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Tony TOLLENAAR, Dean Scheppel, Grace Scheppel, Debra Powell, and James Larry Powell, Jr., Plaintiffs-Appellants, v. CHINO VALLEY SCHOOL DISTRICT, a political subdivision of the State of Arizona, Defendant-Appellee

Arizona Court of Appeals1997-05-29No. No. 1 CA-CV 96-0167
190 Ariz. 179945 P.2d 1310

Summary

Holding. The court affirmed summary judgment for the school district, holding that the school did not breach a duty to students by failing to enforce a closed campus policy, as the policy's failure to restrict vehicular exposure did not subject students to an unreasonable risk beyond ordinary societal risks, and the parents failed to present evidence supporting an alternative theory based on the school's voluntary undertaking of a protective duty.

Following a fatal vehicular accident involving high school students who left campus in violation of a closed campus policy, parents sued the school district for negligent supervision. The district moved for summary judgment, which the trial court granted. On appeal, the court examined whether the school's failure to enforce its closed campus policy created an unreasonable risk of harm to students. The court determined that exposure to ordinary vehicular risks—the same risks all members of society face when traveling by car—does not constitute an unreasonable risk, regardless of whether the school had adopted or merely failed to enforce a closed campus policy.

The parents also argued the school undertook a protective duty when it established the closed campus policy, and that they relied on the school to enforce it. The court found this argument failed because the parents presented no evidence that the school recognized enforcing the policy as necessary for student protection, nor did they offer evidence of their reliance on the school's enforcement or show how such reliance caused the accident. The parents bore the burden of establishing a genuine factual dispute on these elements and did not meet that burden.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether failure to enforce a closed campus policy subjects students to unreasonable vehicular risk
  • Whether ordinary vehicular risks constitute actionable unreasonable risk of harm
  • Whether a school's adoption of a closed campus policy constitutes a voluntary protective undertaking
  • Whether parents presented evidence of reliance on school enforcement of campus policy

Procedural posture

The case arose on appeal from summary judgment granted by the trial court in favor of the school district in a negligent supervision action following a fatal vehicular accident.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

OPINION

FIDEL, Judge.

This case, like Rogers v. Retrum, 170 Ariz. 399, 825 P.2d 20 (App.1991), arises from a vehicular accident involving high school students driving off campus during the school day. In Rogers, we affirmed summary judgment for the school district, holding that it did not subject students to an unreasonable risk of vehicular injury by maintaining an open campus policy. Id. at 404, 825 P.2d at 25. In this case, also on appeal from summary judgment, we consider whether a school district subjected students to an unreasonable risk of vehicular injury by failing to enforce a closed campus policy.

HISTORY

In October 1992, Appellants’ minor children were students at Chino Valley High School. A closed campus policy required them to remain on campus from arrival till dismissal, but enforcement of the policy was lax. Shortly after arriving at the high school on the morning of October 23, 1992, Appellants’ children left campus in another student’s car. As they returned to the school, their car collided with a tractor-trailer. Appellants’ children were killed, and another passenger was seriously injured.

Appellants sued the Chino Valley High School District and others not relevant to this appeal, alleging that the school negligently supervised the students. The district moved for summary judgment pursuant to Rogers, and the trial court granted its motion, giving rise to this appeal.

UNREASONABLE RISK

On appeal from summary judgment, we view the evidence and inferences in the light most favorable to the opposing party. Id. at 400, 825 P.2d at 21. The district sought summary judgment on the single ground that the school did not breach a duty to its students because its conduct did not subject them to an unreasonable risk of harm. This argument tracked Rogers, where we stated:

Members of our mobile society face the risk of collision whenever they are in cars. This risk is arguably higher for teenage passengers of teenage drivers. The school in this case, however, did nothing to increase this general risk____ It simply chose not to restrict students to campus during the school day and thereby shield them from the ordinary risk of vehicular harm that they would face when out of school. We conclude that ... the defendants’ omission did not create an unreasonable risk of harm.

Id. at 403, 825 P.2d at 24.

The trial court agreed that this ease is governed by Rogers. So do we, in part. Appellants argue that this school’s failure to enforce a closed campus policy is distinguishable from failure to adopt a closed campus policy in Rogers. We acknowledge this distinction, but do not find it helpful to Appellants on the question of unreasonable risk. Here, as in Rogers, the school exposed the students only to the ordinary risks of vehicular collision that “[m]embers of our mobile society face ... whenever they are in cars.” Id. Here, as there, exposure to a foreseeable risk did not amount to exposure to an unreasonable risk. See id. at 402, 825 P.2d at 23. Insofar as Appellants attempt to hold the district liable for a breach of the general duty to avoid exposing others to a foreseeable, unreasonable risk of harm, the trial court correctly granted summary judgment.

VOLUNTARY UNDERTAKING AND RELIANCE

Appellants also attempt to bypass Rogers by arguing, pursuant to sections 323 and 324A of the Restatement (Second) of Torts (1965), that the school negligently performed a voluntary protective undertaking.

Section 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

(Emphasis added.)

Section 324A extends identical liability to third persons:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

(Emphasis added.)

Arizona has adopted sections 323 and 324A. See Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 608, 688 P.2d 605, 616 (1984); Papastathis v. Beall, 150 Ariz. 279, 282, 723 P.2d 97, 100 (App.1986). One who undertakes a service that falls within these sections must perform it with reasonable care. See Jefferson County Sch. Dist. R-1 v. Justus, 725 P.2d 767, 772-73 n. 5 (Colo.1986).

Appellants raised their Restatement theory in the trial court, but failed to support it in their presentation of the evidence. On the element of undertaking, Appellants acknowledged, “There are any number [of] reasons why a school might choose a closed campus policy.” Yet, Appellants submitted no evidence that this school, in doing so, undertook to provide a service that it recognized, or should have recognized, as necessary for the students’ protection. See RESTATEMENT §§ 323(b), 324A(c).

Appellants likewise submitted no evidencé on the subject of reliance. Appellants alleged in their complaint that they “each reasonably expected their child to be supervised and on school premises at the time of this accident.” They also pointed out in argument that two of the students were only fourteen years old, and they invoked our Rogers caveat that “parents’ supervisory expectations may reasonably differ at differing levels of the schools.” 170 Ariz. at 404, 825 P.2d at 25. Yet, Appellants never supported their allegation of reliance with affidavits, deposition testimony, or any other form of evidence. Nor did Appellants present evidence that their alleged reliance on school enforcement bore some causal relationship to this accident.

The Restatement demonstrates how reliance might play a causal role under sections 323 or 324A:

Where the reliance of the other, or of the third person, has induced him to forgo other remedies or precautions against such a risk, the harm results from the negligence ás fully as if the actor had created the risk.

Restatement § 324A emt. e. Appellants, however, presented no evidence that they forewent other precautions in reliance upon school enforcement. Nor did they outline any other manner by which the school, in inducing their reliance, caused their harm.

The district was not obliged in moving for summary judgment to “affirmatively establish the negative” on these issues. See Orme Sch. v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990). Rather, Appellants had the burden of supporting their Restatement theory of recovery by “showing that there is evidence creating a genuine issue of fact” concerning the elements of that theory. Id. Appellants failed to meet that burden.

CONCLUSION

Because Appellants neither established that the district subjected their children to an unreasonable risk of harm, nor submitted evidence to support their alternative Restatement theory of recovery, summary judgment for the district is affirmed.

NOYES, P.J., and RYAN, J., concur.