                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           MICHELLE DELLINGER,
                              Plaintiff/Appellant,

                                         v.

                             BASAMI HOUSE LLC,
                              Defendant/Appellee.

                              No. 1 CA-CV 18-0688
                                FILED 10-31-2019


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-015252
                     The Honorable Rosa Mroz, Judge

                                   AFFIRMED


                                     COUNSEL

Ahwatukee Legal Office, PC, Phoenix
By David L. Abney
Co-Counsel for Plaintiff/Appellant

Joseph F. Gmuca, PC, Phoenix
By Joseph F. Gmuca
Co-Counsel for Plaintiff/Appellant

Wright, Welker & Pauole, PLC, Phoenix
By Matthew W. Wright, Christopher S. Welker, Richard R. Carpenter
Counsel for Defendant/Appellee
                    DELLINGER v. BASAMI HOUSE
                        Decision of the Court



                     MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


J O H N S E N, Judge:

¶1             Scott Smith was a 17-year-old resident of Basami House, a
group home in Phoenix for minors with substance abuse and other
behavioral issues. At the request of his mother, Basami House allowed him
to visit his aunt in Tempe for a few days. There, Smith became drunk one
night and walked out. Eventually he encountered Michelle Dellinger, a
woman he did not know, followed her on foot for two miles and then
brutally assaulted her. Dellinger sued Basami House, alleging its negligent
supervision of Smith allowed him to injure her. The superior court ruled
Basami House owed no duty to Dellinger and entered summary judgment
against her. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Basami House is a behavioral-health residential facility
licensed by the Arizona Department of Health Services. It has room for five
youths, whom it does not restrain or confine. Based on a psychiatrist's
recommendation, Smith was referred to Basami House by the Navajo
Regional Behavioral Health Authority. Smith had been staying at Basami
House for nearly four months before his attack on Dellinger; his mother had
authorized him to leave to visit his aunt twice before.

¶3            In her complaint, Dellinger alleged Basami House "entered
into a 'special relationship' with Smith by which it assumed a duty to
exercise control over Smith's conduct and behavior," which she alleged
gave rise to "a duty to use reasonable care in exercising control over the
conduct of Smith." Dellinger further alleged that "Basami House knew or
should have known that Smith was likely to cause bodily harm to others"
and asserted it was "reasonably foreseeable" that Smith would attack
someone.

¶4         Basami House moved for summary judgment, arguing it
owed no duty to Dellinger. The superior court agreed, finding Dellinger




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                     DELLINGER v. BASAMI HOUSE
                         Decision of the Court

offered "no admissible evidence that Basami House knew or should have
known that" Smith, if not controlled, was likely to cause harm to others.

¶5            Dellinger timely appeals. 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) (2019) and -2101(A)(1) (2019).1

                               DISCUSSION

¶6             "To establish a claim for negligence, a plaintiff must
prove . . . a duty requiring the defendant to conform to a certain standard
of care." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). Whether a duty
exists is a question of law for the court to decide. Id. We review the grant
of summary judgment de novo, Teufel v. Am. Family Mut. Ins. Co., 244 Ariz.
383, 385, ¶ 10 (2018), viewing all facts and reasonable inferences "in the light
most favorable to the party against whom judgment was entered," Bothell v.
Two Point Acres, Inc., 192 Ariz. 313, 315, ¶ 2 (App. 1998).

A.     Duty Under the Restatement.

¶7              Dellinger argues Basami House owed her a duty under two
provisions of the Restatement (Second) of Torts (1965) ("Restatement"). The
first is § 315, which, as applicable here, states the general principle that one
has "no duty so to control the conduct of a third person as to prevent him
from causing physical harm to another unless . . . a special relation exists
between the actor and the third person which imposes a duty upon the actor
to control the third person's conduct." See also Hamman v. Maricopa County,
161 Ariz. 58, 64 (1989) (duty arises under § 315 "[w]hen a psychiatrist
determines, or under applicable professional standards reasonably should
have determined, that a patient poses a serious danger of violence to
others").

¶8           The second Restatement section on which Dellinger relies is
§ 319, which provides:

       One who takes charge of a third person whom he knows or
       should know to be likely to cause bodily harm to others if not




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


                                       3
                     DELLINGER v. BASAMI HOUSE
                         Decision of the Court

       controlled is under a duty to exercise reasonable care to
       control the third person to prevent him from doing such
       harm.

See also Grimm v. Ariz. Bd. of Pardons & Paroles, 115 Ariz. 260, 267 (1977).

¶9            Because duty in this context turns on whether Basami House
knew or should have known Smith was likely to cause harm, Dellinger
contends the superior court erred by deciding the issue as a matter of law.
She further contends she offered evidence sufficient to show Basami House
knew or should have known Smith was likely to cause bodily harm.

¶10            Addressing Dellinger's preliminary assertion first, as noted,
whether a duty exists is a question of law that the court decides, not the
jury. Gipson, 214 Ariz. at 143, ¶ 9. Our supreme court has been emphatic
about this principle. See Quiroz v. ALCOA Inc., 243 Ariz. 560, 564, ¶ 7 (2018);
Guerra v. State, 237 Ariz. 183, 185, ¶ 7 (2015); Lips v. Scottsdale Healthcare
Corp., 224 Ariz. 266, 268, ¶ 10 (2010); Markowitz v. Ariz. Parks Bd., 146 Ariz.
352, 356 (1985). "[F]actual inquiries" concerning breach and causation are
for the jury, but the court decides "the existence of duty as a threshold legal
issue." Gipson, 214 Ariz. at 144, ¶¶ 16-17.

¶11            Quiroz and Gipson both acknowledged that duties may arise
from special relationships, including those described in the Restatement
provisions at issue here. See Quiroz, 243 Ariz. at 565, ¶ 14 (citing
Restatement §§ 316-319); Gipson, 214 Ariz. at 145, ¶ 19 (citing Restatement §
315). But in neither decision did the court specify whether the factfinding
required to ascertain the existence of such a special relationship is reserved
for the court.

¶12            Dellinger argues that when the existence of a duty turns on
what the defendant knew or should have known, that is a preliminary issue
the finder of fact must decide. In response to our request for supplemental
briefing on this question, Dellinger cites Noriega v. Town of Miami, 243 Ariz.
320, 327, ¶ 31 (App. 2017), and Estate of Maudsley v. Meta Servs., Inc., 227
Ariz. 430, 437, ¶ 23 (App. 2011).

¶13            As relevant here, Noriega addressed whether police knew "of
a potential threat and [told] the victim that they will take action on that
threat" or had made a "specific promise or representation" on which the
victim might reasonably rely. 243 Ariz. at 327-28, ¶ 32 (quoting McGeorge
v. City of Phoenix, 117 Ariz. 272, 277 (App. 1977)). Citing Maudsley, we held
the superior court erred by entering summary judgment against the victim



                                       4
                      DELLINGER v. BASAMI HOUSE
                          Decision of the Court

because the existence of the duty depended on a "preliminary question that
must be determined by a fact finder." 243 Ariz. at 328, ¶ 34.

¶14            The issue in Maudsley was whether the defendant physicians
owed a doctor-patient duty to a victim. 227 Ariz. at 434, ¶ 11. We noted
Gipson held that the existence of a duty is a question of law, but we cited
Diggs v. Ariz. Cardiologists, Ltd., 198 Ariz. 198, 200, ¶ 11 (App. 2000), for the
proposition that "the existence of a duty may depend on preliminary
questions that must be determined by a fact finder." Maudsley, 227 Ariz. at
437, ¶ 23. As we explained, "[t]he superior court was not in a position to
determine whether [the physicians'] involvement with [the victim] . . . gave
rise to a duty of care until the finder of fact determined the preliminary
question of whether a doctor-patient relationship existed." Id. at ¶ 25. We
acknowledged that "it may be argued [that] Gipson's direction to avoid 'fact-
specific analysis' in analyzing whether a duty existed abrogated the rule
that a factfinder may need to decide preliminary issues of fact before a court
can find whether a duty existed." Id. at ¶ 23, n.9 (quoting Gipson, 214 Ariz.
at 145, ¶ 21). Noting that Gipson acknowledged that duties may be created
by special relationships, however, we concluded, "we do not think Gipson
went that far." Id.2




2       Two unpublished decisions also followed Maudsley on this issue.
Skoglund v. Neste Dev. Nev., L.L.C., 1 CA-CV 12-0429, 2013 WL 1906233, at
*2, *4, ¶¶ 9, 18 (Ariz. App. May 7, 2013) (mem. decision) (whether plaintiff
was business invitee, licensee or trespasser was for the jury to decide); Perez
v. Thrush, 1 CA-CV 12-0316, 2013 WL 773042, at *4, ¶ 21 (Ariz. App. Feb. 28,
2013) (mem. decision) (whether plaintiff was a tenant was for the jury to
decide). But see Camelback Plaza W., L.L.C. v. CBRE, Inc., 1 CA-CV 16-0144,
2017 WL 1739114, at *3, ¶ 12 (Ariz. App. May 4, 2017) (mem. decision)
(questioning but not deciding whether, after Gipson, the factfinder must
decide questions on which existence of duty turns).




                                       5
                     DELLINGER v. BASAMI HOUSE
                         Decision of the Court

¶15          Here, we need not decide whether the factual predicate of a
duty under Restatement § 319 is for the court or for the jury because we
conclude that Dellinger failed to offer evidence sufficient to create a
genuine issue of fact about whether Basami House knew or should have
known Smith was likely to injure someone.3

¶16          There is no dispute about the brutality of Smith's assault on
Dellinger. He pled guilty to aggravated assault and three counts of
attempted sexual assault, and the court sentenced him to ten years in
prison. The question presented on summary judgment, however, was
whether Dellinger offered evidence to show Basami House knew or should
have known before it allowed Smith to visit his aunt that he was likely to
become violent if not controlled.

¶17            Dellinger asserts Smith committed several "violent" felonies
before he was admitted to Basami House. She contends that, at a minimum,
Basami House should have learned of those crimes and should have
concluded from them that he was likely to harm someone. But the only
specific criminal conduct Dellinger cites is that Smith broke into a car and
slashed its tires several weeks before he was admitted to Basami House.
Although concerning, that event does not show Smith was likely to commit
a violent assault, and Dellinger offered no evidence he had caused or
threatened to cause bodily harm to anyone else before he assaulted her.

¶18           Dellinger points out that Smith told a therapist at Basami
House that he had used alcohol and marijuana for three years and had been
expelled from high school for using drugs on campus. Dellinger also cites
the opinion of Joni Diamond, a licensed clinical social worker, "that
juveniles such as Scott Smith when intoxicated are more likely to engage in
[c]riminal and anti-social behavior including aggressive and violent
conduct." Diamond's opinion, however, does not explain what "more
likely" means in this context. And a general assertion about "juveniles such
as" Smith does not suffice in the absence of facts specific to him from which
Basami House knew or should have known he was likely to become violent
when he drank. For the same reason, Smith's presentence report, which




3      For the same reason, we do not reach the question of whether Basami
House had sufficient control over Smith to give rise to a duty. See Barkhurst
v. Kingsmen of Route 66, Inc., 234 Ariz. 470, 473, ¶ 10 (App. 2014) ("The
formation of a special relationship is often based on some aspect of
control.").


                                     6
                      DELLINGER v. BASAMI HOUSE
                          Decision of the Court

states he had a "history of violent behavior," also is insufficient in the
absence of evidence of actual violent acts or threats of violent acts.

¶19           Dellinger asserts in general fashion that "[w]hile staying at
Basami House, Smith was defiant, uncooperative, non-compliant, and
disobedient." The episodes on which this characterization is based,
however, belie Dellinger's assertion that it should have been clear to Basami
House that Smith was likely to commit an assault. Records showed he had
once walked away from Basami House without permission and shoplifted
some beer, and he stole some cold medicine on an authorized trip to a
grocery store. He also returned drunk from a prior visit to his aunt's house.
None of these events hinted that he was likely to become violent.

¶20            Dellinger also relies heavily on Diamond's opinion that
Basami House fell below the standard of care in admitting Smith and
allowing him to stay after he failed to remain sober. The question, however,
is whether Basami House owed Dellinger a duty, not whether it breached a
duty. "[T]he existence of a duty is not to be confused with details of the
standard of conduct." Markowitz, 146 Ariz. at 355. If the defendant owes
the plaintiff no duty, "the defendant is not liable even though he may have
acted negligently in light of the foreseeable risks." Id. at 356. In other words,
an "expert witness cannot create a duty through [her] opinions and beliefs,
when the law does not recognize any such duty." Hafner v. Beck, 185 Ariz.
389, 393 (App. 1995).




                                       7
                     DELLINGER v. BASAMI HOUSE
                         Decision of the Court

¶21           In sum, the record contains no evidence to support Dellinger's
assertion that Basami House knew or should have known that Smith was
likely to cause bodily harm to another. Absent that showing, the superior
court did not err in ruling on summary judgment that no duty existed under
Restatement §§ 315 and 319.4

B.     Duty Under A.R.S. § 36-1201.

¶22           Dellinger also asserts that A.R.S. § 36-1201 (2019) imposed a
duty on Basami House to control Smith. Public policy articulated in a state
statute can give rise to a duty. See Quiroz, 243 Ariz. at 565, ¶¶ 14-15. In
Dellinger's view, § 36-1201 reflects a public policy imposing a duty in this
case, and she also argues that a violation of § 36-1201 constitutes negligence
per se.

¶23            When a state agency or regional behavioral health authority
contracts with a group home, § 36-1201(A) mandates certain terms in their
contract. Relevant here is the requirement in § 36-1201(A)(2) that "[t]he
group home is responsible for the supervision of the residents while in the
group home environment or while residents are engaged in any off-site
activities organized or sponsored by and under the direct supervision and
control of the group home or affiliated with the group home." Dellinger
argues this requirement imposed a duty on Basami House to adequately
control Smith.

¶24           The language on which Dellinger relies, however, relates only
to "off-site activities organized or sponsored by and under the direct
supervision and control of the group home or affiliated with the group


4        Dellinger argues Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 41 (2012) ("Restatement (Third)") imposed a duty on
Basami House. That provision is titled "Duty to Third Parties Based on
Special Relationship with Person Posing Risks," and replaces Restatement
(Second) §§ 315(a) and 319. Restatement (Third) § 41 cmt. a. Section 41 lists
specific relationships that may create a duty to control the conduct of
another, including a relationship of "a mental-health professional with
patients." We need not decide whether § 41 reflects the sort of doctrinal
shift in Restatement (Third) that our supreme court has rejected. See Quiroz,
243 Ariz. at 572-79, ¶¶ 52-89. That is because § 41 may create a duty only
when, as under Restatement (Second) § 319, the actor knows or should
know that the person may harm another. See Restatement (Third) § 41 cmt.
c ("If the actor neither knows nor should know of a risk of harm, no action
is required.").


                                      8
                      DELLINGER v. BASAMI HOUSE
                          Decision of the Court

home." A.R.S. § 36-1201(A)(2). Assuming without deciding that § 36-
1201(A)(2) might impose a duty, that duty would extend only to off-site
activities under the direct control of the group home or affiliated with it.
The statute does not apply when a group home resident is "off-site" on his
own, rather than as part of an activity "organized or sponsored by . . . or
affiliated with" the group home. Id. We will not construe a statute to create
a duty of care in circumstances to which the statute does not apply. See
Collette v. Tolleson Unified School Dist., No. 214, 203 Ariz. 359, 364, ¶ 18 (App.
2002) ("no benefit in imposing a duty upon a school district concerning the
conduct of students over which it has no control").

¶25           Smith had been released to his aunt at his mother's request.
His visit to aunt's home was an act he took on his own, with his mother's
authorization; it was not an activity that Basami House organized or
sponsored. Whatever duty § 36-1201(A) might impose, it does not extend
to this case.

                                CONCLUSION

¶26          Because Dellinger failed to offer evidence to show Basami
House was in a special relationship giving rise to a duty under Restatement
(Second) of Torts §§ 315 and 319 or otherwise owed a duty under public
policy found in A.R.S. § 36-1201(A), we affirm the judgment of the superior
court.




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




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