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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHELLE DELLINGER,

Plaintiff/Appellant,

v.

BASAMI HOUSE LLC,

Defendant/Appellee.

No. 1 CA-CV 18-0688 

Appeal from the Superior Court in Maricopa County

No. CV2016-015252

The Honorable Rosa Mroz, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, PC, Phoenix

By David L. Abney

Co-Counsel for Plaintiff/Appellant

Joseph F. Gmuca, PC, Phoenix

By Joseph F. Gmuca

Co-Counsel for Plaintiff/Appellant

Wright, Welker & Pauole, PLC, Phoenix

By Matthew W. Wright, Christopher S. Welker, Richard R. Carpenter

Counsel for Defendant/Appellee

FILED 10-31-2019
DELLINGER v. BASAMI HOUSE

Decision of the Court

2

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

J O H N S E N, Judge:

¶1 Scott Smith was a 17-year-old resident of Basami House, a 

group home in Phoenix for minors with substance abuse and other 

behavioral issues. At the request of his mother, Basami House allowed him

to visit his aunt in Tempe for a few days. There, Smith became drunk one 

night and walked out. Eventually he encountered Michelle Dellinger, a 

woman he did not know, followed her on foot for two miles and then

brutally assaulted her. Dellinger sued Basami House, alleging its negligent 

supervision of Smith allowed him to injure her. The superior court ruled

Basami House owed no duty to Dellinger and entered summary judgment

against her. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Basami House is a behavioral-health residential facility 

licensed by the Arizona Department of Health Services. It has room for five

youths, whom it does not restrain or confine. Based on a psychiatrist's 

recommendation, Smith was referred to Basami House by the Navajo 

Regional Behavioral Health Authority. Smith had been staying at Basami 

House for nearly four months before his attack on Dellinger; his mother had 

authorized him to leave to visit his aunt twice before.

¶3 In her complaint, Dellinger alleged Basami House "entered 

into a 'special relationship' with Smith by which it assumed a duty to 

exercise control over Smith's conduct and behavior," which she alleged 

gave rise to "a duty to use reasonable care in exercising control over the 

conduct of Smith." Dellinger further alleged that "Basami House knew or 

should have known that Smith was likely to cause bodily harm to others"

and asserted it was "reasonably foreseeable" that Smith would attack 

someone.

¶4 Basami House moved for summary judgment, arguing it 

owed no duty to Dellinger. The superior court agreed, finding Dellinger 
DELLINGER v. BASAMI HOUSE

Decision of the Court

3

offered "no admissible evidence that Basami House knew or should have 

known that" Smith, if not controlled, was likely to cause harm to others.

¶5 Dellinger timely appeals. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised 

Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019) and -2101(A)(1) (2019).1

DISCUSSION

¶6 "To establish a claim for negligence, a plaintiff must

prove . . . a duty requiring the defendant to conform to a certain standard 

of care." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). Whether a duty 

exists is a question of law for the court to decide. Id. We review the grant 

of summary judgment de novo, Teufel v. Am. Family Mut. Ins. Co., 244 Ariz. 

383, 385, ¶ 10 (2018), viewing all facts and reasonable inferences "in the light 

most favorable to the party against whom judgment was entered," Bothell v. 

Two Point Acres, Inc., 192 Ariz. 313, 315, ¶ 2 (App. 1998).

A. Duty Under the Restatement.

¶7 Dellinger argues Basami House owed her a duty under two 

provisions of the Restatement (Second) of Torts (1965) ("Restatement"). The 

first is § 315, which, as applicable here, states the general principle that one 

has "no duty so to control the conduct of a third person as to prevent him 

from causing physical harm to another unless . . . a special relation exists 

between the actor and the third person which imposes a duty upon the actor 

to control the third person's conduct." See also Hamman v. Maricopa County, 

161 Ariz. 58, 64 (1989) (duty arises under § 315 "[w]hen a psychiatrist 

determines, or under applicable professional standards reasonably should 

have determined, that a patient poses a serious danger of violence to 

others").

¶8 The second Restatement section on which Dellinger relies is 

§ 319, which provides:

One who takes charge of a third person whom he knows or 

should know to be likely to cause bodily harm to others if not

 

1 Absent material revision after the relevant date, we cite the current 

version of a statute or rule.
DELLINGER v. BASAMI HOUSE

Decision of the Court

4

controlled is under a duty to exercise reasonable care to 

control the third person to prevent him from doing such 

harm.

See also Grimm v. Ariz. Bd. of Pardons & Paroles, 115 Ariz. 260, 267 (1977).

¶9 Because duty in this context turns on whether Basami House 

knew or should have known Smith was likely to cause harm, Dellinger 

contends the superior court erred by deciding the issue as a matter of law. 

She further contends she offered evidence sufficient to show Basami House 

knew or should have known Smith was likely to cause bodily harm.

¶10 Addressing Dellinger's preliminary assertion first, as noted, 

whether a duty exists is a question of law that the court decides, not the 

jury. Gipson, 214 Ariz. at 143, ¶ 9. Our supreme court has been emphatic 

about this principle. See Quiroz v. ALCOA Inc., 243 Ariz. 560, 564, ¶ 7 (2018);

Guerra v. State, 237 Ariz. 183, 185, ¶ 7 (2015); Lips v. Scottsdale Healthcare 

Corp., 224 Ariz. 266, 268, ¶ 10 (2010); Markowitz v. Ariz. Parks Bd., 146 Ariz. 

352, 356 (1985). "[F]actual inquiries" concerning breach and causation are 

for the jury, but the court decides "the existence of duty as a threshold legal 

issue." Gipson, 214 Ariz. at 144, ¶¶ 16-17.

¶11 Quiroz and Gipson both acknowledged that duties may arise 

from special relationships, including those described in the Restatement 

provisions at issue here. See Quiroz, 243 Ariz. at 565, ¶ 14 (citing 

Restatement §§ 316-319); Gipson, 214 Ariz. at 145, ¶ 19 (citing Restatement § 

315). But in neither decision did the court specify whether the factfinding 

required to ascertain the existence of such a special relationship is reserved 

for the court.

¶12 Dellinger argues that when the existence of a duty turns on 

what the defendant knew or should have known, that is a preliminary issue 

the finder of fact must decide. In response to our request for supplemental 

briefing on this question, Dellinger cites Noriega v. Town of Miami, 243 Ariz. 

320, 327, ¶ 31 (App. 2017), and Estate of Maudsley v. Meta Servs., Inc., 227 

Ariz. 430, 437, ¶ 23 (App. 2011).

¶13 As relevant here, Noriega addressed whether police knew "of 

a potential threat and [told] the victim that they will take action on that 

threat" or had made a "specific promise or representation" on which the 

victim might reasonably rely. 243 Ariz. at 327-28, ¶ 32 (quoting McGeorge 

v. City of Phoenix, 117 Ariz. 272, 277 (App. 1977)). Citing Maudsley, we held 

the superior court erred by entering summary judgment against the victim 
DELLINGER v. BASAMI HOUSE

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because the existence of the duty depended on a "preliminary question that 

must be determined by a fact finder." 243 Ariz. at 328, ¶ 34.

¶14 The issue in Maudsley was whether the defendant physicians

owed a doctor-patient duty to a victim. 227 Ariz. at 434, ¶ 11. We noted 

Gipson held that the existence of a duty is a question of law, but we cited 

Diggs v. Ariz. Cardiologists, Ltd., 198 Ariz. 198, 200, ¶ 11 (App. 2000), for the 

proposition that "the existence of a duty may depend on preliminary 

questions that must be determined by a fact finder." Maudsley, 227 Ariz. at 

437, ¶ 23. As we explained, "[t]he superior court was not in a position to 

determine whether [the physicians'] involvement with [the victim] . . . gave 

rise to a duty of care until the finder of fact determined the preliminary 

question of whether a doctor-patient relationship existed." Id. at ¶ 25. We

acknowledged that "it may be argued [that] Gipson's direction to avoid 'factspecific analysis' in analyzing whether a duty existed abrogated the rule 

that a factfinder may need to decide preliminary issues of fact before a court 

can find whether a duty existed." Id. at ¶ 23, n.9 (quoting Gipson, 214 Ariz.

at 145, ¶ 21). Noting that Gipson acknowledged that duties may be created 

by special relationships, however, we concluded, "we do not think Gipson 

went that far." Id.

2

 

2 Two unpublished decisions also followed Maudsley on this issue. 

Skoglund v. Neste Dev. Nev., L.L.C., 1 CA-CV 12-0429, 2013 WL 1906233, at 

*2, *4, ¶¶ 9, 18 (Ariz. App. May 7, 2013) (mem. decision) (whether plaintiff 

was business invitee, licensee or trespasser was for the jury to decide); Perez 

v. Thrush, 1 CA-CV 12-0316, 2013 WL 773042, at *4, ¶ 21 (Ariz. App. Feb. 28, 

2013) (mem. decision) (whether plaintiff was a tenant was for the jury to 

decide). But see Camelback Plaza W., L.L.C. v. CBRE, Inc., 1 CA-CV 16-0144, 

2017 WL 1739114, at *3, ¶ 12 (Ariz. App. May 4, 2017) (mem. decision) 

(questioning but not deciding whether, after Gipson, the factfinder must 

decide questions on which existence of duty turns).
DELLINGER v. BASAMI HOUSE

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¶15 Here, we need not decide whether the factual predicate of a 

duty under Restatement § 319 is for the court or for the jury because we 

conclude that Dellinger failed to offer evidence sufficient to create a 

genuine issue of fact about whether Basami House knew or should have 

known Smith was likely to injure someone.3

¶16 There is no dispute about the brutality of Smith's assault on 

Dellinger. He pled guilty to aggravated assault and three counts of 

attempted sexual assault, and the court sentenced him to ten years in 

prison. The question presented on summary judgment, however, was 

whether Dellinger offered evidence to show Basami House knew or should 

have known before it allowed Smith to visit his aunt that he was likely to 

become violent if not controlled.

¶17 Dellinger asserts Smith committed several "violent" felonies 

before he was admitted to Basami House. She contends that, at a minimum, 

Basami House should have learned of those crimes and should have 

concluded from them that he was likely to harm someone. But the only 

specific criminal conduct Dellinger cites is that Smith broke into a car and 

slashed its tires several weeks before he was admitted to Basami House. 

Although concerning, that event does not show Smith was likely to commit 

a violent assault, and Dellinger offered no evidence he had caused or 

threatened to cause bodily harm to anyone else before he assaulted her.

¶18 Dellinger points out that Smith told a therapist at Basami 

House that he had used alcohol and marijuana for three years and had been 

expelled from high school for using drugs on campus. Dellinger also cites 

the opinion of Joni Diamond, a licensed clinical social worker, "that 

juveniles such as Scott Smith when intoxicated are more likely to engage in 

[c]riminal and anti-social behavior including aggressive and violent 

conduct." Diamond's opinion, however, does not explain what "more 

likely" means in this context. And a general assertion about "juveniles such 

as" Smith does not suffice in the absence of facts specific to him from which 

Basami House knew or should have known he was likely to become violent 

when he drank. For the same reason, Smith's presentence report, which 

 

3 For the same reason, we do not reach the question of whether Basami 

House had sufficient control over Smith to give rise to a duty. See Barkhurst 

v. Kingsmen of Route 66, Inc., 234 Ariz. 470, 473, ¶ 10 (App. 2014) ("The 

formation of a special relationship is often based on some aspect of 

control.").
DELLINGER v. BASAMI HOUSE

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states he had a "history of violent behavior," also is insufficient in the 

absence of evidence of actual violent acts or threats of violent acts.

¶19 Dellinger asserts in general fashion that "[w]hile staying at 

Basami House, Smith was defiant, uncooperative, non-compliant, and 

disobedient." The episodes on which this characterization is based, 

however, belie Dellinger's assertion that it should have been clear to Basami 

House that Smith was likely to commit an assault. Records showed he had 

once walked away from Basami House without permission and shoplifted 

some beer, and he stole some cold medicine on an authorized trip to a

grocery store. He also returned drunk from a prior visit to his aunt's house. 

None of these events hinted that he was likely to become violent.

¶20 Dellinger also relies heavily on Diamond's opinion that 

Basami House fell below the standard of care in admitting Smith and 

allowing him to stay after he failed to remain sober. The question, however, 

is whether Basami House owed Dellinger a duty, not whether it breached a 

duty. "[T]he existence of a duty is not to be confused with details of the 

standard of conduct." Markowitz, 146 Ariz. at 355. If the defendant owes 

the plaintiff no duty, "the defendant is not liable even though he may have 

acted negligently in light of the foreseeable risks." Id. at 356. In other words, 

an "expert witness cannot create a duty through [her] opinions and beliefs, 

when the law does not recognize any such duty." Hafner v. Beck, 185 Ariz. 

389, 393 (App. 1995).
DELLINGER v. BASAMI HOUSE

Decision of the Court

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¶21 In sum, the record contains no evidence to support Dellinger's 

assertion that Basami House knew or should have known that Smith was 

likely to cause bodily harm to another. Absent that showing, the superior 

court did not err in ruling on summary judgment that no duty existed under 

Restatement §§ 315 and 319.4

B. Duty Under A.R.S. § 36-1201.

¶22 Dellinger also asserts that A.R.S. § 36-1201 (2019) imposed a 

duty on Basami House to control Smith. Public policy articulated in a state 

statute can give rise to a duty. See Quiroz, 243 Ariz. at 565, ¶¶ 14-15. In 

Dellinger's view, § 36-1201 reflects a public policy imposing a duty in this 

case, and she also argues that a violation of § 36-1201 constitutes negligence 

per se.

¶23 When a state agency or regional behavioral health authority 

contracts with a group home, § 36-1201(A) mandates certain terms in their

contract. Relevant here is the requirement in § 36-1201(A)(2) that "[t]he 

group home is responsible for the supervision of the residents while in the 

group home environment or while residents are engaged in any off-site 

activities organized or sponsored by and under the direct supervision and 

control of the group home or affiliated with the group home." Dellinger 

argues this requirement imposed a duty on Basami House to adequately 

control Smith.

¶24 The language on which Dellinger relies, however, relates only 

to "off-site activities organized or sponsored by and under the direct 

supervision and control of the group home or affiliated with the group 

 

4 Dellinger argues Restatement (Third) of Torts: Liability for Physical 

and Emotional Harm § 41 (2012) ("Restatement (Third)") imposed a duty on 

Basami House. That provision is titled "Duty to Third Parties Based on 

Special Relationship with Person Posing Risks," and replaces Restatement 

(Second) §§ 315(a) and 319. Restatement (Third) § 41 cmt. a. Section 41 lists 

specific relationships that may create a duty to control the conduct of 

another, including a relationship of "a mental-health professional with 

patients." We need not decide whether § 41 reflects the sort of doctrinal 

shift in Restatement (Third) that our supreme court has rejected. See Quiroz,

243 Ariz. at 572-79, ¶¶ 52-89. That is because § 41 may create a duty only 

when, as under Restatement (Second) § 319, the actor knows or should 

know that the person may harm another. See Restatement (Third) § 41 cmt.

c ("If the actor neither knows nor should know of a risk of harm, no action 

is required.").
DELLINGER v. BASAMI HOUSE

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9

home." A.R.S. § 36-1201(A)(2). Assuming without deciding that § 36-

1201(A)(2) might impose a duty, that duty would extend only to off-site 

activities under the direct control of the group home or affiliated with it. 

The statute does not apply when a group home resident is "off-site" on his 

own, rather than as part of an activity "organized or sponsored by . . . or 

affiliated with" the group home. Id. We will not construe a statute to create 

a duty of care in circumstances to which the statute does not apply. See

Collette v. Tolleson Unified School Dist., No. 214, 203 Ariz. 359, 364, ¶ 18 (App. 

2002) ("no benefit in imposing a duty upon a school district concerning the 

conduct of students over which it has no control").

¶25 Smith had been released to his aunt at his mother's request.

His visit to aunt's home was an act he took on his own, with his mother's 

authorization; it was not an activity that Basami House organized or 

sponsored. Whatever duty § 36-1201(A) might impose, it does not extend 

to this case.

CONCLUSION

¶26 Because Dellinger failed to offer evidence to show Basami 

House was in a special relationship giving rise to a duty under Restatement 

(Second) of Torts §§ 315 and 319 or otherwise owed a duty under public 

policy found in A.R.S. § 36-1201(A), we affirm the judgment of the superior 

court.