A case about a school’s duty of care to its students, mostly following the common law.

A girl was hit by a bus at a busy intersection on her way to school. The intersection had a crosswalk, walk signs, etc. but it didn’t have a crossing guard. So when she came of age she sued the school, alleging that it should have put a crossing guard at the intersection. The school argued that it had no duty and the trial court granted it summary judgment. The plaintiff appealed; the Court of Appeals affirms.

The court cites and follows the common law, which is basically that a school has no duty to students off the premises unless it’s a school activity, a school operation (the example being the Warrington cases concerning a school’s decision about where to put its bus stops), or a duty voluntarily undertaken (three guesses why this school might have thought twice about putting a crossing guard at a busy intersection; but lawyers make life safer, you know).

Plaintiff argued that the school had a statutory duty because the charter-school statutes require them to follow all health and safety rules and regulations.That includes, she contended, an ADOT manual about traffic safety in school areas. But the manual had not been enacted as a regulation and the statute it references does not authorize regulations about crossing guards.

For some reason the court then doubles back to the common law and considers whether a duty exists on the basis of public policy. But the legislature has not chosen to create one. Plaintiff “cites no public policy authority” in favor of a general duty of care to students away from school.

(link to opinion)

A fairly typical cautionary tale about tribal sovereign immunity.

MM&A sued the tribe in Superior Court for breach of contract. The tribe moved to dismiss on grounds of sovereign immunity. The tribal official who signed the contract had also signed two written waivers, as had his predecessor. But the tribe’s Constitution says, as usual, that only the Tribal Council can waive immunity, and the Council’s Executive Secretary submitted an affidavit that she looked through the minutes and it had never done so. The trial court granted the tribe’s motion; MM&A appealed. The Court of Appeals affirms.

It first regurgitates Indian immunity law for several pages while saying nothing new or helpful. That law is quite strict and always comes as a shock to those who haven’t studied it carefully before trying to make money dealing with the tribes – i.e., just about everybody. MM&A tried to argue apparent authority. But only actual authority is good enough; “misrepresentation by [the] tribe’s officials or employees ‘cannot effect its immunity from suit,’” nor do “’the equities of a given situation.’” MM&A did have a case from the Colorado Court of Appeals allowing apparent authority but this opinion rejects it as “contrary to the weight of controlling law.”

MM&A argued that it should at least get discovery on whether the tribal officer had actual authority; he had allegedly been told by a Council member that it knew of the waiver and approved of it. But the tribe’s affidavits said that the various bureaucratic procedures necessary to waive sovereign immunity had never been done for this contract, so the court figures that further evidence couldn’t make any difference.

This case does at least show you what you need. If you want to be able to sue an Indian tribe then you have to make sure that every detail of the waiver process is carried through by the book and documented by the tribe in the tribe’s records. You can’t rely on what anyone says, regardless of how many officials sign on how many dotted lines. The rules you’re used to just don’t apply. If there’s any doubt, contact the tribe’s lawyer – who will be involved with the process anyway – and make sure you understand the details.

The alternative, of course, is to sue the tribe in tribal court. Some of those are well-appointed and the judges are trained and interested. Others are held (we speak from experience) in double-wide trailers and the judge is an elderly lady with no schooling who barely speaks English and whose principal function is to chastise wayward Indian children. But since a principal tenet of all Indian law is that it must be construed so as to benefit Indians, your chances may be as good in one as in the other.

(For procedure junkies, the court considered matters outside the pleadings but didn’t have to convert the Rule 12 motion to a Rule 56. The opinion notes that that needn’t be done when the question considered is the court’s  jurisdiction and the facts considered are not “intertwined” with the merits of the case.)

(link to opinion)

The court holds that a wrongful-death claim is not subject to an arbitration agreement signed by the decedent.

Mrs. DeCamacho died in a nursing home. Her estate and beneficiaries sued it. But the admission documents contained an arbitration agreement. The trial court ordered arbitration; the estate appealed.

It first made some arguments about the validity of the contract that are mostly too silly to bother with (e.g., it wasn’t valid because when it was signed somebody forgot to fill in the date). Presumably the estate knew these were throw-aways (though in that case it should have thrown them away before wasting appeal time and money on them).

The arbitration agreement applied, according to the court, to claims that “originate from the rights of DeCamacho.” The estate argued that its wrongful-death and APSA claims didn’t.

As to the APSA it loses. “The estate’s right to recovery under APSA is protected only if ‘the incapacitated or vulnerable adult could have brought the claim had he or she been alive.’” The claim is therefore derivative of the vulnerable adult’s.

Wrongful-death claims, however, are not derivative (because our Supreme Court once said so in passing – Huebner (1973), which this opinion cites – though it apparently has never really analyzed the question). La Solana argued that since under 12-211 a wrongful-death claim can’t be brought unless the decedent would have had a claim, it is subject to arbitration if the decedent’s claim would have been. If that sounds like the APSA analysis to you, it doesn’t to the court. The court says that the statute’s language “is merely descriptive of the nature of the wrong.” The nursing home also contended that the beneficiaries of the estate were third-party beneficiaries of the admission contract. The court holds that they are not because they are not seeking benefits under it (unlike the case that La Solana cited, which involved beneficiaries to an insurance contract). So the arbitration agreement does not apply to wrongful death.

The court then spends some time saying that other jurisdictions have come to the same conclusion. As usual, this is pointless. If the agreement covers only derivative clams, and if the wrongful-death claim isn’t derivative, how can what other courts say make any slightest difference? If you’re making a judgment call then the opinions of others can help. But if you’ve decided that the task is to add two and two then you shouldn’t need a consensus. Whether that really was this court’s task we’ll leave to you.

(Link to opinion)