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Hogue v. City of Phoenix

Court of Appeals of Arizona, First Division

July 14, 2016

ALVIN HOGUE, et al., Plaintiffs/Appellants,
v.
CITY OF PHOENIX, et al., Defendants/Appellees.

         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

          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

          Judge Randall M. Howe delivered the opinion of the Court, in which Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

          OPINION

          HOWE, 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 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. ยง 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 ...


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