Austin v. State
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THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
CHRISTOPHER AUSTIN and SHAWN
AUSTIN,
)
)
)
Plaintiffs/Appellants, )
)
v.
)
)
STATE OF ARIZONA; ARIZONA
)
DEPARTMENT OF JUVENILE
)
CORRECTIONS; and MICHAEL BRANHAM, )
Director of the Arizona
)
Department of Juvenile
)
Corrections,
)
)
Defendants/Appellees. )
__________________________________)
DIVISION ONE
FILED: 09/22/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
No. 1 CA-CV 10-0554
DEPARTMENT E
MEMORANDUM DECISION
(Not for Publication Rule 28, Arizona Rules
of Civil Appellate
Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2008-013625
The Honorable Sam J. Myers, Judge
AFFIRMED
________________________________________________________________
Law Office of Gary Lassen, PLC
By
Gary L. Lassen
Attorneys for Plaintiffs/Appellants
Tempe
Thomas C. Horne, Attorney General
Phoenix
By
James B. Bowen, Assistant Attorney General
Attorneys for Defendants/Appellees
________________________________________________________________
O R O Z C O, Judge
¶1
Christopher
Austin
and
Shawn
Austin1
(Appellants)
appeal the trial court’s grant of summary judgment in favor of
the
State
Corrections
three
of
Arizona,
and
claims
of
Michael
the
Arizona
Branham2
negligence.
Department
(collectively,
For
the
of
the
following
Juvenile
State)
on
reasons,
we
affirm.
FACTS AND PROCEDURAL BACKGROUND3
¶2
Shawn Austin was a sixteen-year-old detainee at the
Adobe Mountain School facility within the Arizona Department of
Juvenile Corrections (ADJC) when he was the victim of unlawful
sexual contacts with a Juvenile Corrections Officer4 (the JCO).
The encounters occurred between August and early October 2007,
when Shawn left the facility.
In November 2007, Shawn’s parole
1
Christopher Austin originally filed this action on behalf
of his son, Shawn, who was a juvenile at the time. Shawn Austin
was added as a party when he turned eighteen years of age.
2
The State removed this case to the United States District
Court for the District of Arizona. Before the case was remanded
to superior court, Kellie Warren, Deputy Director for the
Arizona Department of Juvenile Corrections, was dismissed as a
party because she was never served with the amended complaint.
3
The Statement of Facts in Appellants’ opening brief does
not contain any citations to the record as required by Arizona
Rule of Civil Appellate Procedure 13.a.4.
Accordingly, we
disregard the facts set forth in the opening brief and rely on
the State’s statement of facts and our own review of the record
for our recitation of the facts. See State Farm Mut. Auto Ins.
Co. v. Arrington, 192 Ariz. 255, 257 n.1, 963 P.2d 334, 336 n.1
(App. 1998).
4
The JCO was never a party to this action.
2
officer discovered letters exchanged between Shawn and the JCO.
ADJC launched an investigation and the JCO admitted to three
sexual encounters.
She was subsequently arrested and charged
with five counts of unlawful sexual conduct.
The JCO pled guilty
to two felony counts of solicitation to commit unlawful sexual
conduct with a person in custody.
¶3
Appellants
filed
a
complaint
in
superior
court,
alleging the State was: (1) negligent per se for failing to
protect the minor from sexual misconduct; (2) negligent in hiring
and supervising the JCO; and (3) vicariously liable for the JCO’s
illegal conduct.
¶4
Appellants filed a Motion for Partial Summary Judgment
on the negligence per se claim.
The State responded by filing a
Cross-Motion for Summary Judgment, arguing Appellants could not
meet their burden of proof on the negligence elements of breach,
causation,
complaint
or
damages.
should
be
In
addition,
dismissed
on
the
State
immunity
argued
grounds
the
because
Appellants provided no evidence that the State knew or should
have
known
the
JCO
had
a
propensity
to
have
inappropriate
relationships with juveniles.
¶5
The trial court found no genuine issue of material fact
and that the State was entitled to judgment as a matter of law.
Specifically, the trial court held the State was entitled to
statutory immunity pursuant to Arizona Revised Statutes (A.R.S.)
3
section 12-820.05.B (2003) because the negligence claims arose
out of the JCO’s felonious conduct and no reasonable finder of
fact could conclude the State knew of or should have known of the
JCO’s propensity for unlawful sexual conduct.
¶6
Appellants timely appealed.
We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and pursuant to
A.R.S. § 12-2101.B (2003).
DISCUSSION
A.
Standard of Review
¶7
We review the trial court’s grant of summary judgment
de novo and view the evidence and reasonable inferences in the
light
most
granted.
favorable
to
the
party
against
whom
judgment
was
Desert Mountain Props Ltd. P’ship v. Liberty Mut. Fire
Ins. Co., 225 Ariz. 194, 214, ¶ 87, 236 P.3d 421, 441 (App.
2010).
Summary judgment is appropriate if no genuine issues of
material fact exist and the moving party is entitled to judgment
as a matter of law.
the
granting
of
Ariz. R. Civ. P. 56(c)(1).
summary
judgment
“if
the
We will affirm
facts
produced
in
support of the claim or defense 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 or defense.” Orme School v. Reeves, 166 Ariz. 301, 309,
802 P.2d 1000, 1008 (1990).
4
B.
Statutory Immunity
¶8
Section 12-820.05.B provides: “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.”
the
trial
court’s
application
of
A.R.S.
§
We review de novo
12-820.05.B.
See
Thomas v. Thomas, 203 Ariz. 34, 36, ¶ 7, 49 P.3d 306, 308 (App.
2002).
¶9
The JCO was a public employee of the ADJC when she had
an inappropriate sexual relationship with then-sixteen-year-old
Shawn.
She subsequently pled guilty to two felony counts of
solicitation to commit unlawful sexual conduct with a person in
custody.
Because the JCO was a public employee who committed a
felony and Appellants’ claims arise out of the JCO’s criminal
sexual conduct, Appellants must show that the ADJC knew of the
JCO’s propensity to engage in illegal sexual conduct.
A.R.S. §
12-820.05.B.
Appellants
felonies
committed
the
by
demonstrate
her
JCO
have
or
propensity
relationships with minors.
not
alleged
submitted
to
engage
any
in
any
prior
evidence
that
inappropriate
would
sexual
In fact, the only evidence in the
record relating to the JCO’s character was that she successfully
5
passed an extensive criminal background check and completed her
ADJC training.
¶10
Appellants
Institutionalized
rely
Persons
on
Act
a
2004
(CRIPA),
Civil
42
Rights
U.S.C.A.
§
of
1997
et
seq., report prepared by the Department of Justice, which found a
general
pattern
of
improper
contacts
among
detainees
corrections officers occurring between 2001 and 2003.
and
Appellants
argue the violations contained in the CRIPA report continued to
occur during the time of the events in this case and that the
report provides the requisite knowledge of propensity.
However,
the CRIPA report does not provide any evidence of the State’s
knowledge of a problem with this particular JCO, as she was not
employed by ADJC during the time frame covered by that report.
Likewise,
Appellants’
general
reference
to
“news
reports
and
public information” concerning sexual abuse of minors by ADJC
staff does not provide evidence of knowledge on the part of the
State with regard to this JCO.
¶11
Based on the information in the record concerning the
JCO’s character, no reasonable jury could conclude the State knew
the
JCO
had
relationships.
a
propensity
Pursuant
to
to
engage
A.R.S.
in
§
inappropriate
12-829.05.B,
cannot be liable without such knowledge.
the
sexual
State
Thus, the State is
entitled to statutory immunity on Appellants’ negligence claims.
6
¶12
Finally, Appellants argue that the harm Shawn suffered
did not arise out of the JCO’s criminal conduct but from a breach
of
the
State’s
environment.
duty
to
We disagree.
provide
a
safe
and
therapeutic
The harm that Shawn suffered was
directly related to the actions of the JCO.
Appellants do not
direct us to anything in the record that indicates the State’s
conduct caused the harm that Shawn suffered.5
CONCLUSION
¶13
For the foregoing reasons, we affirm the trial court’s
grant of summary judgment.
/S/
_______________________________
PATRICIA A. OROZCO, Judge
CONCURRING:
/S/
____________________________________
DIANE M. JOHNSEN, Presiding Judge
/S/
____________________________________
ANN A. SCOTT TIMMER, Judge
5
Because we find the State is entitled to immunity, we need
not address Appellants’ other arguments.
7
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