Sanchez v. Glendale Union High Sch. Dist.

1

CARLOS SANCHEZ, SR., et al., Plaintiffs/Appellants, v. GLENDALE UNION HIGH SCHOOL DISTRICT, Defendant/Appellee.

No. 1 CA-CV 22-0424

Court of Appeals of Arizona, First Division

February 28, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2018-005426 The Honorable Bradley H. Astrowsky, Judge.

COUNSEL

Ahwatukee Legal Office, PC, Phoenix By David L. Abney Co-Counsel for Plaintiffs/Appellants

Phillips Law Groups, PC, Phoenix By Steven Jones Co-Counsel for Plaintiffs/Appellants

Law Offices of Brian C. Gonzalez, San Diego, California By Brian C. Gonzalez (Pro Hac Vice) Co-Counsel for Plaintiffs/Appellants

Wright Welker & Pauole PLC, Phoenix By David K. Pauole Counsel for Defendant/Appellee Glendale Union High School District

Vice Chief Judge David B. Gass delivered the decision of the court, in which Judge Brian Y. Furuya and Judge Maurice Portley^[1] joined.

MEMORANDUM DECISION

GASS Vice Chief Judge:

¶1 C.S., a high school football player, died following a concussion he sustained during a Glendale Union High School District (the district) game. C.S.'s parents sued the district for negligence. The superior court granted summary judgment for the district, finding immunity protected the district's actions after C.S. collapsed. No genuine issue of material fact existed regarding the district's actions before C.S. collapsed. C.S.'s parents appealed.

¶2 Our sympathies lie with C.S.'s parents. They have suffered an unimaginable loss. But not every loss is actionable. Here, the law lies with the district. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶3 The district adopted its one-page Emergency Action Plan (the plan) before the 2017 high school football season. The district's plan directs what actions to take during a football game when a medical emergency arises, including (1) calling 911 and (2) if the injured person is unresponsive and not breathing, normally providing cardiopulmonary resuscitation and using an Automatic External Defibrillator (AED). The plan identifies the "911 Team" members and their roles. The plan sets the entrance for the ambulance and directs a 911 team member meet the ambulance at that entrance and take it to the injured person. The plan also instructs the athletic trainer and athletic director to get the AED and explains how to use it. Last, the document directs the plan to be emailed to the Arizona Interscholastic Association, which the district did.

¶4 On October 20, 2017, while the plan was in force, C.S sustained a head injury while playing in a football game for Moon Valley High School. A short time later, C.S. died from his injury. The district and C.S.'s parents dispute the timeline following C.S.'s collapse. The district relied on game footage and the emergency transportation services log to show C.S. arrived at the hospital about 30 minutes after he collapsed. C.S.'s parents contest the accuracy of this account but provide no evidence supporting a different timeline or expert testimony showing C.S. would have survived if he had arrived sooner.

¶5 C.S.'s parents filed a complaint against the district for wrongful death and against the companies responsible for manufacturing, distributing, and selling C.S.'s helmet for negligence and strict liability. C.S.'s parents and the helmet companies settled and dismissed their case.

¶6 Following discovery, the district filed a motion for summary judgment claiming statutory immunity because the district adopted and followed the plan. Alternatively, the district argued it exceeded the standard of care and any alleged breach did not cause C.S.'s death.

¶7 In response, C.S.'s parents argued the district was not immune for its execution of the plan. Specifically, C.S.'s parents contend the district should have given the plan to a local emergency department, opened the access gate before the game, ensured "key personnel" knew their roles under the plan, and had an ambulance onsite during the game. C.S.'s parents claim, if the district had taken those steps, C.S. would have arrived at the hospital faster and likely survived.

¶8 Additionally, C.S.'s parents argued genuine issues of material fact exist regarding the district's negligence before C.S.'s fatal injury. Specifically, C.S.'s parents claim the district did not: (1) inform them fully of the dangers of concussions in football; (2) address adequately a concussion C.S. suffered in 2016; and (3) properly inspect the new helmet C.S.'s parents bought after the 2016 concussion.

¶9 The superior court heard oral argument and granted the district's summary judgment motion. The superior court held the district immune from its actions the night C.S. died because the district's plan "determined, without the need for any additional implementing decision," who would respond to an emergency and who would call 911. The superior court also noted "no regulations in place . . . require school districts to contract for the presence of an ambulance at high school football games."

¶10 The superior court also found no factual issues regarding causation precluded summary judgment because C.S.'s injury was fatal before he arrived at the hospital and C.S.'s parents "cannot show [C.S.] would have survived but for the [district's alleged breach." Further, the superior court found, even if the school had followed its own procedures, C.S. would have played in the football game because his doctor had cleared him to play for the 2017 season.

¶11 C.S.'s parents timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 and -2101.A.1.^[2]

ANALYSIS

¶12 C.S.'s parents argue the superior court erred in granting the district's motion for summary judgment because absolute immunity does not apply to the district's actions and the district's failure to meet the standard of care caused C.S.'s death. Specifically, C.S.'s parents argue the district was negligent in failing to take appropriate actions before and on the night C.S. died.

¶13 Summary judgment is appropriate when "no genuine dispute as to any material fact" exists and "the moving party is entitled to judgment as a matter of law." Ariz R. Civ. P. 56(a); see also Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990). "This court reviews a grant of summary judgment de novo, viewing the facts and reasonable inferences in the light most favorable to the party opposing the motion and will affirm for any reason supported by the record, even if not explicitly considered by the superior court." CK Family Irrevocable Tr. No. 1 v. My Home Group Real Estate LLC, 249 Ariz. 506, 508, ¶ 6 (App. 2020) (as amended).

I. Absolute immunity under A.R.S. § 12-820.01 protected the district in adopting its plan before the 2017 football season and in following that plan the night C.S. died.

¶14 C.S.'s parents argue the district was negligent because it failed to "respond effectively, properly, and rapidly on October 20, 2017 once [C.S.]" was injured. The district argues its decision to adopt its plan was a policy decision protected by immunity and it followed the plan after C.S. collapsed.

¶15 Despite owing a duty, a public entity is immune from liability "for acts and omissions of its employees constituting . . . [t]he exercise of an administrative function involving the determination of fundamental governmental policy." A.R.S. § 12-820.01.A.2. The determination of governmental policy includes deciding: (1) whether to seek or provide resources to purchase equipment; and (2) "whether and how to spend existing resources, including those allocated for equipment, facilities and personnel." A.R.S. § 12-820.01.B.1(a), .2.

¶16 If a school district's negligence is the proximate cause of injury, "the rule is liability and immunity is the exception." Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 164 (App. 1996) (citation omitted). A.R.S. § 12-820.01 provides immunity "only if it clearly applies." Id. Immunity applies to discretionary, affirmative, policy decisions. Myers v. City of Tempe, 212 Ariz. 128, 131, ¶ 12 (2006); Tostado v. City of Lake Havasu, 220 Ariz. 195, 199, ¶ 16 (App. 2008); Warrington by Warrington v. Tempe Elementary Sch. Dist. No. 3, 187 Ariz. 249, 253 (App. 1996) (citation omitted). School districts are public entities protected by A.R.S. § 12-820.01. Warrington, 187 Ariz. at 251-52. And the entity asserting immunity has the burden to prove its applicability. Fidelity Sec. Life Ins. Co. v. State, Dep't of Ins., 191 Ariz. 222, 225, ¶ 9 (1998).

¶17 A public entity is immune from non-discretionary decisions followed automatically from its own policy decision. See Myers, 212 Ariz. at 131, ¶ 12. In Myers, the City of Tempe dispatched a specified fire department according to its fire protection and emergency services agreement. Id. at 129, ¶¶ 2-3. The Myers plaintiffs argued Tempe was liable because of: (1) its decision to enter the agreement; (2) its decision to dispatch the specified fire department; and (3) the fire department's decision (under vicarious liability) to provide specific care to the decedent. Id. at 130, ¶ 8. Only the first two decisions are relevant to the issues in this appeal.

¶18 Tempe's decision to enter the agreement was a policy decision because "[i]t involved weighing risks and gains, concerned the distribution of resources and assets, and required consulting the city's subject matter experts." Id. at 130, ¶ 10. As the Supreme Court held, the immunity from the policy decision to enter the agreement covered Tempe's dispatch of the fire department because it "follow[ed] automatically from the terms of the [agreement]." Id. at 131, ¶ 12.

¶19 The district, citing M...