Hogue v. City of Phoenix

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ALVIN HOGUE, et al., Plaintiffs/Appellants,

v.

CITY OF PHOENIX, et al., Defendants/Appellees.

No. 1 CA-CV 15-0151

FILED 7-14-2016

Appeal from the Superior Court in Maricopa County

Nos. CV2010-092705; CV2010-099221; CV2012-095372;

CV2012-095373; CV2012-095374 (Consolidated)

The Honorable Arthur T. Anderson, Judge

AFFIRMED

COUNSEL

Gallagher & Kennedy, P.A., Phoenix

By Lincoln Combs, Kevin D. Neal

Marc J. Victor, P.C., Chandler

By Marc J. Victor

Catanese Law Firm

By David Catanese

Counsel for Plaintiffs/Appellants

Struck, Wieneke & Love, P.L.C., Chandler

By Kathleen L. Wieneke, Christina Retts, Nicholas D. Acedo

Counsel for Defendants/Appellees

HOGUE, et al. v. PHOENIX, et al.

Opinion of the Court

OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which

Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

H O W E, Judge:

¶1 This appeal is based on wrongful death claims by a sexual

assault victim and the families of several murder victims (collectively,

“Families”) of the “Baseline Killer” Mark Goudeau against the City of

Phoenix and Phoenix Police Laboratory Services Bureau (“Bureau”)

employees Allison Sedowski and Roger Schneider (collectively, “City”).

The Families argued that the City breached a duty of care owed the Families

to “conduct reasonable investigations in criminal matters to avoid delayed

apprehension and continued victimization,” which amounted to gross

negligence in violation of A.R.S. § 12–820.02(A)(1). The City moved for

summary judgment. In granting the motion, the trial court concluded that

the City did not owe the Families a duty of care and that their negligence

claims therefore failed. The Families appeal from that judgment.

¶2 We hold that the trial court correctly granted summary

judgment against the Families because neither a special relationship, A.R.S.

§ 12–820.02(A)(1), nor other public policy imposed a duty upon the City

necessary to maintain the Families’ negligence claims.

FACTS AND PROCEDURAL HISTORY

¶3 In September 2005, Phoenix Police responded to a report that

an unknown man had sexually assaulted A.L. and her sister in south

Phoenix. After giving her account of the assault to officers, A.L. had a sexual

assault examination. During the examination, the police collected swabs

from A.L.’s body, including from her left breast, and sent them to the

Bureau at the end of that month for DNA analysis. At about this same time,

Phoenix Police responded to two other sexual assault reports in south

Phoenix with accounts similar to A.L.’s, leading police to believe they were

dealing with a serial rapist.

¶4 Between September and December, the Bureau performed

DNA analysis on the swabs collected from A.L. Sedowski, a forensic

scientist at the Bureau, analyzed the swabs for nucleated cellular material

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Opinion of the Court

that could contain DNA from which analysts could extract a genetic profile.

Sedowski was unaware during this analysis that the evidence was part of

an ongoing investigation regarding a serial rapist. Sedowski forwarded

those swabs that had a higher rating of nucleated cellular material—which

did not include the left breast swabs—because those with the higher rating

possessed the “strongest potential for developing a DNA profile.” But the

results of further DNA testing were inconclusive.

¶5 Accordingly, Schneider, a Bureau supervisor, decided to wait

for the police to compile a suspect list so that the Bureau could send the

swabs, including the left breast swabs that Sedowski did not forward, to the

Arizona Department of Public Safety (“DPS”) for Y-STR testing. A Y-STR

test, which the Bureau was not equipped to perform at the time, generates

only a partial genetic profile from male-DNA, and therefore requires a

suspect list to compare the results against. By the time Schneider made this

decision, the Bureau knew only that the evidence “possibly could be a serial

rape case.”

¶6 Beginning December 2005 and continuing into 2006, Phoenix

Police investigated the murders of seven women. In May 2006, police

responded to a report of sexual assault of a woman who survived an attack

and gave police a description of her assailant. Based on her description, the

police linked the murders and sexual assaults together and, approximately

three months later, compiled a suspect list. The police used this suspect list

to request additional DNA testing from DPS. DPS testing ultimately linked

the DNA on the left breast swabs to Goudeau. The DPS analyst reported

these results to police on September 6, 2006, and police arrested Goudeau

that same day.

¶7 The surviving victim of Goudeau’s sexual assault and the

families of victims he murdered between December 2005 and May 2006

separately sued the City, but the trial court later consolidated their claims.

Collectively, the Families alleged wrongful death claims against the City for

gross negligence in their investigation and failing to identify Goudeau

during their initial DNA testing. They alleged that the City’s failure allowed

Goudeau to remain at large and, because he was not in custody, commit the

offenses. The City moved for summary judgment, arguing, among other

reasons, that it did not owe the Families any duty of care and had qualified

immunity from liability under A.R.S. § 12–820.02(A)(1), which protects

public employees from tort liability for failing to arrest unless they engage

in grossly negligent behavior. The trial court granted the City’s motion,

concluding that the City owed no duty to the Families on which a gross

negligence claim could be based because both the Families and the suspect

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Opinion of the Court

were unknown to the City at the time and that extending a duty to it would

“impose insurer-like liability on a law enforcement agency.” After

unsuccessfully moving for a new trial, the Families timely appealed.

DISCUSSION

¶8 The Families argue that the trial court erred in granting

summary judgment against them because the City owed them “a duty of

non-grossly negligent care” in identifying and arresting Goudeau. We

review de novo the trial court’s grant of summary judgment. City of

Scottsdale v. State, 237 Ariz. 467, 469 ¶ 9, 352 P.3d 936, 938 (App. 2015).

Whether a duty exists is a purely legal issue. Gipson v. Kasey, 214 Ariz. 141,

143 ¶ 9, 150 P.3d 228, 230 (2007). Additionally, we review the interpretation

of a statute de novo. Hoffman v. Chandler, 231 Ariz. 362, 364 ¶ 8, 295 P.3d

939, 941 (2013). Our primary goal in interpreting a statute is to determine

and give effect to the legislature’s intent. Estate of Jung, 210 Ariz. 202, 204

¶ 12, 109 P.3d 97, 99 (App. 2005). We narrowly construe immunity

provisions applicable to government entities, Glazer v. State, 237 Ariz. 160,

163 ¶ 12, 347 P.3d 1141, 1144 (2015), but may not construe an immunity

provision so narrowly that the legislature’s grant of immunity is abrogated,

Greenwood v. State, 217 Ariz. 438, 443 ¶ 16, 175 P.3d 687, 692 (App. 2008).

Here, because the City did not endeavor to provide the Families with

specific protection against Goudeau, the City had no special relationship

with the Families and owed them no duty to identify and arrest Goudeau.

Further, public policy did not impose a duty on the City.

¶9 Public entities and employees are subject to tort liability for

their negligence. Greenwood, 217 Ariz. at 442 ¶ 14, 175 P.3d at 691. Arizona’s

legislature, however, has created a qualified immunity from liability for

public employees under certain circumstances. See A.R.S. §§ 12–820–823;

Glazer, 237 Ariz. at 163 ¶ 11, 347 P.3d at 1144. In enacting the immunity

statutes, the legislature “recognized that sovereign immunity is sometimes

necessary given the breadth of the government’s exercise of power.” Walls

v. Ariz. Dep’t of Public Safety, 170 Ariz. 591, 594, 826 P.2d 1217, 1220

(App. 1991). The immunity provisions’ expressly stated “legislative

purpose and intent” stated that the government does “not have a duty to

do everything that might be done.” 1984 Ariz. Sess. Laws, Ch. 285, § 1 (2nd

Reg. Sess.). As relevant here, A.R.S. § 12–820.02(A)(1) provides that unless

a public employee acting within the scope of their employment “intended

to cause injury or was grossly negligent, neither a public entity nor a public

employee is liable for . . . [t]he failure to make an arrest or the failure to

retain an arrested person in custody.”

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¶10 The qualified immunity that the legislature granted in A.R.S.

§ 12–820.02(A)(1) applies to a plaintiff’s claim of failure to arrest. See Walls,

170 Ariz. at 594, 826 P.2d at 1220. Even if a plaintiff’s claim does not

specifically state that it is for a “failure to arrest” but is nonetheless “in

essence” and “at its core,” an allegation that the defendants failed to arrest

a perpetrator, the immunity statute applies. Greenwood, 217 Ariz. at 443, 444

¶¶ 17, 22, 175 P.3d at 692, 693 (applying A.R.S. § 12–820.02(A)(1) when

plaintiff alleged that but for faulty record keeping, law enforcement would

have arrested a perpetrator before he caused more harm). Because the

Families’ allegations that the City did not test all the swabs during initial

DNA testing or take other investigatory steps to identify Goudeau sooner

are at their core allegations that the City failed to arrest him before

September 2006, A.R.S. § 12–820.02(A)(1)’s immunity applies. To overcome

this qualified immunity and hold the City liable, then, the Families must

prove that the City was grossly negligent in failing to arrest Goudeau.

¶11 To establish a claim of gross negligence, the plaintiff must

prove, among other things, the existence of a duty of care. Tostado v. City of

Lake Havasu, 220 Ariz. 195, 201 ¶ 26, 204 P.3d 1044, 1050 (App. 2008). A duty

is an obligation, recognized by the law, requiring a person to conform to a

particular standard of conduct to protect others from unreasonable risks of

harm. Gipson, 214 Ariz. at 143 ¶ 10, 150 P.3d at 230. Whether a duty exists is

a threshold matter of law for the courts to decide. Id. at ¶¶ 9, 11. As relevant

to the Families’ arguments here, a duty of care may arise from the existence

of a special relationship or may be created by public policy, including

statute or common law. See Wickham v. Hopkins, 226 Ariz. 468, 473 ¶ 24, 250

P.3d 245, 250 (App. 2011). Absent some duty, an action for negligence fails.

Gipson, 214 Ariz. at 143 ¶ 11, 150 P.3d at 230. Because a duty of care arose

neither from the existence of a special relationship nor from public policy,

the Families’ claims fail.

¶12 A defendant’s conduct may create a special relationship that

gives rise to a duty. Id. at 145 ¶ 18, 150 P.3d 228, 232. In Arizona, if police

endeavor to provide specific protection to a particular person, they

generally only have “a duty to act as would a reasonably careful and

prudent police department in the same circumstances.” Austin v. City of

Scottsdale, 140 Ariz. 579, 581–82, 684 P.2d 151, 153–54 (1984). The duty owed

is not to “protect each citizen within [its] geographical boundaries from all

harms”; merely establishing a police department does not make a city “a

general insurer of safety or liable for absolutely all harms to its citizens.”

Id. at 582 n.2, 684 P.2d at 154 n.2; see also Wertheim v. Pima County, 211 Ariz.

422, 426 ¶ 17, 122 P.3d 1, 5 (App. 2005) (rejecting the argument that a police

agency, “by its very existence,” owes a duty to all persons). Arizona courts

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have found that police conduct has created a special relationship giving rise

to a duty only in specific circumstances, for example when police take a 911

call about a potential threat and tell the caller that they will take action on

that information. See Austin, 140 Ariz. at 579–80, 581–82, 684 P.2d at 151–52,

153–54; Hutcherson v. City of Phoenix, 192 Ariz. 51, 52–53 ¶¶ 1–7, 961 P.2d

449, 450–51 (1998).

¶13 No special relationship giving rise to a duty of care existed

here. First, much like a police agency’s mere existence does not create a duty

to guarantee the safety of individual members of the public, the Bureau’s

mere existence does not create a duty to conduct all DNA tests on all

evidence or subject the City to liability if such testing is not done

immediately. Further, the Bureau’s existence certainly does not create a

duty to protect all citizens within Phoenix’s boundaries against all harms

from perpetrators that may ultimately be identified through evidence

analysis. To hold so would make the City “general insurers” for the safety

of all citizens. See Vasquez v. State, 220 Ariz. 304, 313 ¶ 31, 206 P.3d 753, 762

(App. 2008) (agreeing that if the law imposed a duty by police undertaking,

every unsolved crime could theoretically give rise to causes of action for

negligent investigation by victims or their families).

¶14 Second, the City’s undertaking an investigation into A.L.’s

sexual assault by collecting and testing swabs before knowing Goudeau’s

identity did not constitute endeavoring to provide a particular protection

from his harm because the City did not have sufficient information about

that harm. Although the Bureau ultimately learned that the swabs from

A.L.’s sexual assault examination might relate to a serial rapist, the Families

did not establish that the Bureau had reason to know if, when, how, upon

whom, or by whom a subsequent offense might occur. This case is thus

unlike Austin. The Arizona Supreme Court found there that a city owed a

duty to the murder victim and his family because the police knew the

victim’s identity and location and had been warned that his life was in

danger during a specific window of time. 140 Ariz. at 582, 684 P.2d at 154.

Because the City did not have this type of information—information about

a specific current threat against the victims in this case—the City had no

special relationship with them that would have created a duty owed to

them.

¶15 The Families counter that a special relationship nevertheless

existed because, had the City “tested and cross-checked” the DNA evidence

against criminal databases, the additional DNA test results would have

identified Goudeau as the perpetrator and he would therefore not have

been an unknown suspect. But this argument assumes that the City owed a

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duty to take such actions, which it did not here. Merely investigating a

crime, without any specific endeavor to provide specific protection that

would otherwise create a special relationship, does not create a duty to a

victim’s family. Guerra v. State, 237 Ariz. 183, 187 ¶ 19, 348 P.3d 423, 427

(2015). Thus, the trial court did not err in granting summary judgment

against the Families because a duty did not arise from the existence of a

special relationship.

¶16 The Families also argue that regardless whether a special

relationship existed, public policy imposed a duty upon the City.

Specifically, the Families argue that the legislature imposed a “duty of

non-grossly negligent care” upon police departments in failing to make an

arrest by enacting the immunity statute itself. The Families further argue

that the city of Phoenix imposed a duty by enacting Phoenix City Code

§ 2–119, which mandates that the director of the Phoenix Police Department

shall be responsible for investigating crimes and “shall arrest . . . all persons

committing or attempting to commit an offense . . . .” Because the Families

assert these arguments for the first time on appeal, we need not consider

them. See Rigoli v. 44 Monroe Mktg., LLC, 236 Ariz. 112, 120 ¶ 28, 336 P.3d

745, 753 (App. 2014) (“Issue and arguments raised for the first time on

appeal are untimely and usually deemed waived.”).

¶17 Waiver aside, however, the Families’ arguments that public

policy imposed a duty necessarily fail. First, the immunity statute does not

affirmatively impose a duty; the statute immunizes public entities from tort

liability to which they are generally subject. See Walls, 170 Ariz. at 594, 826

P.2d at 1220 (recognizing the legislature’s intent for the government to

enjoy sovereign immunity given its broad exercise of power, including

immunity for failing to make an arrest). The Families’ arguments therefore

misapply the law and flip the analysis on its head by looking at the statute

as a source of liability rather than a source of immunity for failing to make

an arrest. The statute’s express terms and legislative purpose and the

decisions interpreting the statute negate the Families’ argument that the

immunity statute creates a duty. See A.R.S. § 12–820.02(A)(1) (“. . . neither a

public entity nor a public employee is liable for . . . the failure to make an

arrest . . .”); 1984 Ariz. Sess. Laws, Ch. 285, § 1 (2nd Reg. Sess.) (“. . . therefore

the government should not have the duty to do everything that might be

done . . .”); Walls, 170 Ariz. at 594, 826 P.2d at 1220 (stating that the

immunity statute “creates a qualified immunity for public employees and

entities for certain actions); Clouse ex rel. Clouse v. State, 199 Ariz. 196, 204

¶ 26, 16 P.3d 757, 764 (2001) (finding that the legislature acted within its

constitutional limits in enacting the immunity statute, which “explicitly

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confers qualified . . . immunity” and in deciding that it “furthers a valid

public policy”).

¶18 Second, the sections of the Phoenix City Code that the

Families cite merely articulate the general responsibilities of the police

department’s director and do not impose a duty upon all members of the

police department, including those of the Bureau. See Phoenix, Ariz., Code

§ 2–119 (a), (b) (2016). Thus, public policy did not create a duty.

Accordingly, because a duty of care did not arise from the existence of a

special relationship between the parties nor was imposed by public policy

through either statute or common law, summary judgment was

appropriate.

CONCLUSION

¶19 For the foregoing reasons, we affirm.

:AA

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