Bottomlee v. State

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JAYLYN BOTTOMLEE,

Plaintiff/Appellant,

v.

STATE OF ARIZONA, et al.,

Defendants/Appellees.

No. 1 CA-CV 19-0016

FILED 1-28-2020

Appeal from the Superior Court in Maricopa County

No. CV2017-013064

The Honorable Joseph C. Welty, Judge

AFFIRMED IN PART, REVERSED IN PART; REMANDED

COUNSEL

Stewart & Davis, PC, Phoenix

By Joseph T. Stewart

Counsel for Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix

By Michael G. Gaughan, Kara L. Klima

Counsel for Defendants/Appellees

OPINION

Judge Diane M. Johnsen delivered the opinion of the Court, in which

Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

BOTTOMLEE v. STATE, et al.

Opinion of the Court

J O H N S E N, Judge:

¶1 The mother of an infant who suffocated and died at a Phoenix

daycare center sued the State of Arizona, alleging a state inspector was

grossly negligent in directing the daycare to place the child face-down on a

pillow during "tummy time." We hold the complaint stated a claim for

gross negligence, reverse the dismissal of that claim, affirm the dismissal of

other claims and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 "Tummy time" is a child-development technique aimed at

building an infant's upper-body strength and balance. As implied by the

name, an infant is placed on his stomach while awake, at first for just a

minute or so, then for longer periods as he becomes better able to hold up

his head. The amended complaint here cited a "tip sheet" the Arizona

Department of Health Services ("Department") issued to daycare providers

warning that during tummy time, an infant should be placed on a "flat,

clean surface, such as a blanket or play mat on the floor." According to

federal authorities cited in the complaint, an infant placed on a pillow for

tummy time might slip down into the pillow and suffocate.

¶3 Jaylyn Bottomlee's amended complaint alleged her six-

month-old son, Gabriel, died at a facility owned and run by Lil World

Daycare, LLC. Bottomlee alleged that Frederick Geyser, a "Licensing

Surveyor" in the Department's Child Care Licensing Section, visited Lil

World to investigate a report that the daycare was violating a Department

rule by putting infants to sleep in cribs with Boppy pillows – C-shaped soft

pillows typically used to hold an infant for feeding. Bottomlee alleged that

when Geyser arrived at Lil World, he saw Gabriel and other infants

sleeping in their cribs with Boppy pillows. According to the complaint,

having confirmed that Lil World was violating the ban on pillows in infants'

cribs, Geyser ordered the daycare to use the pillows instead only "on the

floor for tummy time." Bottomlee alleged Geyser "developed, endorsed

and signed" a Plan of Correction for Lil World that expressly mandated:

"All pillows will be removed today [from cribs] and use[d] on the floor for

tummy time only."

¶4 One morning less than two weeks later, a Lil World worker

fed Gabriel a bottle, then draped him atop a Boppy pillow for tummy time.

According to the complaint, the worker left Gabriel unattended, and, after

2

BOTTOMLEE v. STATE, et al.

Opinion of the Court

a bit, the infant slipped down into the pillow and suffocated. He was

pronounced dead at the hospital.

¶5 In her wrongful-death suit, Bottomlee alleged the corrective

plan Geyser issued to Lil World

ignored and violated the State's published policy on tummy

time, as well as well-established research and

recommendations in the medical and scientific communities,

and published reports from the United States Consumer

Product Safety Commission and the United States Food and

Drug Administration warning that nursing pillows present a

high risk of suffocation to infants and that such pillows

should never be placed under infants.

Bottomlee alleged Geyser acted with gross negligence in directing Lil

World to place Gabriel and the other infants on pillows during tummy time.

She also alleged the Department, its director and the State were liable for

Geyser's gross negligence by virtue of respondeat superior.

¶6 The superior court granted the defendants' motion to dismiss

Bottomlee's amended complaint for failure to state a claim. After the court

denied Bottomlee's motion for a new trial, she timely appealed. We have

jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,

and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2020) and

-2101(A)(1) (2020).1

DISCUSSION

¶7 "We review de novo the dismissal of a complaint for failure to

state a claim and will affirm only if the plaintiff 'would not be entitled to

relief under any interpretation of the facts susceptible of proof.'" Stair v.

Maricopa County, 245 Ariz. 357, 361, ¶ 11 (App. 2018) (citation omitted); see

Ariz. R. Civ. P. 12(b)(6). In determining whether a complaint states a claim

upon which relief can be granted, we "assume the truth of the well-pled

factual allegations and indulge all reasonable inferences therefrom." Cullen

v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008).

¶8 "To establish a claim for negligence, a plaintiff must prove

four elements: (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

1 Absent material revision after the relevant date, we cite the current

version of a statute or rule.

3

BOTTOMLEE v. STATE, et al.

Opinion of the Court

connection between the defendant's conduct and the resulting injury; and

(4) actual damages." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). "Duty is

defined as 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.'" Id. at ¶ 10 (quoting Markowitz v. Ariz.

Parks Bd., 146 Ariz. 352, 354 (1985)). "Such an obligation may arise from

'either recognized common law special relationships or relationships

created by public policy.'" Stair, 245 Ariz. at 361, ¶ 12 (quoting Quiroz v.

ALCOA Inc., 243 Ariz. 560, 565, ¶ 14 (2018)). Whether a duty exists "is a

matter of law for the court to decide." Gipson, 214 Ariz. at 143, ¶ 9.

A. Defendants' Duty to Gabriel and His Mother.

¶9 In dismissing the complaint, the superior court accepted the

defendants' argument that Bottomlee failed to allege facts to support a duty

that might give rise to a claim in tort.2

¶10 On appeal, the defendants liken daycare investigators to law-

enforcement officers who investigate reports of crimes "and author

reports." As with law enforcement, the defendants argue, their duty in this

context is to the general public, not to any individual child or parent. But

under Arizona law, acts by law-enforcement officers may create a special

relationship giving rise to a duty owed to a specific individual. See Noriega

v. Town of Miami, 243 Ariz. 320, 327-28, ¶¶ 29, 32 (App. 2017); Hogue v. City

of Phoenix, 240 Ariz. 277, 280-81, ¶ 12 (App. 2016). That is, although "police

do not owe a duty to every citizen within their jurisdiction from all potential

harms," Noriega, 243 Ariz. at 327, ¶ 29, when they "endeavor to provide

specific protection to a particular person, they generally . . . have 'a duty to

act as would a reasonably careful and prudent police department in the

same circumstances,'" Hogue, 240 Ariz. at 280, ¶ 12 (quoting Austin v. City of

Scottsdale, 140 Ariz. 579, 581-82 (1984) (duty may exist when acts by police

have "narrowed the obligation owed to the general public into a specific

obligation owed" to an individual)); see also Hutcherson v. City of Phoenix, 192

Ariz. 51, 55-56, ¶ 26 (1998) (by creating 9-1-1 system, city accepted duty to

2 Beyond gross negligence by Geyser, attributed to the other

defendants through respondeat superior, Bottomlee also alleged claims titled

"Gross Negligent Failure to Investigate," "Gross Negligent Investigations,"

"Gross Negligent Failure to Monitor the Daycare," "Gross Negligent

Hiring," "Gross Negligent Training" and "Gross Negligent Supervision."

On appeal, she does not contest the dismissal of the other claims.

4

BOTTOMLEE v. STATE, et al.

Opinion of the Court

respond reasonably to emergency calls), abrogated in part on other grounds by

State v. Fischer, 242 Ariz. 44 (2017).

¶11 Under these authorities, Geyser effectively "endeavor[ed] to

provide specific protection" to the infants in Lil World's care when, having

confirmed that the daycare was violating Department infant-care

regulations, he ordered the daycare specifically how to correct its violation.

See Hogue, 240 Ariz. at 280, ¶ 12. The consequence was the creation of a

special relationship with those infants that gave rise to a duty of due care

with respect to the particulars of the Plan of Correction that Geyser directed

the daycare to follow.

¶12 The defendants seem to argue that no duty can be imposed

under these circumstances absent an assurance of protection made directly

to the plaintiff. To be sure, Hutcherson, 192 Ariz. at 52, ¶¶ 1-7, and Noriega,

243 Ariz. at 322-23, ¶¶ 4-6, both involved victims who were harmed after

they came to law enforcement for protection. But the defendants offer no

support for the proposition that a special relationship cannot exist in the

absence of a representation by the public entity to the plaintiff. In Austin, our

supreme court ruled a duty to the eventual victim was created when a third

party called police to report that the victim might be in danger, and the

dispatcher said police would "keep an eye out." 140 Ariz. at 579-82.

¶13 Here, the complaint alleged Geyser received a report that Lil

World was violating infant-care regulations, responded to that complaint

and issued a corrective action plan that Bottomlee alleges was grossly

negligent. By directing the manner in which the daycare was to remedy its

violation, Geyser on behalf of the Department created a special relationship

with the infants at Lil World, including Gabriel, just as law enforcement in

the cited cases created special relationships by receiving and responding to

reports of threats.3

B. The State Defendants Are Not Absolutely Immune from the

Claims.

¶14 The State and the Department argue that even if the first two

claims in the amended complaint properly allege a duty of care, the State

and the Department are immune from those claims under A.R.S. § 12-820.01

3 Having found the existence of a special relationship that gave rise to

a duty of due care, we need not address Bottomlee's alternative argument

that Geyser and the State defendants owed her and her son a duty arising

out of public policy reflected in statutes and regulations.

5

BOTTOMLEE v. STATE, et al.

Opinion of the Court

(2020). We narrowly construe a statute that grants immunity to public

entities. Doe ex rel. Doe v. State, 200 Ariz. 174, 176, ¶ 4 (2001).

¶15 In relevant part, the statute states:

A. A public entity shall not be liable for acts and omissions of

its employees constituting . . . :

* * *

2. The exercise of an administrative function involving

the determination of fundamental governmental

policy.

B. The determination of a fundamental governmental policy

involves the exercise of discretion and shall include, but is not

limited to:

* * *

2. A determination of whether and how to spend

existing resources, including those allocated for

equipment, facilities and personnel.

3. The licensing and regulation of any profession or

occupation.

A.R.S. § 12-820.01.

¶16 The State and the Department argue § 12-820.01(B)(3) applies

to Bottomlee's first and second claims for relief because those claims arise

from the "licensing and regulation of any profession or occupation." In Doe,

however, our supreme court held the absolute immunity that § 12-820.01

grants to "fundamental governmental policy determinations involving the

licensing of professions and occupations" does not apply to "particular

decisions to grant or revoke licenses." 200 Ariz. at 177, ¶ 9. Instead, the

latter class of decisions is afforded only qualified immunity under A.R.S. §

12-820.02 (2020). Doe, 200 Ariz. at 177, ¶ 9. By way of example, the court

observed that a policy decision to issue teaching certificates to applicants

who have been convicted of certain minor crimes would be a decision by

the State afforded absolute immunity under § 12-820.01. Id. at ¶ 10. "If,

however, the State erred in its processing of a particular teaching

application and issued a certificate to someone convicted of one of the listed

offenses, only qualified immunity would apply." Id.

6

BOTTOMLEE v. STATE, et al.

Opinion of the Court

¶17 Bottomlee's first and second claims for relief do not implicate

any policy decision by the Department but instead, as in Doe, concern

"application of those policies to individual cases." Id. at ¶ 11 ("[A]bsolute

immunity extends to the regulation and licensing of a profession as a whole,

rather than to a decision to grant a license to a particular member of that

profession."). Accordingly, § 12-820.01(B)(3) does not grant the State and

the Department absolute immunity from those claims.

¶18 The Department also cites Evenstad v. State, 178 Ariz. 578

(App. 1993), in which we held § 12-820.01 immunized the State from a claim

that the Department of Transportation Motor Vehicle Division should have

implemented procedures to identify driver's license applicants with known

drinking problems. 178 Ariz. at 579-80, 583-84 (statute immunizes

promulgation of rules and procedures as a "determination of internal

agency policy"). But no such policy decision is at issue here. Bottomlee

does not allege the Department failed to enact appropriate safety rules for

daycare facilities; instead, she alleges that, having enacted rules requiring

Lil World to safely care for infants, including Gabriel, and having

confirmed that the daycare had violated those rules, it acted with gross

negligence when it directed the daycare how to correct its violation.

CONCLUSION

¶19 For the reasons stated, we vacate and remand the dismissal of

Bottomlee's first and second claims for relief, which allege gross negligence

and liability under respondeat superior. We affirm the dismissal of the other

claims in the amended complaint. Bottomlee is entitled to her costs on

appeal contingent on compliance with Arizona Rule of Civil Appellate

Procedure 21.

AMY M. WOOD • Clerk of the Court

FILED: AA

7