                                  IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


   ANDREW MUSCAT, an incompetent person, by Marcie Berman, his
     permanent guardian, and MARCIE BERMAN, individually,
                       Plaintiffs/Appellants,

                                     v.

 CREATIVE INNERVISIONS LLC, an Arizona limited liability company,
                 and TEMITAYO AKANDE,
                    Defendants/Appellees.

                           No. 1 CA-CV 16-0388
                             FILED 12-26-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-014300
                The Honorable Joshua D. Rogers, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                COUNSEL

Law Offices of Robert A. Butler, PLLC, Phoenix
By Robert A. Butler
Co-Counsel for Plaintiffs/Appellants Muscat and Berman

Law Office of Dennis A. Sever, PLLC, Mesa
By Dennis A. Sever
Co-Counsel for Plaintiffs/Appellants Muscat and Berman
                    MUSCAT, et al. v. CREATIVE, et al.
                        Opinion of the Court

Grasso Law Firm, PC, Chandler
By Robert Grasso, Jr., Stephanie L. Samuelson
Counsel for Defendant/Appellee Creative Innervisions LLC

Metzger Law Firm, PLLC, Phoenix
By Nathan T. Metzger, Perry E. Casazza
Counsel for Defendant/Appellee Akande



                                 OPINION

Presiding Judge Michael J. Brown delivered the opinion of the Court, in
which Judge Jennifer B. Campbell and Judge Margaret H. Downie (retired)
joined.


B R O W N, Judge:

¶1             Andrew Muscat appeals the superior court’s judgment
rejecting his claims against Creative Innervisions, LLC, and its employee,
Temitayo Akande (collectively, “Creative”).1 Because we conclude that
Muscat’s alleged harms arise solely from the consequences of his own
criminal conduct and thus do not constitute legally cognizable injuries, we
affirm the court’s dismissal of his negligence claims. We vacate, however,
the dismissal of Muscat’s vulnerable adult claim and remand for further
proceedings.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            Muscat is a “profoundly disabled person” whose disabilities
make “impulse control considerably more difficult for him than it is for the
typical person.” Muscat was convicted of child abuse, a sexually motivated
offense and class four felony, and placed on lifetime probation for
inappropriately touching a child in a restroom stall in June 2008. In 2011,
Muscat was placed into a group home owned by Creative Innervisions,
LLC, and approved by ADES’s Division of Developmental Disabilities
(“Division”). Representatives from the Division and Creative met and
developed an Individual Support Plan (“ISP”) for Muscat, which required

1     Marcie Berman, Muscat’s mother and permanent guardian, also
appeals the superior court’s judgment. Because her claims depend on the
success of Muscat’s claims, we need not separately address them.
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                        Opinion of the Court

Creative to provide one-on-one supervision of Muscat at all times, whether
in the group home or in the community.

¶3             In December 2012, Akande, the staff member assigned to
supervise Muscat, drove Muscat to a local church to attend a theater
production. Instead of accompanying him to the event, Akande dropped
him off, leaving him unsupervised. Inside the church, Muscat followed a
child into the restroom and inappropriately touched the child. Muscat was
arrested in November 2013 and charged with aggravated assault and child
molestation.

¶4             In December 2014, Muscat filed a complaint alleging
negligence, negligent supervision/training/hiring, and violation of the
Arizona Adult Protective Services Act (“APSA”). Muscat alleged that “as a
result of [his] being left unattended and unsupervised” by Creative, the
county attorney’s office filed a petition to revoke Muscat’s felony probation
and charged him with molestation of a child as a repeat felony offender.

¶5             After filing the complaint, Muscat was declared competent to
stand trial in the criminal matter, and later pled guilty to attempted child
molestation and attempted kidnapping, each a class three felony.2 In
December 2015, Muscat was sentenced to eight years’ imprisonment for
attempted molestation (with 751 days’ presentence incarceration credit)
and lifetime probation for attempted kidnapping. The sentencing judge
found the eight-year sentence was “clearly excessive,” thereby allowing
Muscat to petition the clemency board for a commutation of sentence
pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-603(L). The
court recognized that Muscat’s “conduct is extremely concerning and
warrants a punitive sanction,” but that given his “cognitive limitations and
disabilities [he] has a diminished level of culpability.”

¶6           That same month, Creative filed a motion for judgment on the
pleadings in this case, asserting that Muscat’s claims were barred by the
“wrongful conduct rule” and his complaint failed to state a “cognizable
claim” upon which relief could be granted. The superior court granted the
motion, finding that “under the wrongful conduct rule and Arizona law,
[Muscat] cannot maintain this action or seek the requested damages



2      We take judicial notice of the sentencing minute entry in Maricopa
County Superior Court Case No. CR 2013-456757-001, which Muscat filed
along with his opening brief. See Ariz. R. Evid. 201(b) (allowing courts to
take judicial notice of facts that are not the subject of reasonable dispute).
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                         Opinion of the Court

because it resulted from [his] own illegal conduct and cannot be established
absent a showing that he has broken the law.” This timely appeal followed.

                                DISCUSSION

¶7             “A motion for judgment on the pleadings pursuant to
[Arizona Rule of Civil Procedure 12(c)] tests the sufficiency of the
complaint, and judgment should be entered for the defendant if the
complaint fails to state a claim for relief.” Giles v. Hill Lewis Marce, 195 Ariz.
358, 359, ¶ 2 (App. 1999). We accept the allegations of the complaint as true,
but review de novo the court’s legal determinations. Id. We will affirm the
court’s disposition if it is correct for any reason. Logerquist v. Danforth, 188
Ariz. 16, 18 (App. 1996).

       A.     Negligence Claims

¶8            A plaintiff asserting negligence must prove: “(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 (2007) (emphasis added). Duty is an
“obligation, recognized by law, which requires the defendant to conform to
a particular standard of conduct in order to protect others against
unreasonable risks of harm.” Id. at ¶ 10.

¶9            Creative argues the “wrongful conduct rule” bars Muscat’s
claims because a wrongdoer should not be able to base a tort claim on his
own wrongful actions. See, e.g., Greenwald v. Van Handel, 88 A.3d 467, 472
(Conn. 2014) (noting that the “generally articulated” wrongful conduct rule
provides “that a plaintiff cannot maintain a tort action for injuries that are
sustained as the direct result of his or her knowing and intentional
participation in a criminal act”). As recognized by the parties, Arizona has
never explicitly addressed the wrongful conduct rule, which has been
adopted in several jurisdictions and rejected in others. The rule has been
described by some as “slippery and vexing.” See Joseph H. King, Jr.,
Outlaws and Outlier Doctrines: The Serious Misconduct Bar in Tort Law, 43 Wm.
& Mary L. Rev. 1011, 1076 (2002). Notwithstanding Creative’s attempt to




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                    MUSCAT, et al. v. CREATIVE, et al.
                        Opinion of the Court

narrowly define the wrongful conduct rule, given the following analysis,
we need not decide whether it applies here.3

¶10           Muscat alleged in part that Creative had a special relationship
with him that imposed a duty to “prevent the foreseeable harm that could
occur if [he] was left alone, unsupervised around children and/or around
a public restroom.” Muscat also alleged that the purpose of “having one-
on-one supervision,” including in public restrooms, was to “protect [him]
from harm due to his lack of impulse control.” As further explained by the
sentencing judge, because Muscat was unable to participate in sex offender
treatment or counseling given his mental disabilities, a protocol was
established wherein Creative agreed “to insure lawful conduct by [Muscat]
and prevent recidivism.” As such, Creative was required to have a “one-
on-one chaperone present when [Muscat] participated in day programs of
the group home” and he was “not allowed to enter a public bathroom
without his chaperone.”

¶11             Whether a duty exists is a “threshold issue” because “absent
some duty, an action for negligence cannot be maintained.” Gipson, 214
Ariz. at 143, ¶ 11. Given the special relationship between Muscat and
Creative, and the specific obligations Creative accepted or agreed to
perform, Creative had a duty to properly supervise Muscat. Id. at 145, ¶ 18
(“Duties of care may arise from special relationships based on contract,
family relations, or conduct undertaken by the defendant.”); DeMontiney v.
Desert Manor Convalescent Ctr. Inc., 144 Ariz. 6, 11 (1985) (recognizing a
special relationship exists “[w]hen an institution . . . is charged with the care
and custody of persons who it knows will be likely to harm themselves”).
And on this record, Muscat has clearly alleged a breach of Creative’s duty
in that it left him alone and unsupervised at the church in violation of the
ISP. However, for the reasons explained below, Muscat has failed to allege
a legally cognizable injury. See Walker v. Mart, 164 Ariz. 37, 41-42 (1990)
(analyzing duty and injury as separate legal issues).

¶12            In Walker, our supreme court was confronted with whether
Arizona recognized the tort of “wrongful life,” an issue of first impression.
164 Ariz. at 38. Analyzing the plaintiff’s claim “under traditional principles
of negligence law,” the court found a duty existed and assumed a breach
thereof. Id. at 41. The court then turned to a narrower question: “[I]s birth,


3      We do not address Creative’s liability for injuries to the victim or any
other party that is not part of this litigation. Nor do we consider whether
Muscat has any viable negligence claims if his convictions are set aside.

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                        Opinion of the Court

even in an impaired condition, a legally cognizable injury?” Id. Citing the
Restatement (Second) of Torts (“Restatement”) (1965), the court explained
that “[a]n injury is simply an invasion of some right possessed by the
plaintiff.” Id. Under this definition, the court acknowledged that “the
ability to decide questions of conception or termination of pregnancy
resides in the parents, not the fetus,” and that the “law protects parents’
rights to make decisions involving procreation.” Id. at 42. Thus, because
“children suffer no legal injury when a parent, doctor, or other practitioner
fails to prevent their birth,” the court declined to extend the tort of
negligence to include a child’s claim of wrongful life. Id. at 43.

¶13           The Restatement defines “injury” as “the invasion of any
legally protected interest of another,” and “harm” as “the existence of loss
or detriment in fact of any kind to a person resulting from any cause.”
Restatement § 7. In contrasting these definitions, the Restatement’s
comments explain that although a “harm” may exist, that does not mean
there has been an “invasion of a legally protected interest,” and that “there
may be an injury although no harm is done.” Id. § 7 cmt. a; see also id. § 7
cmt. d (stating that harm is actionable “only when it results from the
invasion of a legally protected interest”).

¶14           The parties do not dispute the alleged injuries arise only out
of Muscat’s incarceration, which resulted from his arrest and criminal
prosecution. But as the parties acknowledged at oral argument, no court in
any jurisdiction has concluded that a custodian may be found liable for
negligence based solely on consequences that flow from the ward’s
commission of a crime. We must therefore determine, as in Walker, whether
the alleged harm constitutes an injury that is recognized by law.

¶15             In his complaint, Muscat alleges that he suffered, inter alia,
loss of freedom, loss of participation in life’s activities, pain, suffering,
distress, mental and emotional anguish, anxiety, and a decrease in the
quality of life. Muscat did not allege that Creative caused him to suffer any
physical harm. It is undisputed that Muscat was properly incarcerated,
meaning he was sentenced to prison (with presentence incarceration credit)
after he was found competent to stand trial and found guilty of the offenses
set forth in the plea agreement. Given that his alleged injuries arise only
out of a legally imposed incarceration, Muscat alleges no injury that is
distinct from the consequences of his prison sentence. Criminal defendants
have legally protected interests that may be affected during criminal
proceedings, but no properly-convicted criminal has a legally protected
interest in being free from the inherent consequences of the resulting
sentence. See Levine v. Kling, 123 F.3d 580, 582 (7th Cir. 1997) (“Tort law

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                    MUSCAT, et al. v. CREATIVE, et al.
                        Opinion of the Court

provides damages only for harms to the plaintiff’s legally protected
interests, and the liberty of a guilty criminal is not one of them.”) (internal
citation omitted). And although “physical liberty” has been described as
one of the “three broad categories of legal interests” protected by tort law,
Dobbs et al., The Law of Torts § 3 (2d ed. 2011), we are unaware of any
unintentional tort that protects this interest, see Restatement § 35 cmt. h
(explaining that the tort of false imprisonment protects the “mere dignitary
interest in feeling free to choose one’s own location,” but that this interest
is legally protected against only intentional invasions).

¶16           Muscat’s inability to pursue a negligence claim for alleged
harm arising from his criminal prosecution is consistent with the rationale
governing other torts that depend on the ultimate outcome of a criminal
prosecution. See, e.g., Glaze v. Larsen, 207 Ariz. 26, 32, ¶ 25 (2004)
(recognizing that an element of the cause of action for legal malpractice
stemming from criminal litigation is that the conviction has been set aside);
Slade v. City of Phoenix, 112 Ariz. 298, 300 (1975) (noting the essential
elements of malicious prosecution include a criminal prosecution that
terminates in favor of plaintiff).

¶17           Moreover, recognizing the legal consequences of a ward’s
criminal conduct as a legally cognizable injury would distort the long-
established public policy of personal accountability for criminal behavior.
Muscat received lawfully imposed sentences based on his criminal conduct;
thus, it would be inconsistent to allow him to recover damages for the harm
he has suffered as a result of his criminal punishment. See A.R.S. § 13-101
(declaring that one of the purposes of the criminal code is to “impose just
and deserved punishment on those whose conduct threatens the public
peace”); Glazier v. Lee, 429 N.W.2d 857, 860 (Mich. App. 1988) (explaining
that to allow plaintiff, who was convicted of manslaughter, to bring a
professional negligence action “would allow plaintiff to shift the
responsibility for his crime from himself to defendant”); Holt v. Navarro, 932
A.2d 915, 923, ¶¶ 21-24 (Pa. Super. Ct. 2007) (holding that plaintiff was
barred from “benefitting in a civil suit flowing from his criminal
convictions” where he committed crimes after escaping from a hospital’s
supervision).

¶18          Our analysis is consistent with decisions made by other courts
that have considered the viability of tort claims arising solely from the
consequences of a plaintiff’s criminal conduct. See, e.g., Burcina v. Ketchikan,
902 P.2d 817, 819, 821 (Alaska 1995) (precluding psychiatric patient
convicted of arson for setting fire to mental health center from seeking
compensation from psychiatrist and mental health center for injuries

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                    MUSCAT, et al. v. CREATIVE, et al.
                        Opinion of the Court

resulting from conviction and imprisonment); Greenwald, 88 A.3d at 472
(finding that trial court properly dismissed plaintiff’s claim that his
therapist’s failure to treat him caused “emotional distress and other injuries
due to potential criminal prosecution” related to “the illegal downloading,
viewing and/or possession of child pornography”); Glazier, 429 N.W.2d at
858 (precluding former patient convicted of manslaughter from
maintaining professional negligence action against psychologist for
emotional and psychological injuries resulting from patient’s criminal act);
Holt, 932 A.2d at 923, ¶¶ 22-24 (holding that medical providers could not be
held liable for the “collateral consequences” of the plaintiff’s criminal
convictions for robbery and assault).4

¶19          Given these considerations, we hold that a person who has
been properly incarcerated for a criminal conviction has not suffered a
legally cognizable injury—for purposes of establishing a negligence
claim—when the alleged harm flows solely from the incarceration.
Therefore, the superior court properly determined that Muscat cannot
recover from Creative based on his negligence claims.5

¶20            Our holding does not offend the protection granted to tort
victims under Arizona’s anti-abrogation clause, which provides that “[t]he
right of action to recover damages for injuries shall never be abrogated, and
the amount recovered shall not be subject to any statutory limitation.” Ariz.
Const. art. 18, § 6 (emphasis added). Although this provision protects an

4      The authorities Muscat relies on are inapposite because the injuries
claimed arose from physical harms suffered by the plaintiffs. See Sonoran
Desert Investigations, Inc. v. Miller, 213 Ariz. 274, 275-77, ¶¶ 1, 6 (App. 2006)
(allowing wrongful death action to proceed to jury trial where plaintiff’s
husband died after being physically restrained and choked on suspicion of
shoplifting); Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo Cty.,
773 S.E.2d 627, 628, 636 (W. Va. 2015) (allowing plaintiffs to maintain tort
claim against pharmacies and physicians for “negligently prescrib[ing] and
dispens[ing] controlled substances,” where the alleged injuries were
addiction to and abuse of the controlled substances).

5       As to Berman, she concedes that if we conclude that Muscat’s
negligence claims are not viable, then her claims cannot survive because
they are derivative of Muscat’s negligence claims. Thus, the superior court
properly granted judgment on the pleadings as to Berman’s claims. See,
e.g., Barnes v. Outlaw, 192 Ariz. 283, 286, ¶ 8 (1998) (“[B]ecause loss of
consortium is a derivative claim, all elements of the underlying cause must
be proven before the claim can exist.”).
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                     MUSCAT, et al. v. CREATIVE, et al.
                         Opinion of the Court

individual’s right to file a negligence action, Baker v. Univ. Physicians
Healthcare, 231 Ariz. 379, 388, ¶ 39 (2013), we are aware of no authority
suggesting that “injuries” under the anti-abrogation clause should be
interpreted differently than “injuries” recognized under tort law, see
Samaritan Health Sys. v. Superior Court of State of Ariz., 194 Ariz. 284, 293-94,
¶¶ 37, 44 (App. 1998) (explaining that the founders’ intent was “to limit the
application of the anti-abrogation clause to tort claims”). Thus, the right to
bring an action for damages is unaffected; indeed, no cause of action exists
when a plaintiff does not allege a legally cognizable injury. See Romero v.
Sw. Ambulance, 211 Ariz. 200, 205, ¶ 12 (App. 2005) (“When a statute does
not abrogate any viable right of action to recover damages, it does not
violate article 18, § 6.”) (internal quotation omitted); Perkins v. Ne. Log
Homes, 808 S.W.2d 809, 814 (Ky. 1991) (explaining, in addressing Kentucky’s
open courts constitutional provision, that a negligence action does not exist
until there is an injury). Similarly, if a plaintiff is unable to allege a prima
facie case of negligence, a court’s decision to grant judgment on the
pleadings is not in conflict with the constitutional doctrines of contributory
negligence or assumption of risk. See Ariz. Const. article 18, § 5 (“The
defense of contributory negligence or of assumption of risk shall, in all cases
whatsoever, be a question of fact and shall, at all times, be left to the jury.”).

¶21           Nor are we persuaded that affirming the dismissal of
Muscat’s negligence claims runs counter to the intended application of
A.R.S. § 12-712(A), which provides in part as follows:

       In any civil action the finder of fact may find the defendant
       not liable if the defendant proves that the claimant . . . was
       attempting to commit, committing or immediately fleeing
       from a felony criminal act and as a result of that act, attempted
       act or flight, the claimant or decedent was at least fifty per
       cent responsible for the accident or event that caused the
       claimant’s or decedent’s harm.

Muscat contends that under this statute, the trier of fact should determine
whether he was more than 50% at fault. Section 12-712(A), like the
constitutional provisions discussed above, does not apply unless the
plaintiff alleged a prima facie case of negligence.

       B.     Vulnerable Adult Claim

¶22          For his APSA claim, Muscat alleges he is a vulnerable adult
and was injured by Creative’s abuse and neglect. See A.R.S. § 46-455(B) (“A
vulnerable adult whose life or health is being or has been endangered or

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                        Opinion of the Court

injured by neglect, abuse or exploitation may file an action in superior court
against any person . . . that has assumed a legal duty to provide care or that
has been appointed by a court to provide care to such vulnerable adult for
having caused or permitted such conduct.”). Creative did not address the
APSA claim in its motion for judgment on the pleadings, and although the
claim was briefly addressed in the response and the reply, neither of the
parties engaged in any meaningful statutory analysis of the vulnerable
adult statutes. Nor did the superior court separately analyze the APSA
claim in its detailed ruling. Likewise, on appeal, the parties have not
provided any helpful briefing on this issue, which cannot be resolved
merely by relying on the analysis we have applied to the negligence claims.
Whether Muscat has stated a viable claim under A.R.S. § 46-455(B) must be
considered by the superior court in the first instance.

                              CONCLUSION

¶23          We affirm the portion of the superior court’s judgment
dismissing Berman’s claims and Muscat’s negligence claims. We vacate,
however, the dismissal of Muscat’s APSA claim and remand for further
proceedings.




                           AMY M. WOOD • Clerk of the Court
                            FILED: AA




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