Monroe v. Basis School, Inc.

IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

JENNIFER MONROE, A SINGLE WOMAN,

Plaintiff/Appellant,

v.

BASIS SCHOOL, INC., AN ARIZONA CORPORATION,

Defendant/Appellee.

No. 2 CA-CV 2013-0047

Filed February 10, 2014

Appeal from the Superior Court in Pima County

No. C20115339

The Honorable Jan E. Kearney, Judge

AFFIRMED

COUNSEL

Monroe McDonough Goldschmidt & Molla, P.L.L.C., Tucson

By Karl E. MacOmber

Counsel for Plaintiff/Appellant

Grasso Law Firm, P.C., Chandler

By Robert Grasso, Jr. and Kim S. Alvarado

Counsel for Defendant/Appellee

OPINION

Judge Miller authored the opinion of the Court, in which Presiding

Judge Vásquez and Chief Judge Howard concurred.

MONROE v. BASIS SCHOOL

Opinion of the Court

M I L L E R, Judge:

¶1 Jennifer Monroe appeals from the judgment dismissing

her negligence action against BASIS School, Inc. This appeal

requires us to determine whether a charter school has a duty of care

to its students as they travel to and from school. The trial court

found BASIS owed no duty to Monroe and, even assuming a duty,

there had been no breach. Because we agree BASIS did not owe a

duty to Monroe, we affirm.

Factual and Procedural Background

¶2 The following facts are undisputed. On October 17,

2003, Monroe, then an eleven-year-old, fifth-grade student at BASIS,

a charter school, was struck by a truck in a busy intersection

crosswalk as she rode her bicycle from the school to her home. As a

result of the accident, Monroe was in a coma for two weeks and

suffered permanent injury. The intersection where the accident

occurred is located approximately one block from BASIS. The

intersection was equipped with marked crosswalks and traffic

lights, including a walk/don’t walk pedestrian light and left turn

arrow. No crossing guards were present at the intersection.

¶3 Monroe filed her complaint after her eighteenth

birthday, claiming BASIS had been negligent for failing to post a

crossing guard at the intersection. Although not alleged in her

complaint, Monroe also contends that BASIS negligently located its

school in close proximity to the subject intersection. BASIS moved

for summary judgment on the basis of duty.1 The trial court granted

the motion finding that BASIS owed no common law or statutory

duty to Monroe. Monroe timely appealed, and we have jurisdiction

pursuant to A.R.S. § 12-2101(A)(1).

1BASIS also moved to exclude the testimony of Monroe’s

expert, which the trial court granted for purposes of the summary

judgment motion. Because we affirm on other grounds, we do not

address this issue or the court’s finding that there were no issues of

material fact.

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MONROE v. BASIS SCHOOL

Opinion of the Court

Discussion

¶4 Monroe contends that BASIS owed a duty to protect her

from an unreasonable risk of harm on her way from the school to

her final destination. Whether a duty exists “is a matter of law for

the court to decide,” while the remaining elements are factual issues

typically decided by the jury. Gipson v. Kasey, 214 Ariz. 141, ¶ 9, 150

P.3d 228, 230 (2007). Duty is defined as a legal obligation that

requires a defendant “to conform to a particular standard of conduct

in order to protect others against unreasonable risks of harm.”

Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366

(1985). “Whether the defendant owes the plaintiff a duty of care is a

threshold issue; absent some duty, an action for negligence cannot

be maintained.” Gipson, 214 Ariz. 141, ¶ 11, 150 P.3d at 230.

Accordingly, when no duty exists, a defendant cannot be found

liable. See Markowitz, 146 Ariz. at 356, 706 P.2d at 368.

Does the Student-School Relationship Impose a Duty To Students

Traveling To and From School?

¶5 A duty of care may arise from the relationship between

the parties. See Stanley v. McCarver, 208 Ariz. 219, ¶ 7, 92 P.3d 849,

851 (2004) (duty may arise from special relationship between parties,

based in contract, family relations, or joint undertakings). The

student-school relationship is one that can impose a duty within the

context of the relationship. Hill v. Safford Unified Sch. Dist., 191 Ariz.

110, 112, 952 P.2d 754, 756 (App. 1997); see also Gipson, 214 Ariz. 141,

¶ 19, 150 P.3d at 232; Restatement (Third) of Torts (Physical and

Emotional Harm) § 40 (2012) (special relationships giving rise to a

duty include a school with its students). Schools have “both a

statutory and common law duty not to subject students within their

charge to a[n] . . . unreasonable risk of harm through acts, omissions,

or school policy.” Hill, 191 Ariz. at 112, 952 P.2d at 756; see also

A.R.S. § 15-341(A)(16) (governing board shall provide for adequate

supervision of pupils in instructional and non-instructional

activities).

¶6 The scope of the duty imposed by the student-school

relationship is not limitless. See Hill, 191 Ariz. at 112, 952 P.2d at 756

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MONROE v. BASIS SCHOOL

Opinion of the Court

(school owes duty to students within its charge); Restatement § 40

cmt. f (duty arising within and confined by relationship does not

extend to risks outside relationship). “The relationship between a

school and its students parallels aspects of several other special

relationships—it is a custodian of students, it is a land possessor

who opens the premises to a significant public population, and it

acts partially in the place of parents.” Restatement § 40 cmt. l.

Where a duty arises from a special relationship, the duty is tied to

expected activities within the relationship. Id. Therefore, in the

student-school relationship, the duty of care is bounded by

geography and time, encompassing risks such as those that occur

while the student is at school or otherwise under the school’s

control.2 Restatement § 40(b)(5) and cmt. f, l; see also Norton v.

Canandaigua City Sch. Dist., 624 N.Y.S.2d 695, 697 (N.Y. App. Div.

1995) (school’s duty to student strictly limited by time and space and

student-school relationship “exists only so long as a student is in its

care and custody during school hours,” terminating when child has

departed from school’s custody); Young v. Salt Lake City Sch. Dist., 52

P.3d 1230, ¶ 14 (Utah 2002) (extent of student-school relationship

limited to school’s custody over that student).

¶7 It is the general rule that “absent a statute to the

contrary or an undertak[ing] specifically assumed, an educational

institution has no duty ‘to conduct or supervise school children in

going to or from their homes.’” 5 James M. Rapp, Education Law,

§ 12.10[5], at 12-296.5 (2013), quoting Gilbert v. Sacramento Unified Sch.

Dist., 65 Cal. Rptr. 913, 916 (Ct. App. 1968); see also Wright v. Arcade

Sch. Dist., 40 Cal. Rptr. 812, 813-16 (Ct. App. 1964) (holding no

common law duty to transport pupils between home and school and

2This does not mean that a school never has a duty to protect

its students beyond the school’s physical boundaries or outside of

normal school hours. See, e.g., Delbridge v. Maricopa Cnty. Cmty.

College Dist., 182 Ariz. 55, 59, 893 P.2d 55, 59 (App. 1994) (school

owed duty to student injured in off-campus accident where student

was performing exercise supervised by school instructor and

included in curriculum).

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MONROE v. BASIS SCHOOL

Opinion of the Court

thus school district had no duty to pupil injured crossing busy

intersection on way to school). Based on this general principle, a

school has no affirmative, common law duty to provide school

crossing guards. 5 Rapp, supra, § 12.10[5]; see also Young, 52 P.3d

1230, ¶ 16 (concluding school district had no common law duty to

provide crossing guard at crosswalk located opposite school).

¶8 Arizona law recognizes, however, that if a school

voluntarily undertakes to provide protection at a street crossing, a

duty of care is imposed on that conduct. For instance, in Alhambra

School District v. Superior Court, 165 Ariz. 38, 796 P.2d 470 (1990), our

supreme court considered a school district’s affirmative duty to

persons using a school crosswalk. By establishing a “marked

crosswalk where none previously existed, the District created a

relationship with those who would use the crosswalk and thereby

assumed a duty of reasonable care with respect to its operation.” Id.

at 42, 796 P.2d at 474. Thus, the school owed a duty of reasonable

care to any pedestrian who used the crosswalk, not just its students.

See id. at 43, 796 P.2d at 475. Similarly, the Attorney General relied

on Alhambra when opining that although schools do not have

“blanket ‘portal-to-portal’ liability,” affirmative action by the school

may create a relationship that could establish a duty. 3 1994 Op.

Ariz. Att’y Gen. I94-001.

¶9 Here, Monroe left BASIS’s custody to travel from the

school to her home. Because BASIS did not have custody, it did not

have a protective obligation and lacked the special, student-school

relationship with Monroe after she left the school. See Young, 52

P.3d 1230, ¶ 16 (“Given that the [school district] did not have

custody of [the student] at the time he suffered his injury, it lacked a

special relationship with him at that time.”); Pratt v. Robinson, 349

N.E.2d 849, 853 (school district lacked custody once it safely

dropped off student at bus stop just as it would if “the child had

3Although Attorney General Opinions are advisory only,

Marston’s Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 94,

644 P.2d 244, 248 (1982), they may be persuasive, Neary v. Frantz, 141

Ariz. 171, 176, 685 P.2d 1323, 1328 (App. 1984).

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MONROE v. BASIS SCHOOL

Opinion of the Court

been hurt while walking home from a neighborhood school”).

Moreover, BASIS did not undertake any affirmative action

regarding crosswalks or crossing guards at the subject intersection.

See 5 Rapp, supra, § 12.10[5], at 12-296.5; cf. Alhambra, 165 Ariz. at 42,

796 P.2d at 474 (creation of marked crosswalk created relationship

between school district and all potential crosswalk users). Thus,

BASIS did not owe a duty of care to protect Monroe traveling to and

from school.

¶10 Monroe also contends that the school’s proximity to a

busy intersection rendered its location4 dangerous to elementary

students and that, as a result, BASIS had a duty to provide a

crossing guard at the subject intersection. In support of this

argument, Monroe relies on Warrington v. Tempe Elementary School

District No. 3, 187 Ariz. 249, 926 P.2d 673 (App. 1996); see also

Warrington v. Tempe Elementary Sch. Dist. No. 3, 197 Ariz. 68, ¶ 9,

3 P.3d 988, 990 (App. 1999) (“Warrington II”). In Warrington, this

court considered a school’s affirmative duty to students using school

bus transportation concerning the placement of bus stops. 187 Ariz.

at 250, 253, 928 P.2d at 674, 677. There, a school bus dropped off a

seven-year-old student near a busy intersection and, while walking

home from the bus stop, the child was seriously injured after he ran

into the street and was hit by an automobile. Id. at 250, 928 P.2d at

674. The court’s analysis focused on whether school bus stop

placement involved a fundamental governmental policy

determination and therefore was subject to absolute immunity

under A.R.S. § 12-820.01(B), which bars tort liability for public

entities. Id. at 253, 928 P.2d at 677. Because placement of bus stops

was part of the day-to-day performance of the school district’s

4Monroe initially argued the duty BASIS owed to Monroe in

selecting a school location is identical to that owed to the injured

student in Warrington v. Tempe Elementary School District No. 3, 187

Ariz. 249, 926 P.2d 673 (App. 1996) in its choice of bus stops. At oral

argument, however, counsel clarified that the school location was

secondary to Monroe’s principal contention based on the absence of

a crossing guard.

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MONROE v. BASIS SCHOOL

Opinion of the Court

transportation supervisor, the court concluded such a responsibility

was an operational function rather than a determination of policy.

Id. Having found no immunity, the court determined that the school

district “had a duty not to subject [its] students to [an] . . .

unreasonable risk of harm.” Id. Moreover, the Warrington II court

favorably cited common law duty decisions outside Arizona. 197

Ariz. 68, ¶ 9, 3 P.3d at 990. For instance, in Brooks v. Woods, 640 P.2d

1000, 1002 (Okla. Civ. App. 1981) the court concluded that school

transportation was not a mandatory duty, but if the school accepted

such responsibility, “it carrie[d] with it a duty to exercise reasonable

judgment.” See also Tracy A. Bateman, Tort Liability of Public Schools

and Institutions of Higher Learning for Accidents Associated with

Transportation of Students, 23 A.L.R.5th 1, § 8[a] (1994) (negligence of

schools for selection of locations for bus stops).

¶11 We find Monroe’s reliance on Warrington misplaced and

decline to extend its holding to the facts of the case at bar. The

central question before us does not concern bus stop placement nor

does it involve any affirmative conduct on the part of BASIS. Cf.

Alhambra, 165 Ariz. at 42, 796 P.2d at 474 (creation of marked

crosswalk created relationship between school district and all

potential crosswalk users). Rather, we are tasked with determining

whether a school owes a duty of care to a student traveling to and

from school when that student is not in the school’s custody nor

participating in a school-sponsored function. Monroe cites to no

authority and we are aware of none that defines a school’s common

law duty so broadly.

Is There a Statutory Duty?

¶12 The existence of a duty does not necessarily depend on

a preexisting or direct relationship between the parties. A duty of

care also may be imposed by the requirements of a statute. Alhambra

Sch. Dist., 165 Ariz. at 42, 796 P.2d at 474; see also W. Page Keeton et

al., Prosser and Keeton on Torts § 36, at 220-21 (5th ed. 1984) (many

courts have found criminal statutes create implied intent to provide

for tort liability).

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MONROE v. BASIS SCHOOL

Opinion of the Court

¶13 BASIS is a charter school, which is defined as a public

school that serves as an alternative to traditional public schools.

A.R.S. § 15-181(A). Arizona statutes and regulations create, dictate,

and govern the conduct of charter schools. See A.R.S. §§ 15-181

through 15-189. Our legislature differentiates charter schools from

traditional public schools, but still requires compliance with certain

rules and regulations, as reflected in the relevant portions of A.R.S.

§ 15-1835:

E. The charter of a charter school shall

ensure the following:

1. Compliance with federal, state and

local rules, regulations and statutes relating

to health, safety, civil rights and insurance.

The department of education shall publish

a list of relevant rules, regulations and

statutes to notify charter schools of their

responsibilities under this paragraph.

....

5. That, except as provided in this

article and in its charter, it is exempt from

all statutes and rules relating to schools,

governing boards and school districts.

¶14 Monroe argues that the Arizona Department of

Transportation (ADOT) manual, entitled Traffic Safety for School

Areas Guidelines (Guidelines), are rules and regulations under

§ 15-183(E)(1), thereby imposing a statutory duty upon BASIS.

Monroe contends the Guidelines required BASIS to consider the

5Section 15-183 has been amended nineteen times since the

date of Monroe’s accident. See, e.g., 2013 Ariz. Sess. Laws, ch. 251,

§ 1 and ch. 68, § 1; 2012 Ariz. Sess. Laws, ch. 212, § 1. Unless

otherwise noted, we apply the version in effect at the time of the

accident. See 2003 Ariz. Sess. Laws, ch. 214, § 2; Taylor v. Travelers

Indem. Co. of America, 198 Ariz. 310, n.2, 9 P.3d 1049, 1052 n.2 (2000).

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MONROE v. BASIS SCHOOL

Opinion of the Court

proximity to arterial roadways when choosing a site and whether to

post adult crossing guards at major signalized intersections. We

therefore next examine whether the Guidelines constitute a “rule” or

“regulation” creating a duty for BASIS under § 15-183(E)(1).

¶15 Monroe admits the guidelines have not been

implemented as a formal rule by ADOT but asserts that the

Guidelines “have the force and effect of law,” relying on Griffith

Energy, L.L.C. v. Arizona Department of Revenue, 210 Ariz. 132, 108

P.3d 282 (App. 2005). Monroe’s reliance on Griffith Energy is

misplaced. There, the subject statute on tax valuation for electric

generation facilities expressly directed the Arizona Department of

Revenue (ADOR) to adopt tables of valuation factors to be used in

the calculation. Id. ¶¶ 3, 12 (ADOR’s adoption of table “an exercise

of a legislatively mandated act”). Here, the Guidelines are

published with the intent “to provide guidelines for the

implementation of the [Manual on Uniform Traffic Control Devices]

part VII, in accordance with ARS 28-797.” Section 28-797, A.R.S.,

deals exclusively with school crossings, however, and nothing

within the section directs ADOT to adopt rules or regulations

concerning the placement of crossing guards. Additionally, the

Guidelines are not referenced by § 15-183, nor were they enacted as

an administrative rule pursuant to A.R.S. § 41-1001, et seq. Thus, the

Guidelines’ recommendations cannot be construed as rules or

regulations, nor do they have the force and effect of law.

Does Public Policy Support a Duty?

¶16 Having declined to recognize a duty based on the

particular relationship between the parties and finding no statutory

duty, we turn to public policy considerations. See Gipson, 214 Ariz.

141, ¶ 23, 150 P.3d at 232 (“Public policy may support the

recognition of a duty of care.”).

¶17 In many instances, the legislature reflects public policy

by codifying certain duties and obligations. See Estate of Maudsley v.

Meta Servs., Inc., 227 Ariz. 430, ¶ 21, 258 P.3d 248, 254 (App. 2011)

(finding of duty supported by mental health statutes reflecting

public policy that imposes obligations on entities that screen,

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MONROE v. BASIS SCHOOL

Opinion of the Court

evaluate, and treat mentally ill); Estate of Hernandez v. Ariz. Bd. of

Regents, 177 Ariz. 244, 251-53, 866 P.2d 1330, 1337-39 (1994)

(existence of statute criminalizing conduct one aspect of Arizona law

supporting recognition of tort duty). Section 15-341, A.R.S.,

enumerates a wide variety of general powers belonging to the school

district governing boards and duties that schools are obligated to

follow. See, e.g., A.R.S. § 15-341(A)(5), (21) (“[a]cquire school

furniture” and “[e]stablish a bank account”).6

¶18 When the legislature has intended to extend the scope

of duty beyond that imposed by the school-student relationship, it

has done so. For instance, § 15-341(A)(14) requires schools to

“[d]iscipline students for disorderly conduct on the way to and from

school.” The legislature could have included a similar provision

governing the safety of students on the way to and from school, but

has not done so. Moreover, this court distinguished a school’s

authority to discipline a student from the ability to supervise a

student off-campus. See Collette v. Tolleson Unified Sch. Dist., No. 214,

203 Ariz. 359, ¶ 19, 54 P.3d 828, 833 (App. 2002) (“The ability to

impose discipline after the fact is significantly different from the

power to control a student’s conduct before the fact.”). Generally,

once students independently leave school grounds, with or without

permission, their actions are outside the supervisory power of

school officials. See id. ¶ 19.

¶19 We also note that while schools may “[p]rovide

transportation or site transportation loading and unloading areas for

any child or children if deemed for the best interest of the district,”

they are not required to do so. A.R.S. § 15-342(12).7

6Section 15-341 has been amended multiple times since the

date of Monroe’s accident. See, e.g., 2013 Ariz. Sess. Laws, ch. 243,

§ 4; 2013 Ariz. Sess. Laws 1st Spec. Sess., ch. 3, § 6; 2012 Ariz. Sess.

Laws, ch. 270, § 1. Unless otherwise noted, we apply the version in

effect at the time of the accident. See 2003 Ariz. Sess. Laws, ch. 215,

§ 2; Taylor, 198 Ariz. 310, n.2, 9 P.3d at 1052 n.2.

7Section15-342 has been amended nine times since the date of

Monroe’s accident. See, e.g., 2013 Ariz. Sess. Laws, ch. 91, § 1; 2012

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Opinion of the Court

Notwithstanding that BASIS, as a charter school, is exempt from

§§ 15-341 and 15-342, see A.R.S. § 15-183(E)(5), the absence of a

requirement for traditional public schools to provide for the

transportation or safety of students to and from school suggests

public policy does not support the recognition of a duty of care

under the circumstances.

¶20 Finally, Monroe cites no public policy authority, and we

are aware of none, supporting a general duty of care against harm

away from school premises, absent a school-supervised activity or a

particular statute. To hold otherwise would imply that the student-

school relationship extends to situations where the school lacks

custody over the student and the student is not participating in a

school-sponsored activity. We decline to define the scope of duty in

such broad terms. See Restatement § 40 cmt. l; 5 Rapp, supra,

§ 12.10[5], at 12-296.5.

Disposition

¶21 For all of the foregoing reasons, the trial court’s

judgment is affirmed.

Ariz. Sess. Laws, ch. 167, § 1; 2011 Ariz. Sess. Laws, ch. 344, § 12.

Unless otherwise noted, we apply the version in effect at the time of

the accident. See 2002 Ariz. Sess. Laws, ch. 316, § 2; Taylor, 198 Ariz.

310, n.2, 9 P.3d at 1052 n.2.

11