NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. 

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

RICHARD LEWIS GANN, Plaintiff/Appellant, 

v.

STATE OF ARIZONA et al., Defendants/Appellees. 

No. 1 CA-CV 21-0675 

Appeal from the Superior Court in Maricopa County

No. CV2021-002745 

The Honorable John R. Hannah, Jr., Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix

By David L. Abney

Co-Counsel for Plaintiff/Appellant

Breyer Law Office, P.C., Phoenix

By Mark P. Breyer, Rob Kleinschmidt, Edward M. Ladley

Co-Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix

By Deborah L. Garner, Stephanie Elliott, Daniel P. Schaack 

Counsel for Defendant/Appellee, State of Arizona

FILED 9-29-2022
GANN v. STATE

Decision of the Court

2

MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the court, in which 

Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.

G A S S, Vice Chief Judge:

¶1 Richard Lewis Gann appeals the superior court’s dismissal of 

a negligence claim against the State for his son’s death. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Gann’s son tragically died while riding in a 15-passenger 

school van returning from a high school field trip. The driver was not 

school-bus certified. On the return trip, the van veered into oncoming 

traffic, ran off the highway, and rolled over. Gann’s son was ejected from 

the van and died at the scene.

¶3 Gann filed a negligence claim for wrongful death against 

seven named defendants. Gann alleged the following were liable under 

“respondeat superior and agency principles[:]” the State of Arizona; the 

organizing community college and its district; the hosting community 

college; and Gann’s son’s high school and its district. Gann also named the 

driver as a defendant. Gann claimed the accident would not have happened 

but for the other defendants’ hiring the driver.

¶4 Gann’s amended complaint named only the State as a 

defendant, relying on “respondeat superior and agency principles.” Gann

voluntarily dismissed with prejudice all other defendants. During oral 

argument before this court, Gann clarified he does not allege a common law 

theory of respondeat superior. Instead, he relies on a direct duty, based on 

either a statute, a special relationship, or a voluntary undertaking.

¶5 The State moved to dismiss for failure to state a claim upon 

which relief can be granted. See Ariz. R. Civ. P. 12(b)(6). After briefing and 

oral argument, the superior court granted the motion, finding Gann failed 

to allege the State owed a cognizable duty to his son. In granting the motion, 

the superior court also ruled the State’s decision not to ban schools’ use of 

15-passenger vans was an administrative policy decision subject to absolute 

immunity from liability under A.R.S. § 12-820.01.A.
GANN v. STATE

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3

¶6 Gann timely appealed. This court has jurisdiction under

article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 

and 12-2101.A.1.

DISCUSSION

¶7 This court reviews de novo a Rule 12(b)(6) dismissal. Acri v. 

State, 242 Ariz. 235, 238, ¶ 5 (App. 2017). For motions to dismiss, this court 

considers only the pleadings and well-pleaded factual allegations, and it

construes all reasonable inferences in plaintiff’s favor. See Cullen v. AutoOwners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008). This court need not accept 

“allegations consisting of conclusions of law, inferences or deductions that 

are not necessarily implied by well-pleaded facts, unreasonable inferences 

or unsupported conclusions from such facts, or legal conclusions alleged as 

facts.” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4 (App. 2005). This 

court affirms the dismissal “if as a matter of law . . . plaintiffs would not be 

entitled to relief under any interpretation of the facts susceptible of proof.” 

Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8 (2012) (citation omitted).

¶8 Gann argues the State owed his son a duty to ban schools’ use 

of 15-passenger vans based on (1) statutes, (2) the special relationship

doctrine, and (3) the voluntary undertaking doctrine. To prevail on a 

negligence claim, a party must prove “(1) a duty requiring the defendant to 

conform to a certain standard of care; (2) a breach by the defendant of that 

standard; (3) a causal connection between the defendant’s conduct and the 

resulting injury; and (4) actual damages.” Bottomlee v. State, 248 Ariz. 231, 

234, ¶ 8 (App. 2020) (quoting Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007)).

Gann also argues absolute immunity does not shield the State.

¶9 Whether a duty exists is a threshold legal question this court 

reviews de novo. Quiroz v. ALCOA Inc., 243 Ariz. 560, 564, ¶ 7 (2018). “A duty 

is an obligation, recognized by law, which requires the defendant to 

conform to a particular standard of conduct in order to protect others 

against unreasonable risks of harm.” Acri, 242 Ariz. at 238, ¶ 7 (cleaned up). 

Duty relates to the existence of an obligation between parties, not the 

standard of care, which relates to whether a defendant breached an 

established duty. See Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 41 

(1990). A duty can arise in various ways, including (1) common or statutory 

law, (2) special relationships between parties, and (3) a party’s decision to 

engage in certain conduct. Quiroz, 243 Ariz. at 563, ¶ 2.
GANN v. STATE

Decision of the Court

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I. The Arizona Enabling Act, Arizona Constitution, and Arizona and 

Federal Statutes Do Not Impose a Tort Duty on the State to Ban 

Schools’ Use of 15-Passenger Vans.

¶10 Because the legislature, not the judiciary, has the power to 

declare public policy, the courts “exercise great restraint in declaring public 

policy” absent a statute. Quiroz, 243 Ariz. at 566, ¶ 19. To interpret statutes, 

this court first considers the statute’s plain language. Glazer v. State, 244 

Ariz. 612, 614, ¶ 9 (2018). Yet, this court does not read statutes in isolation. 

Id. at ¶ 10. Instead, this court reads them in context. Id.

¶11 A statute typically creates a tort duty only if designed “to 

protect [a] class of persons” against a “type of harm.” Sullivan v. Pulte Home 

Corp., 237 Ariz. 547, 550, ¶ 9 (App. 2015). The duty extends only to 

individuals within the class of persons injured from the statute’s violation. 

Id. Gann argues the Enabling Act, Arizona Constitution, and state and 

federal statutes create a tort duty extending to his son. The State disagrees.

A. Enabling Act and Constitution

¶12 Gann argues the State owes his son a nondelegable duty to 

supervise school transportation services based on Arizona’s Enabling Act, 

Constitution, and laws. To support this argument, Gann begins with the 

Enabling Act, which says, “the schools, colleges, and universities provided 

for in this Act shall forever remain under the exclusive control of the said 

State.” See Arizona-New Mexico Enabling Act, Act of June 20, 1910, Pub. L. 

No. 219, ch. 310, 36 Stat. 557, § 26. Gann then goes to article XX, section 7 of 

the Arizona Constitution, which says, “Provisions shall be made by law for 

the establishment and maintenance of a system of public schools . . . .” Next, 

Gann mentions article XI, section 2 of Arizona’s Constitution, which adds, 

“The general conduct and supervision of the public school system shall be 

vested in a state board of education, a state superintendent of public 

instruction, county school superintendents, and such governing boards for 

the state institutions as may be provided by law.”

¶13 In making his argument, Gann cites—and this court found—

no case relying on any of those authorities for the proposition they imposed 

a relevant non-delegable tort duty on the State. Indeed, to the extent cases

cited reference these provisions, they do so for wholly different reasons. See, 

e.g., In re Gen. Adjudication of All Rts. to Use Water in Gila River Sys. & Source, 

231 Ariz. 8 (2012) (interpreting the extent of federal control over land grants 

under the Enabling Act); Green v. Garriott, 221 Ariz. 404 (App. 2009)

(holding corporate tax credit program did not remove State’s “exclusive 
GANN v. STATE

Decision of the Court

5

control” of the public school system under the Enabling Act); Roosevelt 

Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233 (1994) (interpreting the 

State’s responsibility to fund public education under Arizona’s Enabling 

Act and Constitution).

¶14 Additionally, the plain language of Article XI, section 2 of 

Arizona’s Constitution does not support Gann’s argument. Article XI, 

section 2 vests the “general conduct and supervision of the public school 

system” in “a state board of education, a state superintendent of public 

instruction, county school superintendents, and such governing boards for 

the state institutions as may be provided by law.” (Emphasis added.) Section 

2’s plain language limits any duties it creates to those the legislature 

provides in statute. See Glazer, 244 Ariz. at 614, ¶ 9 (interpreting statute’s 

plain language). And the legislature has not created any statutory tort duty 

based on article XI, section 2. See infra ¶¶ 16–22.

¶15 In summary, Gann has not shown that either the Enabling Act 

or Arizona’s Constitution creates a duty the State owed to his son.

B. Education Statutes

¶16 Gann then argues subsection 15-921.A of the Arizona Revised 

Statutes establishes a tort duty because it says, “the Superintendent of 

Public Instruction shall supervise the provision of pupil transportation 

services.” In isolation, the plain language appears to support Gann’s 

argument. But in interpreting plain, unambiguous language, this court 

looks to its context. Glazer, 244 Ariz. at 614, ¶ 10. Context includes the

language itself, the context surrounding the language, the statute as a 

whole, and pari materia. Id. Reading a statute in pari materia requires 

“looking to statutes which relate to the same person or thing and which 

have a purpose similar to that of the statute being construed.” Collins v. 

Stockwell, 137 Ariz. 416, 419 (1983).

¶17 Taken in context, subsection 15-921.A is a budgeting and 

finance statute. Section 15-921 resides in title 15, chapter 9 entitled “School 

District Budgeting and Financial Assistance.” See id. The surrounding 

articles in chapter 9 cover only budgeting and finance issues:

Article 1. General Provisions for School District Budgets;

Article 1.1. Career Ladder and Other Performance 

Incentives [relating to performance pay];

Article 3. School District Revenue Limitation for 

Maintenance and Operation;

Article 4. Provisions for Capital Outlay and Capital Levy;
GANN v. STATE

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Article 5. State and Local Assistance to School Districts 

and Accommodation Schools [relating to 

financial equalization assistance];

Article 6. County Finance Responsibilities for School 

Districts;

Article 7. Bond issues and Bonded Indebtedness;

Article 8. Student Accountability Information System 

[regarding transmitting “student level data and 

school finance data electronically”];

Article 9. Federal Monies Received by the Department of 

Education; and

Article 10. School District Revenue Bonds.

A.R.S. Title 15, Chapter 9 (emphasis added). Section 15-921’s subsections 

emphasize that section’s budgetary and financial purpose:

A. The superintendent of public instruction shall supervise 

the provision of pupil transportation services.

B. The superintendent of public instruction shall evaluate the 

transportation program and routes for the purpose of

evaluating accurate transportation support levels for the budget 

year.

C. For each fiscal year the superintendent of public instruction 

shall, on or before May 15, inform each school district of the 

daily route mileage which shall be used in the determination of

the school district's transportation support level for the budget 

year.

D. The superintendent of public instruction shall be 

responsible for assembling the information provided by the school 

district and for determining the accuracy of such information.

A.R.S. § 15-921 (emphasis added). Because subsection 15-921.A is a 

budgetary and financial provision, it creates no tort duty.

¶18 Other Arizona statutes further undercut Gann’s plain 

language argument. The only article dedicated to safety in Title 15 does not 

reference transportation. See A.R.S. § 15-151 et seq. Sections 15-251 and -252

identify the Superintendent’s duties, and do not include student 

transportation. Instead, § 15-342(12) gives each governing school board 

discretion to decide whether to “[p]rovide transportation or site 

transportation loading and unloading areas for any child or children if 

deemed for the best interest of the district, whether within or without the 

district, county or state.” Though not controlling, the attorney general also 
GANN v. STATE

Decision of the Court

7

has opined § 15-342(12) means “school districts may, but are not required 

to, provide transportation for students to or from school.” Op. Ariz. Att’y 

Gen. I02-010, 7. Under these statutes, school districts—not the State—

decide whether to provide transportation to students.

¶19 In short, Arizona’s education statutes impose no duty on the 

State to prohibit schools from using 15-passenger vans. See supra ¶ 11.

C. Transportation Statutes

¶20 Gann also argues Arizona’s transportation statutes contained 

in A.R.S. Title 28 impose a relevant duty on the State. Gann first argues the 

State had a duty because statutes charged the Department of Public Safety 

(DPS) with adopting rules for school bus safety and those rules must meet 

relevant federal standards. See A.R.S. §§ 28-900.A, .C. Gann also argues the 

duty arises because DPS must inspect school buses (A.R.S. §§ 28-984.A, .B,

and .D) and establish rules regarding school bus driver licensing (A.R.S. § 

28-3228.A).

¶21 Gann, however, does not articulate how those transportation 

statutes create a relevant tort duty. Gann simply moves from reciting those 

statutes to saying DPS did not “fulfill those duties,” and “[a]s a result, an 

incompetent, uncertified driver’s conduct led to the rollover of the 

dangerous and unsuitable 15-passenger van involved in the collision.” In

the absence of any authority or analysis to show the statutes created a tort 

duty, this court finds none. See supra ¶ 11.

¶22 Gann also argues the State must ban schools’ use of 15-

passenger vans because several sources indicate those vehicles have 

increased risks for rolling over. But this argument relates to the standard a 

recognized duty imposes, not whether the claimed duty exists. Absent a 

duty, the standard is irrelevant. See Quiroz, 43 Ariz. at 564, ¶ 7.

D. Federal Law

¶23 Gann argues the Federal Motor Vehicle Safety Act also 

imposes a non-delegable duty on the State to ban schools’ use of 15-

passenger vans. Gann cites two federal statutes regulating vehicles, but 

they do not compel states to prohibit the use of 15-passenger vans to 

transport students. See 49 U.S.C. § 30112(a) (applies only to purchasing or 

leasing “new 15-passenger van[s]” but not their use); 49 C.F.R. § 571.222 

(regulates school bus “occupant protection requirements” but not the scope 

of their use). Once again, Gann cites—and this court found—no case or 

other authority concluding those sections ban the use of 15-passenger vans.
GANN v. STATE

Decision of the Court

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II. No Special Relationship Exists to Impose a Duty on the State to 

Ban Schools’ Use of 15-Passenger Vans.

¶24 Next, Gann argues the special relationship between “an 

educational institution and the student receiving the education” creates an 

“affirmative duty” upon the State to protect students. Arizona courts have 

analyzed special relationship theory regarding students only in the context 

of school districts and schools. See, e.g., Dinsmoor v. City of Phoenix, 251 Ariz. 

370 (2021) (school district owed no duty to protect student from boyfriend 

off school grounds); Hale v. Window Rock Unified Sch. Dist., 252 Ariz. 420 

(App. 2021) (school district owed duty to protect student from assault on 

school campus); Monroe v. Basis Sch., Inc., 234 Ariz. 155 (App. 2014) (school 

owed no duty to protect student during travel to and from school). The 

State’s duty was not an issue in those cases. Indeed, this court found no case 

in which the State was liable to a student on a special relationship theory.

In short, Gann argues for an unprecedented expansion of the special 

relationship theory. This court will not extend it under the facts here.

III. The State Owes No Duty Under the Voluntary Undertaking 

Doctrine.

¶25 Lastly, Gann argues the State is liable under the voluntary 

undertaking doctrine. “[A] duty based on a negligent undertaking exists 

when a person, who otherwise owed no duty to plaintiff, voluntarily agrees 

to provide services for another person; under such circumstances, the 

person assumes a duty to exercise reasonable care in providing those 

services.” Quiroz, 243 Ariz. at 574, ¶ 66. Gann argues the State, through the 

Department of Education, undertook “the task of supervising ‘pupil 

transportation services’” under § 15-921.A. 

¶26 But the State’s § 15-921 supervisory role relates to budgetary 

and financial decisions, not safety decisions. See supra ¶¶ 14–17. And the 

two cases on which Gann relies again involved school and district—not 

State—liability to students. See Tollenaar v. Chino Valley Sch. Dist., 190 Ariz. 

179 (App. 1997) (holding district not liable on voluntary undertaking 

doctrine); Alhambra Sch. Dist., 165 Ariz. 38 (1990) (holding district owed 

duty to crosswalk users based on statutory directives and a special 

relationship, not the voluntary undertaking doctrine). This court found no 

analogous case involving State liability. This court will not extend tort

liability to the State in the absence of a supporting legal basis.

¶27 This court need not address the State’s absolute immunity 

defense because the State owed no duty obligating it to any specific action.
GANN v. STATE

Decision of the Court

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CONCLUSION

¶28 Because Gann failed to show any basis for the State’s alleged 

duty to Gann’s son, the superior court correctly dismissed Gann’s 

complaint against the State. We affirm.