                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


               JENNIFER MONROE, A SINGLE WOMAN,
                        Plaintiff/Appellant,

                                 v.

          BASIS SCHOOL, INC., AN ARIZONA CORPORATION,
                       Defendant/Appellee.

                      No. 2 CA-CV 2013-0047
                      Filed February 10, 2014

          Appeal from the Superior Court in Pima County
                          No. C20115339
              The Honorable Jan E. Kearney, Judge

                           AFFIRMED


                            COUNSEL

Monroe McDonough Goldschmidt & Molla, P.L.L.C., Tucson
By Karl E. MacOmber
Counsel for Plaintiff/Appellant

Grasso Law Firm, P.C., Chandler
By Robert Grasso, Jr. and Kim S. Alvarado
Counsel for Defendant/Appellee



                             OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Howard concurred.
                      MONROE v. BASIS SCHOOL
                        Opinion of the Court


M I L L E R, Judge:

¶1           Jennifer Monroe appeals from the judgment dismissing
her negligence action against BASIS School, Inc. This appeal
requires us to determine whether a charter school has a duty of care
to its students as they travel to and from school. The trial court
found BASIS owed no duty to Monroe and, even assuming a duty,
there had been no breach. Because we agree BASIS did not owe a
duty to Monroe, we affirm.

                Factual and Procedural Background

¶2           The following facts are undisputed. On October 17,
2003, Monroe, then an eleven-year-old, fifth-grade student at BASIS,
a charter school, was struck by a truck in a busy intersection
crosswalk as she rode her bicycle from the school to her home. As a
result of the accident, Monroe was in a coma for two weeks and
suffered permanent injury. The intersection where the accident
occurred is located approximately one block from BASIS. The
intersection was equipped with marked crosswalks and traffic
lights, including a walk/don’t walk pedestrian light and left turn
arrow. No crossing guards were present at the intersection.

¶3           Monroe filed her complaint after her eighteenth
birthday, claiming BASIS had been negligent for failing to post a
crossing guard at the intersection. Although not alleged in her
complaint, Monroe also contends that BASIS negligently located its
school in close proximity to the subject intersection. BASIS moved
for summary judgment on the basis of duty.1 The trial court granted
the motion finding that BASIS owed no common law or statutory
duty to Monroe. Monroe timely appealed, and we have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1).


      1BASIS   also moved to exclude the testimony of Monroe’s
expert, which the trial court granted for purposes of the summary
judgment motion. Because we affirm on other grounds, we do not
address this issue or the court’s finding that there were no issues of
material fact.

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                    MONROE v. BASIS SCHOOL
                      Opinion of the Court


                              Discussion

¶4           Monroe contends that BASIS owed a duty to protect her
from an unreasonable risk of harm on her way from the school to
her final destination. Whether a duty exists “is a matter of law for
the court to decide,” while the remaining elements are factual issues
typically decided by the jury. Gipson v. Kasey, 214 Ariz. 141, ¶ 9, 150
P.3d 228, 230 (2007). Duty is defined as a legal obligation that
requires a defendant “to conform to a particular standard of conduct
in order to protect others against unreasonable risks of harm.”
Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366
(1985). “Whether the defendant owes the plaintiff a duty of care is a
threshold issue; absent some duty, an action for negligence cannot
be maintained.” Gipson, 214 Ariz. 141, ¶ 11, 150 P.3d at 230.
Accordingly, when no duty exists, a defendant cannot be found
liable. See Markowitz, 146 Ariz. at 356, 706 P.2d at 368.

Does the Student-School Relationship Impose a Duty To Students
Traveling To and From School?

¶5           A duty of care may arise from the relationship between
the parties. See Stanley v. McCarver, 208 Ariz. 219, ¶ 7, 92 P.3d 849,
851 (2004) (duty may arise from special relationship between parties,
based in contract, family relations, or joint undertakings). The
student-school relationship is one that can impose a duty within the
context of the relationship. Hill v. Safford Unified Sch. Dist., 191 Ariz.
110, 112, 952 P.2d 754, 756 (App. 1997); see also Gipson, 214 Ariz. 141,
¶ 19, 150 P.3d at 232; Restatement (Third) of Torts (Physical and
Emotional Harm) § 40 (2012) (special relationships giving rise to a
duty include a school with its students). Schools have “both a
statutory and common law duty not to subject students within their
charge to a[n] . . . unreasonable risk of harm through acts, omissions,
or school policy.” Hill, 191 Ariz. at 112, 952 P.2d at 756; see also
A.R.S. § 15-341(A)(16) (governing board shall provide for adequate
supervision of pupils in instructional and non-instructional
activities).

¶6           The scope of the duty imposed by the student-school
relationship is not limitless. See Hill, 191 Ariz. at 112, 952 P.2d at 756

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                    MONROE v. BASIS SCHOOL
                      Opinion of the Court


(school owes duty to students within its charge); Restatement § 40
cmt. f (duty arising within and confined by relationship does not
extend to risks outside relationship). “The relationship between a
school and its students parallels aspects of several other special
relationships—it is a custodian of students, it is a land possessor
who opens the premises to a significant public population, and it
acts partially in the place of parents.” Restatement § 40 cmt. l.
Where a duty arises from a special relationship, the duty is tied to
expected activities within the relationship. Id. Therefore, in the
student-school relationship, the duty of care is bounded by
geography and time, encompassing risks such as those that occur
while the student is at school or otherwise under the school’s
control.2 Restatement § 40(b)(5) and cmt. f, l; see also Norton v.
Canandaigua City Sch. Dist., 624 N.Y.S.2d 695, 697 (N.Y. App. Div.
1995) (school’s duty to student strictly limited by time and space and
student-school relationship “exists only so long as a student is in its
care and custody during school hours,” terminating when child has
departed from school’s custody); Young v. Salt Lake City Sch. Dist., 52
P.3d 1230, ¶ 14 (Utah 2002) (extent of student-school relationship
limited to school’s custody over that student).

¶7            It is the general rule that “absent a statute to the
contrary or an undertak[ing] specifically assumed, an educational
institution has no duty ‘to conduct or supervise school children in
going to or from their homes.’” 5 James M. Rapp, Education Law,
§ 12.10[5], at 12-296.5 (2013), quoting Gilbert v. Sacramento Unified Sch.
Dist., 65 Cal. Rptr. 913, 916 (Ct. App. 1968); see also Wright v. Arcade
Sch. Dist., 40 Cal. Rptr. 812, 813-16 (Ct. App. 1964) (holding no
common law duty to transport pupils between home and school and


      2This  does not mean that a school never has a duty to protect
its students beyond the school’s physical boundaries or outside of
normal school hours. See, e.g., Delbridge v. Maricopa Cnty. Cmty.
College Dist., 182 Ariz. 55, 59, 893 P.2d 55, 59 (App. 1994) (school
owed duty to student injured in off-campus accident where student
was performing exercise supervised by school instructor and
included in curriculum).

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                    MONROE v. BASIS SCHOOL
                      Opinion of the Court


thus school district had no duty to pupil injured crossing busy
intersection on way to school). Based on this general principle, a
school has no affirmative, common law duty to provide school
crossing guards. 5 Rapp, supra, § 12.10[5]; see also Young, 52 P.3d
1230, ¶ 16 (concluding school district had no common law duty to
provide crossing guard at crosswalk located opposite school).

¶8            Arizona law recognizes, however, that if a school
voluntarily undertakes to provide protection at a street crossing, a
duty of care is imposed on that conduct. For instance, in Alhambra
School District v. Superior Court, 165 Ariz. 38, 796 P.2d 470 (1990), our
supreme court considered a school district’s affirmative duty to
persons using a school crosswalk. By establishing a “marked
crosswalk where none previously existed, the District created a
relationship with those who would use the crosswalk and thereby
assumed a duty of reasonable care with respect to its operation.” Id.
at 42, 796 P.2d at 474. Thus, the school owed a duty of reasonable
care to any pedestrian who used the crosswalk, not just its students.
See id. at 43, 796 P.2d at 475. Similarly, the Attorney General relied
on Alhambra when opining that although schools do not have
“blanket ‘portal-to-portal’ liability,” affirmative action by the school
may create a relationship that could establish a duty. 3 1994 Op.
Ariz. Att’y Gen. I94-001.

¶9           Here, Monroe left BASIS’s custody to travel from the
school to her home. Because BASIS did not have custody, it did not
have a protective obligation and lacked the special, student-school
relationship with Monroe after she left the school. See Young, 52
P.3d 1230, ¶ 16 (“Given that the [school district] did not have
custody of [the student] at the time he suffered his injury, it lacked a
special relationship with him at that time.”); Pratt v. Robinson, 349
N.E.2d 849, 853 (school district lacked custody once it safely
dropped off student at bus stop just as it would if “the child had

      3Although    Attorney General Opinions are advisory only,
Marston’s Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 94,
644 P.2d 244, 248 (1982), they may be persuasive, Neary v. Frantz, 141
Ariz. 171, 176, 685 P.2d 1323, 1328 (App. 1984).

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                    MONROE v. BASIS SCHOOL
                      Opinion of the Court


been hurt while walking home from a neighborhood school”).
Moreover, BASIS did not undertake any affirmative action
regarding crosswalks or crossing guards at the subject intersection.
See 5 Rapp, supra, § 12.10[5], at 12-296.5; cf. Alhambra, 165 Ariz. at 42,
796 P.2d at 474 (creation of marked crosswalk created relationship
between school district and all potential crosswalk users). Thus,
BASIS did not owe a duty of care to protect Monroe traveling to and
from school.

¶10           Monroe also contends that the school’s proximity to a
busy intersection rendered its location4 dangerous to elementary
students and that, as a result, BASIS had a duty to provide a
crossing guard at the subject intersection. In support of this
argument, Monroe relies on Warrington v. Tempe Elementary School
District No. 3, 187 Ariz. 249, 926 P.2d 673 (App. 1996); see also
Warrington v. Tempe Elementary Sch. Dist. No. 3, 197 Ariz. 68, ¶ 9,
3 P.3d 988, 990 (App. 1999) (“Warrington II”). In Warrington, this
court considered a school’s affirmative duty to students using school
bus transportation concerning the placement of bus stops. 187 Ariz.
at 250, 253, 928 P.2d at 674, 677. There, a school bus dropped off a
seven-year-old student near a busy intersection and, while walking
home from the bus stop, the child was seriously injured after he ran
into the street and was hit by an automobile. Id. at 250, 928 P.2d at
674. The court’s analysis focused on whether school bus stop
placement involved a fundamental governmental policy
determination and therefore was subject to absolute immunity
under A.R.S. § 12-820.01(B), which bars tort liability for public
entities. Id. at 253, 928 P.2d at 677. Because placement of bus stops
was part of the day-to-day performance of the school district’s


      4Monroe   initially argued the duty BASIS owed to Monroe in
selecting a school location is identical to that owed to the injured
student in Warrington v. Tempe Elementary School District No. 3, 187
Ariz. 249, 926 P.2d 673 (App. 1996) in its choice of bus stops. At oral
argument, however, counsel clarified that the school location was
secondary to Monroe’s principal contention based on the absence of
a crossing guard.

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                    MONROE v. BASIS SCHOOL
                      Opinion of the Court


transportation supervisor, the court concluded such a responsibility
was an operational function rather than a determination of policy.
Id. Having found no immunity, the court determined that the school
district “had a duty not to subject [its] students to [an] . . .
unreasonable risk of harm.” Id. Moreover, the Warrington II court
favorably cited common law duty decisions outside Arizona. 197
Ariz. 68, ¶ 9, 3 P.3d at 990. For instance, in Brooks v. Woods, 640 P.2d
1000, 1002 (Okla. Civ. App. 1981) the court concluded that school
transportation was not a mandatory duty, but if the school accepted
such responsibility, “it carrie[d] with it a duty to exercise reasonable
judgment.” See also Tracy A. Bateman, Tort Liability of Public Schools
and Institutions of Higher Learning for Accidents Associated with
Transportation of Students, 23 A.L.R.5th 1, § 8[a] (1994) (negligence of
schools for selection of locations for bus stops).

¶11          We find Monroe’s reliance on Warrington misplaced and
decline to extend its holding to the facts of the case at bar. The
central question before us does not concern bus stop placement nor
does it involve any affirmative conduct on the part of BASIS. Cf.
Alhambra, 165 Ariz. at 42, 796 P.2d at 474 (creation of marked
crosswalk created relationship between school district and all
potential crosswalk users). Rather, we are tasked with determining
whether a school owes a duty of care to a student traveling to and
from school when that student is not in the school’s custody nor
participating in a school-sponsored function. Monroe cites to no
authority and we are aware of none that defines a school’s common
law duty so broadly.

Is There a Statutory Duty?

¶12            The existence of a duty does not necessarily depend on
a preexisting or direct relationship between the parties. A duty of
care also may be imposed by the requirements of a statute. Alhambra
Sch. Dist., 165 Ariz. at 42, 796 P.2d at 474; see also W. Page Keeton et
al., Prosser and Keeton on Torts § 36, at 220-21 (5th ed. 1984) (many
courts have found criminal statutes create implied intent to provide
for tort liability).



                                   7
                    MONROE v. BASIS SCHOOL
                      Opinion of the Court


¶13          BASIS is a charter school, which is defined as a public
school that serves as an alternative to traditional public schools.
A.R.S. § 15-181(A). Arizona statutes and regulations create, dictate,
and govern the conduct of charter schools. See A.R.S. §§ 15-181
through 15-189. Our legislature differentiates charter schools from
traditional public schools, but still requires compliance with certain
rules and regulations, as reflected in the relevant portions of A.R.S.
§ 15-1835:

                E. The charter of a charter school shall
             ensure the following:

                1. Compliance with federal, state and
             local rules, regulations and statutes relating
             to health, safety, civil rights and insurance.
             The department of education shall publish
             a list of relevant rules, regulations and
             statutes to notify charter schools of their
             responsibilities under this paragraph.

                 ....

                 5. That, except as provided in this
             article and in its charter, it is exempt from
             all statutes and rules relating to schools,
             governing boards and school districts.

¶14          Monroe argues that the Arizona Department of
Transportation (ADOT) manual, entitled Traffic Safety for School
Areas Guidelines (Guidelines), are rules and regulations under
§ 15-183(E)(1), thereby imposing a statutory duty upon BASIS.
Monroe contends the Guidelines required BASIS to consider the

      5Section  15-183 has been amended nineteen times since the
date of Monroe’s accident. See, e.g., 2013 Ariz. Sess. Laws, ch. 251,
§ 1 and ch. 68, § 1; 2012 Ariz. Sess. Laws, ch. 212, § 1. Unless
otherwise noted, we apply the version in effect at the time of the
accident. See 2003 Ariz. Sess. Laws, ch. 214, § 2; Taylor v. Travelers
Indem. Co. of America, 198 Ariz. 310, n.2, 9 P.3d 1049, 1052 n.2 (2000).

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                   MONROE v. BASIS SCHOOL
                     Opinion of the Court


proximity to arterial roadways when choosing a site and whether to
post adult crossing guards at major signalized intersections. We
therefore next examine whether the Guidelines constitute a “rule” or
“regulation” creating a duty for BASIS under § 15-183(E)(1).

¶15          Monroe admits the guidelines have not been
implemented as a formal rule by ADOT but asserts that the
Guidelines “have the force and effect of law,” relying on Griffith
Energy, L.L.C. v. Arizona Department of Revenue, 210 Ariz. 132, 108
P.3d 282 (App. 2005). Monroe’s reliance on Griffith Energy is
misplaced. There, the subject statute on tax valuation for electric
generation facilities expressly directed the Arizona Department of
Revenue (ADOR) to adopt tables of valuation factors to be used in
the calculation. Id. ¶¶ 3, 12 (ADOR’s adoption of table “an exercise
of a legislatively mandated act”).        Here, the Guidelines are
published with the intent “to provide guidelines for the
implementation of the [Manual on Uniform Traffic Control Devices]
part VII, in accordance with ARS 28-797.” Section 28-797, A.R.S.,
deals exclusively with school crossings, however, and nothing
within the section directs ADOT to adopt rules or regulations
concerning the placement of crossing guards. Additionally, the
Guidelines are not referenced by § 15-183, nor were they enacted as
an administrative rule pursuant to A.R.S. § 41-1001, et seq. Thus, the
Guidelines’ recommendations cannot be construed as rules or
regulations, nor do they have the force and effect of law.

Does Public Policy Support a Duty?

¶16          Having declined to recognize a duty based on the
particular relationship between the parties and finding no statutory
duty, we turn to public policy considerations. See Gipson, 214 Ariz.
141, ¶ 23, 150 P.3d at 232 (“Public policy may support the
recognition of a duty of care.”).

¶17          In many instances, the legislature reflects public policy
by codifying certain duties and obligations. See Estate of Maudsley v.
Meta Servs., Inc., 227 Ariz. 430, ¶ 21, 258 P.3d 248, 254 (App. 2011)
(finding of duty supported by mental health statutes reflecting
public policy that imposes obligations on entities that screen,

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                    MONROE v. BASIS SCHOOL
                      Opinion of the Court


evaluate, and treat mentally ill); Estate of Hernandez v. Ariz. Bd. of
Regents, 177 Ariz. 244, 251-53, 866 P.2d 1330, 1337-39 (1994)
(existence of statute criminalizing conduct one aspect of Arizona law
supporting recognition of tort duty).        Section 15-341, A.R.S.,
enumerates a wide variety of general powers belonging to the school
district governing boards and duties that schools are obligated to
follow. See, e.g., A.R.S. § 15-341(A)(5), (21) (“[a]cquire school
furniture” and “[e]stablish a bank account”).6

¶18          When the legislature has intended to extend the scope
of duty beyond that imposed by the school-student relationship, it
has done so. For instance, § 15-341(A)(14) requires schools to
“[d]iscipline students for disorderly conduct on the way to and from
school.” The legislature could have included a similar provision
governing the safety of students on the way to and from school, but
has not done so. Moreover, this court distinguished a school’s
authority to discipline a student from the ability to supervise a
student off-campus. See Collette v. Tolleson Unified Sch. Dist., No. 214,
203 Ariz. 359, ¶ 19, 54 P.3d 828, 833 (App. 2002) (“The ability to
impose discipline after the fact is significantly different from the
power to control a student’s conduct before the fact.”). Generally,
once students independently leave school grounds, with or without
permission, their actions are outside the supervisory power of
school officials. See id. ¶ 19.

¶19          We also note that while schools may “[p]rovide
transportation or site transportation loading and unloading areas for
any child or children if deemed for the best interest of the district,”
they are not required to do so.                A.R.S. § 15-342(12).7

      6Section   15-341 has been amended multiple times since the
date of Monroe’s accident. See, e.g., 2013 Ariz. Sess. Laws, ch. 243,
§ 4; 2013 Ariz. Sess. Laws 1st Spec. Sess., ch. 3, § 6; 2012 Ariz. Sess.
Laws, ch. 270, § 1. Unless otherwise noted, we apply the version in
effect at the time of the accident. See 2003 Ariz. Sess. Laws, ch. 215,
§ 2; Taylor, 198 Ariz. 310, n.2, 9 P.3d at 1052 n.2.
      7Section15-342 has been amended nine times since the date of
Monroe’s accident. See, e.g., 2013 Ariz. Sess. Laws, ch. 91, § 1; 2012
                                   10
                    MONROE v. BASIS SCHOOL
                      Opinion of the Court


Notwithstanding that BASIS, as a charter school, is exempt from
§§ 15-341 and 15-342, see A.R.S. § 15-183(E)(5), the absence of a
requirement for traditional public schools to provide for the
transportation or safety of students to and from school suggests
public policy does not support the recognition of a duty of care
under the circumstances.

¶20           Finally, Monroe cites no public policy authority, and we
are aware of none, supporting a general duty of care against harm
away from school premises, absent a school-supervised activity or a
particular statute. To hold otherwise would imply that the student-
school relationship extends to situations where the school lacks
custody over the student and the student is not participating in a
school-sponsored activity. We decline to define the scope of duty in
such broad terms. See Restatement § 40 cmt. l; 5 Rapp, supra,
§ 12.10[5], at 12-296.5.

                             Disposition

¶21         For all of the foregoing reasons, the trial court’s
judgment is affirmed.




Ariz. Sess. Laws, ch. 167, § 1; 2011 Ariz. Sess. Laws, ch. 344, § 12.
Unless otherwise noted, we apply the version in effect at the time of
the accident. See 2002 Ariz. Sess. Laws, ch. 316, § 2; Taylor, 198 Ariz.
310, n.2, 9 P.3d at 1052 n.2.

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