Gallagher v. Tucson Unified School District
349 P.3d 228
Ariz. Ct. App.
2015
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Richard and Gwenyth GALLAGHER, and Jane Doe Gallagher, a Minor and Protected Person, by and Through Richard and Gwenyth Gallagher, as Parents and Legal Guardians of Jane Doe Gallagher, Plaintiffs/Appellants, v. TUCSON UNIFIED SCHOOL DISTRICT, A Political Subdivision of the State of Arizona, Defendant/Appellee.

No. 2 CA-CV 2014-0124.

Court of Appeals of Arizona, Division 2.

May 12, 2015.

349 P.3d 228

with [the APA], unless otherwise provided by law.” A.R.S. § 41-1030(A); accord ; . As discussed, the Policy is a rule, and the System adopted it without “substantial compliance” with the rulemaking procedure of the APA. Accordingly, the Policy is invalid, and the System was not entitled to charge the University for the 17 retirements. See, e.g., (agency ordered to compensate hospitals that received reduced reimbursement under policy adopted outside of APA).

CONCLUSION

¶ 33 For the foregoing reasons, we reverse the superior court‘s decision affirming the ruling of the System‘s board and remand to the superior court to enter an order directing the System to refund $1,149,103 to the University, with interest thereon if and as authorized by law—an issue the superior court should address on remand. Contingent upon its compliance with Arizona Rule of Civil Appellate Procedure 21, we award the University its taxable costs on appeal pursuant to A.R.S. § 12-341 (2003).

Law Office of David E. Hill, P.L.C. By David E. Hill, Tucson, Counsel for Plaintiffs/Appellants.

Miniat & Wilson, LPC By Jerald R. Wilson, Tucson, Counsel for Defendant/Appellee.

Judge VÁSQUEZ authored the opinion of the court, in which Presiding Judge KELLY and Judge HOWARD concurred.

OPINION

VÁSQUEZ, Judge:

¶ 1 Richard and Gwenyth Gallagher and their daughter Jane Doe Gallagher appeal from the trial court‘s summary judgment dismissing their negligence claims against Tucson Unified School District (TUSD). They argue the court erred by concluding A.R.S. § 12-820.05 provided TUSD immunity “for its own negligence with respect to the hiring and supervision of [its employee,] Michael Corum.” For the reasons that follow, we affirm.

Factual and Procedural Background

¶ 2 “In reviewing a grant of summary judgment, we view the evidence and reasonable inferences ‘in the light most favorable to the party opposing the motion.‘” , quoting . In October 2005, Corum applied for a job with TUSD as an exceptional education teaching assistant. In his application, Corum listed his most recent employers, including Carondelet Health Network. Rosalina Armijo, a principal of a TUSD school, hired Corum. In a deposition, Armijo testified that she “remember[ed] contacting [Corum‘s] employers,” but no documentation of those calls could be found. It was determined later that Carondelet had terminated Corum‘s employment after he “touched [a patient] inappropriately in the vaginal area and made remarks to her that she felt moist.”

¶ 3 During his employment with TUSD, Corum transferred to Mary Meredith K-12 School, which serves “students that primarily have profound emotional disabilities.” In March 2011, the Tucson Police Department (TPD) began investigating Corum after learning that his son had found child pornography on Corum‘s computer. Shortly thereafter, Corum requested a leave of absence from Mary Meredith because of a “[s]erious illness.” TPD then contacted the principal of Mary Meredith, Terri Polan, who helped officers identify the child depicted in an image on Corum‘s computer as Jane Doe Gallagher, a “non-verbal and almost non-communicative” TUSD special needs student.

¶ 4 When Corum returned for work at the end of his leave in August 2011, Polan sent him home and called TPD for an update on the criminal investigation. Corum was arrested that same day. Pursuant to a plea agreement, Corum ultimately was convicted of attempted secretly viewing or recording another person without consent.

¶ 5 In February 2012, the Gallaghers initiated this action against Corum, his wife, and TUSD. In their amended complaint, the Gallaghers alleged that TUSD was vicariously liable for Corum‘s acts and directly negligent in hiring and supervising him. TUSD filed a motion for summary judgment based on § 12-820.05(B), arguing the statute provided immunity to public entities for the felonious conduct of employees. The Gallaghers argued that § 12-820.05(B) does not apply when the entity knows of the employee‘s propensity for such conduct, and that TUSD had constructive knowledge of Corum‘s past. The trial court denied the mo1tion, but on special action review, this court reversed, holding that the exception to § 12-820.05(B) immunity would apply only if TUSD had actual knowledge of Corum‘s propensity. .

¶ 6 Following the special action, TUSD renewed its motion for summary judgment, which the trial court granted. The court then entered a final judgment in favor of TUSD pursuant to Rule 54(b), Ariz. R. Civ. P. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).

Immunity

¶ 7 The Gallaghers maintain § 12-820.05(B) does not “provide TUSD with absolute immunity for its own negligence with respect to the hiring and supervision of ... Corum.” Accordingly, they assert that the trial court erred by granting summary judgment in favor of TUSD on those claims.

¶ 8 Summary judgment is appropriate “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). Thus, a trial court should grant summary judgment “if the facts produced in support of the claim ... have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim.” . We review de novo whether there is a genuine dispute as to a material fact and whether the trial court erred in applying the law. .

¶ 9 The issue presented here involves the interpretation of § 12-820.05(B), which provides, in pertinent part: “A public entity is not liable for losses that arise out of and are directly attributable to an act or omission determined by a court to be a criminal felony by a public employee unless the public entity knew of the public employee‘s propensity for that action.” We review issues of statutory interpretation de novo. . “Our primary goal in interpreting a statute is to give effect to the legislature‘s intent, and the language of a statute is the most reliable evidence of that intent.” . Accordingly, if the language is clear and unambiguous, we apply it as written. .

¶ 10 By its clear and unambiguous language, § 12-820.05(B) insulates a public entity from liability for loss caused by an employee‘s felony criminal acts. “‘Loss’ is commonly defined as the difference between what was had before and after a specified event.” . Similarly, Webster‘s defines “loss” as “the harm or privation resulting from losing or being separated from something or someone.” Webster‘s Third New Int‘l Dictionary 1338 (1971). “Losses” can be those that arise from physical injury to persons and property, or they can be purely economic. See .

¶ 11 Section 12-820.05(B) simply refers to “losses“—it does not include any language that would limit the types of loss covered by the statute. That term therefore encompasses TUSD‘s liability for the injuries from which the Gallaghers seek to recover, including “anxiety, reasonable expenses for medical intervention or other professional assistance, loss of consortium, loss of enjoyment of life and breach of privacy experienced and reasonably probable to experience in the future.”

¶ 12 Moreover, § 12-820.05(B) does not include any language that would limit the public entity‘s immunity based on the type of action or inaction by the entity that contributed to the injury. There is no distinction between the losses the Gallaghers seek to recover through their vicarious and direct liability claims. Under either theory, the damages “arise out of and are directly attributable to” Corum‘s acts.2 § 12-820.05(B); see (“For an employer to be held liable for the negligent hiring, retention, or supervision of an employee, a court must first find that the employee committed a tort.“). And, in the absence of a distinct injury caused by an employer, the damages recoverable under either claim are the same. See ; Restatement (Second) of Agency § 217B cmt. d (1958) (“If ... judgment is rendered against both [employer and employee] for a single harm, the judgment should be for the same amount....“).

¶ 13 The Gallaghers nevertheless rely on legislative history, policy arguments, comparisons with other statutes, and cases from other jurisdictions to support their interpretation of § 12-820.05(B). And, during oral argument, they explained that § 12-820.05(B) “is an example of a latent ambiguity,” which is “found in the interplay” of these authorities. But when the language of a statute is plain and clear on its face, it is unnecessary to infer ambiguity and employ other methods of interpretation. See . We therefore disagree with the Gallaghers’ arguments and conclude § 12-820.05(B) applies to the Gallaghers’ claims for negligent hiring and supervision. See .

Knowledge of Propensity

¶ 14 The Gallaghers also argue “[m]aterial questions of fact exist” because “there is, at the very least, a jury question as to whether ... Armijo even called [Carondelet] or, if she did, made a ‘good faith’ effort to secure the necessary information regarding ... Corum‘s performance.” Again, summary judgment is appropriate if the moving party has demonstrated that “no evidence existed to support an essential element of the claim.” . In other words, “the movant need not affirmatively establish the negative of the element.” Id.

¶ 15 Section 12-820.05(B) provides an exception to a public entity‘s immunity when “the public entity knew of the public employee‘s propensity for that action.” On special action review, this court rejected the Gallaghers’ argument that constructive knowledge of the employee‘s propensity was sufficient for the exception to apply. . We held that “§ 12-820.05(B) means exactly what it says—that immunity applies unless the public entity actually knew of the ‘employee‘s propensity for that action.‘” Id. We also noted, “The Gallaghers do not suggest that TUSD had actual knowledge of Corum‘s purported propensity, and nothing in the record would support that conclusion.” Id. ¶ 12.

¶ 16 The Gallaghers now essentially reurge their constructive knowledge argument. They again assert that “constructive knowledge is sufficient for many common-law causes of action.” Id. ¶ 11. However, they fail to “explain why that is relevant to our interpretation of a plainly worded statute.” Id. Thus, we decline to address this argument further. See (“law of the case” rule applies when “the facts and issues are substantially the same as those on which the first decision rested“).

¶ 17 The Gallaghers also attempt to rally evidence to demonstrate that Armijo, the principal who hired Corum, did not contact Corum‘s previous employer in violation of A.R.S. § 15-512.3 In particular, they point to the lack of any documentation from Carondelet indicating it had received a call from Armijo. However, the record shows that Carondelet “does not maintain a record of reference requests from third-parties.” See . And, in any event, this assertion does not support the Gallaghers’ position; if Armijo never contacted Carondelet, then she did not have actual knowledge of Corum‘s propensities. See § 12-820.05(B). We thus conclude the trial court did not err in granting TUSD‘s motion for summary judgment. See .

Disposition

¶ 18 For the foregoing reasons, we affirm. TUSD requests its “attorney‘s fees and costs incurred in defending this matter.” However, it has failed to cite any authority to support its request for fees. See (“[T]he request must state the claimed basis for the award.“). Nonetheless, as the prevailing party on appeal, TUSD is entitled to its taxable costs upon compliance with Rule 21(b), Ariz. R. Civ.App. P.

Notes

1
The claims against Corum and his wife still were pending before the trial court at the time of this appeal.
2
The Gallaghers do not challenge the trial court‘s dismissal of their vicarious liability claims against TUSD.
3
Section 15-512(F) requires TUSD to “make documented, good faith efforts to contact previous employers of a person to obtain information and recommendations that may be relevant to a person‘s fitness for employment.” Based on § 15-512, the Gallaghers maintain TUSD essentially is being rewarded for failing to do something required by statute. However, that statute provides its own penalties for failing to meet its requirements. Subsection (K) provides:

The superintendent of a school district or chief administrator of a charter school or the person‘s designee who is responsible for implementing the governing board‘s policy regarding background investigations required by subsection F of this section and who fails to carry out that responsibility is guilty of unprofessional conduct and shall be subject to disciplinary action by the state board.

And, notably, § 15-512 contains its own immunity provision. Subsection (J) provides:

A school district that relies on information obtained pursuant to this section in making employment decisions is immune from civil liability for use of the information unless the information obtained is false and the school district knows the information is false or acts with reckless disregard of the information‘s truth or falsity.

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