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.
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¶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
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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.”).
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____________________________________
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.
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¶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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