Opinion
1 CA-CV 22-0424
02-28-2023
CARLOS SANCHEZ, SR., et al., Plaintiffs/Appellants, v. GLENDALE UNION HIGH SCHOOL DISTRICT, Defendant/Appellee.
Ahwatukee Legal Office, PC, Phoenix By David L. Abney Co-Counsel for Plaintiffs/Appellants Phillips Law Groups, PC, Phoenix By Steven Jones Co-Counsel for Plaintiffs/Appellants Law Offices of Brian C. Gonzalez, San Diego, California By Brian C. Gonzalez (Pro Hac Vice) Co-Counsel for Plaintiffs/Appellants Wright Welker & Pauole PLC, Phoenix By David K. Pauole Counsel for Defendant/Appellee Glendale Union High School District
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2018-005426 The Honorable Bradley H. Astrowsky, Judge.
COUNSEL
Ahwatukee Legal Office, PC, Phoenix By David L. Abney Co-Counsel for Plaintiffs/Appellants
Phillips Law Groups, PC, Phoenix By Steven Jones Co-Counsel for Plaintiffs/Appellants
Law Offices of Brian C. Gonzalez, San Diego, California By Brian C. Gonzalez (Pro Hac Vice) Co-Counsel for Plaintiffs/Appellants
Wright Welker & Pauole PLC, Phoenix By David K. Pauole Counsel for Defendant/Appellee Glendale Union High School District
Vice Chief Judge David B. Gass delivered the decision of the court, in which Judge Brian Y. Furuya and Judge Maurice Portley joined.
The Honorable Maurice Portley, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to article VI, section 3, of the Arizona Constitution.
MEMORANDUM DECISION
GASS, Vice Chief Judge:
¶1 C.S., a high school football player, died following a concussion he sustained during a Glendale Union High School District (the district) game. C.S.'s parents sued the district for negligence. The superior court granted summary judgment for the district, finding immunity protected the district's actions after C.S. collapsed. No genuine issue of material fact existed regarding the district's actions before C.S. collapsed. C.S.'s parents appealed.
¶2 Our sympathies lie with C.S.'s parents. They have suffered an unimaginable loss. But not every loss is actionable. Here, the law lies with the district. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶3 The district adopted its one-page Emergency Action Plan (the plan) before the 2017 high school football season. The district's plan directs what actions to take during a football game when a medical emergency arises, including (1) calling 911 and (2) if the injured person is unresponsive and not breathing, normally providing cardiopulmonary resuscitation and using an Automatic External Defibrillator (AED). The plan identifies the "911 Team" members and their roles. The plan sets the entrance for the ambulance and directs a 911 team member meet the ambulance at that entrance and take it to the injured person. The plan also instructs the athletic trainer and athletic director to get the AED and explains how to use it. Last, the document directs the plan to be emailed to the Arizona Interscholastic Association, which the district did.
¶4 On October 20, 2017, while the plan was in force, C.S. sustained a head injury while playing in a football game for Moon Valley High School. A short time later, C.S. died from his injury. The district and C.S.'s parents dispute the timeline following C.S.'s collapse. The district relied on game footage and the emergency transportation services log to show C.S. arrived at the hospital about 30 minutes after he collapsed. C.S.'s parents contest the accuracy of this account but provide no evidence supporting a different timeline or expert testimony showing C.S. would have survived if he had arrived sooner.
¶5 C.S.'s parents filed a complaint against the district for wrongful death and against the companies responsible for manufacturing, distributing, and selling C.S.'s helmet for negligence and strict liability. C.S.'s parents and the helmet companies settled and dismissed their case.
¶6 Following discovery, the district filed a motion for summary judgment claiming statutory immunity because the district adopted and followed the plan. Alternatively, the district argued it exceeded the standard of care and any alleged breach did not cause C.S.'s death.
¶7 In response, C.S.'s parents argued the district was not immune for its execution of the plan. Specifically, C.S.'s parents contend the district should have given the plan to a local emergency department, opened the access gate before the game, ensured "key personnel" knew their roles under the plan, and had an ambulance onsite during the game. C.S.'s parents claim, if the district had taken those steps, C.S. would have arrived at the hospital faster and likely survived.
¶8 Additionally, C.S.'s parents argued genuine issues of material fact exist regarding the district's negligence before C.S.'s fatal injury. Specifically, C.S.'s parents claim the district did not: (1) inform them fully of the dangers of concussions in football; (2) address adequately a concussion C.S. suffered in 2016; and (3) properly inspect the new helmet C.S.'s parents bought after the 2016 concussion.
¶9 The superior court heard oral argument and granted the district's summary judgment motion. The superior court held the district immune from its actions the night C.S. died because the district's plan "determined, without the need for any additional implementing decision," who would respond to an emergency and who would call 911. The superior court also noted "no regulations in place . . . require school districts to contract for the presence of an ambulance at high school football games."
¶10 The superior court also found no factual issues regarding causation precluded summary judgment because C.S.'s injury was fatal before he arrived at the hospital and C.S.'s parents "cannot show [C.S.] would have survived but for the [district's alleged breach." Further, the superior court found, even if the school had followed its own procedures, C.S. would have played in the football game because his doctor had cleared him to play for the 2017 season.
¶11 C.S.'s parents timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 and -2101.A.1.
Absent material revisions after the relevant dates, any statutes and rules cited refer to the current version unless otherwise indicated.
ANALYSIS
¶12 C.S.'s parents argue the superior court erred in granting the district's motion for summary judgment because absolute immunity does not apply to the district's actions and the district's failure to meet the standard of care caused C.S.'s death. Specifically, C.S.'s parents argue the district was negligent in failing to take appropriate actions before and on the night C.S. died.
¶13 Summary judgment is appropriate when "no genuine dispute as to any material fact" exists and "the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a); see also Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990). "This court reviews a grant of summary judgment de novo, viewing the facts and reasonable inferences in the light most favorable to the party opposing the motion and will affirm for any reason supported by the record, even if not explicitly considered by the superior court." CK Family Irrevocable Tr. No. 1 v. My Home Group Real Estate LLC, 249 Ariz. 506, 508, ¶ 6 (App. 2020) (as amended).
I. Absolute immunity under A.R.S. § 12-820.01 protected the district in adopting its plan before the 2017 football season and in following that plan the night C.S. died.
¶14 C.S.'s parents argue the district was negligent because it failed to "respond effectively, properly, and rapidly on October 20, 2017 once [C.S.]" was injured. The district argues its decision to adopt its plan was a policy decision protected by immunity and it followed the plan after C.S. collapsed.
¶15 Despite owing a duty, a public entity is immune from liability "for acts and omissions of its employees constituting . . . [t]he exercise of an administrative function involving the determination of fundamental governmental policy." A.R.S. § 12-820.01.A.2. The determination of governmental policy includes deciding: (1) whether to seek or provide resources to purchase equipment; and (2) "whether and how to spend existing resources, including those allocated for equipment, facilities and personnel." A.R.S. § 12-820.01.B.1(a), .2.
¶16 If a school district's negligence is the proximate cause of injury, "the rule is liability and immunity is the exception." Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 164 (App. 1996) (citation omitted). A.R.S. § 12-820.01 provides immunity "only if it clearly applies." Id. Immunity applies to discretionary, affirmative, policy decisions. Myers v. City of Tempe, 212 Ariz. 128, 131, ¶ 12 (2006); Tostado v. City of Lake Havasu, 220 Ariz. 195, 199, ¶ 16 (App. 2008); Warrington by Warrington v. Tempe Elementary Sch. Dist. No. 3, 187 Ariz. 249, 253 (App. 1996) (citation omitted). School districts are public entities protected by A.R.S. § 12-820.01. Warrington, 187 Ariz. at 251-52. And the entity asserting immunity has the burden to prove its applicability. Fidelity Sec. Life Ins. Co. v. State, Dep't of Ins., 191 Ariz. 222, 225, ¶ 9 (1998).
¶17 A public entity is immune from non-discretionary decisions followed automatically from its own policy decision. See Myers, 212 Ariz. at 131, ¶ 12. In Myers, the City of Tempe dispatched a specified fire department according to its fire protection and emergency services agreement. Id. at 129, ¶¶ 2-3. The Myers plaintiffs argued Tempe was liable because of: (1) its decision to enter the agreement; (2) its decision to dispatch the specified fire department; and (3) the fire department's decision (under vicarious liability) to provide specific care to the decedent. Id. at 130, ¶ 8. Only the first two decisions are relevant to the issues in this appeal.
¶18 Tempe's decision to enter the agreement was a policy decision because "[i]t involved weighing risks and gains, concerned the distribution of resources and assets, and required consulting the city's subject matter experts." Id. at 130, ¶ 10. As the Supreme Court held, the immunity from the policy decision to enter the agreement covered Tempe's dispatch of the fire department because it "follow[ed] automatically from the terms of the [agreement]." Id. at 131, ¶ 12.
¶19 The district, citing Myers, argues it was immune because it followed its plan on October 20, 2017. The district argues it "exercised its discretion in determining how best to utilize its finite resources." C.S.'s parents do not refute this claim. In fact, C.S.'s parents say "the main problem is not the [district's decision to create a flawed emergency action plan, but the [district's negligent implementation of it." C.S.'s parents, thus, concede the decision to adopt the plan was a policy decision protected by immunity. See Harris v. Cochise Health Sys., 215 Ariz. 344, 350, ¶ 18 (App. 2007).
¶20 C.S.'s parents attempt to distinguish Myers by claiming the district, unlike the city in Myers, made implementation decisions and its actions did not follow directly and necessarily from the plan. Specifically, C.S.'s parents claim the district was negligent because it failed to: (1) give the plan to local emergency responders ahead of time; (2) unlock the gate before the game; (3) ensure "key personnel" knew their roles; and (4) have an ambulance on site before the game. C.S.'s parents argue the district's failures delayed the administration of life-saving medical services for C.S.
¶21 The plan, however, does not address or require the district or its personnel to take any of these four actions. See supra ¶ 3. The plan does not require the district to distribute the plan to local emergency responders or unlock the gate prior to football games. Additionally, C.S.'s parents do not point to any evidence the "key personnel" did not know their roles. Rather, C.S.'s parents argue errors occurred because the staff did not know about C.S.'s prior concussion, and incorrectly told the 911 operator C.S. "was having a seizure." But C.S.'s Parents' medical expert reported C.S.'s "head injury was accompanied by collapse and seizure." (Emphasis added). And on that night, the emergency team followed the plan. Moon Valley's athletic trainer responded to C.S. once he collapsed, directed another athletic trainer to call 911, and attended to C.S. with the team doctor until emergency medical services arrived and took C.S. to the hospital.
¶22 C.S.'s parents fail to demonstrate any evidence the district veered from the plan or made any implementation decisions under it. On this record, we find no error. Because we find the superior court correctly found the district immune for its actions in adopting and following the plan, we need not address C.S.'s parents' argument regarding whether the district met the standard of care. See A.R.S. § 12-820.01.A.2.
II. The superior court did not err in granting summary judgment on the district's acts before the night C.S. died.
¶23 C.S.'s parents argue issues of material fact prevented the superior court from granting summary judgment for the district based on breach and proximate cause. C.S.'s parents argue three points on appeal: (1) if the district had "fully informed [them] about the risks of concussive injury in playing hard-contact varsity tackle football," C.S.'s parents would not have allowed C.S. to play varsity football; (2) if the district had properly examined C.S. after his 2016 concussion, the district would have either (a) prevented C.S. from playing or (b) provided "better protective measures"; and (3) the district failed to "properly" fit, inflate, inspect, and maintain C.S.'s helmet-leading to his death. The district argues C.S.'s parents fail to support their proximate cause arguments with any evidence. Though the superior court did not directly respond to these allegations in its ruling, this court may affirm the judgment. CK Family, 249 Ariz. at 508, ¶ 6.
¶24 To prevail on a negligence claim, a party must prove "(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Bottomlee v. State, 248 Ariz. 231, 234, ¶ 8 (App. 2020) (citation omitted). The parties do not dispute the existence of a duty. Instead, they dispute whether the district breached its duty by failing to meet the standard of care, and whether the alleged breach caused C.S.'s injury and death.
¶25 We begin with an issue the district raised for the first time, during oral argument before this court. The district suggested it was immune for its actions before the fateful football game because it followed the statutory return-to-play requirements under A.R.S. § 15-341.A.24 (2016). Under that statute, district governing boards must "prescribe and enforce" guidelines regarding warnings about-and procedures following-concussions. A.R.S. § 15-341.A.24(b) (2016). School districts are "not subject to civil liability for any act, omission or policy undertaken in good faith to comply with the requirements of this subdivision[,] or for a decision made or an action taken by a health care provider." Id. Relevant here, the statute requires: (1) a student's parent sign a form stating "the parent is aware of the nature and risk of concussion"; and (2) a health care provider-"trained in concussions and head injuries" - evaluate and clear a student to return to play after a known concussion. Id.
¶26 In supplemental briefing, the district argues it followed these requirements solely because C.S.'s doctor cleared C.S. to play. The district, thus, argues it is immune from liability regarding its decision to allow C.S. to play in the 2017 football season. C.S.'s parents argue, in the supplemental briefing, immunity under A.R.S. § 15-341.A.24 is irrelevant to their theory of negligence because they do not: (1) challenge decisions made by C.S.'s doctor; (2) seek to impose liability "for any act, omission or policy" under the statute; and (3) seek to hold anyone liable for failing to comply with the statute. We conclude waiver is appropriate here because the district's late-proffered defense suggests material factual issues for the superior court to consider because nothing in the record shows the parties or the superior court addressed whether C.S.'s doctor was "trained in concussions and head injuries." See Contreras Farms Ltd. LLC v. City of Phoenix, 247 Ariz. 485, 489, ¶ 13 (App. 2019).
¶27 We, thus, turn to the three issues C.S.'s parents raise. First, C.S.'s parents argue the district did not properly inform C.S. and his parents regarding the risk of, and proper procedures to address, head trauma in football. C.S.'s parents note the information provided by the school was in English only and they, like many other families in the district, read only Spanish. Though the superior court did not directly address this argument, undisputed evidence showed C.S.'s parents understood the risks. In depositions, C.S.'s parents explained they understood the dangers of concussions from their son's explanation after his 2016 concussion and his doctor's explanations. Father said his understanding of the risk of serious head injuries prompted him to buy C.S. a new helmet for the 2017 season. And critically, C.S.'s parents presented no additional evidence-or even said-they would have made different decisions had the school's warnings been in Spanish.
¶28 Second, C.S.'s parents claim the district failed to properly evaluate and monitor C.S. following his 2016 concussion. District protocols allows students to return to play following a concussion with a doctor or the athletic trainer's approval. C.S.'s parents concede C.S.'s doctor approved C.S. to play in the 2017 season. Even so, after a student suffers a concussion, the district may administer an "ImPACT concussion test" before the student plays football and will continue monitoring the student. Neither the athletic trainer, the athletic director, nor the head coach saw C.S.'s paperwork indicating his 2016 concussion. As a result, no one administered a subsequent ImPACT concussion test.
¶29 Still, C.S.'s parents' medical expert conceded he would have approved C.S. to play in the 2017 season without restrictions. And C.S.'s parents provide no evidence from a medical professional stating: (1) C.S. would not have passed the concussion screening, preventing him from playing; or (2) the protective measures the coaches may have followed would have prevented his injury. Further, C.S.'s parents' expert neurologist report did not indicate preventative measures may have prevented C.S.'s death. C.S.'s parents, thus, came forward with no evidence to establish causation.
¶30 As part of the second point, C.S.'s parents argue the district failed to hire experienced coaches. In support, C.S.'s parents presented a report from an experienced football coach saying the head coach was a new coach, in his first year, and admitted to having "very limited understanding" of the concussion protocol. Missing from parent's argument is any reference to evidence showing the coaching staff did anything wrong and caused C.S.'s death as a result.
¶31 Third, C.S.'s parents also claim the district was negligent because it placed a decorative stripe over C.S.'s helmet, preventing anyone from inflating the helmet's air pads. Indeed, C.S.'s parents provided an expert's report stating C.S.'s helmet presented "an unreasonable risk of harm" in its uninflated state. But that expert also reported C.S.'s helmet was "defective in both design and testing, which was the proximate cause of [C.S.'s] fatal injuries." During deposition, the athletic trainer described the protocol he has used for 20 years to ensure helmets fit correctly and confirmed he tested the fit for C.S.'s new helmet. C.S.'s parents challenge the athletic trainer's credibility on this point. Even so, C.S.'s parents point to no evidence the district would have discovered the alleged defects if someone had properly inspected C.S.'s helmet before the night he died. Indeed, parent's helmet expert had to engage in extensive testing to identify the alleged defect and does not conclude the logo tape on C.S.'s helmet caused his death. The report itself does not create an issue of material fact.
¶32 In summary, C.S.'s parents presented no well-founded expert evidence from which a jury could conclude the district's actions or inactions cause C.S.'s death. On this record, we find no error in the superior court's grant of summary judgment in favor of the district.
COSTS
¶33 C.S.'s parents request their costs under ARCAP 21 and A.R.S. §§ 12-331, -341, -342. We decline to award costs because C.S.'s parents did not prevail.
CONCLUSION
¶34 We affirm.