Gallagher v. Tucson Unified School District

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
RICHARD AND GWENYTH GALLAGHER,
AND JANE DOE GALLAGHER, A MINOR AND PROTECTED PERSON,
BY AND THROUGH RICHARD AND GWENYTH GALLAGHER,
AS PARENTS AND LEGAL GUARDIANS OF JANE DOE GALLAGHER,
Plaintiffs/Appellants,
v.
TUCSON UNIFIED SCHOOL DISTRICT,
A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA,
Defendant/Appellee.
No. 2 CA-CV 2014-0124
Filed May 12, 2015
Appeal from the Superior Court in Pima County
No. C20121176
The Honorable D. Douglas Metcalf, Judge
AFFIRMED
COUNSEL
Law Office of David E. Hill, P.L.C., Tucson
By David E. Hill
Counsel for Plaintiffs/Appellants

Miniat & Wilson, LPC, Tucson
By Jerald R. Wilson
Counsel for Defendant/Appellee
GALLAGHER v. TUCSON UNIFIED SCH. DIST.
Opinion of the Court
OPINION
Judge Vásquez authored the opinion of the court, in which Presiding
Judge Kelly and Judge Howard concurred.
V Á S Q U E Z, Judge:
¶1 Richard and Gwenyth Gallagher and their daughter
Jane Doe Gallagher appeal from the trial court’s summary judgment
dismissing their negligence claims against Tucson Unified School
District (TUSD). They argue the court erred by concluding A.R.S.
§ 12-820.05 provided TUSD immunity “for its own negligence with
respect to the hiring and supervision of [its employee,] Michael
Corum.” For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 “In reviewing a grant of summary judgment, we view
the evidence and reasonable inferences ‘in the light most favorable
to the party opposing the motion.’” Cannon v. Hirsch Law Office,
P.C., 222 Ariz. 171, ¶ 7, 213 P.3d 320, 323 (App. 2009), quoting Wells
Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395
Pension Trust Fund, 201 Ariz. 474, ¶ 13, 38 P.3d 12, 20 (2002). In
October 2005, Corum applied for a job with TUSD as an exceptional
education teaching assistant. In his application, Corum listed his
most recent employers, including Carondelet Health Network.
Rosalina Armijo, a principal of a TUSD school, hired Corum. In a
deposition, Armijo testified that she “remember[ed] contacting
[Corum’s] employers,” but no documentation of those calls could be
found. It was determined later that Carondelet had terminated
Corum’s employment after he “touched [a patient] inappropriately
in the vaginal area and made remarks to her that she felt moist.”
¶3 During his employment with TUSD, Corum transferred
to Mary Meredith K-12 School, which serves “students that
primarily have profound emotional disabilities.” In March 2011, the
Tucson Police Department (TPD) began investigating Corum after
learning that his son had found child pornography on Corum’s
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GALLAGHER v. TUCSON UNIFIED SCH. DIST.
Opinion of the Court
computer. Shortly thereafter, Corum requested a leave of absence
from Mary Meredith because of a “[s]erious illness.” TPD then
contacted the principal of Mary Meredith, Terri Polan, who helped
officers identify the child depicted in an image on Corum’s
computer as Jane Doe Gallagher, a “non-verbal and almost non-
communicative” TUSD special needs student.
¶4 When Corum returned for work at the end of his leave
in August 2011, Polan sent him home and called TPD for an update
on the criminal investigation. Corum was arrested that same day.
Pursuant to a plea agreement, Corum ultimately was convicted of
attempted secretly viewing or recording another person without
consent.
¶5 In February 2012, the Gallaghers initiated this action
against Corum, his wife, and TUSD. In their amended complaint,
the Gallaghers alleged that TUSD was vicariously liable for Corum’s
acts and directly negligent in hiring and supervising him. TUSD
filed a motion for summary judgment based on § 12-820.05(B),
arguing the statute provided immunity to public entities for the
felonious conduct of employees. The Gallaghers argued that § 12-
820.05(B) does not apply when the entity knows of the employee’s
propensity for such conduct, and that TUSD had constructive
knowledge of Corum’s past. The trial court denied the motion, but
on special action review, this court reversed, holding that the
exception to § 12-820.05(B) immunity would apply only if TUSD had
actual knowledge of Corum’s propensity. Tucson Unified Sch. Dist. v.
Borek, 234 Ariz. 364, ¶¶ 8-12, 322 P.3d 181, 184-85 (App. 2014).
¶6 Following the special action, TUSD renewed its motion
for summary judgment, which the trial court granted. The court
then entered a final judgment in favor of TUSD pursuant to
Rule 54(b), Ariz. R. Civ. P. 1 This appeal followed. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).
1The claims against Corum and his wife still were pending
before the trial court at the time of this appeal.
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GALLAGHER v. TUCSON UNIFIED SCH. DIST.
Opinion of the Court
Immunity
¶7 The Gallaghers maintain § 12-820.05(B) does not
“provide TUSD with absolute immunity for its own negligence with
respect to the hiring and supervision of . . . Corum.” Accordingly,
they assert that the trial court erred by granting summary judgment
in favor of TUSD on those claims.
¶8 Summary judgment is appropriate “if the moving party
shows that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.” Ariz.
R. Civ. P. 56(a). Thus, a trial court should grant summary judgment
“if the facts produced in support of the claim . . . have so little
probative value, given the quantum of evidence required, that
reasonable people could not agree with the conclusion advanced by
the proponent of the claim.” Orme Sch. v. Reeves, 166 Ariz. 301, 309,
802 P.2d 1000, 1008 (1990). We review de novo whether there is a
genuine dispute as to a material fact and whether the trial court
erred in applying the law. Bothell v. Two Point Acres, Inc., 192 Ariz.
313, ¶ 8, 965 P.2d 47, 50 (App. 1998).
¶9 The issue presented here involves the interpretation of
§ 12-820.05(B), which provides, in pertinent part: “A public entity is
not liable for losses that arise out of and are directly attributable to
an act or omission determined by a court to be a criminal felony by a
public employee unless the public entity knew of the public
employee’s propensity for that action.” We review issues of
statutory interpretation de novo. Baker v. Univ. Physicians Healthcare,
231 Ariz. 379, ¶ 30, 296 P.3d 42, 50 (2013). “Our primary goal in
interpreting a statute is to give effect to the legislature’s intent, and
the language of a statute is the most reliable evidence of that intent.”
MacKinney v. City of Tucson, 231 Ariz. 584, ¶ 7, 299 P.3d 1282, 1285
(App. 2013). Accordingly, if the language is clear and unambiguous,
we apply it as written. Hourani v. Benson Hosp., 211 Ariz. 427, ¶ 7,
122 P.3d 6, 10 (App. 2005).
¶10 By its clear and unambiguous language, § 12-820.05(B)
insulates a public entity from liability for loss caused by an
employee’s felony criminal acts. “‘Loss’ is commonly defined as the
difference between what was had before and after a specified
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GALLAGHER v. TUCSON UNIFIED SCH. DIST.
Opinion of the Court
event.” Town of Gilbert Prosecutor’s Office v. Downie, 218 Ariz. 466,
¶ 11, 189 P.3d 393, 396 (2008). Similarly, Webster’s defines “loss” as
“the harm or privation resulting from losing or being separated from
something or someone.” Webster’s Third New Int’l Dictionary 1338
(1971). “Losses” can be those that arise from physical injury to
persons and property, or they can be purely economic. See Flagstaff
Affordable Hous. Ltd. P’ship v. Design Alliance, Inc., 223 Ariz. 320, ¶¶ 1,
11-12, 223 P.3d 664, 665, 667 (2010).
¶11 Section 12-820.05(B) simply refers to “losses”— it does
not include any language that would limit the types of loss covered
by the statute. That term therefore encompasses TUSD’s liability for
the injuries from which the Gallaghers seek to recover, including
“anxiety, reasonable expenses for medical intervention or other
professional assistance, loss of consortium, loss of enjoyment of life
and breach of privacy experienced and reasonably probable to
experience in the future.”
¶12 Moreover, § 12-820.05(B) does not include any language
that would limit the public entity’s immunity based on the type of
action or inaction by the entity that contributed to the injury. There
is no distinction between the losses the Gallaghers seek to recover
through their vicarious and direct liability claims. Under either
theory, the damages “arise out of and are directly attributable to”
Corum’s acts. 2 § 12-820.05(B); see Kuehn v. Stanley, 208 Ariz. 124,
¶ 21, 91 P.3d 346, 352 (App. 2004) (“For an employer to be held liable
for the negligent hiring, retention, or supervision of an employee, a
court must first find that the employee committed a tort.”). And, in
the absence of a distinct injury caused by an employer, the damages
recoverable under either claim are the same. See Torres v. Kennecott
Copper Corp., 15 Ariz. App. 272, 273-74, 488 P.2d 477, 478-79 (1971);
Restatement (Second) of Agency § 217B cmt. d (1958) (“If . . .
judgment is rendered against both [employer and employee] for a
single harm, the judgment should be for the same amount . . . .”).
2The Gallaghers do not challenge the trial court’s dismissal of
their vicarious liability claims against TUSD.
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GALLAGHER v. TUCSON UNIFIED SCH. DIST.
Opinion of the Court
¶13 The Gallaghers nevertheless rely on legislative history,
policy arguments, comparisons with other statutes, and cases from
other jurisdictions to support their interpretation of § 12-820.05(B).
And, during oral argument, they explained that § 12-820.05(B) “is an
example of a latent ambiguity,” which is “found in the interplay” of
these authorities. But when the language of a statute is plain and
clear on its face, it is unnecessary to infer ambiguity and employ
other methods of interpretation. See Hobson v. Mid-Century Ins. Co.,
199 Ariz. 525, ¶ 8, 19 P.3d 1241, 1245 (App. 2001). We therefore
disagree with the Gallaghers’ arguments and conclude § 12-
820.05(B) applies to the Gallaghers’ claims for negligent hiring and
supervision. See Baker, 231 Ariz. 379, ¶ 30, 296 P.3d at 50.
Knowledge of Propensity
¶14 The Gallaghers also argue “[m]aterial questions of fact
exist” because “there is, at the very least, a jury question as to
whether . . . Armijo even called [Carondelet] or, if she did, made a
‘good faith’ effort to secure the necessary information regarding . . .
Corum’s performance.” Again, summary judgment is appropriate if
the moving party has demonstrated that “no evidence existed to
support an essential element of the claim.” Orme Sch., 166 Ariz. at
310, 802 P.2d at 1009. In other words, “the movant need not
affirmatively establish the negative of the element.” Id.
¶15 Section 12-820.05(B) provides an exception to a public
entity’s immunity when “the public entity knew of the public
employee’s propensity for that action.” On special action review,
this court rejected the Gallaghers’ argument that constructive
knowledge of the employee’s propensity was sufficient for the
exception to apply. Tucson Unified Sch. Dist., 234 Ariz. 364, ¶ 10, 322
P.3d at 185. We held that Ҥ 12-820.05(B) means exactly what it
says—that immunity applies unless the public entity actually knew
of the ‘employee’s propensity for that action.’” Id. We also noted,
“The Gallaghers do not suggest that TUSD had actual knowledge of
Corum’s purported propensity, and nothing in the record would
support that conclusion.” Id. ¶ 12.
¶16 The Gallaghers now essentially reurge their
constructive knowledge argument. They again assert that
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GALLAGHER v. TUCSON UNIFIED SCH. DIST.
Opinion of the Court
“constructive knowledge is sufficient for many common-law causes
of action.” Id. ¶ 11. However, they fail to “explain why that is
relevant to our interpretation of a plainly worded statute.” Id. Thus,
we decline to address this argument further. See Ctr. Bay Gardens,
L.L.C. v. City of Tempe City Council, 214 Ariz. 353, ¶ 17, 153 P.3d 374,
377-78 (App. 2007) (“law of the case” rule applies when “the facts
and issues are substantially the same as those on which the first
decision rested”).
¶17 The Gallaghers also attempt to rally evidence to
demonstrate that Armijo, the principal who hired Corum, did not
contact Corum’s previous employer in violation of A.R.S. § 15-512.3
3Section 15-512(F) requires TUSD to “make documented, good
faith efforts to contact previous employers of a person to obtain
information and recommendations that may be relevant to a
person’s fitness for employment.” Based on § 15-512, the Gallaghers
maintain TUSD essentially is being rewarded for failing to do
something required by statute. However, that statute provides its
own penalties for failing to meet its requirements. Subsection (K)
provides:
The superintendent of a school
district or chief administrator of a charter
school or the person’s designee who is
responsible for implementing the
governing board’s policy regarding
background investigations required by
subsection F of this section and who fails to
carry out that responsibility is guilty of
unprofessional conduct and shall be subject
to disciplinary action by the state board.
And, notably, § 15-512 contains its own immunity provision.
Subsection (J) provides:
A school district that relies on information
obtained pursuant to this section in making
employment decisions is immune from
civil liability for use of the information
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GALLAGHER v. TUCSON UNIFIED SCH. DIST.
Opinion of the Court
In particular, they point to the lack of any documentation from
Carondelet indicating it had received a call from Armijo. However,
the record shows that Carondelet “does not maintain a record of
reference requests from third-parties.” See Orme Sch., 166 Ariz. at
310, 802 P.2d at 1009. And, in any event, this assertion does not
support the Gallaghers’ position; if Armijo never contacted
Carondelet, then she did not have actual knowledge of Corum’s
propensities. See § 12-820.05(B). We thus conclude the trial court
did not err in granting TUSD’s motion for summary judgment. See
Bothell, 192 Ariz. 313, ¶ 8, 965 P.2d at 50.
Disposition
¶18 For the foregoing reasons, we affirm. TUSD requests its
“attorney’s fees and costs incurred in defending this matter.”
However, it has failed to cite any authority to support its request for
fees. See Ezell v. Quon, 224 Ariz. 532, ¶¶ 29-31, 233 P.3d 645, 652
(App. 2010) (“[T]he request must state the claimed basis for the
award.”). Nonetheless, as the prevailing party on appeal, TUSD is
entitled to its taxable costs upon compliance with Rule 21(b), Ariz. R.
Civ. App. P.
unless the information obtained is false and
the school district knows the information is
false or acts with reckless disregard of the
information’s truth or falsity.
8