Free Statement - District Court of Arizona - Arizona

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EDWARD D. FITZHUGH P.O. Box 24238 Tempe, Arizona 85285-4238 (480) 752-2200 Bar No. 007138 Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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vs. Joe Ramirez and Ana Ramirez, Individually and as Parents and Legal Guardians of Jose Ramirez; Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV03-0060 PHX-ROS

PLAINTIFFS' STATEMENT OF AVOWALS OF THE EXPECTED TESTIMONY OF DOMINIC GUZMAN

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Glendale Union High School District No. 205; John Doe and Jane Doe I-X; ABC Corporations I-X; and XYZ Partnerships I-X, Defendants.

(Assigned to the Honorable Roslyn O. Silver)

COME NOW Plaintiffs and, pursuant to this Court's Order, submit a list of avowals

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of the expected testimony of Dominic Guzman. Mr. Guzman is the former Glendale Union

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High School District employee specifically assigned to constantly supervise a group of

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boys, which included Plaintiff Jose Ramirez and the three young men involved in Jose's

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physical and sexual assault. Mr. Guzman is perhaps the crucial player on Defendants'

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side, which is evidenced by Defendants' refusal to disclose Mr. Guzman's whereabouts for

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three years. In fact, Defendants' continually made representations that they did not know

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where he was, when, in fact, they always knew where he was. When Mr. Guzman was at

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last "located" and his deposition set, prior to the upcoming hearings, the court, as a segue

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from its discussions of its planned sanction hearing against Plaintiffs' counsel, sua sponte

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cancelled Guzman's deposition.

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The supporting evidence confirms that, in his testimony, Mr. Guzman would

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acknowledge that it was his duty to constantly supervise these young men, because there

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was a substantial history of violence among them. As Defendant's employees described, not only did Ramon Navarro and Ruben Ortega constantly fight, but Ramon had been suspended three times in the past five months for assaulting other students. Added to this was the potentially dangerous scenario where these young men would be isolated in the gym locker room, where it could not be expected that adults would be present or even pass by. The specific avowals of Mr. Guzman's testimony are that: 1. Plaintiff and the three assailants are mentally handicapped young men enrolled in the mainstream program at Cortez High School. 2. Mr. Guzman was a teacher's aide responsible for monitoring these handicapped young men. He was specifically instructed by his employee about the need to constantly monitor these young men. He received specific training about how to control with these handicapped students. 3. As established in the police interviews, Mr. Guzman knew that Ruben Ortega and Ramon Navarro did not get along and had fought in the past. 4. Ramon, was a husky and well-built young man of about 18-20 years of age, had a recent history of very violent behavior, and in less than five months Ramon had been suspended three times for assaulting other students. 5. On the day of the assault, the boys went to the gym and engaged in P.E. They then returned to the gym locker room to shower and change back into their street clothes. 6. Mr. Guzman knew, or at a minimum, failed to check in which he would have learned, that there was no adult supervision over the young men while they were in the locker room. 7. Creating an even higher risk of danger and potential for a violent incident, Mr. Guzman knew these young men would be in an isolated area, where it could not be expected that adults would pass by.

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One other aide, Ana Cervantes, is a female and thus would not have access to the boys' locker room.

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Despite knowing that no adult was in the locker room to supervise the boys, the history of fights among the boys, and Ramon's recent history of violent assaults, Mr. Guzman neither assured that an adult would be present at all times or performed the duties for which he was hired.

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Mr. Guzman breached his assigned duty by not being present in a potentially dangerous situation where these young men were in an isolated area, an area where it was not reasonable to expect that other supervisory personnel would be in the vicinity.

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At the time of the assault, Mr. Guzman's assigned duties were to constantly supervise these mentally handicapped young men. Increasing the duty was his knowledge that two of these young men had constantly fought, and one had been suspended a number of times for violent assault.

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Although it would have done nothing to lessen his duties, Mr. Guzman didn't even check to insure that an adult would always be present while they were in the locker room.

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Mr. Guzman fits within the Arizona statute as a person being responsible for the custody and care of these young men.

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Mr. Guzman breached his statutory duty by failing to report the assault on the Plaintiff, Jose Ramirez. His failure to report the assault, as explained in more detail in other pleadings, exacerbated Jose's injuries.

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An expert is not necessary to testify that Mr. Guzman was responsible for supervising these young men. A psychologist employed by the Glendale Union High School District, and assigned to Cortez High School, admitted to the investigating officers that the assault could not have happened because "they are constantly monitored." This confirms Defendants' knowledge of the

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danger and subsequent assignment of an employee to minimize (or prevent) the danger and comply with their duty. The witnesses have testified that neither Mr. Guzman or any other school employee was present when the assault occurred. Knowing the danger and the history of violence between these young men, an expert is not required to testify that they should not have been left alone. It does not require an expert to testify about the only remaining issue: that had Mr. Guzman been present he could have prevented the physical and sexual assault committed on Plaintiff Jose Ramirez. If the Court is going to weigh the veracity of the avowels, then it should be weighed within the context of the on-going discovery issue in this case, that is, for three years Defendant misled this Court and Plaintiffs, by refusing to disclose Mr. Guzman's whereabouts (which were always known to Defendant). Obviously, a weighing of the avowals would not have been necessary had Mr. Guzman's deposition gone forward, as had been arranged. RESPECTFULLY SUBMITTED this 26st day of April, 2006.

/s/ Edward D. Fitzhugh Edward D. Fitzhugh Attorney for Plaintiffs

I hereby certify that on 21 April 26, 2006, I electronically transmitted the foregoing to the 22 Clerk's Office using the CM/ECF System for filing and transmittal 23 of a Notice of Electronic Filing to the following CM/ECF registrants: 24 J. Steven Sparks, Esq. 25 Sanders & Parks, P.C. 3030 N. Third Street, Ste. 1300 26 Phoenix, Arizona 85012-3099 Attorneys for Defendants 27

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