Tucson Unified School District v. Borek
234 Ariz. 364
| Ariz. Ct. App. | 2014Background
- In April 2011 a TUSD employee, Michael Corum, pled guilty to a felony for secretly recording another person; the Gallaghers allege Corum sexually abused and photographed their developmentally disabled daughter at a TUSD school.
- The Gallaghers sued TUSD and Corum (and his wife), asserting vicarious liability and direct negligence claims (hiring, supervision, investigation, staffing).
- TUSD moved for summary judgment invoking A.R.S. § 12-820.05(B), arguing the statute immunizes public entities for losses caused by an employee’s felony unless the entity actually knew of the employee’s propensity for that action.
- TUSD also argued the Gallaghers’ A.R.S. § 12-821.01 notice of claim was insufficient as to any negligent-investigation claim.
- The trial judge denied summary judgment, finding TUSD should have known of Corum’s prior conduct (i.e., constructive knowledge).
- On special action review the appellate court accepted jurisdiction only to decide the immunity/knowledge question and declined to decide the notice-of-claim sufficiency because TUSD has an adequate remedy by appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the propensity exception in A.R.S. § 12-820.05(B) requires actual or constructive knowledge | Gallaghers: constructive knowledge suffices; TUSD should have known under the circumstances | TUSD: "knew" means actual knowledge; no evidence of actual knowledge here | "Knew" means actual knowledge; constructive knowledge is insufficient; trial court erred to the extent it relied on constructive knowledge |
| Whether the court should review sufficiency of the § 12-821.01 notice of claim on special action | Gallaghers: notice was sufficient for negligent investigation | TUSD: notice insufficient and negligent-investigation cause of action unsupported | Appellate court declined to review this issue (TUSD has an adequate remedy by appeal) |
| Whether § 12-820.05(B) bars both vicarious and direct-liability claims | Gallaghers: (implicitly) statute should not bar direct-liability claims when facts support negligence | TUSD: statute provides immunity for all claims, direct or vicarious | Argument waived on appeal for lack of developed analysis; court declined to decide |
Key Cases Cited
- Orme Sch. v. Reeves, 166 Ariz. 301 (disfavor special-action review of summary judgment denials)
- City of Phoenix v. Yamell, 184 Ariz. 310 (immunity issues appropriate for special-action review)
- Bridgestone/Firestone N. Am. Tire, L.L.C. v. A.P.S. Rent-A-Car & Leasing, Inc., 207 Ariz. 502 ("knowledge" construed as actual awareness; contrast with constructive knowledge)
- Parker v. City of Tucson, 233 Ariz. 422 (statutory-interpretation principles; plain language controls)
- Cardon v. Cotton Lane Holdings, Inc., 173 Ariz. 203 (special action jurisdiction considerations)