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Gallagher v. Tucson Unified School District

Court of Appeals of Arizona, Second Division

May 12, 2015

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

Appeal from the Superior Court in Pima County. No. C20121176. The Honorable D. Douglas Metcalf, Judge.

For Plaintiffs/Appellants: David E. Hill, Law Office of David E. Hill, P.L.C., Tucson.

For Defendant/Appellee: Jerald R. Wilson, Miniat & Wilson, LPC, Tucson.

Judge Vásquez authored the opinion of the court, in which Presiding Judge Kelly and Judge Howard concurred.

OPINION

Page 229

VÁSQUEZ, 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

Page 230

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 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 § ...


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