                                    IN THE
             ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                          JAYLYN BOTTOMLEE,
                            Plaintiff/Appellant,

                                       v.

                       STATE OF ARIZONA, et al.,
                          Defendants/Appellees.

                           No. 1 CA-CV 19-0016
                             FILED 1-28-2020


           Appeal from the Superior Court in Maricopa County
                          No. CV2017-013064
                 The Honorable Joseph C. Welty, Judge

      AFFIRMED IN PART, REVERSED IN PART; REMANDED


                                   COUNSEL

Stewart & Davis, PC, Phoenix
By Joseph T. Stewart
Counsel for Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix
By Michael G. Gaughan, Kara L. Klima
Counsel for Defendants/Appellees



                                   OPINION

Judge Diane M. Johnsen delivered the opinion of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.
                        BOTTOMLEE v. STATE, et al.
                           Opinion of the Court


J O H N S E N, Judge:

¶1            The mother of an infant who suffocated and died at a Phoenix
daycare center sued the State of Arizona, alleging a state inspector was
grossly negligent in directing the daycare to place the child face-down on a
pillow during "tummy time." We hold the complaint stated a claim for
gross negligence, reverse the dismissal of that claim, affirm the dismissal of
other claims and remand for further proceedings.

             FACTS AND PROCEDURAL BACKGROUND

¶2            "Tummy time" is a child-development technique aimed at
building an infant's upper-body strength and balance. As implied by the
name, an infant is placed on his stomach while awake, at first for just a
minute or so, then for longer periods as he becomes better able to hold up
his head. The amended complaint here cited a "tip sheet" the Arizona
Department of Health Services ("Department") issued to daycare providers
warning that during tummy time, an infant should be placed on a "flat,
clean surface, such as a blanket or play mat on the floor." According to
federal authorities cited in the complaint, an infant placed on a pillow for
tummy time might slip down into the pillow and suffocate.

¶3            Jaylyn Bottomlee's amended complaint alleged her six-
month-old son, Gabriel, died at a facility owned and run by Lil World
Daycare, LLC. Bottomlee alleged that Frederick Geyser, a "Licensing
Surveyor" in the Department's Child Care Licensing Section, visited Lil
World to investigate a report that the daycare was violating a Department
rule by putting infants to sleep in cribs with Boppy pillows – C-shaped soft
pillows typically used to hold an infant for feeding. Bottomlee alleged that
when Geyser arrived at Lil World, he saw Gabriel and other infants
sleeping in their cribs with Boppy pillows. According to the complaint,
having confirmed that Lil World was violating the ban on pillows in infants'
cribs, Geyser ordered the daycare to use the pillows instead only "on the
floor for tummy time." Bottomlee alleged Geyser "developed, endorsed
and signed" a Plan of Correction for Lil World that expressly mandated:
"All pillows will be removed today [from cribs] and use[d] on the floor for
tummy time only."

¶4            One morning less than two weeks later, a Lil World worker
fed Gabriel a bottle, then draped him atop a Boppy pillow for tummy time.
According to the complaint, the worker left Gabriel unattended, and, after




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                       BOTTOMLEE v. STATE, et al.
                          Opinion of the Court

a bit, the infant slipped down into the pillow and suffocated. He was
pronounced dead at the hospital.

¶5           In her wrongful-death suit, Bottomlee alleged the corrective
plan Geyser issued to Lil World

       ignored and violated the State's published policy on tummy
       time, as well as well-established research and
       recommendations in the medical and scientific communities,
       and published reports from the United States Consumer
       Product Safety Commission and the United States Food and
       Drug Administration warning that nursing pillows present a
       high risk of suffocation to infants and that such pillows
       should never be placed under infants.

Bottomlee alleged Geyser acted with gross negligence in directing Lil
World to place Gabriel and the other infants on pillows during tummy time.
She also alleged the Department, its director and the State were liable for
Geyser's gross negligence by virtue of respondeat superior.

¶6            The superior court granted the defendants' motion to dismiss
Bottomlee's amended complaint for failure to state a claim. After the court
denied Bottomlee's motion for a new trial, she timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2020) and
-2101(A)(1) (2020).1

                               DISCUSSION

¶7             "We review de novo the dismissal of a complaint for failure to
state a claim and will affirm only if the plaintiff 'would not be entitled to
relief under any interpretation of the facts susceptible of proof.'" Stair v.
Maricopa County, 245 Ariz. 357, 361, ¶ 11 (App. 2018) (citation omitted); see
Ariz. R. Civ. P. 12(b)(6). In determining whether a complaint states a claim
upon which relief can be granted, we "assume the truth of the well-pled
factual allegations and indulge all reasonable inferences therefrom." Cullen
v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008).

¶8            "To establish a claim for negligence, a plaintiff must prove
four elements: (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

1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


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                       BOTTOMLEE v. STATE, et al.
                          Opinion of the Court

connection between the defendant's conduct and the resulting injury; and
(4) actual damages." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). "Duty is
defined as 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.'" Id. at ¶ 10 (quoting Markowitz v. Ariz.
Parks Bd., 146 Ariz. 352, 354 (1985)). "Such an obligation may arise from
'either recognized common law special relationships or relationships
created by public policy.'" Stair, 245 Ariz. at 361, ¶ 12 (quoting Quiroz v.
ALCOA Inc., 243 Ariz. 560, 565, ¶ 14 (2018)). Whether a duty exists "is a
matter of law for the court to decide." Gipson, 214 Ariz. at 143, ¶ 9.

A.     Defendants' Duty to Gabriel and His Mother.

¶9           In dismissing the complaint, the superior court accepted the
defendants' argument that Bottomlee failed to allege facts to support a duty
that might give rise to a claim in tort.2

¶10            On appeal, the defendants liken daycare investigators to law-
enforcement officers who investigate reports of crimes "and author
reports." As with law enforcement, the defendants argue, their duty in this
context is to the general public, not to any individual child or parent. But
under Arizona law, acts by law-enforcement officers may create a special
relationship giving rise to a duty owed to a specific individual. See Noriega
v. Town of Miami, 243 Ariz. 320, 327-28, ¶¶ 29, 32 (App. 2017); Hogue v. City
of Phoenix, 240 Ariz. 277, 280-81, ¶ 12 (App. 2016). That is, although "police
do not owe a duty to every citizen within their jurisdiction from all potential
harms," Noriega, 243 Ariz. at 327, ¶ 29, when they "endeavor to provide
specific protection to a particular person, they generally . . . have 'a duty to
act as would a reasonably careful and prudent police department in the
same circumstances,'" Hogue, 240 Ariz. at 280, ¶ 12 (quoting Austin v. City of
Scottsdale, 140 Ariz. 579, 581-82 (1984) (duty may exist when acts by police
have "narrowed the obligation owed to the general public into a specific
obligation owed" to an individual)); see also Hutcherson v. City of Phoenix, 192
Ariz. 51, 55-56, ¶ 26 (1998) (by creating 9-1-1 system, city accepted duty to




2     Beyond gross negligence by Geyser, attributed to the other
defendants through respondeat superior, Bottomlee also alleged claims titled
"Gross Negligent Failure to Investigate," "Gross Negligent Investigations,"
"Gross Negligent Failure to Monitor the Daycare," "Gross Negligent
Hiring," "Gross Negligent Training" and "Gross Negligent Supervision."
On appeal, she does not contest the dismissal of the other claims.


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                        BOTTOMLEE v. STATE, et al.
                           Opinion of the Court

respond reasonably to emergency calls), abrogated in part on other grounds by
State v. Fischer, 242 Ariz. 44 (2017).

¶11            Under these authorities, Geyser effectively "endeavor[ed] to
provide specific protection" to the infants in Lil World's care when, having
confirmed that the daycare was violating Department infant-care
regulations, he ordered the daycare specifically how to correct its violation.
See Hogue, 240 Ariz. at 280, ¶ 12. The consequence was the creation of a
special relationship with those infants that gave rise to a duty of due care
with respect to the particulars of the Plan of Correction that Geyser directed
the daycare to follow.

¶12            The defendants seem to argue that no duty can be imposed
under these circumstances absent an assurance of protection made directly
to the plaintiff. To be sure, Hutcherson, 192 Ariz. at 52, ¶¶ 1-7, and Noriega,
243 Ariz. at 322-23, ¶¶ 4-6, both involved victims who were harmed after
they came to law enforcement for protection. But the defendants offer no
support for the proposition that a special relationship cannot exist in the
absence of a representation by the public entity to the plaintiff. In Austin, our
supreme court ruled a duty to the eventual victim was created when a third
party called police to report that the victim might be in danger, and the
dispatcher said police would "keep an eye out." 140 Ariz. at 579-82.

¶13           Here, the complaint alleged Geyser received a report that Lil
World was violating infant-care regulations, responded to that complaint
and issued a corrective action plan that Bottomlee alleges was grossly
negligent. By directing the manner in which the daycare was to remedy its
violation, Geyser on behalf of the Department created a special relationship
with the infants at Lil World, including Gabriel, just as law enforcement in
the cited cases created special relationships by receiving and responding to
reports of threats.3

B.     The State Defendants Are Not Absolutely Immune from the
       Claims.

¶14           The State and the Department argue that even if the first two
claims in the amended complaint properly allege a duty of care, the State
and the Department are immune from those claims under A.R.S. § 12-820.01


3      Having found the existence of a special relationship that gave rise to
a duty of due care, we need not address Bottomlee's alternative argument
that Geyser and the State defendants owed her and her son a duty arising
out of public policy reflected in statutes and regulations.


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                       BOTTOMLEE v. STATE, et al.
                          Opinion of the Court

(2020). We narrowly construe a statute that grants immunity to public
entities. Doe ex rel. Doe v. State, 200 Ariz. 174, 176, ¶ 4 (2001).

¶15           In relevant part, the statute states:

       A. A public entity shall not be liable for acts and omissions of
       its employees constituting . . . :

                                *      *      *

              2. The exercise of an administrative function involving
              the determination of fundamental governmental
              policy.

       B. The determination of a fundamental governmental policy
       involves the exercise of discretion and shall include, but is not
       limited to:

                                *      *      *

              2. A determination of whether and how to spend
              existing resources, including those allocated for
              equipment, facilities and personnel.

              3. The licensing and regulation of any profession or
              occupation.

A.R.S. § 12-820.01.

¶16             The State and the Department argue § 12-820.01(B)(3) applies
to Bottomlee's first and second claims for relief because those claims arise
from the "licensing and regulation of any profession or occupation." In Doe,
however, our supreme court held the absolute immunity that § 12-820.01
grants to "fundamental governmental policy determinations involving the
licensing of professions and occupations" does not apply to "particular
decisions to grant or revoke licenses." 200 Ariz. at 177, ¶ 9. Instead, the
latter class of decisions is afforded only qualified immunity under A.R.S. §
12-820.02 (2020). Doe, 200 Ariz. at 177, ¶ 9. By way of example, the court
observed that a policy decision to issue teaching certificates to applicants
who have been convicted of certain minor crimes would be a decision by
the State afforded absolute immunity under § 12-820.01. Id. at ¶ 10. "If,
however, the State erred in its processing of a particular teaching
application and issued a certificate to someone convicted of one of the listed
offenses, only qualified immunity would apply." Id.



                                       6
                       BOTTOMLEE v. STATE, et al.
                          Opinion of the Court

¶17           Bottomlee's first and second claims for relief do not implicate
any policy decision by the Department but instead, as in Doe, concern
"application of those policies to individual cases." Id. at ¶ 11 ("[A]bsolute
immunity extends to the regulation and licensing of a profession as a whole,
rather than to a decision to grant a license to a particular member of that
profession."). Accordingly, § 12-820.01(B)(3) does not grant the State and
the Department absolute immunity from those claims.

¶18           The Department also cites Evenstad v. State, 178 Ariz. 578
(App. 1993), in which we held § 12-820.01 immunized the State from a claim
that the Department of Transportation Motor Vehicle Division should have
implemented procedures to identify driver's license applicants with known
drinking problems. 178 Ariz. at 579-80, 583-84 (statute immunizes
promulgation of rules and procedures as a "determination of internal
agency policy"). But no such policy decision is at issue here. Bottomlee
does not allege the Department failed to enact appropriate safety rules for
daycare facilities; instead, she alleges that, having enacted rules requiring
Lil World to safely care for infants, including Gabriel, and having
confirmed that the daycare had violated those rules, it acted with gross
negligence when it directed the daycare how to correct its violation.

                              CONCLUSION

¶19            For the reasons stated, we vacate and remand the dismissal of
Bottomlee's first and second claims for relief, which allege gross negligence
and liability under respondeat superior. We affirm the dismissal of the other
claims in the amended complaint. Bottomlee is entitled to her costs on
appeal contingent on compliance with Arizona Rule of Civil Appellate
Procedure 21.




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




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