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Hill v. Safford Unified School District12/30/1997
e scope of conduct necessary to fulfill a duty. Martinez. A reasonably foreseeable event is one that might "reasonably be expected to occur now and then, and would be recognized as not highly unlikely if it did suggest itself to the actor's mind." Tellez v. Saban, 188 Ariz. 165, 172, 933 P.2d 1233, 1240 (App. 1996); see Fazzolari v. Portland School District No. 1J, 717 P.2d 1210 (Or. App. 1986), aff'd, 734 P.2d 1326 (Or. 1987). As our supreme court noted in Martinez, a defendant's duty of care "may include measures to protect others from criminal attacks, provided the attacks are reasonably foreseeable." 189 Ariz. at 211, 941 P.2d at 223. The reckless or criminal nature of a tortfeasor's conduct "does not place it beyond the scope of a duty of reasonable care if that duty entails foresight and prevention of precisely such a risk." Rogers, 170 Ariz. at 401-02, 825 P.2d at 22-23.
Appellant repeatedly asserts that Hill's death was "foreseeable" and "predictable." We find nothing in the record, however, to support that claim. There is no evidence Andrews or any school official was aware of any students bringing guns or weapons to school, or that any student had a weapon at the time Andrews drove by the group of students after school. Nor is there any evidence in the record to support appellant's claim of "on going gang difficulty at the school," or that Andrews or other school personnel knew that the after-school gathering had any gang relation. Indeed, when asked earlier that day whether the altercation with Hill involved the rumored "Eight Ball Posse," Fast told the assistant principal "that was not a part of it." There is also no evidence that Fast "was known to have dangerous propensities and violent tendencies," that Hill "reported threats by Scott Fast to school personnel," or that the school or Andrews was aware that Hill and Fast "confronted each other" at the gathering across the street from the school as appellant claims.
A number of cases have examined the question of foreseeability in the context of particular fact scenarios and lend support to a finding of insufficient indicia of foreseeability here. See Fedie (directed verdict for motel managers upheld where evidence insufficient to support Conclusion they should have foreseen that visitor had dangerous propensities and might obtain room occupant's gun); Herbert v. Club 37 Bar, 145 Ariz. 351, 701 P.2d 847 (App. 1984) (victim's shooting in parking lot unforeseeable when no reason for bar owners or bartender to believe intoxicated patron was dangerous or violent); Brownell v. Los Angeles Unified School Dist., 4 Cal. App. 4th 787, 5 Cal. Rptr. 2d 756 (1992) (although school knew of gang activity in area, no similar incidents or other circumstances to alert it to possibility of off-campus shooting that occurred); Danna v. Sewanhaka Central High School Dist., 662 N.Y.S. 2d 71 (App. 1997) (fight between students and resulting injury not reasonably foreseeable when neither student previously involved in or disciplined for fighting, and only prior dispute was verbal exchange a month before); see also Morris (directed verdict on negligent supervision action upheld where nothing to alert teacher that shop student who had been asked to stand on large piece of metal would instead leap onto its jagged edge and sustain injury); compare Martinez (sufficient evidence of foreseeability of harm to condominium guest where plaintiff introduced evidence that defendant knew gangs frequented its parking lot and conducted criminal activities there, and was warned of the need for 24-hour patrols); Robertson (motel manager who knew of just completed armed robbery on premises and failed to warn security guard could anticipate harm to him); Jesik (student's repeated re
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