                              IN THE COURT OF APPEALS
                                  STATE OF ARIZONA
                                    DIVISION TWO


KAREN M. MITCHELL,                             )          2 CA-CV 2003-0131
                                               )          DEPARTMENT B
                        Plaintiff/Appellant,   )
                                               )          OPINION
                   v.                          )
                                               )
JOHN D. GAMBLE and AARON                       )
JENSEN,                                        )
                                               )
                   Defendants/Appellees.       )
                                               )

            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. C-20020184

                             Honorable Deborah Bernini, Judge

                             REVERSED AND REMANDED


Piccarreta & Davis, P.C.
 By Carl A. Piccarreta                                                               Tucson
                                                           Attorneys for Plaintiff/Appellant

Goering, Roberts, Rubin, Brogna,
Enos & Hernandez
 By William L. Rubin and Laura Huntwork                                           Tucson
                                                         Attorneys for Defendant/Appellee
                                                                                  Gamble
 and

Law Office of James E. Abraham
 By Cynthia L. Choate                                                              Tucson
                                                   Attorneys for Defendant/Appellee Jensen
P E L A N D E R, Presiding Judge.


¶1             In this personal injury action, the primary issue on appeal is whether students

who perform a routine errand at a teacher’s request on school grounds during school hours

can be deemed school “employees” under Arizona’s Workers’ Compensation Act. Although

its facts and procedural history are simple, this case presents rather complicated legal issues

of first impression in Arizona.

¶2             Plaintiff/appellant Karen Mitchell, a middle school teacher, appeals from the

trial court’s grant of summary judgment in favor of defendants/appellees John Gamble and

Aaron Jensen, both minors who attended the school where Mitchell taught. Mitchell argues

the trial court erred in determining that appellees were “employed” by their school at the time

of the incident in question and, therefore, that A.R.S. § 23-1022(A) precludes her negligence

claims against them. We conclude that the limited record before us and the applicable law do

not support summary judgment in favor of appellees and, accordingly, reverse the trial court’s

judgment.

                                     BACKGROUND

¶3             In reviewing a grant of summary judgment, we view the facts and all

reasonable inferences therefrom in the light most favorable to the party against whom

summary judgment was entered. See Town of Miami v. City of Globe, 195 Ariz. 176, ¶ 2, 985

P.2d 1035, 1037 (App. 1998). Although the material facts in the sparse record before us are

undisputed, they are amenable to different inferences. On February 15, 2001, appellees were

                                              2
eighth grade students and student council members at Townsend Middle School. During that

day’s student council meeting, one of appellees’ teachers asked them to retrieve a “paper cart”

from another room and bring it back to the student council room. As appellees were pushing

the cart down the hallway about to pass the door to a classroom in which Mitchell had been

eating lunch, Mitchell opened the door to leave the room. The cart hit the door which, in turn,

struck Mitchell and injured her.

¶4             Mitchell later sought and obtained workers’ compensation benefits as a result

of the incident. In addition, she filed this action against appellees, claiming they had pushed

the cart in a “negligent and reckless manner” and were personally liable for her injuries.1

Appellees moved for summary judgment, arguing that, at the time of the incident, they had

been acting as Mitchell’s “co-employees,” as defined in A.R.S. § 23-901(3), and within the

scope of their employment. Thus, appellees argued, § 23-1022(A) barred Mitchell’s tort


        1
        We note that, apparently, no guardian, next friend, or guardian ad litem has been
named or appointed on behalf of appellees, both minors. Our supreme court has stated, albeit
in dictum, that a minor “cannot bring or defend a legal proceeding in person, but must sue
or be sued by a legally appointed general guardian, or next friend or a guardian ad litem.”
Pintek v. Superior Court, 78 Ariz. 179, 184, 277 P.2d 265, 268 (1954) (also stating that
minors “had no right to appear by an attorney of their own choosing without first having
obtained an order of the court appointing a next friend or guardian ad litem to act in their
behalf”); see also Montaño v. Browning, 202 Ariz. 544, ¶ 7, 48 P.3d 494, 497 (App. 2002)
(a plaintiff may bring “a timely filed lawsuit against a minor defendant,” but “once named
as a defendant, a minor must have a court-appointed guardian ad litem or next friend only as
a condition precedent to making an appearance”); Ariz. R. Civ. P. 17(g), 16 A.R.S., Pt. 1
(“The court shall appoint a guardian ad litem for an infant or incompetent person not
otherwise represented in an action or shall make such other order as it deems proper for the
protection of the infant or incompetent person.”). Because neither the parties nor the trial
court addressed this issue, we likewise do not do so.

                                              3
action against them. In granting appellees’ motion, the trial court found that they “were co-

employees of [Mitchell] and ‘employed’ by Townsend Middle School at the time of the

accident.” Consequently, the court ruled, Mitchell’s “exclusive remedy for any injuries she

sustained was workers’ compensation pursuant to A.R.S. § 23-1022(A).”

                                        DISCUSSION

                                               I.

¶5             Subject to certain exceptions, § 23-1022(A) provides: “The right to recover

[workers’] compensation . . . for injuries sustained by an employee . . . is the exclusive remedy

against the employer or any co-employee acting in the scope of his employment.”2 See also

A.R.S. § 23-1024(A) (“An employee . . . who accepts compensation waives the right to

exercise any option to institute proceedings in court against his employer or any co-employee

acting within the scope of his employment . . . .”). Pursuant to those statutes, unless an

employee who is injured on the job has previously rejected the workers’ compensation system,

the superior court lacks subject matter jurisdiction over any common law tort action that the

employee files against a coemployee acting within the scope of his or her employment. See

Smithey v. Hansberger, 189 Ariz. 103, 106, 938 P.2d 498, 501 (App. 1996); see also Ringling

Bros. & Barnum & Bailey Combined Shows, Inc. v. Superior Court, 140 Ariz. 38, 41, 46, 680



        2
        Although Mitchell alleged in her complaint that appellees had acted “negligent[ly]
and reckless[ly],” she does not contend the “wilful misconduct” exception in § 23-1022(A)
applies. See generally Gamez v. Brush Wellman, Inc., 201 Ariz. 266, ¶¶ 5-11, 34 P.3d 375,
378-80 (App. 2001).

                                               4
P.2d 174, 177, 182 (App. 1983). Thus, by finding § 23-1022(A)’s exclusivity provision

applicable, the trial court essentially determined it lacked subject matter jurisdiction of this

case.

¶6             Our standard of review for that ruling requires some discussion. We generally

review de novo orders dismissing cases for lack of subject matter jurisdiction. Satterly v. Life

Care Ctrs. of Am., Inc., 204 Ariz. 174, ¶ 5, 61 P.3d 468, 471 (App. 2003); Hill v. Peterson,

201 Ariz. 363, ¶ 5, 35 P.3d 417, 419 (App. 2001). Although a trial court may consider and

resolve jurisdictional fact issues when, as here, they are not intertwined with the merits of the

case, we review the court’s ultimate legal conclusion de novo. See Swichtenberg v. Brimer,

171 Ariz. 77, 82, 828 P.2d 1218, 1223 (App. 1991); see also Bonner v. Minico, Inc., 159 Ariz.

246, 256, 766 P.2d 598, 608 (1988). In any event, the parties did not request the trial court

to resolve any jurisdictional fact issues, but rather, the case was disposed of on summary

judgment.

¶7             The ultimate issue raised here is purely legal—whether § 23-1022(A) renders

Arizona’s workers’ compensation system Mitchell’s “exclusive remedy,” thereby barring her

tort action against appellees and depriving the trial court of subject matter jurisdiction.

Resolution of that issue, however, hinges on whether appellees were acting as school

employees and, therefore, as Mitchell’s coemployees, at the time of her injury. This latter

issue, though properly addressed by the trial court, see Swichtenberg, is a mixed question of

law and fact. Accordingly, we review de novo whether the trial court properly applied § 23-


                                               5
1022 and on that basis entered summary judgment in favor of appellees. See Andrews v.

Blake, 205 Ariz. 236, ¶ 12, 69 P.3d 7, 11 (2003) (“We review de novo a grant of summary

judgment . . . .”); Gamez v. Brush Wellman, Inc., 201 Ariz. 266, ¶ 4, 34 P.3d 375, 378 (App.

2001) (“We review questions of law, including the interpretation of statutes and . . . mixed

questions of fact and law de novo.”); Diaz v. Magma Copper Co., 190 Ariz. 544, 547, 950

P.2d 1165, 1168 (App. 1997) (same).

¶8             Summary judgment is proper only if “there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of law.” Ariz. R.

Civ. P. 56(c), 16 A.R.S., Pt. 2; see also Orme Sch. v. Reeves, 166 Ariz. 301, 802 P.2d 1000

(1990). When, as here, the material facts are undisputed, “we determine whether the trial

court correctly applied the substantive law to the undisputed facts.” Carden v. Golden Eagle

Ins. Co., 190 Ariz. 295, 296, 947 P.2d 869, 870 (App. 1997). And, “[e]ven when the facts are

undisputed, summary disposition is unwarranted if different inferences may be drawn from

those facts.” Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505, 508, 794 P.2d 138, 141

(1990).

                                              II.

¶9             In cases such as this, the various issues bearing on jurisdiction include whether

an employer-employee relationship exists. Arizona Workers’ Compensation Handbook

§ 12.2.5, at 12-15 (Ray Jay Davis et al. eds., 1992) (hereafter “Handbook”). “The courts have

struggled with the questions of what tribunal makes these decisions and how they are to be


                                               6
made.” Id. It is relatively clear, however, that the Industrial Commission and the courts have

concurrent jurisdiction to determine employment status. Id.; see also Uzoh v. Indus. Comm’n,

158 Ariz. 313, 314, 762 P.2d 600, 601 (App. 1988).

¶10            In addressing the issue of whether appellees were acting as school “employees”

at the time of the accident, both the motion papers below and the parties’ briefs on appeal

focused primarily on Restatement (Second) of Agency § 220 (1958) and cases such as

Santiago, Bond v. Cartwright Little League, 112 Ariz. 9, 536 P.2d 697 (1975), and Love v.

Liberty Mutual Insurance Co., 158 Ariz. 36, 760 P.2d 1085 (App. 1988). On appeal, the

contour of the relevant legal issues changed somewhat. This court, sua sponte, scheduled the

case for oral argument, distributed a draft decision several weeks before that date,3 and

permitted the parties to file supplemental briefs if they so chose. Neither side did so. At oral

argument, the parties adjusted their stance by anchoring their arguments in the workers’

compensation statutes discussed in the draft decision, and appellees essentially abandoned

their earlier reliance on Restatement § 220 or other common law principles to support the

summary judgment. In view of that shift in position, we summarily address and dispose of

the common law issues discussed in the briefs.

¶11            Restatement § 220 lists several factors, including the master’s right to control

performance of services, bearing on whether one person is the servant of another. See


        3
        Before oral argument, this court customarily disseminates to counsel a draft decision
that conspicuously states it is prepared by only one judge and may be changed entirely after
argument.

                                               7
Santiago, 164 Ariz. at 508, 794 P.2d at 141 (noting that Arizona has “adopted” § 220); see

also Ringling Bros., 140 Ariz. at 42-43, 680 P.2d at 178-79 (applying § 220 in workers’

compensation context). Appellees emphasize the right-to-control element and assert that is

“[w]hat matters” here. As Mitchell concedes, appellees’ teacher clearly had the right to

control their actions in performing the errand for her.

¶12            The right-to-control element, however, is but one relevant factor in determining

whether an employment relationship existed and is not singularly dispositive. See Santiago,

164 Ariz. at 509, 794 P.2d at 142; see also Restatement § 220 cmt. c. Rather, in determining

whether an employment relationship exists, courts consider the totality of the circumstances.

See Ringling Bros., 140 Ariz. at 45, 680 P.2d at 181 (“totality of the facts and circumstances”

considered in determining whether decedent was employee for workers’ compensation

purposes, thereby precluding survivors’ tort action); see also Santiago, 164 Ariz. at 508, 794

P.2d at 141 (in evaluating whether alleged employer could be vicariously liable under

respondeat superior doctrine, “the ‘objective nature of the relationship[] [is] determined upon

an analysis of the totality of the facts and circumstances of each case’”), quoting Anton v.

Indus. Comm’n, 141 Ariz. 566, 568, 688 P.2d 192, 194 (App. 1984) (second alteration in

Santiago); Lundy v. Prescott Valley, Inc., 110 Ariz. 362, 363, 519 P.2d 61, 62 (1974) (whether

one person is employee of another “depend[s] on the circumstances surrounding the

relationship of the parties”). Moreover, summary judgment based on Restatement § 220 is




                                              8
appropriate only “[i]f the inference . . . is clear that [a] master-servant relationship exist[ed].”

Santiago, 164 Ariz. at 508, 794 P.2d at 141.

¶13             Most of the other factors under Restatement § 220 are inapplicable on their

face, unsupported by any facts in the record, or obviously weigh against a finding of any

master-servant relationship between appellees and their teacher. To the extent the limited

record here sheds any light on the totality of the circumstances, it does not reflect the many

indicia of an employment relationship found in cases like Swichtenberg, Ringling Bros., or

Anton. See Handbook § 2.2.2.3, at 2-11 (in determining employment status, “regardless of

how indicia are considered or weighed, the overriding caveat is that any decision must be

based on the totality of the circumstances”).4

¶14             Relying on Bond and Love, appellees also contend that they were “gratuitous

employees” at the time of the accident and that their teacher had had the authority to “employ”

them as such without the express consent of the school or the school district. We are not

persuaded. Both Bond and Love are factually distinguishable. And, more importantly, neither

case involved any student-teacher relationship, presented or addressed any workers’


        4
        Appellees’ focus on the “right to control” language in Restatement (Second) of
Agency § 220(1) (1958) also overlooks pertinent Arizona statutes governing schools and the
relationship between students and teachers. Under A.R.S. § 15-802(A), “[e]very child
between the ages of six and sixteen years shall attend a school.” In addition, students are
statutorily required to “comply with the rules, pursue the required course of study and submit
to the authority of the teachers.” A.R.S. § 15-841(A). Thus, the right of appellees’ teacher
to direct and control them in all school-related matters emanated from statute rather than
from any agreement or other arrangement whereby appellees were “employed to perform
services in the affairs” of their teacher or the school. Restatement § 220(1).

                                                 9
compensation issues, or engaged in any analysis under Restatement § 220. Therefore, we do

not find either case particularly helpful, let alone controlling.5 In sum, based on the limited

record before us, we conclude that neither Restatement § 220 nor other common law

principles support a ruling as a matter of law that appellees were school “employees” at the

time of the accident.

                                             III.

¶15            Mitchell has consistently argued below and on appeal that appellees were not

school district employees at the time of the accident and, therefore, her action against them

is not barred by § 23-1022(A). As far as we can tell, however, Mitchell did not specifically

ground her position in the workers’ compensation statutes until oral argument in this court.

Conversely, appellees contended for the first time at oral argument that Arizona’s workers’

compensation statutes, rather than common law principles, are controlling and that, under

those statutes, they were acting as Mitchell’s coemployees at the time of the accident. On that

basis, they now argue, the workers’ compensation system was her exclusive remedy, and this

action is barred.


        5
        The primary issue in Love was whether the putative servant, a waitress, had been
acting within the scope of her employment at the time of the accident. Appellees likewise
argue here that they were acting within the course and scope of their “employment” with the
school at the time of the accident. That is probably so, and Mitchell does not contend
otherwise, assuming appellees qualified as “employees” for workers’ compensation purposes.
But, because we conclude they did not so qualify, we do not address this secondary issue.
See Arizona Workers’ Compensation Handbook, § 2.2.1.1, at 2-5 (Ray Jay Davis et al. eds.,
1992) (only if initial question of whether person qualifies as employee “is answered
affirmatively does any further analysis come into play”).

                                              10
¶16            Generally, issues and arguments raised for the first time at oral argument on

appeal are untimely and deemed waived. Van Loan v. Van Loan, 116 Ariz. 272, 274, 569

P.2d 214, 216 (1977); Johnson v. Hispanic Broadcasters of Tucson, Inc., 196 Ariz. 597, ¶ 8,

2 P.3d 687, 690 (App. 2000). And, as a general rule, “[o]n appeal from summary judgment,

a party may not advance new theories or raise new issues to attempt to secure a reversal.”

Childress Buick Co. v. O’Connell, 198 Ariz. 454, n.2, 11 P.3d 413, 418 n.2 (App. 2000); see

also Lansford v. Harris, 174 Ariz. 413, 419, 850 P.2d 126, 132 (App. 1992). These rules,

however, are procedural, not jurisdictional, and in our discretion we may suspend them. See

City of Tempe v. Fleming, 168 Ariz. 454, 456, 815 P.2d 1, 3 (App. 1991). We do so here for

several reasons.

¶17            First, in their motion for summary judgment below, appellees specifically cited

§ 23-901 to support their claim of “co-employee” status at the time of the accident. Second,

the trial court expressly based its summary judgment ruling on the Workers’ Compensation

Act, specifically § 23-1022(A). Third, we are faced with a purely legal issue of general

statewide interest. See City of Tempe, 168 Ariz. at 456, 815 P.2d at 3; see also State v.

Arizona Prop. & Cas. Ins. Guar. Fund, 192 Ariz. 390, n.4, 966 P.2d 557, 559 n.4 (App.

1998); cf. Am. Family Mut. Ins. Co. v. Continental Cas. Co., 200 Ariz. 119, n.1, 23 P.3d 664,

667 n.1 (App. 2001) (“[W]hen we consider the interpretation and application of statutes, we

cannot be limited to arguments made in the trial court if that would cause us to reach an

incorrect result.”); Pavilion Hotel, Inc. v. Valley Nat’l Bank, 180 Ariz. 498, 503, 885 P.2d


                                             11
186, 191 (App. 1994) (if application of legal principle not raised below would dispose of

action on appeal and correctly explain law, appellate court may consider issue).

¶18            Finally, we now have received “analytical input from the parties,” and neither

side claims any surprise or unfairness. Childress Buick Co., 198 Ariz. 454, ¶ 29, 11 P.3d at

418. Accordingly, we turn our focus to whether appellees and Mitchell qualified as

coemployees of the school under the pertinent workers’ compensation statutes, although

neither the motion papers below nor the appellate briefs centered on that issue. See Glaze v.

Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986) (we will affirm summary

judgment “if it is correct for any reason,” if record and law support the result).

¶19            We acknowledge at the outset the difficult “task of ‘trying to put an extremely

ill-defined and informal working arrangement into legal pigeonholes.’” Anton, 141 Ariz. at

572, 688 P.2d at 198, quoting Marlow v. Dexter Wood Prods., 615 P.2d 402, 403 (Or. Ct.

App. 1980). Nonetheless, we first note that “[t]he Arizona Constitution specifies certain

classes of persons who are subject to the Workmen’s Compensation Act.” Keeney v. Indus.

Comm’n, 24 Ariz. App. 3, 4, 535 P.2d 31, 32 (1975); see also Ariz. Const. art. XVIII, § 8.

Although the constitution does not include students in the class of persons to whom the

workers’ compensation system applies, it requires the legislature to enact statutes governing

that system. Id.; see also Atkinson, Kier Bros., Spicer Co. v. Indus. Comm’n, 35 Ariz. 48, 52-

53, 274 P. 634, 635 (1929) (legislature may pass workers’ compensation laws in exercise of

police power without express constitutional authority). And, in general, “[i]t is the sole


                                              12
prerogative of the Arizona State Legislature to specify those additional persons who are to be

considered employees within the meaning of the Workmen’s Compensation Act.” Keeney,

24 Ariz. App. at 4, 535 P.2d at 32; see also Ferrell v. Indus. Comm’n, 79 Ariz. 278, 282, 288

P.2d 492, 496 (1955).

¶20            Therefore, in our view, the determinative issue is whether appellees and

Mitchell qualified as coemployees of the school under the pertinent workers’ compensation

statutes. Section 23-901, which defines “employee” and “co-employee” for workers’

compensation purposes, is the starting point for our analysis.6 If appellees do not fall within

those statutory definitions, then presumably § 23-1022(A) does not apply to bar Mitchell’s tort

action against them.

¶21            Under § 23-901(3), “‘[c]o-employee’ means every person employed by an

injured employee’s employer.” Mitchell clearly was a school district employee. Therefore,

determining whether appellees qualified as her coemployees depends on whether they also

qualified as school “employees” for workers’ compensation purposes. In pertinent part, § 23-

901(6) provides that “[e]mployee” means:

                       (a) Every person in the service of . . . a . . . school
               district, . . . whether by election, appointment or contract of hire.

                       (b) Every person in the service of any employer subject
               to this chapter, including aliens and minors legally or illegally


        6
         As noted earlier, at oral argument in this court, appellees conceded that Arizona’s
workers’ compensation statutes govern the analysis of whether they qualified as “employees”
at the time of the accident.

                                                13
              permitted to work for hire, but not including a person whose
              employment is both:

                     (i)   Casual.

                    (ii) Not in the usual course of the trade, business or
              occupation of the employer.

¶22           “Because of the remedial purposes of the Act, the definition of employee

should be liberally construed” when a claimant seeks workers’ compensation coverage or

benefits. Central Mgmt. Co. v. Indus. Comm’n, 162 Ariz. 187, 190, 781 P.2d 1374, 1377

(App. 1989); see also Handbook § 2.2.1.1, at 2-5, 2-7. But, “when the question is whether

a worker’s common-law rights should be denied him, it is equally appropriate to interpret

strictly the workers’ compensation statutes.” Bonner, 159 Ariz. at 256, 766 P.2d at 608; see

also Young v. Envtl. Air Prods., 136 Ariz. 158, 163, 665 P.2d 40, 45 (1983). In addition,

“because the superior courts are courts of general jurisdiction, we construe statutes in favor

of retaining jurisdiction and will not find divestiture unless stated clearly, explicitly, and

unambiguously.” Hayes v. Continental Ins. Co., 178 Ariz. 264, 273, 872 P.2d 668, 677

(1994).

¶23           In their brief, appellees neither point to any facts nor present any argument to

establish that they qualified as “employees” under § 23-901(6). As for subsection (a) of that

statute, the record does not suggest that they performed their errand pursuant to any election

or contract of hire. See Watson v. Indus. Comm’n, 100 Ariz. 327, 332, 414 P.2d 144, 148

(1966) (“contract of hire” implies voluntary relation between the parties); Posey v. Indus.


                                             14
Comm’n, 87 Ariz. 245, 251, 350 P.2d 659, 663 (1960) (petitioner not entitled to workers’

compensation because “he was not under a contract of hire, either express or implied,” at

time of injury); Ferrell, 79 Ariz. at 281, 288 P.2d at 494 (“[A] contract of hire . . . connotes

payment of some kind.”); Trembath v. Riggs, 673 P.2d 1348, 1352 (N.M. Ct. App. 1983),

overruled in part on other grounds by Dupper v. Liberty Mut. Ins. Co., 734 P.2d 743 (N.M.

1987) (“no ‘contract of hire’” existed between school and student who was performing

errand during school hours at teacher’s request).

¶24           For the first time at oral argument, however, appellees contended they qualified

as “employees” under § 23-901(6)(a) because, at the time of the accident, they were

performing the errand “in the service” of the school pursuant to their teacher’s

“appointment” of them for that task. We find several flaws in this argument. First, although

appellees’ teacher apparently chose or designated them to perform the errand, we cannot say

that action constitutes an “appointment” for purposes of § 23-901(6)(a). Second, the limited

record before us does not clearly establish that appellees were necessarily acting “in the

service” of the “school district” in performing it. § 23-901(6)(a); see also A.R.S. § 15-

101(20) (a “[s]chool district” is “organized for the purpose of the administration, support and

maintenance of the public schools”). Third, appellees have cited no facts or law to suggest

that their teacher was authorized to transform them into school employees, albeit temporary

ones, by merely “appointing” them to perform a routine errand. Cf. Porter v. Louisiana

Grocers Co-Operative, Inc., 233 So. 2d 709, 711 (La. Ct. App. 1970) (agent must be duly


                                              15
authorized to employ workers on master’s behalf, and one worker who secures another to

assist worker does not thereby create relationship of employer and employee between helper

and employer).

¶25           In addition, analogous out-of-state authority refutes appellees’ new reliance on

§ 23-901(6)(a). Under a statute very similar to § 23-901(6)(a), the Colorado Supreme Court

concluded that a high school’s volunteer baseball pitching coach was not a school district

employee for workers’ compensation purposes pursuant to an alleged “appointment.” Mesa

County Valley Sch. Dist. v. Goletz, 821 P.2d 785 (Colo. 1991). As that court noted, “the

limitation of the classification of employee by appointment only to the public sector indicates

a legislative intent that the term ‘appointment’ is ‘generally understood to mean the selection

of a public officer by one person who is empowered by law to make the appointment.’” Id.

at 787, quoting Main v. Claremont Unified Sch. Dist., 326 P.2d 573, 577 (Cal. Ct. App.

1958). To constitute an “appointment” under the workers’ compensation statute, the

Colorado court ruled, “the person making the designation must be vested with the authority

to do so[, and] the appointment must be for the purpose of discharging the duty of some

office or trust.” Id. Neither element was met in that case, nor is either present here.

¶26           Like subsection (a) of § 23-901(6), subsection (b) categorizes as an “employee”

every person “in the service” of an employer, subject to a two-pronged, conjunctive

exception. Appellees also contended for the first time at oral argument that they qualified

as “employees” under that subsection. As noted above, however, neither the record nor the


                                              16
law establishes that appellees were acting “in the service” of the school district at the time

of the incident. But, even assuming they were, under the first, exclusionary prong of § 23-

901(6)(b), a trier of fact could infer that appellees’ alleged “employment” was “casual.”

§ 23-901(6)(b)(i); see Estate of Wesolowski v. Indus. Comm’n, 192 Ariz. 326, ¶ 16, 965 P.2d

60, 64 (App. 1998) (“Casual employment is both irregular and brief. ‘Ordinarily, very short

employments, of a few hours or days, are considered casual . . . .’”), quoting Arthur Larson

& Lex K. Larson, Larson’s Workers’ Compensation Law § 51.12, at 9-170 through 9-172

(1997). Appellees conceded that point at oral argument.

¶27           A trier of fact also could infer under the second, conjunctive prong of § 23-

901(6)(b)(ii), that the “usual course of the trade, business or occupation of the

employer”—here, the school district—was to educate students. Contrary to appellees’ oral

argument, absent any evidence on that point, it certainly is not self-evident that assigning

students menial jobs collateral to the core educational process is part of the “usual course”

of a teacher’s or a school’s “business.” See Young, 136 Ariz. at 164, 655 P.2d at 46 (test for

whether activity is part of employer’s usual trade, business, or occupation “focuses on the

broad question of whether the activity is a necessary and expected part of the employer’s

business, even though rarely performed”); Restatement § 220(2)(h) (providing that “whether

or not the work is part of the regular business of the employer” is a factor in determining

whether master-servant relationship exists). Moreover, as noted above, qualification as an

“employee” under § 23-901(6)(b) requires that the person be “in the service of any


                                             17
employer,” and the only prospective employer here is the school district, not merely this

particular school or one of its teachers. Compare A.R.S. § 15-101(19) (defining “[s]chool”)

with § 15-101(20) (defining “[s]chool district”).

¶28            In sum, based on the pertinent workers’ compensation statutes alone and this

record, we cannot say as a matter of law that appellees were Mitchell’s “co-employees” as

that term is defined and used in those statutes. See §§ 23-901(3), (6); 23-1022(A); cf.

Connors v. Parsons, 169 Ariz. 247, 252, 818 P.2d 232, 237 (App. 1991) (when evidence did

not clearly resolve whether coemployee was acting within scope of employment at time of

accident so as to preclude other employee’s tort action, summary judgment inappropriate and

“presentation of further factual data to the trial court” required). Accordingly, the trial court

erred in granting summary judgment in favor of appellees.

                                              IV.

¶29            Mitchell also argues that the trial court’s determination that she and appellees

had been “co-employees” is contrary to public policy, essentially means that “virtually

anything a young student does at the request of a teacher forms an employment relationship,”

and could lead to the “possible destruction of the Workers[’] Compensation system.”

Because we conclude that summary judgment in favor of appellees was inappropriate based

on the record and applicable law, we need not and do not specifically address those

contentions. See Consumers Int’l, Inc. v. Sysco Corp., 191 Ariz. 32, 37, 951 P.2d 897, 902

(App. 1997).


                                               18
¶30            We recognize, however, that in some respects, our conclusion seems

counterintuitive and possibly raises some public policy concerns. For example, if appellees’

teacher had performed the errand herself and had accidentally injured Mitchell in the process,

Mitchell clearly could not have maintained a common law negligence action against the other

teacher, but rather, her remedies would have been limited to the workers’ compensation

system. Therefore, it was arguably fortuitous that the teacher instead sent appellees to

perform the errand and that they essentially were standing in her shoes at the time of the

accident.

¶31            In addition, the possibility of a teacher’s being accidentally injured at school

by a student while acting in the course and scope of his or her employment might be

considered an occupational hazard. Teachers, after all, work with and among students on a

daily basis. Given their employment context, teachers have a reasonable expectation that

injuries sustained in their workplace at school, whether caused by students or otherwise, will

be covered by the workers’ compensation system. Conversely, permitting teachers to avoid

that system and sue students in a case such as this arguably exceeds that reasonable

expectation.

¶32            Similarly, most parents might be surprised, if not alarmed, to learn that their

school-age children could be sued and potentially held liable for negligence in this type of

case. And that is particularly so when, as here, the accident occurred while the students were

merely performing a routine errand at their teacher’s request.


                                              19
¶33           On the other hand, school districts and their workers’ compensation insurers

might be equally dismayed to learn that students who themselves are injured at school while

performing routine errands at a teacher’s request could be deemed “employees” and, as such,

seek and obtain workers’ compensation benefits. And, an injured student’s entitlement to

such benefits theoretically would arise whether the student was “employed” legally or

illegally. See A.R.S. §§ 23-901(6)(b) (“employee” includes “minors legally or illegally

permitted to work for hire”); 23-905 (injured minors working either legally or illegally may

collect workers’ compensation benefits); see also Herman v. Indus. Comm’n, 100 Ariz. 312,

315, 414 P.2d 134, 136 (1966) (“A legally-employed minor may appear before the

Commission and prosecute his application for compensation . . . .”); S. H. Kress & Co. v.

Superior Court, 66 Ariz. 67, 182 P.2d 931 (1947) (thirteen-year-old minor illegally hired and

injured at work was “employee” within terms of workers’ compensation statutes and,

therefore, his sole remedy was under Act, precluding common law action against employer);

cf. Ariz. Const. art. XVIII, § 2 (prohibiting employment of children under age of fourteen

during school hours).

¶34           Notwithstanding the competing public policy concerns here, we must attempt

to analyze and resolve this case under the workers’ compensation statutes that both sides now

agree are controlling. Unfortunately, those statutes do not specifically address the student-

teacher relationship at issue here. Nor did the legislature, in all probability, contemplate that

issue. Although public policy arguments can be made for or against the result we reach, our


                                               20
conclusion hinges solely on the applicable workers’ compensation statutes and other legal

principles discussed above. In the face of Arizona’s extensive and elaborate statutory

scheme, it is for the legislature, not this court, to weigh the policy considerations and

determine whether any statutory change is appropriate or necessary.7 See Florez v. Sargeant,

185 Ariz. 521, 529, 917 P.2d 250, 258 (1996) (noting that “delicate policy decisions” often

involve “the weighing, balancing, and policy making that . . . are properly legislative, not

judicial, tasks”); Prudential v. Estate of Rojo-Pacheco, 192 Ariz. 139, 150, 962 P.2d 213,

224 (App. 1997) (“[I]t is for the legislature, not this court, to evaluate and balance competing

policy considerations that bear on these issues and to make any necessary changes in this

area.”).

                                       DISPOSITION

¶35           The trial court’s grant of summary judgment is reversed, and the case is

remanded for further proceedings consistent with this opinion.




       7
          Although the dissent cites no authority to support its conclusion, we do not
necessarily disagree with the policy arguments it advances. But, in our view, they should be
directed to the legislature and do not permit us to avoid analysis and resolution of the case,
silly as it might seem to some, based on the applicable statutes. See Galloway v. Vanderpool,
205 Ariz. 252, ¶ 19, 69 P.3d 23, 28 (2003) (“The legislature, of course, can amend the
workers’ compensation statutes . . . , and that body provides the appropriate forum to argue
that public policy considerations favor abandoning [an established common law] rule.”);
Taylor v. Graham County Chamber of Commerce, 201 Ariz. 184, ¶ 27, 33 P.3d 518, 525
(App. 2001) (“[W]hen, as here, the legislature has clearly spoken on a matter within its
domain, its word constitutes public policy on that subject and controls, assuming no
constitutional impediments exist.”).

                                              21
                                               ____________________________________
                                               JOHN PELANDER, Presiding Judge

CONCURRING:



_______________________________________
PETER J. ECKERSTROM, Judge



E S P I N O S A, Chief Judge, dissenting.


¶36           Respectfully, I cannot agree with the majority’s, in my view, overly technical

analysis to reach a conclusion it candidly acknowledges is both counterintuitive and bad

public policy. And, I would venture, contrary to common sense. To say that parents of

school children may be surprised and alarmed to discover that their children could be subject

to personal liability as a result of innocently carrying out a teacher’s routine directive is no

small understatement. On the other hand, I believe it requires no legal calisthenics to

determine that the student defendants in this case merely stepped into the shoes of their

teacher, for purposes of this action, when they obediently carried out her command and did

so, even under the limited record in this case, clearly and solely in furtherance of a school

purpose. Whether this conclusion would necessarily require that students be covered under

the Workers’ Compensation Act for other purposes is a distinctly different inquiry that would

depend on different facts not before us.



                                              22
¶37           The unfortunate impact of this ruling will be to send a bleak message to parents

and guardians that their children and, for practical purposes, their insurance policies, are at

risk should their children merely cooperate with teachers’ commonplace requests to lend

various forms of assistance during school. How this new class of defendants will determine

what types of cooperation may or may not expose them to liability, and the extent of the

resulting chill and additional burden on student-teacher relationships, is highly troubling.

Because the unremarkable accident and alleged injury in this case are, as the majority

recognizes, entirely foreseeable occupational hazards for teachers who daily work in a school

environment, it does no damage to our workers’ compensation scheme to avail these

unsuspecting children and their families of its protection and to restrict the plaintiff to her

chosen remedy under law. It would also make sense.




                                               _____________________________________
                                               PHILIP G. ESPINOSA, Chief Judge




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