prosser, The Law of Torts § 37 (4th Ed. 1971). Plaintiff's argument that a duty was owed to him rests upon his contention that the defendant, having undertaken to act towards him, failed to do so with due care. There is no doubt that one not under any duty to act can assume the duty when he has gone so far in what he has actually done and has gotten himself into such a relationship with the plaintiff that he has begun to affect the interests of the plaintiff adversely, as distinguished from merely failing to confer a benefit upon him. H. R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 (1928); See also, Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969). Had the conduct of the defendant reached that stage in this case? We think not. There are no allegations in the complaint from which the court can infer that it had undertaken to protect the...