                                     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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                          Opinion of the Court

¶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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                          Opinion of the Court

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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                           Opinion of the Court

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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