Schmidt, Sethi & Akmajian Blog

Torts: State Immunity for Felonious Acts of Employee

Posted by Matt Schmidt | May 26, 2015 | 0 Comments

Gallagher v. Tucson Unified School District, 712 Ariz. Adv. Rep. 22 (App. Div. II, May 12, 2015) (J. Vasquez)


Plaintiff parents and child sued the Tucson Unified School District [TUSD] for the negligent hiring of a a school aide who had been previously dismissed from employment by Carondolet for touching a patient in the vaginal area. The aide in question was found to have photographed an incapacitated special needs student without her clothes on. He was arrested for feloniously secretly viewing and recording a person without their consent. TUSD terminated the aide. TUSD claimed it had contacted the aide's prior employer before hiring him but there was no record of the call. The trial court granted TUSD summary judgment based upon statutory immunity and the Arizona Court of Appeals affirmed. 

Ariz. Rev. Stat. §12-820.05(B) provides, in pertinent part: "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." 

 The Arizona Court of Appeals found the statute to clearly and unambiguously shield the government from liability based upon criminally felonious acts of its employee even where it is alleged the government was independently negligent.

The statute provides an exception to immunity where it can be shown the government had knowledge of the employee's propensity to commit the criminally felonious act. However, here the plaintiff presented no proof of "actual" knowledge of the aide's propensity; at best such knowledge was constructive. The court of appeals found constructive knowledge is not enough.

About the Author

Matt Schmidt

Matt graduated from the James E Rogers College of Law at the University of Arizona in passing the Arizona bar exam in 2010. Matt's primary interest in law focuses on general personal injury and insurance bad faith.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Our team works together - for you!

Our award-winning lawyers are backed by a talented, caring team of legal professionals, paralegals, bilingual assistants, notaries, and others - all dedicated to you, your case, and the compensation you deserve.

No fees and no costs until we win.

As such we always have your case and your best interest in mind. When you win, we win too by providing the best legal care possible.

Thorough investigation and preparation.

We tirelessly and thoughtfully prepare every case we represent as though it was going to trial. This lets insurance companies know that we are a force to be reckoned with. As such, we settle successfully 98% of the time.