                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 22 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RICHARD SUDBERRY, individually and               No. 10-17076
on behalf of all statutory beneficiaries;
personal representative of the Estate of         D.C. No. 2:09-cv-00779-NVW
Kaitlyn M. Sudberry,

              Plaintiff - Appellant,             MEMORANDUM *

  v.

STATE OF ARIZONA, a governmental
entity; CITY OF PHOENIX, a
governmental entity; CYNTHIA
MANCINELLI, wife; GERALD T.
BAZZELL, AKA Unknown Mancinelli;
UNKNOWN PARTIES, named as John
and Jane Does I-X,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                     Argued and Submitted December 1, 2011
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**

      Richard Sudberry appeals from the district court’s grant of summary

judgment in favor of the City of Phoenix. We vacate the summary judgment and

remand for further proceedings.

      Sudberry claims that the negligence of the Phoenix Police Department

contributed to the murder of his daughter, Kaitlyn, by Daniel Byrd. Under Arizona

law, once a municipality chooses to provide police protection, the police

department has a “duty to act as would a reasonably careful and prudent police

department in the same circumstances.” Austin v. City of Scottsdale, 684 P.2d 151,

154 (Ariz. 1984) (en banc). The parties agree that the City is not liable unless the

Police Department is found to have been grossly negligent, as required by Arizona

Revised Statute § 12-820.02.

      “A party is grossly or wantonly negligent if he acts or fails to act when he

knows or has reason to know facts which would lead a reasonable person to realize

that his 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, 826 P.2d 1217, 1221 (Ariz. Ct. App. 1991). Gross or wanton


       **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.

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negligence “differs from ordinary negligence in quality and not degree.” Id. The

issue of gross negligence is ordinarily a question of fact for the jury, but a court

may grant a defendant’s motion for summary judgment if “no evidence is

introduced that would lead a reasonable person to find gross negligence.” Id.

      Sudberry introduced sufficient evidence such that a reasonable juror could

find gross negligence under Arizona law. There was evidence that the police

considered Byrd’s threat on Kaitlyn’s life to be a serious one. In response to the

threat, it sent five officers to Byrd’s house, reflecting concern for the danger Byrd

posed. The police informed the Sudberrys that they were going to work to arrest

Byrd and place him in custody. However, for the purpose of the summary

judgment motion, the police made no further effort to locate or arrest Byrd after

January 23. In light of the serious nature of the threats against Kaitlyn, a

reasonable juror could find that the Police Department’s lack of action after that

date constituted gross negligence.

      Like gross negligence, proximate cause is generally a question of fact for the

jury, and it should reach the jury here. See Barrett v. Harris, 86 P.3d 954, 958

(Ariz. Ct. App. 2004). A reasonable juror could find that the Police Department’s

inaction was a “substantial factor” in Kaitlyn’s death, as required for proximate

cause. See id. at 960-61. There was sufficient evidence for a reasonable juror to


                                           3
conclude, for instance, that further efforts to locate and apprehend Byrd would

have been successful, or that Kaitlyn would not have returned to school if the

police had warned her that Byrd had not been caught.

      VACATED and REMANDED.




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