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

SCHOOL DISTRICT IMMUNE FROM  CLAIM OF NEGLIGENT HIRING EMPLOYEE WHO COMMITS FELONIOUS ACT ABSENT ACTUAL KNOWLEDGE

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.