Perez v. Patterson

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

LAWRENCE PEREZ, Plaintiff/Appellant,

v.

KYLE PATTERSON, Defendant/Appellee.

No. 1 CA-CV 24-0214

FILED 12-05-2024

Appeal from the Superior Court in Apache County
No. S0100CV202200117
The Honorable Michael D. Latham, Judge

AFFIRMED

COUNSEL

Law Office of Robert M. Gregory, P.C., Gilbert
By Robert M. Gregory
Counsel for Plaintiff/Appellant

Wright Welker & Pauole PLC, Phoenix
By Christopher S. Welker & Richard R. Carpenter
Counsel for Defendant/Appellee
 PEREZ v. PATTERSON
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Jennifer B. Campell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Lawrence Perez appeals from the superior court’s order
dismissing his negligence claim against Kyle Patterson. We affirm because
Patterson did not owe a duty to Perez and, as a public official, Patterson has
qualified immunity from ordinary negligence claims.

FACTS AND PROCEDURAL BACKGROUND

¶2 In August 2021, Perez attended a St. Johns High School
football game. As he walked toward the stadium bleachers, he tried to step
over a water puddle on the walkway but lost his balance and fell. He tore
his left rotator cuff, which led to shoulder replacement surgery in January
2022.

¶3 Perez filed a complaint against the St. Johns Unified School
District (“District”) and Kyle Patterson, the District’s Superintendent. Perez
alleged a negligence claim against the defendants, claiming they caused his
injuries because they “had a duty to keep [the school’s] premises safe and
free from any unreasonably hazardous and/or dangerous conditions.”

¶4 The District moved to dismiss the complaint, noting Perez
failed to serve each governing board member. The superior court granted
the motion and dismissed the complaint with prejudice, finding Perez
served only Patterson and thus violated the notice of claim statute. See
A.R.S. § 12-821.01.

¶5 Perez appealed the order dismissing the complaint. He
argued that the court dismissed the complaint against Patterson sua sponte
because the District did not include Patterson in its motion to dismiss. Perez
v. St. Johns Unified Sch. Dist., 1 CA-CV 23-0079, 2023 WL 7138497, at *3, ¶ 17
(Ariz. App. Oct. 31, 2023) (as amended) (mem. decision). We affirmed the
superior court’s dismissal against the District. Id. at *4, ¶ 22. Still, we
vacated and remanded the dismissal against Patterson because the court
failed to take the necessary procedural steps, such as allowing Perez to be
heard on Patterson’s dismissal. Id. at *3, *4, ¶¶ 18, 22.

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¶6 On remand, Patterson moved to dismiss the complaint for
failure to state a claim upon which relief could be granted. See Ariz. R. Civ.
P. 12(b)(6). Patterson argued that he did not have a duty to Perez because
(1) only the District, as the possessor of the land, had a duty to use
reasonable care to make the premises safe for invitees; (2) Arizona does not
recognize a special relationship creating a duty between a school
superintendent and invitees on school premises; and (3) public policy does
not compel the creation of such a duty. Perez responded that Patterson had
a duty to invitees on school grounds under the District’s Policy Manual
(“Manual”).

¶7 In March 2024, the superior court granted Patterson’s
dismissal motion, finding that the District, as the land possessor, had the
duty to make the premises safe instead of Patterson, a District employee.
The court also found that public policy disfavored finding Patterson
negligent in his duties as superintendent and holding him personally liable
because making such a determination would allow any political
subdivision’s employee to be personally sued for the condition of the land,
even if the employee’s conduct were not tortious.

¶8 Perez appealed. We have jurisdiction under Arizona Revised
Statutes (“A.R.S.”) § 12-2101(A)(1).

DISCUSSION

¶9 Perez contends that public policy supports personal suits
against political subdivision employees. Perez also argues that the superior
court erred by dismissing his complaint against Patterson because
Patterson had a duty to him as a land possessor and because public policy
favors protecting invitees from risks of harm.

¶10 We review the superior court’s dismissal of a complaint for
failure to state a claim de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355-56,
¶¶ 7-8 (2012). We affirm a dismissal if the plaintiff “would not be entitled
to relief under any interpretation of the facts susceptible of proof.” Id. at
356, ¶ 8 (quotation omitted); see also Ariz. R. Civ. P. 12(b)(6). We look at the
complaint and “assume the truth of all well-pleaded factual allegations and
indulge all reasonable inferences from those facts, but mere conclusory
statements are insufficient.” Coleman, 230 Ariz. at 356, ¶ 9. On de novo
review, we may affirm the superior court if it was legally “correct for any
reason.” See Fappani v. Bratton, 243 Ariz. 306, 309, ¶ 8 (App. 2017).

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A. The Court Did Not Err Because Patterson Did Not Have a Duty to
Perez Through a Special Relationship or As a Matter of Public Policy.

¶11 A plaintiff must prove four elements to prevail on an ordinary
negligence claim: “(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 connection between the defendant’s conduct and the resulting
injury; and (4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9
(2007). Whether a duty exists is a question of law that we review de novo.
Guerra v. State, 237 Ariz. 183, 185, ¶ 7 (2015).

¶12 “A duty is 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.” Acri v. State, 242 Ariz.
235, 238, ¶ 7 (App. 2017) (quotation omitted). To prevail on his premises
liability claim, Perez must prove that Patterson owed him a duty to
maintain the school football grounds in a reasonably safe condition. See
Dabush v. Seacret Direct LLC, 250 Ariz. 264, 267, ¶ 9 (2021). This duty may
arise from a special relationship between the parties, such as a
landowner-invitee relationship or public policy. Gipson, 214 Ariz. at 144-45,
¶¶ 18-19, 23.

¶13 Perez argues that Patterson had a duty because Patterson, not
the District, possessed the land by exercising actual and physical control
over it. Perez bases his claim on the Manual, asserting it created land
management duties for the superintendent. Perez also argues that the
Manual established a public policy duty.

¶14 Land possessors have a special relationship with invitees, see
Gipson, 214 Ariz. at 145, ¶ 19, and are “under an affirmative duty” to use
reasonable care to make the premises safe. Markowitz v. Ariz. Parks Bd., 146
Ariz. 352, 355-56 (1985) (quoting Tribe v. Shell Oil Co., 133 Ariz. 517, 519
(1982)). A public invitee is “a person who is invited to enter or remain on
land as a member of the public for a purpose for which the land is held open
to the public.” Tostado v. City of Lake Havasu, 220 Ariz. 195, 202, ¶ 30 (App.
2008) (quoting Restatement (Second) of Torts § 332(2) (1965)).

¶15 Arizona recognizes that school districts must make their
premises reasonably safe for invitees. See, e.g., Jesik v. Maricopa County Cmty.
Coll. Dist., 125 Ariz. 543, 546 (1980); Vreeland v. State Bd. of Regents, 9 Ariz.
App. 61, 62 (1969); Dinsmoor v. City of Phoenix, 251 Ariz. 370, 374, ¶¶ 17-18
(2021) (School districts owe a duty to students for “risks . . . that occur while
the student is at school or otherwise under the school’s control.”) (quoting

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Monroe v. Basis Sch., Inc., 234 Ariz. 155, 157-58, ¶ 6, n.2 (App. 2014)). Perez
was an invitee under the District’s control during the football game. Thus,
the District, as the land possessor, had a special relationship with Perez and
had a duty to keep school premises reasonably safe for his use.

¶16 While exercising actual, physical control over land can
evidence possession, see Dabush, 250 Ariz. at 269, ¶ 18, Perez only cites the
Manual to support his argument that Patterson had actual, physical control.
A person with actual and physical control over the premises “must have
the authority to (1) exclude others from the premises; and (2) direct how the
premises is repaired, maintained, and used.” See Dabush, 250 Ariz. at 269,
¶ 18; see also Jackson v. Cartwright Sch. Dist., 125 Ariz. 98, 102-03 (App. 1980)
(The school district possessed the premises because it locked the entry gates
and approved land alteration requests.); State v. City of Kingman, 217 Ariz.
485, 488-90, ¶¶ 13, 22 (App. 2008) (The city did not have actual control over
the highway intersection because it did not “actually participate in
maintaining or operating” the intersection.).

¶17 While the Manual granted Patterson some authority over the
use of school grounds, Patterson did not have a duty to Perez because the
District’s duty to invitees is nondelegable. A land possessor holds “an
affirmative duty to protect those described as his invitees by making and
keeping the premises safe,” which requires “a higher degree of care.” See
Ft. Lowell-NSS Ltd. P’ship v. Kelly, 166 Ariz. 96, 101 (1990). When a
nondelegable duty exists, “the employer must retain responsibility, despite
proper delegation to another” because allowing the possessor to “escape
liability” by delegating its duty would undermine the duty itself. See id. at
101, 104.

¶18 When a nondelegable duty exists, “the principal is ‘held liable
for the negligence of [its] agent, whether [its] agent was an employee, or an
independent contractor.’” Wiggs v. City of Phoenix, 198 Ariz. 367, 370, ¶ 10
(2000) (quoting Maloney v. Rath, 69 Cal. 2d 442, 446 (1968)). Ft. Lowell
extended the nondelegable duty doctrine to a land possessor who delegated
its duties to an independent contractor. 166 Ariz. at 98, 103-04. Because the
District retained possession of the school grounds at the time of Perez’s
injury, Ft. Lowell’s rationale that land possessors, or employers, with a
special duty to invitees, should not be able to “escape liability merely by
delegating performance to another” applies here. Id. at 101. While the
Manual delegates the performance of the District’s duty to Patterson by
granting him responsibility over “the use of buildings and grounds” and
requiring him to establish procedures to protect the safety of all students

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and visitors, those responsibilities do not change the nature of the District’s
nondelegable duty to invitees. See id. at 104.

¶19 Perez contends that the District’s land ownership is
“questionable.” He argues that the District’s land ownership is unknown
because the land is designated as trust land under the Arizona State Land
Department’s control. Even if the District does not own the land, our
analysis does not change because “[w]hen land is leased to a tenant, the law
of property regards the lease as equivalent to a sale of the land for the term
of the lease. The lessee acquires an estate in the land, and becomes for the
time being the owner and occupier, subject to all of the liabilities of one in
possession.” Restatement (Second) of Torts § 356 cmt. a (1965); see also
Klimkowski v. De La Torre, 175 Ariz. 340, 342 (App. 1993). Thus, the District
is liable as the land possessor, whether it owned or was leasing the land for
the football stadium. And because the District’s duty is nondelegable,
Perez’s claims against Patterson fail.

¶20 Perez also argues public policy supports imposing a duty of
care on Patterson because those “who exercise control over property . . .
have the means and responsibility to protect the public from harm.” We
reject the argument because Perez has not shown that Patterson’s alleged
public policy duty is rooted in a statute, regulation, or common law.

¶21 For a duty to exist under public policy, such a duty must be
established by a statute, regulation, or a common law rule. See Quiroz v.
ALCOA Inc., 243 Ariz. 560, 566-67, ¶¶ 18-20 (2018); see, e.g., Brannigan v.
Raybuck, 136 Ariz. 513, 516-17 (1983) (Liquor licensees have a duty under
statutes prohibiting underage drinking not to sell alcohol to minors.);
Thomas v. Baker Fam. Tr., 191 Ariz. 187, 188 (App. 1997) (A local ordinance
may impose a duty on a property owner to repair a sidewalk next to his
property.); Martinez v. Woodmar IV Condo. Homeowners Ass’n, Inc., 189 Ariz.
206, 209 (1997) (A condominium association has a duty to owners, tenants,
and invitees in the common areas as established by common law.).

¶22 Perez points to A.R.S. § 15-503, which enables a district’s
governing board to hire a superintendent responsible for the school
system’s administration, and points to the Arizona Administrative Code
R7-2-603(J)(3), which discusses resource management. But A.R.S. § 15-503
does not create a public policy duty because it only permits the governing
board to hire a superintendent. And Section R7-2-603(J)(3) of the
Administrative Code, which discusses educational leaders’ management of
resources to promote academic success, does not establish a duty. See Ariz.
Admin. Code R7-2-603(J)(3); see also Hogue v. City of Phoenix, 240 Ariz. 277,

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282, ¶ 18 (App. 2016) (Phoenix City Code articulating general employee
responsibilities does not impose a duty.).

¶23 Without a statutory basis, “we exercise great restraint in
declaring public policy.” See Quiroz, 243 Ariz. at 566-67, ¶ 19. While the
Manual outlines certain job responsibilities of a superintendent relating to
safety procedures and the use of school grounds, these responsibilities do
not establish a public policy duty. See Hogue, 240 Ariz. at 282, ¶ 18. In sum,
Patterson did not have a duty to Perez because the District’s duty to Perez
as the land possessor is nondelegable, and a public policy duty does not
exist under statute, regulation, or common law.

B. Even if Patterson Owed a Duty to Perez, He Has Qualified
Immunity for the Discretionary Acts Performed in His Capacity as
Superintendent.

¶24 Perez contends that he can sue Patterson personally for
alleged tortious conduct while acting as superintendent. But qualified
immunity precludes personal suits against Patterson for negligent conduct
exercised within the scope of his role as superintendent.

¶25 Patterson did not plead qualified immunity in his motion to
dismiss or in a responsive pleading. See Ariz. R. Civ. P. 8(d); see also
Chamberlain v. Mathis, 151 Ariz. 551, 554 (1986). Generally, failure to plead
an affirmative defense at the superior court leads to waiver, City of Phoenix
v. Linsenmeyer, 86 Ariz. 328, 333 (1959), but waiver is discretionary. See Sobol
v. Marsh, 212 Ariz. 301, 303, ¶ 8 (App. 2006). In our discretion, we do not
remand to allow Patterson to plead qualified immunity because qualified
immunity is a question of law that we review de novo, Ochser v. Funk, 228
Ariz. 365, 369, ¶ 11 (2011), and we can resolve it on the record before us. See
Graves v. City of Coeur D’Alene, 339 F.3d 828, 845, n.23 (9th Cir. 2003).

¶26 While we narrowly apply immunity because it is the
exception, not the rule, Stone v. Ariz. Highway Comm’n, 93 Ariz. 384, 392
(1963), Arizona law supports qualified immunity for the discretionary
decisions made by a school district superintendent in the scope of his job
responsibilities. Qualified immunity protects public officials from suits
arising from acts done within the scope of their job functions that
“inherently require[] judgment or discretion.” Spooner v. City of Phoenix, 246
Ariz. 119, 123-24, ¶ 9 (App. 2018) (quoting Chamberlain, 151 Ariz. at 555).
The purpose of providing immunity is to “preserv[e] independence of
action without deterrence or intimidation by the fear of personal liability
and vexatious suits.” Id. at 123-24, ¶ 9 (quoting Restatement (Second) of

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Torts § 895D cmt. b (1979)). Qualified immunity shields public officials from
simple negligence claims but not gross negligence claims.1 See A.R.S.
§ 12-820.02(A); see also Jennings v. Agne, 254 Ariz. 174, 178, ¶ 15 (App. 2022).
Perez did not allege gross negligence, so qualified immunity applies here.

¶27 Assuming Patterson had a duty to Perez, Patterson had
qualified immunity for his discretionary acts as the District’s
superintendent. The legislature prescribed specific areas of immunity in
A.R.S. § 12-820.02 but also specified that its grant of statutory immunity
must not be construed to “affect, alter or otherwise modify any other rules
of tort immunity regarding . . . public officers as developed at common
law.” A.R.S. § 12-820.05(A). “[W]e follow the Restatement . . . in the absence
of Arizona authority to the contrary.” Jesik, 125 Ariz. at 546. When our
supreme court extended qualified immunity to executive government
officials in defamation cases, the court relied, in part, on the Restatement
(Second) of Torts, see Chamberlain, 151 Ariz. at 558, and we rely on the
specific section of the Restatement applied to provide qualified immunity
to police officers. See, e.g., Spooner, 246 Ariz. at 123-24, ¶¶ 9, 11 (The court
relied on Restatement § 895D to apply qualified immunity to police officers’
investigative duties.); Jennings, 254 Ariz. at 178, ¶¶ 15, 17 (Qualified
immunity applies to police officers’ conduct when responding to an
emergency call.). “A public officer acting within the general scope of his
authority is not subject to tort liability for an administrative act or omission

1 “Our supreme court has recognized that the definition of gross
negligence ‘is, at best, inexact.’” Noriega v. Town of Miami, 243 Ariz. 320, 328,
¶ 36 (App. 2017) (quoting Weatherford ex rel. Michael L. v. State, 206 Ariz. 529,
535, ¶ 20, n.4 (2003)). But the court explained, “[a]s between negligence and
gross negligence, negligence suggests ‘a failure to measure up to the
conduct of a reasonable person.’” Weatherford, 206 Ariz. at 535, ¶ 20, n.4
(quoting Daniels v. Williams, 474 U.S. 327, 332 (1986)). “And [g]ross
negligence generally signifies more than ordinary inadvertence or
inattention, but less perhaps than conscious indifference to the
consequences, which falls closer to the recklessness standard that usually
involves a conscious disregard of a risk.” Noriega, 243 Ariz. at 328, ¶ 36
(quotation omitted).

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if . . . he is immune because [he] engaged in the exercise of a discretionary
function.” Restatement (Second) of Torts § 895D(3)(a) (1979).2

¶28 A superintendent’s choice of implementing certain safety
measures to protect invitees on school grounds is a discretionary function
that “inherently requires judgment or discretion.” See Spooner, 246 Ariz. at
123-24, ¶ 9 (quoting Chamberlain, 151 Ariz. at 555). Examples of
discretionary acts include “evaluating reports or employees’ performances
or deciding upon [a] parole release warrant.” Chamberlain, 151 Ariz. at 556.
The Manual states that the superintendent “assumes responsibility for the
use of buildings and school grounds” and safety procedures to protect
those on school grounds “or at school-sponsored events.” Patterson’s
decision about what safety procedures to implement to address water
accumulation on the football stadium’s walkway was within his
discretionary authority under the Manual. Thus, this is a discretionary act
subject to qualified immunity.

¶29 We acknowledge that the doctrine of qualified immunity
requires balancing the interests of government officials and injured parties.
See Chamberlain, 151 Ariz. at 554-55. Immunity for public officials allows
them to govern without elevating “personal interest above official duty.”
See id. Without immunity, a superintendent’s job responsibilities “may be
hampered and qualified individuals may be hesitant to serve” in such
positions. See id. at 555. Without gross negligence, balancing competing
interests favors qualified immunity for superintendents acting within their
discretionary job functions. See Grimm v. Ariz. Bd. of Pardons & Paroles, 115
Ariz. 260, 267-68 (1977) (Parole board members can be liable “only for
[their] grossly negligent or reckless” conduct and are immune “from suit
for reasonable decisions.”).

2 Restatement § 895D also provides several factors to consider when
determining whether an action is discretionary: (1) the nature and
importance of the function performed, (2) how much the court passing
judgment on the officer’s discretion requires it to interfere with the conduct
of the coordinate branches of government, (3) the importance of freely
exercised discretion and sensitivity to imposing liability, (4) the likelihood
that the officer will be financially responsible, (5) likelihood of harm to the
public, (6) the type and severity of harm, and (7) the availability of other
remedies to the injured party. Restatement (Second) of Torts § 895D cmt. f
(1979).

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¶30 Additionally, providing qualified immunity to school district
superintendents does not limit injured parties’ interests in recovery because
even if plaintiffs could sue a superintendent, the school district would be
liable for the superintendent’s negligence as an agent of the district. See
Ryan v. State, 134 Ariz. 308, 310 (1982). Under Arizona law

[a] state officer, agent or employee, except as otherwise
provided by statute, is not personally liable for an injury or
damage resulting from an act or omission in a public official
capacity where the act or omission was the result of the
exercise of the discretion vested in the officer . . . and if the
exercise of the discretion was done in good faith without
wanton disregard of statutory duties.

A.R.S. § 41-621(K) (emphasis added). Because “the state is liable for the
negligent acts of its agents,” Ryan, 134 Ariz. at 310, Section 41-621(A)
requires the state to obtain insurance to protect from financial loss. Thus,
our holding does not hamper the interests of those injured by government
officials’ discretionary decisions.

¶31 Here, there is no allegation that Patterson engaged in gross
negligence. Thus he is entitled to immunity from simple negligence suits
even if he owed a duty to Perez. See A.R.S. §§ 12-820.02(A), -820.05(A).

CONCLUSION

¶32 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

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