THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure

MEMORANDUM DECISION

JOHN C. GEMMILL, Judge.

¶1 Plaintiff/Appellant Scott Smith appeals the superior court's judgment in favor of Defendant/Appellee Flood Control District of Maricopa County ("FCD"). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In July 2007, Smith purchased a house in Scottsdale, Arizona, built by Clouse Construction ("the Property"). During August 2007, as a result of rainstorms and the reemergence of washes, water began to damage the Property. In an attempt to address drainage concerns, Smith rearranged the riprap on the Property and began installing necessary culverts and ditches. In January 2008, FCD instructed Smith to obtain permits for the culverts installed on the Property and later directed Smith to retain an engineer to determine the amount and origin of the water coming onto the Property.

¶3 Smith retained Richard Anderson of Anderson Development Engineering to acquire information regarding the water coming onto the Property and the elevation of the finished floor. After evaluating the Property, Anderson informed Smith that the Property's finished floor elevation was 2475.3 feet rather than 2477.7 feet, as required by the Property's specifications. Smith subsequently made contact with FCD to obtain information regarding the construction of the Property.

¶4 During construction and prior to Smith's purchase of the Property, FCD Inspector Michael Smith, a trained employee who is neither an engineer nor a licensed surveyor, conducted an inspection of the Property in August 2006. He determined the construction did not comply with the Floodplain Use Permit ("FUP") because (1) the finished floor concrete had already been poured, which violated a permit requirement that the builder request an inspection before the finished floor concrete pad was poured, and (2) the finished floor appeared to be at an elevation of 2475.37 feet while the FUP required it be at 2477.7 feet.

¶5 In response, Clouse Construction hired Charles Martin, a licensed Arizona surveyor, to survey the elevation of the finished floor of the Property. The FCD subsequently received a document copy, signed and sealed by Martin, certifying that the elevation of the finished floor was 2477.74 feet, satisfying the FUP requirements. Normal FCD practice, however, requires an original elevation certificate, not a copy. It is also normal FCD practice that if a question arises over a project elevation, a sealed elevation certificate from a licensed surveyor is accepted by the FCD. Relying on the signed and sealed elevation certificate copy, FCD issued a pass for the in-progress inspection it had previously denied.

¶6 In April and May 2007, FCD issued two additional failure notices regarding the Property because Clouse Construction failed to provide a final finished floor certification. In response, FCD received a copy of a final elevation certificate signed and sealed by Martin, again certifying the finished floor elevation as 2477.74 feet. The FCD then issued a final pass for construction on the Property. Subsequent to the issuance of the final pass and Smith's purchase of the Property, Smith met with the FCD employee, Ben Gregg who approved the elevation certificate, and with Gregg's supervisor. After the meeting, Gregg visited the Property and stated that from the road he could tell the elevation was too low.

¶7 In December 2008, Smith filed this action regarding the Property, bringing multiple claims against multiple parties, including the FCD. Smith's complaint and subsequent amended complaints alleged negligence claims against the FCD, asserting that FCD breached its duty to Smith by failing to properly inspect the Property and by relying on the elevation certificates supplied by Clouse Construction (from licensed surveyor Martin). The FCD moved for summary judgment arguing there are no genuine issues of material fact and FCD is entitled to qualified immunity by law. In March 2012, following oral argument, the trial court granted FCD's motion and entered judgment in accordance with Arizona Rule of Civil Procedure 54(b), stating "there is no just reason for delay" and expressly directing entry as a final judgment.

¶8 Smith timely appeals, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), -2101(A)(1) (Supp. 2012).

ANALYSIS

¶9 Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). "Summary judgment should be granted `if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.'" Armenta v. City of Casa Grande, 205 Ariz. 367, 369, ¶ 5, 71 P.3d 359, 361 (App. 2003) (quoting Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990)). In reviewing a summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the trial court incorrectly applied the law. L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App. 1997). We view the facts in the light most favorable to the party against whom summary judgment was entered and give that party the benefit of all favorable inferences fairly arising from the evidence. Id.

¶10 Smith contends a reasonable trier of fact could find that FCD was grossly negligent in failing to "verify the elevation" of the finished floor. He argues FCD "knew, or should have known, of facts that created a risk of harm" when the licensed surveyor submitted acceptable elevation measurements shortly after FCD's inspector determined the floor was more than two feet below the requirement.

¶11 As recognized by both parties, to avoid summary judgment, the record must reflect genuine issues of fact on whether FCD's actions were grossly negligent. The relevant statute provides:

A.R.S. § 12-820.02(A)(5) (2003) (emphasis added). The issue centers on gross negligence because Smith does not contend that the FCD "intended to cause injury."

¶12 A public entity is grossly negligent if it "acts or fails to act when [it] knows or has reason to know facts which would lead a reasonable person to realize that [its] conduct not only creates an unreasonable risk of bodily harm to others but also involves a high probability that substantial harm will result." Walls v. Ariz. Dep't of Pub. Safety, 170 Ariz. 591, 595, 826 P.2d 1217, 1221 (App. 1991). "Gross, willful, or wanton conduct is action or inaction with reckless indifference to the result or the rights or safety of others." Armenta, 205 Ariz. at 372-73, ¶ 20, 71 P.3d at 364-65 (citation omitted). Gross negligence is distinguishable from ordinary negligence in quality and not degree, and therefore a person may be very negligent but still not grossly negligent. See Kemp v. Pinal Cnty., 13 Ariz.App. 121, 124-25, 474 P.2d 840, 843-44 (1970).

¶13 Gross negligence is ordinarily a question of fact for the jury, but we may find as matter of law that a party was not grossly negligent if the plaintiff produces evidence that is no more than slight and borders on conjecture. Armenta, 205 Ariz. at 373, ¶ 21, 71 P.3d at 365 (citation omitted).

¶14 To support his claim, Smith relies on an affidavit of Michael Havill, a licensed Arizona surveyor who reviewed the evidence on behalf of Smith. In his affidavit, Havill concluded the FCD "failed to determine why there was such a significant difference between the County elevation check and [Martin's] elevation certificate prior to issuing subsequent approvals" and was "negligent" in its "lack of follow-up of something as significant as the elevation variation from their own inspector versus that submitted on the [Martin] certificate." "This negligence and breakdown of systems," according to Havill, "allowed the construction of the residence to completion and ultimate premature issuance of a certificate of occupancy and subsequent damages to Smith."

¶15 Consistent with its own standard procedure, however, the FCD relied on the certification of a licensed Arizona surveyor. Although Smith makes the distinction that the certificate received by FCD was a copy, he fails to assert how FCD's reliance on a copy, instead of an original, has resulted in harm. Smith also points out that FCD employee Gregg admitted the improper elevation was readily apparent because it could be perceived from the road. But this observance by Gregg admittedly occurred after the final pass was issued, and under FCD's standard procedure, a follow-up inspection of property is not required prior to the issuance of a final pass. Before issuing the Property a final pass, FCD received notice that a survey crew verified the finished floor elevation on the Property, and FCD received multiple certifications, signed and sealed by Martin, verifying the proper elevation of the finished floor. Havill's opinions and Smith's testimony may be evidence of negligence on FCD's part by following normal practice and not confirming the licensed surveyor's measurement. The evidence does not present, however, a genuine issue of fact on whether FCD knew or had reason to know its practice of relying on a licensed surveyor's certification would result in a high probability of harm.

¶16 The evidence, including the affidavits from Smith and Havill, does not establish that FCD's actions rose beyond negligence to gross negligence. Based on this record, the trial court did not err in concluding that a reasonable person could not find that FCD was grossly negligent. See Walls, 170 Ariz. at 596, 826 P.2d at 1222.

¶17 In support of his contention, Smith argues Rourk v. State, 170 Ariz. 6, 821 P.2d 273 (App. 1991), is applicable to the present facts. We agree with FCD, however, that the facts, alleged negligence, and corresponding risk of harm in Rourk differ in quality from the alleged negligence here. In Rourk, a teenage foster child sued the State, the Arizona Department of Economic Security ("ADES"), and her foster parents for negligent supervision after being injured in an automobile accident when leaving a drinking party. Id. at 8, 821 P.2d at 275. The trial court granted partial summary judgment in favor of the State and ADES based on qualified immunity for negligent licensing of the foster parents. Id. at 8, 13, 821 P.2d at 275, 280. The court of appeals reversed, however, because the plaintiff presented sufficient evidence from which a jury could conclude the State "was grossly negligent in placing [the teenager] in the foster home and in failing to remove her from that home when it knew or should have known that she was not receiving adequate supervision." Id. at 8, 821 P.2d at 275.

¶18 The record in Rourk was sufficient to support a jury finding that ADES had knowingly placed a severely depressed teenager with an alcohol problem in a lower-supervision home against a psychologist's recommendation. Id. at 8-9, 13, 821 P.2d at 275-76, 280. The State had been notified of numerous incidents of the foster parents' failure to adequately supervise children in their care. Id. at 13, 821 P.2d at 280. In addition, evidence was presented that the foster father had a drinking problem and the teenager had been allowed to drink alcohol in the home. Id. at 9, 13, 821 P.2d at 276, 280.

¶19 In Rourk there were multiple allegations of negligence by the defendants that created a significant risk of harm. In contrast, the evidence of gross negligence in this case rests primarily on FCD's reliance on a licensed surveyor's certification after an FCD inspector (not a licensed surveyor or engineer) had reached an earlier conclusion that the finished floor was too low. Additionally, in Rourk ADES failed to intervene although multiple contributing factors existed that could have separately caused the plaintiff's damages. Here, FCD did intervene by issuing a failure notice and requiring the builder to halt construction until it was provided a certification from a licensed surveyor. We conclude that a reasonable trier of fact, based on the evidence in the record, could not find that FCD knew or should have known that its reliance on the licensed surveyor's certifications created an unreasonable risk of bodily harm or property damage coupled with a high probability that substantial harm would result. This record does not include evidence that could lead a reasonable person to conclude that FCD was grossly negligent in issuing a pass after receiving the elevation certification. See Armenta, 205 Ariz. at 373, ¶ 23, 71 P.3d at 365. Thus, the trial court's grant of summary judgment in FCD's favor was proper.

¶20 In light of our decision that Smith has failed to sufficiently show the existence of gross negligence to survive a motion for summary judgment, we need not address FCD's arguments concerning the trial court's admission of evidence and the adequacy of Smith's notice of claim.

CONCLUSION

¶21 For the foregoing reasons, we affirm the trial court's grant of summary judgment.

JON W. THOMPSON, Judge and DONN KESSLER, Judge, concurring.