Tucson Unified School District v. Borek ex rel Gallagher – 3/11/2014

April 3, 2014

Arizona Court of Appeals Division Two Holds that Statutory Immunity for Felonies Committed by Public Employees Applies Unless Agency Had Actual Knowledge of Employee’s Propensity for the Crime

The parents of a developmentally challenged girl brought suit against the Tucson Unified School District (TUSD) alleging that an employee sexually abused their daughter and that TUSD conducted a negligent investigation of the employee’s background before hiring him.  TUSD filed for summary judgment, arguing that A.R.S. § 12-820.05(B) granted the agency immunity from vicarious liability for criminal felonies committed by public employees “unless the public entity knew of the public employee’s propensity for that action.”

The trial court denied the summary judgment motion, holding that TUSD “should have known under the circumstances” that the employee’s previous conduct indicated a propensity for sexual abuse.  TUSD filed a special action, arguing that the immunity statute’s propensity exception requires actual knowledge rather than merely constructive knowledge.

The Court of Appeals accepted jurisdiction of the statutory interpretation argument and granted relief.  The Court noted that the statute unambiguously requires actual knowledge of propensity, a conclusion supported by the language of a related statute, A.R.S. § 12-821.01(B), which explicitly includes constructive knowledge by using the phrase “knows or reasonably should know.”  The Court noted that requiring actual knowledge of the criminal propensity of public employees to eliminate immunity from suit may be bad public policy, but the responsibility for changing the statute lies with the legislature

TUSD also sought relief for the trial court’s denial of summary judgment based on the inadequacy of the notice of claim.  The Court declined jurisdiction on that issue, noting that the case would continue no matter the decision on the notice of claim issue, and therefore TUSD had an adequate remedy on appeal.

Presiding Judge Kelly authored the opinion; Judges Espinosa and Vásquez concurred.