                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
             ARIZONA COURT OF APPEALS
                                 DIVISION ONE


    RICHARD SUDBERRY, individually and on behalf of all statutory
                beneficiaries, Plaintiff/Appellee,

                                        v.

     CITY OF PHOENIX, a governmental entity, Defendant/Appellant.

                             No. 1 CA-CV 14-0175
                               FILED 4-2-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2009-050501
               The Honorable Michael D. Gordon, Judge

                       VACATED AND REMANDED


                                   COUNSEL

Carmichael & Powell, PC, Phoenix
By David J. Sandoval
Counsel for Plaintiff/Appellee

Iafrate & Associates, Phoenix
By Michele M. Iafrate
Counsel for Defendant/Appellant
                         SUDBERRY v. PHOENIX
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge John C. Gemmill and Judge Kenton D. Jones joined.


K E S S L E R, Judge:

¶1             Defendant/Appellant the City of Phoenix (“the City”)
appeals a jury verdict and judgment in favor of Plaintiff/Appellee Richard
Sudberry (“Sudberry”), individually and on behalf of all statutory
beneficiaries, in this action for the wrongful death of Sudberry’s daughter,
Kaitlyn. The City contends the trial court erred by refusing to allow the
jury to allocate fault to certain non-parties. For the following reasons, we
vacate the judgment and remand for further proceedings consistent with
this decision.

               FACTUAL AND PROCEDURAL HISTORY

¶2            On January 28, 2008, Daniel Byrd (“Byrd”) murdered his ex-
girlfriend, seventeen-year-old Kaitlyn Sudberry, and then committed
suicide. Byrd, who was also seventeen-years-old, had been subject to
juvenile treatment and detention, juvenile intensive probation services, or
standard probation for the preceding six years. In the days and weeks prior
to the murder, Byrd twice assaulted Kaitlyn at school and his mother
notified the Phoenix Police Department on January 22nd that Byrd had
threatened to kill Kaitlyn and himself at school the following day. During
this time, Byrd was also expelled from school, fired from his job, and failed
a drug test. Despite knowing about these events and that Byrd was living
alone without adult supervision, Byrd’s Probation Officer, Cynthia
Mancinelli (“Mancinelli”), did not attempt to contact him directly or assist
the police in detaining him. Instead, she continued her efforts to reduce
Byrd’s probation supervision requirements and to have Byrd’s twenty-
four-year-old friend (who was himself on probation for drug charges)
established as Byrd’s legal guardian.

¶3            After Byrd’s mother reported his threat to the police, Phoenix
police officers attempted to contact Byrd, but could not find him at his
home. The officers increased their presence at the school on January 23rd
and 24th and notified Kaitlyn’s family about the threat, advising them to
obtain an order of protection and keep Kaitlyn home from school. Police


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                           Decision of the Court

officers also told Mancinelli about the threat and asked her to violate Byrd’s
probation, but she refused, explaining that the Juvenile Probation
Department pressured probation officers to not detain juveniles nearing
eighteen years of age.1 Byrd murdered Kaitlyn while she was walking
home from school on January 28th.

¶4            Sudberry filed this action for wrongful death, alleging that the
Phoenix Police Department’s negligence was a proximate cause of Kaitlyn’s
death. Sudberry also asserted that the State, through the acts and omissions
of Child Protective Services and the Juvenile Probation Department, and
Mancinelli were responsible for Kaitlyn’s death and violated her civil
rights. Sudberry later stipulated to dismiss those claims with prejudice.
The City then named the State, the Juvenile Probation Department, and
Mancinelli as non-parties at fault.

¶5            At trial, the court granted Sudberry’s motion for judgment as
a matter of law and prohibited the City from asking the jury to allocate fault
to the Juvenile Probation Department or Mancinelli. The court ruled that
the City was required, and failed, to present expert testimony regarding the
standard of care applicable to Mancinelli. The jury returned a $3 million
verdict for Sudberry, allocating 40% fault to the City, 40% to Sudberry, 10%
to Byrd, and 10% to Byrd’s mother.

¶6             The City filed a renewed motion for judgment as a matter of
law, a motion to alter or amend the judgment, and a motion for new trial,
arguing that the court had misapplied the law and deprived the City of a
fair trial by refusing to allow the jury to apportion fault to the Juvenile
Probation Department or Mancinelli. The court denied the motion and the
City timely appealed that order and the underlying judgment.

¶7            We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1) (2003) and 12-2101(A)(1), (5)(a) (Supp.
2014).




1 Some witnesses at trial used the terms “violate probation” and “revoke
probation” interchangeably. The evidence, however, showed these are
slightly different concepts; a probation officer may notify the court of a
probation violation and ask the court to issue a warrant for the
probationer’s arrest, and may also petition the court to revoke a juvenile’s
probation.



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                         SUDBERRY v. PHOENIX
                           Decision of the Court

                                   ISSUES

¶8            The City argues the court erred by granting Sudberry’s
motion for judgment as a matter of law and prohibiting the jury from
allocating fault to the Juvenile Probation Department or Mancinelli.

                               DISCUSSION

¶9            We review de novo the trial court’s ruling on a motion for
judgment as a matter of law (“JMOL”). Felder v. Physiotherapy Associates,
215 Ariz. 154, 162, ¶ 36, 158 P.3d 877, 885 (App. 2007). The court should
grant a motion for JMOL “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.” Orme Sch. v.
Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).

¶10             Because Arizona has abolished joint and several tort liability,
a defendant is liable to an injured party only for his percentage of fault and
may ask the trier of fact to apportion fault among all those who contributed
to the injury, whether they were, or could have been, named as parties to
the action. A.R.S. § 12–2506(A), (B), (F)(2) (2003). The defendant bears the
burden of proving that the non-party was at fault and the trial court may
only instruct a jury on assigning fault to a non-party if the evidence offered
at trial is adequate to support a finding that the non-party was negligent. A
Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515,
540, ¶ 83, 217 P.3d 1220, 1245 (App. 2009) (stating that defendant has the
burden to prove a non-party is at fault); A.R.S. § 12-2506(B), (F)(2); see
also Czarnecki v. Volkswagen of Am., 172 Ariz. 408, 411, 837 P.2d 1143, 1146
(App. 1991) (stating a trial court should give a requested jury instruction if
there is “any evidence tending to establish the theory posed in the
instruction, . . . even if contradictory facts are presented”).

¶11          To prove that Mancinelli was comparatively at fault, the City
was required to show that she breached a duty owed to Kaitlyn and that
the breach caused Kaitlyn’s injury. Ocotillo W. Joint Venture v. Superior
Court, 173 Ariz. 486, 488, 844 P.2d 653, 655 (App. 1992) (defendant must
show that the non-party owed a duty to the plaintiff, the duty was
breached, and the breach caused injury to the plaintiff); see also A.R.S. § 12-




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                            Decision of the Court

2506(F)(2). In this case, only one of these elements--whether Mancinelli
breached her duty of care--is in dispute.2

¶12             To prove Mancinelli breached the applicable standard of care,
the City had the burden to establish what conduct the standard of care
required and that Mancinelli’s actions did not meet that standard. Kreisman
v. Thomas, 12 Ariz. App. 215, 220, 469 P.2d 107, 112 (1970). “Ordinarily, the
standard of care to be applied in a negligence action focuses on the conduct
of a reasonably prudent person under the circumstances,” Sw. Auto Painting
and Body Repair, Inc. v. Binsfeld, 183 Ariz. 444, 448, 904 P.2d 1268, 1272 (App.
1995), and the jury may rely on its own experience in determining whether
the defendant acted with reasonable care, Bell v. Maricopa Med. Ctr., 157
Ariz. 192, 194, 755 P.2d 1180, 1182 (App. 1988). In actions concerning
whether an individual negligently rendered services in the practice of a
trade or profession, however, the applicable standard of care is that of the
“skill and knowledge normally possessed by members of that trade or
profession in good standing in similar communities.” Kreisman, 12 Ariz.
App. at 220, 469 P.2d at 112; see also Restatement (Second) of Torts § 299A
(1965). In such cases, expert testimony is required to educate the jury
regarding that standard. St. Joseph’s Hosp. v. Reserve Life Ins. Co., 154 Ariz.
307, 315, 742 P.2d 808, 816 (1987) (“Where . . . the alleged lack of care
occurred during the professional or business activity, the plaintiff must
present expert testimony as to the care and competence prevalent in the
business and profession.”); cf. Bell, 157 Ariz. at 195 n.1, 755 P.2d at 1183 n.1
(stating that expert testimony “is not required in cases where the negligence
is so grossly apparent that a layman would have no difficulty in recognizing
it”) (citation and internal quotation marks omitted).

¶13           Here, we need not decide whether expert testimony was
necessary to establish the applicable standard of care. Mancinelli testified
that she had worked for the Maricopa County Juvenile Probation
Department for fourteen years and was familiar with the duties required to
perform her job as a juvenile probation officer. She testified that a juvenile
probation officer monitors whether a juvenile on probation is complying

2 We do not consider Sudberry’s cursory assertion that a lack of causation
evidence is an alternate basis to affirm the superior court’s ruling. See MT
Builders, L.L.C. v. Fisher Roofing, 219 Ariz. 297, 305 n.7, ¶ 19, 197 P.3d 758,
765 n.7 (App. 2008) (stating one-sentence reference to appellate argument
in footnote without any analysis was insufficient to present argument and
deeming it waived).




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                           SUDBERRY v. PHOENIX
                             Decision of the Court

with the terms of probation set by the court and explained that the officer
may notify the court if a juvenile probationer violates any probation terms
and make an expedited request that the court issue a warrant for the
juvenile’s arrest. Critically, Mancinelli claimed that no policies governed
when a juvenile probation officer should notify the court about a probation
violation and asserted that decision was wholly within the officer’s
discretion. Based upon that testimony, a jury was entitled to evaluate
whether Mancinelli acted reasonably in the exercise of her discretion or
whether her acts amounted to gross negligence. 3

¶14           The evidence showed that Mancinelli knew Byrd was living
alone and had violated at least five of the twelve terms of his probation
during the weeks prior to the murder, but chose not to notify the court
about those violations, even though she admitted that a juvenile probation
officer who discovers that a juvenile is not in the custody of an adult has an
obligation to report that fact to Child Protective Services and the court.
Further, even after the police informed Mancinelli of Byrd’s threat against
Kaitlyn and their attempts to locate him, she refused to advise the court of
Byrd’s probation violations or otherwise assist the police in detaining him.
Indeed, she had indirect contact with Byrd (through his Big Brother
program mentor, Mike Cassidy) on January 25th, but did not ask Cassidy
for Byrd’s location, tell him she needed to see Byrd, or tell him that the
police were looking for Byrd.

¶15           Mancinelli defended her inaction by claiming that she did not
believe that Byrd’s mother’s report of his threat against Kaitlyn was
accurate and did not view Byrd as a threat to himself or others. However,
Byrd’s guardian ad litem, Lon Taubman, opined, based on his twenty-four
years of experience as a guardian ad litem, that Byrd’s probation violations
in January 2008 indicated that he was in “serious trouble emotionally” and

3Because the parties do not dispute that the jury would have been required
to find that Mancinelli was grossly negligent before it could attribute any
fault to her, see A.R.S. § 12-820.02(A) (2003), we do not address the issue.
Cf. A.R.S. §§ 12-2506(F)(2) (defining fault to be “an actionable breach of legal
duty, act or omission proximately causing or contributing to injury or
damages sustained by a person seeking recovery, including negligence in
all of its degrees . . . .”), -2506(B) (in assessing percentages of fault, the trier
of fact shall consider the fault of all persons who contributed to the alleged
injury “regardless of whether the person was, or could have been, named
as a party.”).




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                        SUDBERRY v. PHOENIX
                          Decision of the Court

needed “very, very quick action to stop him from hurting somebody or
himself.” Taubman, a former prosecutor, also explained that the quickest
action for Mancinelli to have taken in this case would have been a violation
of probation petition, which would have allowed her to request a warrant
for Byrd’s arrest.

¶16          Even if expert testimony was necessary to establish the
standard of care, Mancinelli and Taubman’s testimony satisfied that
obligation. Given their testimony, the trial court erred by granting JMOL
on the City’s non-party at fault claim against the State, the Juvenile
Probation Department, and Mancinelli.4

                             CONCLUSION

¶17         For the foregoing reasons, we reverse the trial court’s ruling
granting JMOL on the City’s non-party at fault claim, vacate the judgment,
and remand this matter for a new trial.




                                   :ama




4Whether the verdict on damages and the allocation of fault must be set
aside and retried on remand was not briefed by the parties, and our
decision does not address those issues.


                                     7
