Schabel v. Deer Valley Unified School Dist. No. 97

• Decision Date: 09 July 1996
• Docket Number: No. 1,CA-CV,1
• Citation: 186 Ariz. 161,920 P.2d 41
• Parties: , 111 Ed. Law Rep. 545 Michael D. and Anna Marie SCHABEL, as individuals, the marital community composed thereof, and on behalf of Zachary Schabel, a minor child who is their son; Zachary Schabel, individually and/or as a minor child by and through his parents Michael D. and Anna Marie Schabel, Plaintiffs-Appellants, v. DEER VALLEY UNIFIED SCHOOL DISTRICT NO. 97, a public entity; Mirage Elementary School, a public entity, Defendants-Appellees. 94-0274.
• Court: Arizona Court of Appeals

Page 41

920 P.2d 41

186 Ariz. 161, 111 Ed. Law Rep. 545

Michael D. and Anna Marie SCHABEL, as individuals, the marital community composed thereof, and on behalf of Zachary Schabel, a minor child who is their son; Zachary Schabel, individually and/or as a minor child by and through his parents Michael D. and Anna Marie Schabel, Plaintiffs-Appellants, v. DEER VALLEY UNIFIED SCHOOL DISTRICT NO. 97, a public entity; Mirage Elementary School, a public entity, Defendants-Appellees.

No. 1 CA-CV 94-0274.

Court of Appeals of Arizona,

Division 1, Department B.

July 9, 1996.

Smith and Feola, P.C. by Steven Feola and Richard A. Alcorn, Phoenix, for Appellants.

Teilborg, Sanders & Parks, P.C. by Garrick L. Gallagher and Melinda K. Cekander, Phoenix, for Appellees.

THOMPSON, Judge.

In this appeal, we consider whether a school district is immune from tort liability for injuries suffered by a student who was injured in a fall from a school playground swing set. The trial court ruled that the district had absolute immunity because its failure to install cushioning material under the swing set constituted a discretionary decision concerning allocation of resources. We conclude that statutory immunity does not protect the district in this instance because it does not have the discretion to breach its duty to refrain from subjecting district students to unreasonable risks of harm.

FACTS ¹ AND PROCEDURAL HISTORY

Appellant Zachary Schabel was a student at Appellee Mirage Elementary School In May 1993, Zachary's parents, Appellants Michael and Anna Schabel, sued the school and the district for themselves and on behalf of Zachary. ² They alleged that the defendants created an unreasonable and foreseeable risk of harm to Zachary by (1) failing to create or maintain the school playground in a reasonably safe condition; (2) failing to install, provide, utilize, and maintain reasonably safe and appropriate playground surfacing materials; (3) failing to adequately supervise students on the school playground; (4) failing to properly and appropriately manage and control the school property; and (5) failing to acquire, provide, install, or utilize reasonably safe and appropriate playground equipment.

(the school) in the Deer Valley Unified School District No. 97 (the district). In May 1991, he fell from a swing set located on the playground of the school. In the fall, Zachary suffered a closed, displaced fracture of his left arm and elbow. He has undergone several surgical procedures to repair the injuries.

The district moved to dismiss the complaint on the ground that it was immune from suit under Ariz.Rev.Stat. Ann. (A.R.S.) § 12-820.01. It argued that statutory absolute immunity applied to its decision not to allocate resources to place cushioning material beneath the swing set because the decision constituted an allocation of existing resources and a determination whether to seek or provide resources for the purchase of equipment or the construction or maintenance of facilities. The district further argued that its alleged failure to provide adequate supervision of the playground involved providing extra personnel which also was a discretionary decision for which the district was absolutely immune from suit.

In response, the Schabels argued that the immunity did not apply to the provision of safe surfacing materials under the swing set because, once the district exercised its discretion to provide playground equipment for use by students, it was obliged to do so without creating any unreasonable risk of harm to the student users of the playground. The Schabels also contended that the analysis and result suggested by the district would contravene article 18, § 6 of the Arizona Constitution, because it would abrogate the right to an action to recover damages for negligence.

The trial court granted the motion to dismiss. It ruled that the decisions whether to place absorptive material beneath the swings and whether to provide extra personnel for supervision were discretionary decisions for which the district had absolute immunity. Judgment was entered in favor of the district, dismissing the complaint against it. The Schabels timely appealed from the judgment. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (1994).

DISCUSSION

Because this appeal concerns the interpretation of an Arizona statute, we are not bound by the trial court's conclusions of law. Evenstad v. State, 178 Ariz. 578, 581, 875 P.2d 811, 814 (App.1993). Accordingly, we conduct de novo review of the statute and its application. Id.

The statute at issue, A.R.S. § 12-820.01 (1992), provides for absolute immunity in relevant part:

A. A public entity shall not be liable for acts and omissions of its employees constituting:

* * * * * *

2. The exercise of an administrative function involving the determination of fundamental governmental policy.

B. The determination of a fundamental governmental policy involves the exercise of discretion and shall include, but is not limited to:

1. A determination of whether to seek or whether to provide the resources necessary for:

(a) The purchase of equipment,

(b) The construction or maintenance of facilities,

(c) The hiring of personnel, or

(d) The provision of governmental services.

2. A determination of whether and how to spend existing resources, including those allocated for equipment, facilities and personnel.

On appeal, the Schabels argue that the district is not immune from liability under A.R.S. § 12-820.01 for its acts and omissions in creating and maintaining a condition that exposed students in the district to a foreseeable and unreasonable risk of harm. They again contend that, once the district exercised its discretion to provide playground equipment at its school, it had a common law duty to ensure that the facility did not pose a hazard or unreasonable risk of harm to student users of the playground. The Schabels additionally assert that § 12-820.01 is unconstitutional under the non-abrogation clause of the Arizona Constitution, article 18, § 6, because it is contrary to the common law duty requiring that the district not subject students to foreseeable and unreasonable risks of harm.

The district responds that under § 12-820.01 it is absolutely immune from suit for acts that involve allocations of existing resources or determinations whether to seek or provide resources for the purchase of equipment or the construction or maintenance of facilities. Thus, it argues that the determination whether to seek or provide the resources necessary for the purchase of absorptive surfacing material or for the removal of the swing set falls within the statutory definition of fundamental governmental policy because it is a discretionary decision made by the school district administration that involves allocation of resources.

In considering these arguments, we first look to the purpose and intent behind § 12-820.01. In adopting the Actions Against Public Entities or Public Employees Act, which includes A.R.S. § 12-820.01, the legislature spelled out its purpose and intent in its "Historical and Statutory Notes":

The legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand, the legislature recognizes that, while a private entrepreneur may readily be held liable for negligence within the chosen scope of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this state that public entities are liable for acts and omissions of employees in accordance with the statutes and common law of this state. All of the provisions of this act should be construed with a view to carry out the above legislative purpose.

1984 Ariz. Sess. Laws, Ch. 285, § 1.

This pronouncement from the legislature is consistent with the Arizona Supreme Court's prior ruling in Stone v. Arizona Highway Comm'n, 93 Ariz. 384, 392, 381 P.2d 107, 112 (1963), that, even for governmental entities, "where negligence is the proximate cause of injury, the rule is liability and immunity is the exception." See City of Tucson v. Fahringer, 164 Ariz. 599, 600 n. 4, 795 P.2d 819, 820 n. 4 (1990) (in Act's prefatory statement, legislature reaffirmed common law notion that governmental immunity is the exception and liability the rule). Thus, both our legislature and supreme court have declared that in Arizona the right to sue the state is not a statutory grant as it is in some states; "rather, it is a common law rule in Arizona that the government is liable for its tortious conduct and immunity is the exception." Pritchard v. State, 163 Ariz. 427, 431, 788 P.2d 1178, 1182 (1990).

In light of this well-established rule, we must view § 12-820.01 "as carving out a narrow exception to the general rule that the common law applies." Goss v. City of Globe, 180 Ariz. 229, 232, 883 P.2d 466, 469 (App.1994). Accordingly, we examine the application of this statute to the Schabels' claims and the district's acts with a view to finding immunity only if it clearly applies.

We first examine the effect of the holding in Goss on this case. Goss was seriously injured when he fell off a low wall into a drainage ditch. The plaintiffs alleged that the city was negligent in failing to construct sidewalks or a guardrail to separate the drainage ditch from the roadway. Goss, 180 Ariz. at 230, 883 P.2d at 467. The city asserted that whether to allocate funds for the construction of sidewalks or a guardrail was a discretionary decision involving fundamental governmental policy for which it had absolute immunity under § 12-820.01. Id. at 231, 883 P.2d at 468. The Goss court, however, noted that the city had not made an actual decision regarding such...