                           NOTICE: NOT FOR PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
           LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


DANIEL SANDOVAL and RICHARD SANDOVAL, by and through their
legal guardian, MARY LEWIS; JOSEPH GREENE and ALIYAH GREENE,
  by and through their legal guardian and natural parent, LEE GREENE;
  JANE RUDDELL, on her own behalf; RUSSELL WRIGHT, on his own
behalf, for the wrongful death of MELANIE GREENE, Plaintiffs/Appellants,

                                         v.

                  THE CITY OF TEMPE, Defendant/Appellee.1

                              No. 1 CA-CV 14-0245
                               FILED 6-25-2015


            Appeal from the Superior Court in Maricopa County
                           No. CV2012-006342
                The Honorable Arthur T. Anderson, Judge

                                   AFFIRMED


                                    COUNSEL

Palumbo Wolfe & Palumbo PC, Phoenix
By Elliot G. Wolfe
Counsel for Plaintiffs/Appellants




1 We amend the caption of this appeal to reflect only the parties pertinent
to this appeal. The parties shall use this caption in all further filings related
to this appeal.
Tempe City Attorney’s Office, Tempe
By Judith R. Baumann
Counsel for Defendant/Appellee City of Tempe


                        MEMORANDUM DECISION

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


K E S S L E R, Judge:

¶1             Plaintiffs/Appellants, the surviving parents and four minor
children of Melanie Greene, appeal the trial court’s order granting
summary judgment in favor of Defendant/Appellee the City of Tempe
(“the City”). For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             After a night of drinking, Ruben Flores and Anton Pyburn
were so intoxicated they were unable to locate Flores’ car. They called 911
to report that the vehicle had been stolen. Three officers from the Tempe
Police Department bike squad responded and located the vehicle a couple
blocks away.

¶3            Officer M. notified Flores that the vehicle had been located,
but because he perceived that Flores was intoxicated, did not tell him where
it was parked. Officer M. told Flores to take a cab home and return for his
car when he was sober. Pyburn agreed that he would not drive. The
officers then left the scene at the conclusion of the stolen vehicle
investigation.

¶4            Flores and Pyburn walked to Jack-in-the-Box where they
found the car and remained to eat. After eating, Pyburn believed himself
to be sober and attempted to drive them home. When Pyburn realized he
was still having trouble with basic motor functions, he stopped at a
convenience store a few streets away. Flores then decided to drive. On the
way home, Flores ran a red light and crashed into Greene’s vehicle. The
accident occurred approximately one hour after the officers had left Flores
and Pyburn. Greene died from the injuries she sustained in the accident.




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                          SANDOVAL v. TEMPE
                           Decision of the Court

¶5             The Plaintiffs filed a complaint for negligence and wrongful
death, which included an allegation that the City’s police officers were
liable for negligently failing to arrest or detain Flores:

       The defendant CITY OF TEMPE officers negligently failed to
       arrest or detain Mr. Flores, or otherwise prevent him from
       driving, and negligently allowed him to leave the scene, and
       drive a vehicle, while intoxicated and under a suspended
       license for a prior D.U.I.[2]

The City moved to dismiss based on qualified immunity, which requires
proof of gross negligence rather than ordinary negligence. See Ariz. Rev.
Stat. (“A.R.S.”) § 12-820.02(A)(1) (2003) (“Unless a public employee acting
within the scope of the public employee’s 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.” (emphasis added)). The court granted the
City’s motion to dismiss as to the claim of ordinary negligence, but allowed
Plaintiffs to amend their complaint to allege gross negligence.

¶6             After Plaintiffs amended the complaint to allege gross
negligence, the City again moved for summary judgment, arguing there
was no legal authority for the officers to arrest or detain Flores, and even if
the officers had a duty to act, no reasonable jury could find their conduct to
be grossly negligent. In their response, the Plaintiffs acknowledged that the
officers had no reasonable cause to arrest or detain Flores, expressly
abandoned their claim for failure to arrest or detain Flores, and refined their
claim that the officers failed to exercise reasonable care by ensuring that
Flores did not drive his car while intoxicated, contending that such a claim
only required proving negligence, not gross negligence:

               The [P]laintiffs agree that if they were making a claim
       that the [City’s] officers were at fault for failing to make an
       arrest, the [City] would have qualified immunity under A.R.S.
       § 12-820.02 that would require the [P]laintiffs to prove gross
       negligence. Discovery has revealed that the [City] does not
       have a law making it illegal to be publicly intoxicated.
       Without a statute or ordinance making it illegal to be drunk




2Although other parties were named as defendants in the complaint, the
City is the only defendant pertinent to this appeal.


                                      3
                            SANDOVAL v. TEMPE
                             Decision of the Court

       in public in the City of Tempe, the officers could neither arrest
       nor detain Mr. Flores or Mr. Pyburn.

              Therefore, the [P]laintiffs are not pursuing their claim
       that the [City’s] officers were at fault for failing to arrest Flores
       and/or Pyburn, and A.R.S. § 12-820.02 does not apply.

               Instead, this is simply a case in which the [P]laintiffs are
       alleging that the officers did not meet the standard of care required
       of reasonably prudent police officers in taking steps to protect two
       obviously intoxicated individuals from foreseeably injuring
       themselves or others. That claim only requires proof of ordinary,
       not gross, negligence.

 (Emphasis added.) Plaintiffs subsequently moved to amend the complaint
to conform to the evidence.

¶7             Following oral argument, the trial court found that the
officers’ failure to investigate or arrest cannot support an ordinary
negligence claim and the Plaintiffs conceded that they could not show gross
negligence in the absence of a statutory violation. As a result, the court
granted the City’s motion for summary judgment, certifying the judgment
under Arizona Rule of Criminal Procedure 54(b). Plaintiffs timely
appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1)
(Supp. 2014).

                 ISSUES AND STANDARD OF REVIEW

¶8              On appeal, Plaintiffs argue the trial court erred by granting
the City summary judgment and affording the City qualified immunity for
the Plaintiffs’ refined claims that did not assert the failure to arrest or retain
Flores and Pyburn in custody. See supra ¶ 6. The City argues its officers
owed no duty to prevent Flores from injuring himself or anyone else and
that the evidence was insufficient to show its officers fell below a reasonable
standard of care.

¶9              We review a summary judgment de novo, “determin[ing]
independently whether there are any genuine issues of material fact and
whether the trial court erred in its application of the law.” Valder Law Offices
v. Keenan Law Firm, 212 Ariz. 244, 249, ¶ 14, 129 P.3d 966, 971 (App. 2006).
“[W]e view the evidence in a light most favorable to the party against whom
judgment was granted,” Desilva v. Baker, 208 Ariz. 597, 600, ¶ 10, 96 P.3d
1084, 1087 (App. 2004), but we will affirm the entry of summary judgment
if it is correct for any reason, Hawkins v. State, 183 Ariz. 100, 103, 900 P.2d


                                        4
                           SANDOVAL v. TEMPE
                            Decision of the Court

1236, 1239 (App. 1995). We review issues of statutory interpretation de novo.
Haag v. Steinle, 227 Ariz. 212, 214, ¶ 9, 255 P.3d 1016, 1018 (App. 2011).

                                DISCUSSION

¶10           Plaintiffs argue the trial court erred by granting summary
judgment to the City based on qualified immunity under A.R.S. § 12-820.02,
which would require Plaintiffs to prove gross negligence. We agree that
because Plaintiffs abandoned their theory that the officers were negligently
investigating a crime, but performing essentially a caretaking function, they
only had to show ordinary negligence to withstand summary judgment.
However, we affirm the judgment because Plaintiffs failed to present an
objectively based or enforceable standard of care against which the officers’
conduct could be measured by a jury.

¶11            In 1984, the legislature enacted the Actions Against Public
Entities or Public Employees Act, see A.R.S. §§ 12-820 to -823 (2003 and
Supp. 2014),3 which “codified various common law doctrines that conferred
absolute and qualified immunity on various public entities and employees”
and “permitted governmental entities and their employees to raise
affirmative defenses in actions sounding in tort,” City of Tucson v. Fahringer,
164 Ariz. 599, 600-01, 795 P.2d 819, 820-21 (1990). “In that act, the legislature
delineated several specific acts for which public entities and employees are
extended a qualified immunity.” Greenwood v. State, 217 Ariz. 438, 442, ¶
14, 175 P.3d 687, 691 (App. 2008). “Because immunity is the exception to
the general rule, we narrowly construe immunity provisions that are
applicable to governmental entities.” DeVries v. State, 221 Ariz. 201, 204, ¶
9, 211 P.3d 1185, 1188 (App. 2009). “We may not, however, construe an
immunity provision so narrowly as to abrogate the legislature’s grant of
immunity.” Greenwood, 217 Ariz. at 443, ¶ 16, 175 P.3d at 692.

¶12             Below, Plaintiffs expressly abandoned their claim that the
officers were negligent for failing to arrest or detain Flores, conceding they
could not show gross negligence. Instead, they argued the “officers failed
to exercise reasonable care to protect [Flores], his passenger and the public
from a substantial and foreseeable risk of injury by seeing that [Flores] got
into a taxi, or got a ride, so that he would not drive his own car in the highly
intoxicated state known to the officers.”



3 We cite to the current versions of statutes when no changes material to
this decision have since occurred.



                                       5
                           SANDOVAL v. TEMPE
                            Decision of the Court

¶13             We agree with Plaintiffs this described conduct is “totally
divorced from the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute,” Cady v. Dombrowski, 413 U.S.
433, 441 (1973).4 Given our duty to narrowly construe A.R.S. § 12-
820.02(A)(1), we conclude the City is not entitled to qualified immunity for
simply failing to ensure Flores and Pyburn did not get into the car and drive
away, thus endangering others. Rather, Plainitffs’ amended theory of
liability falls within the officers’ community caretaking function. Under
this function, police officers are “expected to aid those in distress, combat
actual hazards, prevent potential hazards from materializing, and provide
an infinite variety of services to preserve and protect community safety.”
State v. Mendoza-Ruiz, 225 Ariz. 473, 475, ¶ 9, 240 P.3d 1235, 1237 (App.
2010); see also Ortiz v. State, 24 So.3d 596, 600 (Fla. Dist. Ct. App. 2009)
(“Caretaking functions are performed by police officers because we expect
them to take those steps that are necessary to ‘ensure the safety and welfare
of the citizenry at large.’” (citation omitted)). The clear language of A.R.S.
§ 12-820.02(A)(1) does not grant qualified immunity to law enforcement for
conduct during the exercise of their community caretaking functions.
Accordingly, Plaintiffs would only be required to prove ordinary, and not
gross, negligence.

¶14            This does not end our inquiry, however, because we can
affirm the trial court on any basis supported by the record. Hawkins, 183
Ariz. at 103, 900 P.2d at 1239. Given the arguments on appeal, we must
address whether the officers had any duty to prevent Flores from driving
the car and whether Plaintiffs established the officers breached any
enforceable standard of care. “To establish a claim for negligence, a plaintiff
must prove four elements: (1) a duty requiring the defendant to conform to
a certain standard of care; (2) a breach by the defendant of that standard;
(3) a causal connection between the defendant’s conduct and the resulting
injury; and (4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150
P.3d 228, 230 (2007).5 In this context, duty is a general obligation,
recognized by law, requiring a defendant to conform to a particular
standard of care to protect others from an unreasonable risk. Id. at ¶¶ 9-10;
see also Vasquez v. State, 220 Ariz. 304, 313-15, ¶¶ 30-35, 206 P.3d 753, 762-64

4 If Plaintiffs had asserted that the alleged negligence arose out of a failure
to properly investigate a crime, the police had no duty to them. See Guerra
v. State, 348 P.3d 423, 426, ¶ 13 (Ariz. 2015).
5 Given the facts of this case, it would appear that a serious question exists

whether any failure of the police to ensure Flores and Pyburn did not get
into a car and drive was the proximate cause of the death. However, the
parties did not address that issue below or on appeal.


                                       6
                          SANDOVAL v. TEMPE
                           Decision of the Court

(App. 2008) (stating duty is determined as a matter of law and not based on
specific facts in the case). In contrast, the standard of care is what the
defendant must do or not do to satisfy that duty. Gipson, 214 Ariz. at 143,
¶ 10, 150 P.3d at 230. Although the standard of care depends on the
particular facts of the case, id., summary judgment is appropriate if no
reasonable jury could find that the standard of care was breached or the
breach proximately caused the harm, id. at n.1, ¶ 9. We will affirm summary
judgment if no reasonable jury could find that an enforceable standard of
care was breached. Id.

¶15            Whether a duty exists is a threshold issue and a matter of law
for courts to decide. Id. at ¶ 9. In determining whether a duty exists,
Arizona courts no longer consider whether the risk of harm to a person was
foreseeable. Id. at 144, ¶ 15, 150 P.3d at 231. “As a general matter, there is
no duty to prevent a third person from causing physical harm to another
unless the defendant stands in a special relationship with the third person
or with the victim that gives the victim a right to protection.” Barkhurst v.
Kingsmen of Route 66, Inc., 234 Ariz. 470, 473, ¶ 10, 323 P.3d 753, 756 (App.
2014) (citing Restatement (Second) of Torts § 315 (1965)). “Duties of care
may arise from special relationships based on contract, family relations, or
conduct undertaken by the defendant.” Guerra v. State, 348 P.3d 423, 425, ¶
8 (Ariz. 2015). “A special or direct relationship, however, is not essential in
order for there to be a duty of care.” Gipson, 214 Ariz. at 145, ¶ 18, 150 P.3d
at 232. “In the absence of a special or direct relationship, public policy
considerations may support the existence of a legal obligation.” Barkhurst,
234 Ariz. at 473, ¶ 10, 323 P.3d at 756.

¶16             We conclude a duty existed for the officers to protect the
public in this case based on the officers’ caretaking function and Tempe
Police Department’s assumption of a duty to prevent crime. In Austin v.
City of Scottsdale, the Arizona Supreme Court noted that public officers and
employees must be held accountable for negligent acts performed during
their official duties. 140 Ariz. 579, 581-82, 684 P.2d 151, 153-54 (1984). When
law enforcement performs a caretaking function, opting to provide police
protection to foster public safety, public policy supports the formation of a
generalized duty:

       Crime prevention, though a primary function, is not the sole
       responsibility of such agencies; they routinely perform such
       broader protective functions as directing traffic, aiding
       motorists, assisting in medical emergencies, and investigating
       accidents. . . . Law enforcement agencies perform all such
       activities subject to the duty that Austin described: “to act as


                                      7
                           SANDOVAL v. TEMPE
                            Decision of the Court

       would a reasonably careful and prudent police [agency] in the
       same circumstances.”

Newman v. Maricopa County, 167 Ariz. 501, 503, 808 P.2d 1253, 1255 (App.
1991) (alteration in original) (quoting Austin, 140 Ariz. at 581-82, 684 P.2d at
153-54); see also State v. Miller, 112 Ariz. 95, 97, 537 P.2d 965, 967 (1975) (“A
policeman has the duty to be alert to suspicious circumstances and to
investigate if necessary, provided that he is acting within constitutional
limitations.”); McDonald v. City of Prescott, 197 Ariz. 566, 568, ¶ 14, 5 P.3d
900, 902 (App. 2000) (finding that although a police officer is generally not
responsible for road maintenance per se, when an officer opts to provide
police protection he has a duty to act as would reasonably prudent officers
in the same circumstances); cf. Stanley v. McCarver, 208 Ariz. 219, 223, ¶ 14,
92 P.3d 849, 853 (2004) (imposing a duty even though there was no
traditional doctor-patient relationship between the parties, because the
doctor undertook a professional obligation with respect to the patient’s
well-being, and “public policy is better served by imposing a duty in such
circumstances to help prevent future harm”).

¶17            Nothing in our decision on duty is in conflict with the
reasoning of the Arizona Supreme Court in Guerra. There, the court held
that police officers do not have a duty to accurately report the identity of a
deceased person to the next of kin. Guerra, 348 P.3d at 424, ¶ 1. In reaching
that decision, the court held in part that to the extent the claim was that the
police officers had negligently investigated a crime to reveal a nurse’s
misidentification of a victim, no duty of care existed under Vasquez, 220
Ariz. 304, 206 P.3d 753 and Morton v. Maricopa County, 177 Ariz. 147, 865
P.2d 808 (App. 1993). Guerra, 348 P.3d at 426-27, ¶¶ 13, 16. The issue here,
however, is one of performing a caretaking function, not an investigatory
crime process.

¶18           Here, in addition to the public policy for police officers to
undertake caretaking duties to protect the public from danger, the Tempe
Police Department assumed a duty to proactively prevent crime. The
Tempe Police Department’s Strategic Plan, which “serve[s] to guide the
activities and direction of the Department and provide a foundation for
decision-making,” provides that one of the Department’s strategic goals is
to “promote proactive crime prevention.” City of Tempe, Tempe Police
Department’s        2012-2014       Strategic      Plan,      at       3-4,
http://tempe.gov/home/showdocument?id=3929 (last visited June 19,




                                       8
                           SANDOVAL v. TEMPE
                            Decision of the Court

2015).6 As a result, where police officers are called out for a possible crime,
and later determine there is a public safety issue, the officers have a duty to
provide safety and “act as would a reasonably careful and prudent police
department in the same circumstances.” Austin, 140 Ariz. at 581-82, 684
P.2d at 153-54.

¶19            This generalized duty is not without limits. As the supreme
court has noted, the generalized duty to protect the public “is not a duty to
protect each citizen within the [city’s] geographic boundaries from all
harms. By establishing a police department, a municipality becomes
neither a general insurer of safety nor absolutely liable for all harms to its
citizens.” Id. at 582 n.2, 684 P.2d at 154 n.2.; accord Vasquez, 220 Ariz. at 313,
¶ 29, 206 P.3d at 762; see also Guerra, 348 P.3d at 426, ¶ 13 (stating police
officers owe no duty to victims or their families when investigating crimes
or accidents). Here, we are not dealing with a generalized duty to protect
the public against any danger. Rather, the record viewed most strongly in
favor of Plaintiffs on summary judgment shows that the officers involved
knew Flores and Pyburn were too drunk to drive, told them not to drive
but to take a cab and left the pair within a few blocks of the car, knowing
that they were looking for their car. Given these facts on summary
judgment, we conclude that the officers had some duty to protect the public
from possible drunk drivers.

¶20           However, the next question we must answer is whether on
summary judgment Plaintiffs have shown that there is an articulable
standard of care that was breached. As we note above, summary judgment
is appropriate on standard of care when no reasonable jury would conclude
that there was a breach of an articulable or objectively measurable standard
of care. Gipson, 214 Ariz. at 143 n.1, ¶ 9, 150 P.3d at 230 n.1; District of
Columbia v. Carmichael, 577 A.2d 312, 314-16 (D.C. 1990) (holding that in
municipal liability case, expert must present an objectively determinable
standard of care against which a jury can determine whether the defendants
fell below that standard). Plaintiffs have not met their burden to show the
standard of care.


6 We take judicial notice of this manual. See State v. Rojers, 216 Ariz. 555,
560, ¶ 26, 169 P.3d 651, 656 (App. 2007) (holding that a court can take
judicial notice of an agency’s published manuals); Ariz. R. Evid. 201(b)(2)
(“The court may judicially notice a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.”).



                                        9
                           SANDOVAL v. TEMPE
                            Decision of the Court

¶21            Plaintiffs relied upon their expert to articulate the standard of
care. However, that expert conceded the officers could not arrest Flores and
Pyburn, could not detain the pair on the possibility of them committing a
future crime, and had no authority to require them to take a cab. Rather,
Plaintiffs’ expert stated that the officers should have simply followed Flores
and Pyburn to make sure that they called a cab or had a cab called for them,
rather than simply leave them after the officers had located, but not directed
the pair to the car.7 However, the Plaintiffs’ expert had never seen any
generalized police policy or orders that would have required this conduct.
The expert also stated he could not articulate a time period for which the
officers would have to remain with Flores and Pyburn to ensure they called
a cab or a friend for a ride.

¶22            As such, Plaintiffs’ expert testimony is similar to the
subjective standard rejected by the court in Carmichael. In Carmichael, the
plaintiffs sued the District of Columbia after being stabbed while
incarcerated. 577 A.2d at 312. Plaintiffs argued that the District failed to
control the supply of contraband weapons and relied on an expert witness
to state a standard of care. Id. In reversing the judgment for the plaintiffs,
the court of appeals held that the District was entitled to a judgment as a
matter of law because the expert’s standard of care was based solely on his
own subjective opinions and not any objectively determinable basis against
which a factfinder could measure the District’s conduct. Id. at 314-15. In
Carmichael, the expert testified that any number of knives or nonworking
metal detectors violated a standard of care, but did not base this opinion on
an objective foundation or concrete criteria. Id. at 315. As the court
characterized the testimony, the expert opinion was based on “his own
experience and on anecdotal observations . . . but failed to provide any basis
in his testimony by which the jury could determine what the standard of
care was and how the District’s conduct deviated from it. . . . For all we
know, [the expert] may have had an objective standard in mind when he
testified, but he never communicated it to the jury. . . . Without sufficient



7 Plaintiffs’ expert also opined that the police should have run a motor
vehicle check on the pair, at which time they would have found that both
of their drivers’ licenses had been suspended. However, we view that
conduct as part of a police investigation of criminal activity which might
have led to the failure to arrest the pair, conduct for which the police had
no duty to Plaintiffs. See Guerra, 348 P.3d at 426, ¶ 13. In any event, in that
case, if there was any duty, the City was entitled to qualified immunity and
Plaintiffs expressly stated they could not prove gross negligence.


                                      10
                          SANDOVAL v. TEMPE
                           Decision of the Court

proof of the standard of care, appellees’ case should never have gone to the
jury.” Id. at 315-16.

¶23            We see no distinction between the standard of care testimony
in Carmichael and this case. As noted previously, Plaintiffs’ expert opined
that the officers should have followed the inebriated pair or called them a
cab. However, he could not cite to any policy or order which would require
such conduct and could not articulate a time period for which the officers
should have followed the pair. They also disclaimed any standard of care
that the officers should have waited to see if Flores and Pyburn got to their
car and then arrested them when they entered. No reasonable jury could
conclude that there was an enforceable or objective standard of care on such
a theory. Simply put, this is not sufficient for a cognizable, enforceable or
objectively determinable standard of care.

                              CONCLUSION

¶24          For the foregoing reasons, we affirm.



G E M M I L L, Judge, specially concurring:

¶25           I agree with the majority decision that the summary judgment
in favor of the City of Tempe should be affirmed because the plaintiffs did
not present an objectively enforceable standard of care against which the
police conduct could be measured by a jury. See supra ¶ 23. As the majority
has determined, summary judgment on the issue of standard of care is
appropriate “when no reasonable jury would conclude that there was a
breach of an articulable or objectively measurable standard of care.” See
supra ¶ 20. Affirming summary judgment on this basis resolves the appeal
and I take no position on the issue of duty presented herein. It is for this
reason that I write separately.




                                  :ama



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