Opinion
No. 1 CA-CV 19-0760
11-19-2020
MARLEE MAUVIS, et al., Plaintiffs/Appellants, v. SCOTTSDALE CHRISTIAN ACADEMY, INC., Defendant/Appellee.
COUNSEL Riggs, Ellsworth and Porter, PLC, Mesa By Robert L. Greer Counsel for Plaintiffs/Appellants Righi Fitch Law Group, P.L.L.C., Phoenix By Elizabeth S. Fitch, Michael Grubbs Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2017-012631
The Honorable Rosa Mroz, Judge
AFFIRMED IN PART; REVERSED IN PART AND REMANDED
COUNSEL Riggs, Ellsworth and Porter, PLC, Mesa
By Robert L. Greer
Counsel for Plaintiffs/Appellants Righi Fitch Law Group, P.L.L.C., Phoenix
By Elizabeth S. Fitch, Michael Grubbs
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann joined. WINTHROP, Judge:
¶1 Marlee Mauvis ("Marlee") challenges the superior court's dismissal of her wrongful death complaint alleging Scottsdale Christian Academy, Inc. ("SCA") was negligent in connection with the death of her husband, Gerard. We affirm the superior court's ruling that SCA did not owe a statutory duty of care under Arizona Revised Statutes ("A.R.S.") section 28-797. Nonetheless, we reverse and remand because (1) SCA owed Gerard a common law duty of care to provide a reasonably safe means of ingress and egress to its campus and (2) Marlee sufficiently alleged that SCA did not meet the applicable standard of care.
FACTS AND PROCEDURAL HISTORY
¶2 Because Marlee appeals from the grant of a motion to dismiss, we adopt the relevant fact allegations from her complaint and assume without deciding they are true for purposes of this appeal. Sw. Non-Profit Hous. Corp. v. Nowak, 234 Ariz. 387, 389, ¶ 4 (App. 2014).
¶3 In September 2016, the Mauvis family arrived at the SCA campus to attend a football game. Gerard turned their vehicle onto the campus from Tatum Boulevard ("Tatum") and searched for an unoccupied handicapped parking space to accommodate their then-nine-year-old child. Gerard did not see an unoccupied handicapped space, so he dropped off Marlee and the child near the main entrance to the field. Gerard then parked on Winchcomb Drive ("Winchcomb"), a residential street east of the SCA campus that forms a T-intersection with Tatum. The T-intersection does not have a crosswalk, and Gerard crossed Tatum—a multi-lane road with a 45-mile-per-hour speed limit and a raised median in the middle—on foot at "curb cuts" placed at and directly across from where Winchcomb intersects Tatum.
¶4 After Gerard walked to the ticket counter, he realized he had no cash to pay for the family's tickets. He returned to his car, drove to an ATM to get cash, and again parked on Winchcomb. Once more, he crossed the three northbound lanes of Tatum on foot near the curb cuts at Winchcomb. As he attempted to next cross the southbound lanes of Tatum, Gerard was struck by a vehicle and died of his injuries soon afterward.
¶5 Marlee brought a wrongful death action against SCA and the City of Phoenix ("the City") both individually and on behalf of others. She alleged SCA (1) "owed a duty of reasonable care to invitees to its campus to provide safe ingress and egress to its premises," (2) planned and built or caused to be built the "curb cuts" Gerard used to cross Tatum, and (3) knew or should have known visitors would use the curb cuts "as an unmarked crosswalk to reach SCA and the football field."
Marlee settled the claims against the City.
¶6 The superior court dismissed the complaint under Arizona Rule of Civil Procedure ("Rule") 12(b)(6). Although the court concluded SCA owed "a duty to provide a reasonably safe means of ingress and egress from [its] premises," the court also concluded that duty did not require SCA "to provide the shortest route or closest access to those coming to its campus." The court further concluded that, based on the allegations of the complaint, "the curbs, sidewalks and the roadway on both sides of Tatum Boulevard are controlled by and are the property of [the] City of Phoenix," not SCA. Additionally, the court determined that SCA, a private school, did not owe a statutory duty of care under A.R.S. § 28-797.
¶7 Marlee timely appealed the judgment, and we have jurisdiction over her appeal pursuant to A.R.S. § 12-2101(A)(1).
ANALYSIS
¶8 We review de novo the dismissal of a complaint under Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). We accept all well-pleaded facts as true and give Marlee the benefit of all inferences arising therefrom. Botma v. Huser, 202 Ariz. 14, 15, ¶ 2 (App. 2002). We will affirm the dismissal only if Marlee would not have been entitled to relief under any facts susceptible of proof in her complaint. Coleman, 230 Ariz. at 356, ¶ 8.
I. Fact Questions Remain As to Whether SCA Met the Applicable Standard of Care.
¶9 To establish a negligence claim, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) the defendant's breach of that standard; (3) a causal connection between the defendant's conduct constituting a breach and the resulting injury; and (4) actual damages. Quiroz v. ALCOA Inc., 243 Ariz. 560, 563-64, ¶ 7 (2018).
¶10 The superior court concluded SCA owed Gerard, an apparent invitee, a duty to provide a reasonably safe means of ingress and egress. See generally Ritchie v. Costello, 238 Ariz. 51, 54, ¶ 10 (App. 2015). SCA does not challenge Gerard's invitee status on appeal. Instead, SCA contends its duty did not extend "to prevent the harm or injury resulting from jaywalking" across Tatum at Winchcomb. Once the court found that a duty existed, its work was done. The court does not determine the content of a duty as a matter of law—that function is reserved for the jury. See Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 357 (1985), superseded by statute on other grounds as recognized in Maher v. United States, 56 F.3d 1039, 1042 n.4 (9th Cir. 1995).
¶11 Generally, a duty is "an 'obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.'" Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 10 (2007) (quoting Markowitz, 146 Ariz. at 354). "[I]n negligence cases, the duty if it exists is always the same—to conform to the legal standard of reasonable conduct in the light of the apparent risk." Coburn v. City of Tucson, 143 Ariz. 50, 52 (1984) (brackets omitted) (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 356 (5th ed. 1984)). As such, disputes over "what the defendant must do, or must not do," do not define duty; instead, they define the applicable standard of care. Gipson, 214 Ariz. at 143, ¶ 10 (brackets omitted) (quoting Coburn, 143 Ariz. at 52). Such disputes generally are for the trier of fact. See Ritchie v. Krasner, 221 Ariz. 288, 295, ¶ 11 (App. 2009) (stating that the elements of negligence besides duty "are factual issues, and are generally within the province of the jury").
¶12 SCA, like the superior court, relies on Nicoletti v. Westcor, Inc., 131 Ariz. 140 (1982). There, an employee of a store located within the defendant's mall was injured when she attempted a shortcut through an ornamental planter rather than use a lighted sidewalk. Id. at 141, 144. Our supreme court affirmed summary judgment for the defendant based on undisputed evidence that the plaintiff (1) had received a map indicating the location of the temporary employee parking; (2) knew or should have known of the lighted sidewalk; and (3) voluntarily attempted the shortcut through the planter, which "[a] reasonable person could not have thought . . . was an appropriate means of egress." Id. at 144. On these facts, we stated that a landowner's "duty may be diluted or extinguished if the invitee engages in explicitly or impliedly unpermitted activities or goes beyond the area to which he or she is invited." Id. at 143.
¶13 Nicoletti is distinguishable for two reasons. First, the duty to provide reasonably safe ingress and egress to invitees was not at issue because the planter was on the defendant's property. Id. at 141. Second, Marlee sufficiently alleged that a reasonable person could have viewed the curb cuts as a permitted means of ingress, stating that they "mark[ed] an accessible route across Tatum for someone in a wheelchair or with other limitations." She also alleged SCA knew or should have known visitors would use the curb cuts as an unmarked crosswalk to reach its campus.
¶14 SCA also cites Shiells v. Kolt, 148 Ariz. 424 (App. 1986). There, a previously damaged railing along a walkway in front of the defendants' office collapsed when the plaintiff attempted to vault over it. Id. at 424. Concluding that "vaulting over the railing was surely an unpermitted use of that railing," we held the plaintiff's injury "was foreign to any risk the [defendants] had created by not repairing the damaged railing," and affirmed summary judgment. Id. at 425.
¶15 It is not clear from the complaint that Gerard's use of the curb cuts was "an unpermitted use." Marlee alleged SCA planned and built the curb cuts at Winchcomb, thereby "creat[ing] an accessible route . . . across Tatum to the SCA football field." She also alleged SCA knew or should have known its on-campus parking would not accommodate everyone who wanted to attend football games, and visitors likely "would park off campus, including on residential streets," such as Winchcomb. Shiells thus is distinguishable as well. See Stephens v. Bashas' Inc., 186 Ariz. 427, 431 (App. 1996) ("When the activities conducted on the business premises affect the risk of injury off-premises, the landowner may have an obligation 'to correct the condition or guard against foreseeable injuries.'" (citation omitted)).
¶16 SCA also cites Wickham v. Hopkins, 226 Ariz. 468 (App. 2011), arguing its duty expired when Gerard left the campus and chose to cross at Winchcomb. Wickham involved a licensee, to whom no duty to provide reasonably safe ingress and egress was owed. Id. at 471, ¶ 12. Indeed, Wickham distinguished Nicoletti on this basis. Id. at 472, ¶¶ 17-18. Wickham does not apply here.
II. The Record Does Not Establish As a Matter of Law That the City's Ownership of the Sidewalks and Curb Cuts Eliminated SCA's Duty of Care.
¶17 SCA also contends it owed Gerard no duty of care because Marlee admitted the sidewalks and curb cuts became the City's property once constructed and are under the City's control. As noted above, however, Marlee also alleged SCA knew or should have known that visitors who attend SCA athletic events would park on Winchcomb and other nearby residential streets and would use the curb cuts as an unmarked crosswalk. She further alleged that this created an unreasonable danger absent "signs, marking, lighting, traffic direction and/or traffic calming techniques."
¶18 Even assuming the City now owns the curb cuts, nothing in the record suggests SCA could not have taken any steps to alleviate the alleged danger created when one of its invitees uses the curb cuts as a means to get to SCA's campus. Indeed, Marlee alleged that shortly after the accident, SCA, the City, or both "arranged for an officer to direct pedestrians and vehicular traffic" and "placed a sign on the north east [sic] corner of Winchcomb and Tatum [], which directed pedestrians not to cross" where Gerard had attempted to do so.
III. SCA Did Not Owe Gerard a Statutory Duty of Care Under A .R.S. § 28-797.
¶19 Marlee contends SCA also owed a duty of care pursuant to A.R.S. § 28-797. "A statute reflecting public policy may create a duty when a plaintiff 'is within the class of persons to be protected by the statute and the harm that occurred . . . is the risk that the statute sought to protect against.'" Quiroz, 243 Ariz. at 565, ¶ 15 (quoting Gipson, 214 Ariz. at 146, ¶ 26); see also Carrillo v. El Mirage Roadhouse, Inc., 164 Ariz. 364, 369 (App. 1990) ("A duty of care and the attendant standard of conduct can also be found in a statute even though the statute is silent on the issue of civil liability.").
¶20 Marlee alleged § 28-797 empowered SCA "to advise the City . . . to cause crosswalks to be marked in front of [its campus]," that "SCA had a duty to do so where such advice would increase safety for students and members of the public," and that it did not do so for the Winchcomb intersection. The statute authorizes various officials to "mark or cause to be marked" crosswalks in front of school buildings "by and with the advice of the school district governing board." A.R.S. § 28-797(A). It also allows "the department [of education] or local authorities [to] approve additional crossings across highways not abutting [] school grounds on application of school authorities" if the school assures in writing that it will provide crossing guards. A.R.S. § 28-797(B).
¶21 SCA, a private school, is not subject to the supervision or control of any school district governing board. See A.R.S. § 15-161. And Marlee cites no authority suggesting a private school must advise local authorities as to the placement of school crosswalks. She instead contends on appeal that charter schools are treated the same as public schools "for purposes of site plans, applicability of regulations and 'life and safety codes,'" citing A.R.S. § 15-189.01. That statute relates to "zoning and the assessment of zoning fees, site plan fees and development fees" and the "construction and development of the charter school facility," not school crossings. A.R.S. § 15-189.01(A), (C).
¶22 Marlee also relies on Alhambra School District v. Superior Court, 165 Ariz. 38 (1990). In Alhambra, a high school student was struck by a vehicle and injured while using an established school crosswalk in front of an elementary school. Id. at 39. Her parents sued the school district, alleging it failed in its duty to post signs or provide a crossing guard as required by § 28-797. Id. at 40. Our supreme court reversed summary judgment for the school district, holding that the district's duty of care extended not just to the elementary school's students, but to all who would use the crosswalk, including other students and the general public. Id. at 42.
¶23 Section 28-797 requires school officials to place portable signs or crossing guards at approved or established school crossings like the one at issue in Alhambra. See A.R.S. § 28-797(B), (D); see Alhambra, 165 Ariz. at 42 ("[T]he District applied for and established a specially marked crosswalk, where none previously existed."). Marlee did not allege Gerard used an approved or established school crossing, instead describing the Winchcomb curb cuts as "an unmarked crosswalk." And although we have cited Alhambra for the proposition that a school that voluntarily provides protection at a street crossing assumes a duty of care, see Monroe v. Basis Sch., Inc., 234 Ariz. 155, 158, ¶ 8 (App. 2014), Marlee did not allege SCA provided any such protection before the accident at issue.
CONCLUSION
¶24 We conclude SCA did not owe a duty of care under § 28-797, and affirm that portion of the judgment in favor of SCA. We further conclude, however, that fact questions remain as to whether SCA met its common law duty to provide a reasonably safe means of ingress and egress to its campus. See Gipson, 214 Ariz. at 143, ¶ 10 ("Whether the defendant has met the standard of care—that is, whether there has been a breach of duty—is an issue of fact that turns on the specifics of the individual case."). We therefore reverse the dismissal of Marlee's complaint and remand for further proceedings. Marlee may recover her taxable costs incurred in this appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.