*1 ALHAMBRA SCHOOL
DISTRICT, Petitioner,
SUPERIOR COURT of the State of Ari-
zona, In and For the COUNTY OF
MARICOPA, Honorable Cecil Patter-
son, judge thereof, Respondent Judge, NICHOLS, minor, By father, Through NICHOLS; her Russell Nichols, individually;
Russell Klein,
Louise Real Parties in Interest.
No. 1 CA-SA 88-270. Appeals Arizona,
Court of
Division Department C.
May
Review Granted Oct.
Teilborg, Sanders Parks & John C. Gemmill, Alison Lewis and Jean E. Huff- Phoenix, ington, petitioner. Langerman, Begam, Marks, Lewis & P.A. Elliot G. Wolfe and Samuel Lan- *2 569 Phoenix, 1986, August german, parties year. for real in inter- school she enrolled High est. as a student at Alhambra part High of the Phoenix which Union OPINION 16, 1986, School District. On October she walking from her home home of was to the SHELLEY, Presiding Judge. get High a friend to a ride to Alhambra presented in special The issue this action During School. that walk she crossed 35th proceeding injuries suffered involves abutting Avenue at the marked school respondent plaintiff when she was crosswalk at the intersection of Montebello struck motor vehicle a marked purpose and 35th Avenue. For the crossing 16, on October judgment, summary motion for it was as- (District) Alhambra School District is an sumed that the occurred sometime elementary school district located Phoe- prior between 7:45 a.m. and 8:00 a.m. and nix, Arizona, consisting elementary of nine placement portable signs schools, one which is Cordova Elementa- guard. the attendance of the While cross- ry School. The school abuts on 35th Ave- ing, car, resulting she was struck nue in Phoenix. 16, 1986, injuries. serious On October An crosswalk to the Cordova student, least one other Cordova who at- School was established at the intersection program, already tended the breakfast had Street, of 35th pur- Avenue Montebello prior crossed time that Brenda Nich- provisions suant of A.R.S. § ols inwas the crosswalk. through agreement City an between the parties The real in interest sued the Dis- Phoenix and the District. The trict, alleging negligence failing “to ade- application was based on an for an abut- sign, guard quately supervise and/or ting crossing. application stat- school’s so ... as to make it rea- “In approval subsequent ed: event of sonably ordinary pedestrian safe for traf- by markings establishment summary fic.” The District moved for signs, undersigned authority judgment, asserting that it did not owe a agrees pre- to administer all duties duty of care to Brenda Nichols. The mo- scribed in Section 28-797 of the Arizona summary judgment tion for was denied. Statutes, operate Revised and to the cross- action, special The District then filed this ing in conformance to the Arizona School alleging respondent judge that the abused adopted by Manual as denying his discretion the motion for Highway July Commission 1965.” summary judgment. application approved was with the parties in interest assert condition that: “the will be that this court special should not exercise within the between 7:45 jurisdiction action to review a denial of a during days AM and 4:00 PM all summary judgment. motion is in session.” The Dis- Jaycees Superior case of Scottsdale portable crossing trict did not Maricopa County, Ariz.App. Court a.m., signs in the crosswalk until 7:50-8:00 571, 573, (1972), crossing guard did not and the arrive at the court stated: crosswalk until 8:00 a.m. on October Generally, accept jur- we are reluctant to type isdiction in this of situation and principal prior knew previously have indicated that our review 16, 1986, to October that Cordova summary judg- of denials of motions for children who attend the school’s 7:45 a.m. sparingly ment will be exercised. How- program and other activities breakfast ever, the trial court has deter- where used the crosswalk before were genuine dispute mined that exists as placed duty. on and the facts, to the material where additional expense Brenda Nichols had attended Cordova costs and will result to both Elementary the 1985-86 if a trial occurs and our School presented the issue effectively ability dismissing will termi- complaint. litigation, approach slightly nate the and where there ex- off the mark. general public ists a interest such as In Arizona the rule is as follows: determining liability of charitable or- *3 question The duty by is decided the ganizations for travelling its member- question court. The is whether the ship, appropriate accept we deem it to relationship parties was such jurisdiction. that the Defendant was under an obli- gation to use some (Citation omitted.) care to avoid or prevent injury to the Plaintiff. If the case, In this the trial court has deter- no, answer is the Defendant is not genuine dispute mined that no existed in though may liable even he have acted apparent the material facts. It is that sub- negligently light in foreseeable stantial expenses additional costs and will risks. parties occurs, result to both if a trial Board, Markowitz v. Arizona Parks 146 presented whereas our on the issue 352, 356, 364, (1985). Ariz. 706 P.2d effectively litigation will terminate the Contrary contention, to a de- [Plaintiff’s] incurring without additional costs and ex- injury termination that its was foreseea- penses. general public case is of in- dispositive. ble is not terest to throughout school districts the key question The is: was the relation- reasons, foregoing state. For the we deem ship, any, between the District and Bren- accept jurisdiction. it to da Nichols such that the District owed her duty using a while she was the crosswalk. only issue in this case is wheth We hold that the District did not owe her a er or not the duty District owed a to Bren duty of care. using da Nichols while she was the cross parties The real in parties posit walk. in interest assert The real interest Markowitz, plaintiff the in was a one- duty that the District had a common law park. supreme time user of the state reasonable, prudent act as a school district duty. court They nevertheless found a would have under acted the circumstances. daily contend that since Brenda was a user action, prerequisite negligence As a in a year of the crosswalk the school plaintiff a must establish that defendant beginning 1986, August duty a to her plaintiff duty owed the of care. The plain- existed even more than to the court, rather jury, than the decides wheth- tiff Markowitz.1 duty duty exists, er or not a If exists. case, inapposite. In that Markowitz plaintiffs the defendant is not liable supreme the specifically court found that injuries, though even the may defendant park open general public the was to the unreasonably light have acted public encouraged and that the was to use foreseeable risk. Markowitz v. Arizona park, the therefore the landowner [the Board, Parks duty plaintiff owed a as an state] (1985). upon its land. is no invitee There indica- Technologies, case of Western children, except tion the record that Parcel, Inc., Sverdrup Inc. v. & attending those the Cordova were 1, 3, (App.1986), encouraged to use the crosswalk. In this case, court stated: Brenda was not an invitee of the District. brief concentrates on [The Plaintiff’s]
foreseeability component of harm as a case, any duty In this if there was duty Plain- Nichols, owed it created was [Defendant making representations. pursuant these to the crosswalk tiff] Depart- focuses on foresee- issued The trial court also manual Arizona not indicate that that she did not remember whether or not she The record before us does daily crosswalk in the Brenda was a user of the crosswalk. The ever crossed Brenda year began August, crossing guard deposition stated in her Transportation ment of (formerly Ari- agreement requires the school dis- Highway Commission). zona operate trict to in accordance with the Arizona School Manual point interest out that adopted by Highway Com- crossing guard stated that had in July mission 1965. In the name of she been at the time that Brenda Highway Department changed crosswalk, started to use the she would Transportation, have assisted her across the walk. The Highway members of the Commission be- fact that this assistance would have been came members of given does not create a when the upon record, Board. appar- Based guard present. was not If a volun- *4 ent that this superseded manual has been tarily acts to person, assist another the by Safety Program Guidelines,” “School duty of care then commences prior and not issued of agreement, thereto. Neither the A.R.S. January 1983. The 28-797, nor the Safety Program “School § Guidelines, page Chapter 18 of deal- require Guidelines” manual guard that a be ing with “Arizona School Con- present abutting crosswalks. A trols,” sets forth school restric- required only at non-abutting cross- tions. Restriction # 1 states: walks. Portable are require- the abutting ment at crosswalks. At no time shall a school be used as a device to control vehicular The posits District that A.R.S. speed, except as stated in A.R.S. 28-797 28-797 creates duty only to children at a bona-fide installation where children required who are to use the crosswalk to are required high- to cross the street or attend Cordova agree. School. We Sec way. tion 28-797 states: added.) (Emphasis #9 Restriction states: director, A. The respect with to state highways, officer, or the board or com- crossings School should not be estab- mission jurisdiction, high lished at schools. School cross- respect with county highways to city or major walks are reserved for the cross- streets, by or town and with the ing serving advice areas youths high below governing school district age____ board or High-school age pedes- superintendent schools, of may mark or judgement trians have sufficient and ma- cause to be department marked turity adequate or to choose gaps in traffic local authorities effect, crosswalks crossings. for their they are front of each building grounds capable functioning in traffic as abutting thereon where children shall adults. required be highway cross the (Emphasis added.) street. provisions of the Guidelines manual (Emphasis added.) Clearly purpose pertinent are because the re- protect is to crosswalk children in quires the District to act in conformance crosswalks their school where agreement, with the manual. The the man-
they “required are to cross” the street. ual, together and statute must be read Brenda Nichols did not attend that school. determining the duties of the District. “required” She was not use that cross- The manual states that go to cross the street to to her school. high does not extend to include school chil- Additionally, relationship there was no be- dren. the District and Brenda which would tween “require”
have enabled the District to that in interest assert designated 28-297(C) (G), Brenda use crosswalk. At that A.R.S. and the use question, the time in walking “persons,” she was in of places duty upon the word opposite high direction from her respect per the school district with to all get in order to a ride to school when the sons who use the crosswalk between the accident occurred. hours p.m., of 7:45 a.m. and 4:00 which are (C) “portable specified agreement. We In subsection the term
the hours 28-797(C) signs” is first used. Therefore the words disagree. Section reads: (D) (E) portable signs” specified in and “the provide yel- sign manual shall “portable signs” mentioned in are the sub- marking crossing, yel- of the school low (C). (D) (E) clearly section Since and read marking low of the center line of the “Stop must state when chil- portable and the erection of crosswalk,” apparent dren in stop signs indicating that vehicles must (C) “persons” term as used in was intended persons crossing. The when are in the to mean children inasmuch as “the provide type manual shall also must signs” placed by the District be indicating wording “per- use the “children” rather than word session, permanent is in that school sons.” approach signs providing warning 28-797(G) reads: crossings. Section the school authorities When sign manual re- required portable maintain the “school (C) sign ferred to in subsection is the man- “stop in session” when chil- specified ual the first A.R.S. § *5 signs, all vehicles dren in crosswalk” sentence of which reads: “The Director complete stop at shall come to a specifications for adopt shall a manual and crosswalk is when the system a uniform of traffic control devices occupied person. by any upon highways for use within this state.” added.) (Emphasis (C) purport prescribe Subsection did not only the duties of the District. It sets out (C) does not the Dis- Subsection broaden sign the contents of the manual. Subsec- prescribes It the duties of a trict’s duties. (A), (D), (E), agreement, tions place. driver at times when the are prescribe of the the Guidelines the limits place, they are not A.R.S. When duty respect District’s with prescribes the duties of drivers. 28-792 § 28-792(A) crosswalk. reads: Section signals When traffic-control are not 28-797(D) Section states: place operation or not in the driver of a crossings When such are established right way, yield shall slow- vehicle school authorities shall within stopping need be to so ing down highway indicating pedestrian the road- yield, to a session, placed is in not to way pedes- cross within a walk when three hundred feet each side exceed upon the half of the trian is crossings, “stop when traveling, is upon which the vehicle signs at school children in crosswalk” pedestrian approaching is so when the authorities shall main- crossings. School closely opposite from the half of the is in session tain these when school danger, pe- roadway as to be but im- and shall cause them to be removed suddenly leave a curb or destrian shall mediately thereafter. safety and walk or run other added.) (Emphasis path is so into the of a vehicle which 28-797(E) states: Section impossible for the driver close that apply yield. provision This shall not approaching No vehicle the crosswalk the conditions stated subsection fif- under speed to exceed proceed shall at a B of 28-793. per teen miles hour between the § indicating highway placed on the did not owe a We hold that the District “stop chil- “school in session” and when of the accident. duty to Brenda at the time in crosswalk.” dren duty under the statute and The District’s (E) children (D) solely to school Subsections who were attending the Cordova school place signs that only require the district to street at the cross- “required” to cross the in crosswalk” say “Stop when children abutting that school. is in session. when school statute, denying summary judgment meaning in as to the of terms in a The order regarding favor of the District is vacated. The case is the statute not the case to the trial court with di- ques- remanded now before this court. is not a judgment in summary rections to enter fa- ambiguous requiring ju- tion of an of the District. vor construction, merely dicial but a matter of applying a statute that demon- HAIRE, J., concurs. legislature. strates the intention language conveys Where the of a statute GREER, Judge, dissenting: meaning, definite there is no need clear and respectfully majori- I must dissent. statute, interpret the and courts must ty has misconstrued A.R.S. 28-797. meaning follow its as written. Farm State per- Brenda Nichols fell within the class of Agency Mut. Auto. Ins. Co. v. Rent-A- sons to whom the School District Alhambra Car, Inc., (District) owed a of due care. To Low, (App.1983). See also Wasserman v. majority holding logical extend the to its (App.1984). conclusion would the District ow- result Therefore, give this court must effect to ing duty injured to a Cordova school child unambiguous meaning. statute’s based, part, in the crosswalk on the addition, majority mistakenly reads adequately sign, District’s failure to while 28-797(A) restricting scope denying liability “any person” walking to include District’s injured. beside that student who was also reading school children. A closer of sub- I find this outcome to be untenable. (A),however, section reveals it concerned operating The District entered into an simply authority with the to establish a *6 Engi- with the Phoenix Traffic school crosswalk. neering Department regarding the school The District owed a common law crossing at the of 35th intersection Avenue Montebello, though longer to Brenda even she no whereby the District adjacent attended the agreed school to the cross- signs would inbe (Cordova School). Elementary of Bren- between the hours 7:45 a.m. and 4:00 da, p.m. day persons (including as well as other each school was session. The had, adults), effect, District assumed control of were foreseeable users of the during designated anticipate the crosswalk time crosswalk. The District could period, any person using and it violated A.R.S. 28-797 the crosswalk on a failing placed regular during to have in the basis the hours of 7:45 a.m. street. p.m. signs being and 4:00 relied on the day timely each school a man- Contrary majority’s inter- narrow ner. Brenda had crossed at this crosswalk pretation of A.R.S. 28-797 and the class every day approximately for three (Cordova children) persons of which years elementary while she attended the they determined the is intend- have longer Although school. she no attended protect, language in the ed to contained Elementary a trier of fact unequivocal, leaving no statute is clear and could find that she relied on the opportunity interpretation. phrase for being timely protec- erected and the added (G) “any person” as used subsection can signs provided. tion the meaning, given one and that mean- be but ing equivalent is not to “Cordova school contention it The District’s owed children.” signing to Brenda because such is not re- quired by of Only ambiguous is where a statute (ADOT) is mis- Guidelines liberty court at to construe its unclear is a guided. crossing Sweet, The school where language. v. State elementary school (1985); injured was an City P.2d 921 Mesa v. Kill- high crossing. The crossing, not a ingsworth, 96 Ariz. (1964). placement of school at the elementa- Although ambiguity may an be required uncertainty ry is law. to exist where there is found trial The assertion that the effect require
court’s would be all police the adjacent in the “to
districts state safety for the responsible
streets and be streets, hour”
anyone those “city planners act as and/or traffic
and to cost
engineers,” addition to the of liabili- “increasing
ty dramatically” insurance Rather,
simply unfounded. the result
would be school districts would have persons moving
duty to within crosswalks
operated controlled districts pe- narrowly-prescribed time
riod.
Finally, not this court should have ac-
cepted jurisdiction. appellate courts general policy of de-
this state follow a by special
clining jurisdiction when relief sought to obtain review of orders
action summary judgment. motions
denying for Court, Superior
United States (1985).
265, 269, 697 P.2d judgment appeal
“In view after our
usually adequate remedy is an the trial denying has on the law
court erred summary judg-
motions to dismiss
ment.”
Id. *7 P.2d 407 Appeal PIMA Matter
COUNTY SEVERANCE NO. S-2397.
ACTION
2Nos. CA-JV 88-0037. CA-JV Arizona, Appeals
Court of
Division A.
June 24, 1989.*
Review Denied Oct. * C.J., Court, Gordon, matter. Supreme not nation of this present participate did in the determi- not