JANE DOE I, JANE DOE II, AND JOHN DOE, BY AND THROUGH CONSERVATOR, FLEMING AND CURTI PLC, Plaintiffs/Appellants, v. SHAUNICE WARR, Defendant/Appellee.
No. 2 CA-CV 2023-0272
IN THE ARIZONA COURT OF APPEALS DIVISION TWO
Filed March 21, 2025
COUNSEL
Cadigan Law Firm PLLC, Tucson
By Lynne M. Cadigan
Manly, Stewart & Finaldi, Irvine, California
By John C. Manly
and
John Trebon P.C., Flagstaff
By John J. Trebon
Counsel for Plaintiffs/Appellants
Mitchell Stein Carey Chapman PC, Phoenix
By Anne M. Chapman and Kathleen E. Brody
Counsel for Defendant/Appellee
DOE v. WARR
Opinion of the Court
OPINION
Presiding Judge Kelly authored the opinion of the Court, in which Vice Chief Judge Eppich concurred and Judge Brearcliffe dissented.
KELLY, Presiding Judge:
¶1 Jane Doe I, Jane Doe II, and John Doe (collectively, “the Does“), each a minor at the time of the filing of the complaint, appeal the superior court‘s grant of summary judgment in favor of Shaunice Warr. The Does contend the court erred in concluding Warr had no common law or statutory duty to report the ongoing sexual abuse inflicted on them by their father. For the following reasons, we reverse the court‘s entry of summary judgment and remand for further proceedings.
Factual and Procedural Background
¶2 We view all facts and reasonable inferences in the light most favorable to the Does, the parties opposing summary judgment. See Doe v. Roman Catholic Church of Diocese of Phoenix, 255 Ariz. 483, ¶ 2 (App. 2023). The relevant facts on which the parties agree or, at least, do not dispute are as follows:
¶3 The Does endured extensive and ongoing sexual abuse by their father for many years while they were between the ages of six weeks and twelve years old. Before he committed suicide, their father, a former U.S. Border Patrol agent, had been charged for these crimes. Their mother was also separately convicted for knowing about the abuse of her children and failing to protect them.
¶4 During the years of abuse, Warr was a fellow member of the Does’ church (“the Church“) and friend of the Does’ mother. Warr also served as the Does’ Sunday school teacher. The Does attended church nearly every Sunday for years, and Warr taught them for approximately two hours every Sunday. Warr was also a U.S. Border Patrol agent assigned to the same station as the Does’ father. Although the Does’ father did not allow church members into the family home, Warr visited the Does’ home when their father was not there. Warr would also occasionally babysit for the Does at their home.
DOE v. WARR
Opinion of the Court
¶5 In October 2021, the Does filed their first amended complaint against the Church and others involved with the Church, including Warr. As to Warr, the Does asserted claims of negligence, negligent and intentional infliction of emotional distress, breach of fiduciary duty, ratification, and civil conspiracy. Each of the claims relied on the underlying assertion that Warr owed the Does either a common law duty to report any suspected abuse, a statutory duty under
¶6 Warr moved for summary judgment, seeking dismissal of all the claims against her, which the Does opposed. Following oral argument, the superior court granted Warr‘s motion, dismissing all the claims against her. The court explained the Does had not cited any legal authority to support a finding that they had a special relationship with Warr
¶7 The Does filed a motion for reconsideration, which the superior court denied. The court entered a final judgment as to Warr pursuant to
Discussion
¶8 As relevant to their negligence and breach of fiduciary duty claims, the Does argue on appeal, as they did below, that Warr owed a duty to report any reasonably suspected sexual abuse because she had a “special relationship” to the Does—which established a common law duty of care requiring such reporting—and was otherwise a “mandatory reporter” under
¶9 “On appeal from a grant of summary judgment, we review de novo the superior court‘s application of the law.” Craven v. Huppenthal, 236 Ariz. 217, ¶ 5 (App. 2014). Likewise, we review matters of statutory interpretation de novo. Id. Under Arizona law, a duty is established through either “special relationships or public policy, and we look primarily to statutes and common law to create and define duty.” Avitia v. Crisis Preparation and Recovery Inc., 256 Ariz. 198, ¶ 26 (2023). We address each in turn.
I. Common Law Duty to Report
¶10 Generally, the common law rule is that no one is legally bound to act for the benefit of, or to protect, another. See Dinsmoor v. City of Phoenix, 251 Ariz. 370, ¶ 15 (2021); Hafner v. Beck, 185 Ariz. 389, 391 (Ariz. 1995) (“We do not understand the law to be that one owes a duty of reasonable care at all times to all people under all circumstances.“). However, “a common law duty may be found in parts of the Restatement,” and the “Restatement (Second) § 324A recognizes a duty to third parties under specified circumstances where a person ‘undertakes . . . to render services to another which he should recognize as necessary for the protection of a third person.‘” Avitia, 256 Ariz. 198, ¶ 43. Thus, to the extent a common law duty to report the sexual abuse of another exists, it would stem from this broader duty to protect. Cf. Dinsmoor, 251 Ariz. 370, ¶ 15 (school-student relationship imposes affirmative duty on schools to protect students from unreasonable risks of harm). Such a duty would not necessarily require the reporter to personally intervene to prevent the abuse but would instead impose a duty to report the abuse to, for example, law enforcement. See id. ¶ 17 (discussing limits of relationship-based duty); Restatement (Third) of Torts § 41 (2012) (duty under this section does not require actor to control other person but actor must take “reasonable steps, in light of the foreseeable probability and magnitude of any harm, to prevent [harm] from occurring“).
DOE v. WARR
Opinion of the Court
¶11
¶12 The Does argue that “Warr, as a Sunday [school] primary teacher, had a ‘special relationship’ with [the Does], imposing a ‘duty,’ at the least, to report reasonably suspected child abuse.”2 As noted above, the superior court determined that the Does provided no authority indicating that a Sunday school primary teacher has “a common law duty to report suspected abuse” based on a special relationship with her students. Moreover, the court reasoned, any duty Warr owed as a Sunday school teacher “was limited to those times when [the Does] were under her control.”
¶13 We similarly cannot conclude, and the Does have not sufficiently shown, that the role of a Sunday school teacher imparts a common law duty to protect similar to that of an elementary or a grade school teacher with a recognized special relationship to his or her students. Elementary and grade school teachers have a special relationship to their students and are burdened with the common law duty to protect, in part, due to the concept of in loco parentis, under which school personnel act in place of parents while children are in their care. See LaFrentz v. Gallagher, 105 Ariz. 255, 258 (1969) (“[C]ourts have held that [a] teacher is in loco parentis . . . .“); Hale v. Window Rock Unified Sch. Dist., 252 Ariz. 420, ¶ 11 (App. 2021) (“A school‘s duty to its students is predicated upon the various roles it fills as custodian, land possessor, and quasi-parental figure . . . .“). There is no evidence of any similar duty, and the Does cite no binding legal authority for the imposition of such a legal duty at common law on a church Sunday school teacher. Accordingly, the superior court did not err in determining that the Does had failed to establish that Warr had a common law duty to report the abuse.
II. Statutory Duty to Report
¶14 In addition to duties arising under common law, duties can be created by statute. Quiroz v. ALCOA Inc., 243 Ariz. 560, ¶ 2 (2018). Under
- Any physician, physician‘s assistant, optometrist, dentist, osteopathic physician, chiropractor, podiatrist, behavioral health professional, nurse, psychologist, counselor or social worker who develops the reasonable belief in the course of treating a patient.
- Any peace officer, child welfare investigator, child safety worker, member of the
clergy, priest or Christian Science practitioner. - The parent, stepparent or guardian of the minor.
- School personnel, domestic violence victim advocates or sexual assault victim advocates who develop the reasonable belief in the course of their employment.
- Any other person who has responsibility for the care or treatment of the minor.
DOE v. WARR
Opinion of the Court
- Any person who is employed as the immediate or next higher level supervisor to or administrator of a person who is listed in paragraph 1, 2, 4 or 5 of this subsection and who develops the reasonable belief in the course of the supervisor‘s or administrator‘s employment
¶15 As below, the Does argue on appeal that Warr falls under
¶16 The superior court concluded that those who provide “care” and “treatment” are “two separate categories of persons and that ‘treatment’ should be interpreted as meaning medical treatment.” Because the court determined that Warr had provided no medical treatment to the children, it focused on whether Warr had “cared” for the children under the statute. The court found no caselaw or legislative history supporting a broad definition of “care” under
¶17 The superior court ultimately concluded that “including as a mandatory reporter anyone who provides occasional, non-professional ‘care’ to a child would pull into the scope of
¶18 In interpreting a statute, we begin with the statute‘s plain language. See In re Drummond, 257 Ariz. 15, ¶ 5 (2024). We read “each word, phrase, clause, and sentence in such a way to ensure no part of the statute is void or trivial.” Planned Parenthood Ariz., Inc. v. Mayes, 257 Ariz. 110, ¶ 15 (2024). In doing so, “we give words ‘their ordinary meaning unless it appears from the context or otherwise that a different meaning is intended.‘” Fann v. State, 251 Ariz. 425, ¶ 25 (2021) (quoting Arizona ex rel. Brnovich v. Maricopa Cnty. Cmty. Coll. Dist. Bd., 243 Ariz. 539, ¶ 7 (2018)). “When a statute‘s plain language is unambiguous in context, it is dispositive.” Drummond, 257 Ariz. 15, ¶ 5.
¶19 Here, as stated above, the plain language of
¶20 The superior court also correctly pointed out that
¶21 The language of
¶22 Our dissenting colleague concludes that, when read in context,
¶23 As stated above, the phrase, “Any other person who has responsibility for the care . . . of the minor,” follows the enumeration of physicians, dentists, nurses, counselors, social workers, peace officers, child welfare investigators, clergy members, parents, step-parents, and school personnel, among many others.
¶24 Moreover, reading the term “professional” into the statute, as the superior court did, would lead to arbitrary results. See State ex rel. Montgomery v. Harris, 237 Ariz. 98, ¶ 13 (2014) (“Statutes should be construed sensibly to avoid reaching an absurd conclusion.“). This interpretation would render other family members not specifically included in
¶25 Although not binding, an opinion from the New Mexico Supreme Court also supports our conclusion. New Mexico has a statute similar to
Every person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a school employee; a social worker acting in an official capacity; or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to [certain authorities].
¶26 The New Mexico Supreme Court reversed, concluding that the words “[e]very person,” as used in
[I]f the Legislature had meant to impose a reporting requirement on only the professionals specifically mentioned in the statute, why did it include the words, “[e]very person, including” immediately before identifying those professions? Conversely, if the Legislature had meant to impose a reporting requirement on every person, why did it then specifically mention some occupations and not others?
Id. ¶ 16. Turning to the statute‘s historical context, the court pointed out that the statute was “part of a national movement” to address the problem of child abuse and that it had been amended many times. Id. ¶¶ 18-22, 36-37. The court observed that almost all of the states that impose reporting duties on everyone have statutes that specify certain professionals who must report but also require all people to report, regardless of their profession: “This combination of identified occupations and broadly inclusive language has been widely recognized as imposing universal reporting requirements.” Id. ¶ 33. The court found “no published judicial opinion in any other state that has construed its combined specific and general statutes as imposing obligations only on the identified occupations,” and it declined to read the New Mexico statute as doing so. Id. ¶ 35.
¶27 We do not attempt to define every contour of
¶28 The question remains whether Warr, as a Sunday school teacher and babysitter for the Does, had a duty to report under
III. Dismissal of Remaining Claims
¶29 The Does also argue that the superior court improperly dismissed their claims for negligent and intentional infliction of emotional distress “without . . . analysis.” Essentially, the Does assert that neither claim requires the showing of a duty; consequently, they reason, the court‘s conclusion that Warr owed no duty to report should not have affected these two other tort claims.3
¶30 The Does are correct that Arizona‘s emotional distress causes of action do not expressly require proof of a duty. “The three required elements” for intentional infliction of emotional distress are: (1) “the conduct by the defendant must be ‘extreme’ and ‘outrageous,‘” (2) “the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from his conduct,” and (3) “severe emotional distress must indeed occur as a result of defendant‘s conduct.” Ford v. Revlon, Inc., 153 Ariz. 38, 43 (1987). And “[t]he tort of negligent infliction of emotional distress requires” that “the plaintiff witnessed an injury to a closely related person, suffered mental anguish manifested as physical injury, and was within the zone of danger so as to be subjected to an unreasonable risk of bodily harm created by the defendant.” Rodriguez v. Fox News Network, L.L.C., 238 Ariz. 36, ¶ 7 (App. 2015). Although neither cause of action expressly requires duty, each requires that there be an act that results, either intentionally or negligently, in another‘s emotional distress.
¶31 In count two of their first amended complaint for intentional infliction of emotional distress, the Does alleged:
[Warr] . . . knew that [the Does] were suffering from years of abuse and did nothing to protect them. Instead of reporting the abuse, [Warr] consciously elected to withhold the reporting of the abuse, and otherwise completely failed to intervene . . . thereby intentionally and/or recklessly creating circumstances in which [the Does] were continually exposed to . . . vicious and horrific abuse for years on end.
And count three for negligent infliction of emotional distress alleged:
[Warr] consciously withheld reporting of the abuse and placed the responsibility for stopping [the Does’ father] or removing [the Does] from [his] abuse entirely on [their mother], and completely failed to otherwise intervene . . . . This trapped [the Does] in the “zone of danger”
¶32 The underlying act alleged against Warr in the complaint was the failure to act—that is, to report—where there was a duty to do so. Because the superior court incorrectly determined that no such duty existed
Attorney Fees and Costs
¶33 Warr requested attorney fees on appeal as a sanction. We deny the request. The Does, however, are entitled to their costs as the prevailing party, upon their compliance with
Disposition
¶34 For the foregoing reasons, we reverse the superior court‘s ruling granting summary judgment in favor of Warr and remand for further proceedings consistent with this opinion.
BREARCLIFFE, Judge, dissenting:
¶35 Each of us agrees that, in interpreting a statute, we rely on the statute‘s plain meaning. See State ex rel. Ariz. Dep‘t of Revenue v. Tunkey, 254 Ariz. 432, ¶¶ 23, 31-32 (2023) (Bolick, J., concurring). In doing so, we “will not read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself,” and we “will not inflate, expand, stretch or extend a statute to matters not falling within its expressed provisions.” Roberts, 253 Ariz. 259, ¶ 20 (quoting City of Phoenix, 99 Ariz. at 133). My colleagues’ interpretation of
¶36 On its face, and in isolation,
¶37 Section 13-3620(A) identifies several categories of persons who, in some form, do or may have responsibility for what we have traditionally considered the care or treatment of children. Those listed in subsections (A)(1) through (4)—except for parents and guardians—do or may engage with children as professional treatment providers or caregivers, not casual ones. See L.A.R. v. Ludwig, 170 Ariz. 24, 27 (App. 1991) (noting the “strong policy reasons” embodied in
¶38 Under the ejusdem generis canon of statutory interpretation, “[w]here general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 199 (2012). In such cases, “one presumes that the speaker or writer has that category in mind for the entire passage.” Id. In other words, general terms used later in a statute do not render the more specific mandates preceding them meaningless. Similarly, under the noscitur a sociis canon, words “grouped in a list” are to be given “related meanings.” Id. at 195 (quoting Third Nat‘l Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322 (1977)). Consequently, it makes best sense that subsection (A)(5) does not broaden the scope of the statute but rather that it continues a list of related categories of occupations found elsewhere in the statute.
¶39 In limiting the reach of the statute to those who have taken on something akin to the professional role of others covered by the statute, the legislature ensures that criminal penalties do not fall on the unsuspecting.4 Warr‘s relationship to the Does as a Sunday school teacher and an occasional babysitter does not establish the needed professional level of care under
¶40 The appellants’ and the majority‘s reading of subsection (A)(5) would render the earlier exclusive definitions of mandatory reporters meaningless by expanding the list of reporters to include nearly every person who has any level of responsibility for a minor child. Such a reading could arguably include someone who may merely have temporary physical custody of an otherwise unaccompanied child, such as a city bus driver, an airline employee, a crossing guard, a neighbor who watches over a child for an hour after school, or a volunteer driver in a neighborhood school carpool. We should not interpret
¶41 To support its interpretation, the majority cites the New Mexico Supreme Court opinion in State v. Strauch, 2015-NMSC-009, 345 P.3d 317, even though this opinion interprets a statute that is distinct in a salient way. As the majority correctly relates above, the New Mexico law at issue in Strauch required that “[e]very person, including . . . a social worker acting in an official capacity . . . who knows or has a reasonable suspicion that a child is an abused or neglected child shall report the matter to” certain authorities. Id. ¶ 1 (first alteration in original) (quoting
¶42 The state supreme court, on review, recognized that the statute was unclear. Id. ¶ 15. It concluded, however, that its statute had been adopted as “part of a national movement” mandating reporting and that no other state with a similar statute had limited its statute‘s reach to only listed professions. Id. ¶¶ 18, 35. The state supreme court noted that, in the 1993 amendment to the statute, the legislature had placed the “inclusive language at the beginning instead of the end of the listed occupations and emphasized that the list was not exclusive.” Id. ¶ 36 (statute as amended read, “[e]very person, including but not limited to” social worker acting in an official capacity); see 2003 N.M. Laws, ch. 189, § 1(A). And then later the legislature removed the phrase “but not limited to” altogether. It did so, however, only because, under the New Mexico statutory drafting guidelines, “‘includes’ implies an incomplete listing,” serving the purpose of the phrase “including but not limited to.” Strauch, 2015-NMSC-009, ¶ 37. Consequently, the court held the phrase “every person, including” to be broad in scope and not limited to, but rather merely inclusive of, those specifically identified professions, such as a social worker in an official capacity. See id.
¶44 The majority faults reading the need for a professional relationship into the statute because the legislature could have expressly written that in if it had meant to so limit the reach of the law. Of course, if the legislature intended that “any person who has responsibility for the care or treatment of the minor” be covered, it could have written that as well. It instead wrote “any other person,” after providing a fairly explicit list of exclusively professional occupations and relationships—exclusive, of course, except for parents, stepparents and guardians, who are otherwise typically legally responsible for their children and wards. See
¶45 Again, we are all trying to understand what the legislature meant exactly because the statute is less than precise, and the consequences are serious. The appellants want to hold responsible those who failed to fulfill a legal duty imposed on them that might have prevented or lessened the harm they suffered, and the appellee faces financial ruin, reputational harm, and even criminal penalties if she failed to fulfill a legal duty. I conclude that the most reasonable interpretation of the phrase “any other person” in the context of
¶46 As to section III, because the appellants’ allegations of negligent and intentional infliction of emotional distress require the presence of a duty, and because no common law or statutory duty was shown, I respectfully dissent and would affirm the superior court‘s judgment on those claims as well.