Arizona Court of Appeals Division One holds that a state daycare inspector created a special relationship with infants at daycare by issuing an allegedly grossly negligent corrective action plan that lead to an infant’s suffocation.

A state daycare inspector investigated a report that a daycare was violating a department rule. After investigating, the inspector confirmed the violation and issued a corrective action plan that required the daycare to use Boppy pillows only “on the floor tummy time.”  Less than two weeks later, the daycare placed an infant on a pillow in accordance with the plan, and the infant suffocated and died.  The infant’s mother sued the state for wrongful death on a theory of respondeat superior, alleging that the corrective action plan was contrary to state policy and well-established research.  The state moved to dismiss, arguing the inspector lacked a duty to the infant, and that the state was absolutely immune from liability under A.R.S. § 12-820.01(B)(3).  The superior court granted the motion.  The mother appealed.

The Court of Appeals reversed.  The state analogized the inspector to law enforcement officials, who generally have a duty to the public, but not to any individuals.  The Court of Appeals agreed but noted that when law enforcement officials endeavor to provide specific protection to an individual, they create a special relationship giving rise to a duty.  Here, the inspector endeavored to provide specific protection to infants at a daycare center.  This created a special relationship giving rise to a duty to those infants.  Since the mother sufficiently alleged that the inspector was grossly negligent and a duty existed, she stated a claim for relief.

Nor was the state absolutely immune.  The state’s absolute immunity under A.R.S. § 12-820.01 extends to fundamental government policy determinations involving the licensing and regulation of any profession or occupation, but it does not apply to particular decisions to grant or revoke licenses.  Accordingly, the state is not absolutely immune from the consequences of a particular corrective action plan.

Judge Johnsen delivered the unanimous opinion of the court.  Presiding Judge Jones and Judge Morse joined.