                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                TUCSON UNIFIED SCHOOL DISTRICT,
        A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA,
                            Petitioner,

                                  v.

        HON. TED B. BOREK, JUDGE OF THE SUPERIOR COURT
    OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
                          Respondent,

 RICHARD AND GWENYTH GALLAGHER, AND JANE DOE GALLAGHER,
 A MINOR AND PROTECTED PERSON, BY AND THROUGH RICHARD AND
    GWENYTH GALLAGHER, AS PARENTS AND LEGAL GUARDIANS
       OF JANE DOE GALLAGHER; MICHAEL H. CORUM AND
            MARY DOE CORUM, HUSBAND AND WIFE,
                    Real Parties in Interest.

                     No. 2 CA-SA 2013-0099
                      Filed March 11, 2014


                    Special Action Proceeding
                Pima County Cause No. C20121176

JURISDICTION ACCEPTED IN PART AND RELIEF GRANTED;
          JURISDICTION DECLINED IN PART


                           COUNSEL

Miniat & Wilson, L.P.C., Tucson
By Jerald R. Wilson
Counsel for Petitioner
           TUCSON UNIFIED SCHOOL DIST. v. BOREK
                    Opinion of the Court


Law Office of David E. Hill, P.L.C., Tucson
By David E. Hill
Counsel for Real Parties in Interest Richard, Gwenyth, and Jane Doe
Gallagher


                              OPINION

Presiding Judge Kelly authored the opinion of the Court, in which
Judge Espinosa and Judge Vásquez concurred.


K E L L Y, Presiding Judge:

¶1           In this special action, petitioner Tucson Unified School
District (TUSD) challenges the respondent judge’s denial of its
motion for summary judgment. In that motion, TUSD argued that
A.R.S. § 12-820.05(B) rendered it immune from liability for the
claims by the real parties in interest Richard and Gwenyth Gallagher
and their daughter Jane Doe Gallagher (the Gallaghers), and that the
Gallaghers’ A.R.S. § 12-821.01 notice of claim was insufficient as to
their claim of “negligent investigation.”

¶2           The Gallaghers sued TUSD and real parties in interest
Michael Corum and his wife, alleging Corum, a TUSD employee,
had “sexually abused and/or exploited” their developmentally
challenged daughter in April 2011 at a TUSD school, including
taking pornographic pictures of her. Relevant here, the Gallaghers
claimed TUSD was vicariously liable for Corum’s conduct and had
been negligent in hiring and supervising Corum and in providing
proper staffing for their daughter. Specific to the claim of negligent
hiring, they asserted that, had TUSD properly investigated Corum’s
employment history before hiring him in 2005, it would have
“learned that [one of his previous employers] did not recommend
that [he] be employed in a position that involved disabled children
and/or the facts and circumstances surrounding Mr. Corum’s
termination [from employment].” The Gallaghers further alleged
TUSD had been negligent in failing to properly investigate the


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             TUCSON UNIFIED SCHOOL DIST. v. BOREK
                      Opinion of the Court

incident involving their daughter and discipline Corum, which
“interfered with [their] presentation and proof of this lawsuit and
their recovery of money damages.”

¶3            TUSD filed a motion for summary judgment asserting it
was immune from liability for the Gallaghers’ claims because Corum
had committed a felony and it had no actual knowledge of Corum’s
purported propensity for such conduct. In support of that claim,
TUSD relied on § 12-820.05(B), which provides in relevant part that
“[a] public entity is not liable for losses that arise out of and are
directly attributable to an act or omission determined by a court to
be a criminal felony by a public employee unless the public entity
knew of the public employee’s propensity for that action.”1 TUSD
further claimed that the Gallaghers’ notice of claim was insufficient
because it did not “allege a cause of action for negligent
investigation” and, in any event “there exists no legal authority for
such a cause of action.” The respondent judge denied the motion,
concluding that TUSD “should have known under the
circumstances” of Corum’s previous conduct, thus precluding the
application of § 12-820.05(B).

¶4           On review, TUSD argues that the propensity exception
in § 12-820.05(B) applies only when a public entity has actual
knowledge, not constructive knowledge, of the employee’s
propensity and that there is no evidence to support a conclusion that
it had actual or constructive knowledge of Corum’s alleged
propensity. TUSD also reasserts its argument that the Gallaghers’
notice of claim was insufficient as to their claim of negligent
investigation.

¶5            Although we normally disfavor accepting special action
jurisdiction to review the denial of a motion for summary judgment,
Orme Sch. v. Reeves, 166 Ariz. 301, 302, 802 P.2d 1000, 1001 (1990),
questions concerning immunity are particularly appropriate for
special action review, City of Phoenix v. Yarnell, 184 Ariz. 310, 315,

      1The  parties do not dispute that Corum’s conduct constituted
a felony; he pled guilty to “attempted secretly viewing or recording
another person without their consent.” See A.R.S. § 13-3019(A), (D).


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           TUCSON UNIFIED SCHOOL DIST. v. BOREK
                    Opinion of the Court

909 P.2d 377, 382 (1995); see also Ariz. R. P. Spec. Actions 1(a), 3. We
therefore accept jurisdiction to address the respondent judge’s
determination that § 12-820.05(B) provides no immunity if the public
entity had constructive knowledge of its employee’s propensity.

¶6           Because TUSD has an adequate remedy by appeal,
however, we decline to accept jurisdiction of its argument that the
respondent erred by concluding the Gallaghers’ notice of claim was
sufficient, particularly in light of the fact that, even if TUSD is
correct, it would not terminate the litigation. See Ariz. R. P. Spec.
Actions 1 (“[T]he special action shall not be available where there is
an equally plain, speedy, and adequate remedy by appeal.”); Cardon
v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 210, 841 P.2d 198, 205
(1992) (accepting special action jurisdiction in part because relief
would end litigation and “eliminate[] the necessity of any future
appeals, and spare[] the parties and the judicial system unnecessary
time and expense”).

¶7            “Our primary purpose in interpreting a statute is to
give effect to the legislature’s intent.” Parker v. City of Tucson, 233
Ariz. 422, ¶ 12, 314 P.3d 100, 106 (App. 2013). “Because the plain
language of a statute is the best reflection of that intent, when a
statute is clear and unambiguous we need look no further than the
statute’s terms to determine its meaning and do not employ other
principles of statutory construction.” Id. Moreover, “‘we assume
that when the legislature uses different language within a statutory
scheme, it does so with the intent of ascribing different meanings
and consequences to that language.’” Id., quoting Comm. for Pres. of
Established Neighborhoods v. Riffel, 213 Ariz. 247, ¶ 8, 141 P.3d 422,
424-25 (App. 2006).

¶8           The pertinent portion of § 12-820.05(B) states that
immunity does not apply if “the public entity knew of the public
employee’s propensity for th[e] action” that caused the plaintiff’s
loss. We agree with TUSD that the legislature’s use of the word
“knew” unambiguously shows its intent to require actual
knowledge rather than constructive knowledge for the propensity
exception to apply.




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           TUCSON UNIFIED SCHOOL DIST. v. BOREK
                    Opinion of the Court

¶9            We addressed a similar question in Bridgestone/Firestone
North America Tire, L.L.C. v. A.P.S. Rent-A-Car & Leasing, Inc., 207
Ariz. 502, 88 P.3d 572 (App. 2004). We concluded the word
“knowledge” in a statute related to product liability claims should
be given “its common, understood meaning—that the seller actually
knew of the product’s defect.” Id. ¶ 59. We noted “[t]he word
‘knowledge’ is commonly understood to mean ‘[a]n awareness or
understanding of a fact or circumstance.’” Id. ¶ 58, quoting Black’s
Law Dictionary 876 (7th ed. 1999) (second alteration in Bridgestone).
We further pointed out that constructive knowledge “is essentially a
legal fiction, referring to knowledge that ‘one using reasonable care
or diligence should have, and therefore that is attributed by law to a
given person.’” Id., quoting Black’s Law Dictionary, at 876.

¶10         Finally, we explained that, “when the legislature has
chosen to employ a standard of actual or constructive knowledge, it
has expressly so stated,” citing numerous examples. Id. ¶ 59.
Indeed, as TUSD points out, our legislature utilized the phrase
“knows or reasonably should know” in the same article as § 12-
820.05 in A.R.S. § 12-821.01(B), which governs the determination of
when a cause of action accrues. See Parker, 233 Ariz. 422, ¶ 12, 314
P.3d at 106. In light of the unambiguous meaning of the term
“knew,” we are compelled to conclude that § 12-820.05(B) means
exactly what it says—that immunity applies unless the public entity
actually knew of the “employee’s propensity for that action.”

¶11           The Gallaghers offer little to support a contrary
conclusion. They correctly point out that constructive knowledge is
sufficient for many common-law causes of action. But they do not
explain why that is relevant to our interpretation of a plainly
worded statute. And they cite no authority that concludes the term
“knew” or any similar term should be interpreted to include
constructive knowledge. Although we appreciate the Gallaghers’
concern that § 12-820.05’s actual knowledge requirement may
represent a poor policy choice, particularly in light of the hiring
obligations of a school district enumerated in A.R.S. § 15-512, that
choice must be made by the legislature. See Mitchell v. Gamble, 207
Ariz. 364, ¶ 34, 86 P.3d 944, 954-55 (App. 2004). We “are not at
liberty to rewrite [a] statute under the guise of judicial


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           TUCSON UNIFIED SCHOOL DIST. v. BOREK
                    Opinion of the Court

interpretation.” New Sun Bus. Park, LLC v. Yuma Cnty., 221 Ariz. 43,
¶ 16, 209 P.3d 179, 183 (App. 2009).

¶12          The Gallaghers do not suggest that TUSD had actual
knowledge of Corum’s purported propensity, and nothing in the
record would support that conclusion. Accordingly, the respondent
judge erred to the extent his ruling was based on a determination
that the propensity exception in § 12-820.05(B) applied to the
Gallagher’s claims.

¶13           TUSD further claims that § 12-820.05(B) provides
immunity for “all claims against [it], whether the claims stem from
direct liability or vicarious liability.” In support of its argument in
its special action petition, TUSD relies primarily on unpublished
decisions by federal trial courts. Citation to such decisions is
prohibited by our rules except in circumstances not presented here.
See Ariz. R. Civ. App. P. 28(c); Hourani v. Benson Hosp., 211 Ariz. 427,
¶ 27, 122 P.3d 6, 14 (App. 2005); see also Andrews v. Willrich, 200 Ariz.
533, n.2, 29 P.3d 880, 884 (App. 2001) (applying Rule 28(c), Ariz. R.
Civ. App. P., to special action proceeding). The sole reported case
cited by TUSD—also a federal trial court decision—does not support
its argument. The court in that case intimated that § 12-820.05(B)
would apply to direct-liability claims by declining to separately
address the plaintiff’s claims of negligent training and supervision
after determining the propensity exception in § 12-820.05(B) did not
apply. Doe v. Dickenson, 615 F. Supp. 2d 1002, 1015, 1015 & n.8 (D.
Ariz. 2009). But it did not meaningfully analyze the question. Id.

¶14           And, despite the extensive argument presented to the
respondent judge concerning this issue, TUSD did not provide in its
special action petition any analysis of the statute’s language or
legislative history, nor did it attempt to draw any analogies to other,
similar legislation. Accordingly, we conclude TUSD waived this
argument on review, and we decline to address it further. See
Polanco v. Indus. Comm’n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2
(App. 2007) (finding issue waived on appeal because party
mentioned it in passing, cited no supporting legal authority, and
failed to develop it).




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          TUCSON UNIFIED SCHOOL DIST. v. BOREK
                   Opinion of the Court

¶15          For the reasons stated, we accept jurisdiction in part
and grant relief. We vacate those portions of the respondent judge’s
order denying TUSD’s motion for summary judgment that depend
on his determination the propensity exception in § 12-820.05(B)
applies to the Gallagher’s claims.




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