from the Superior Court in Gila County No. CV201400223 The
Honorable Gary V. Scales, Judge Pro Tempore
Clausen & Williamson, PLLC, Phoenix By Curt W. Clausen
and Charles B. Williamson and Knapp & Roberts, P.C.,
Phoenix By David L. Abney Counsel for Plaintiff/Appellant
Brueckner & Levine, PLC, Scottsdale By Larry J. Crown and
Elan S. Mizrahi Counsel for Defendant/Appellee
Presiding Judge Vásquez authored the opinion of the
Court, in which Chief Judge Eckerstrom and Judge Eppich
VÁSQUEZ, PRESIDING JUDGE:
In this tort action, Roger Noriega appeals from the trial
court's entry of summary judgment in favor of the Town of
Miami. Noriega contends the court erred by finding the Town
had qualified immunity under A.R.S. § 12-820.02(A)(1)
and his negligence claim against the Town was thus barred. He
also contends the court erred in concluding his
gross-negligence claim was legally and factually
insufficient. For the reasons stated below, we affirm in
part, reverse in part, and remand for further proceedings.
and Procedural Background
On appeal from the trial court's entry of summary
judgment, we view the facts-some of which are disputed-in the
light most favorable to Noriega, the non-moving party.
See Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209,
¶ 14, 292 P.3d 195, 199 (App. 2012). The events here
occurred in Miami, Arizona, where all those involved were
well acquainted with each other and lived in close proximity.
In early September 2013, Henry Moreno approached his neighbor
M.B. multiple times, claiming that Noriega had raped
Moreno's eighty-one-year-old mother and was performing
witchcraft. Moreno told M.B. he "was going to kill
[Noriega]" and, on one occasion, "kept patting his
right hip . . . indicating he had a gun under his
shirt." M.B. shared this information with Noriega.
On September 10, Moreno went to the Miami Police Department
(MPD) station and reported to Chief Daniel Rodriguez that
Noriega and three other men had been raping his mother.
During the encounter, Moreno was rambling, sweating heavily,
and continually scratching himself; could not stand still;
and had to be reminded to pull up his pants when they fell
down to his knees. Rodriguez suspected Moreno had been using
drugs and asked him to write out a statement at home and
bring it back because Rodriguez could not understand him.
Three days later, Moreno visited the MPD station and again
spoke to Rodriguez, this time claiming that Noriega was
performing witchcraft on him and his mother. That same day,
Rodriguez contacted Noriega, who denied the allegations.
Noriega, however, informed Rodriguez of Moreno's
encounters with M.B., explaining that Moreno had
"threatened to kill [Noriega] for what he did to
[Moreno's] mother." In response, Rodriguez told
Noriega, "Now I can arrest him." In reliance on
that statement, Noriega "went back to [his] normal
life" and stopped "ke[eping] a look out" for
On September 16, Moreno returned to the MPD station,
reporting that Noriega "hadn't physically raped his
mother" but "was using his witchcraft again."
Moreno stated that he would "deal with [Noriega]."
Rodriguez warned Moreno to "stay away from anybody
involved with these allegations, " including Noriega.
The following day, Moreno took his cell phone to Rodriguez
and asked him to review text messages that showed Noriega was
practicing witchcraft. Although the cell phone's battery
died before Rodriguez could finish looking at all the
messages, none of those he saw "indicated an assault of
any kind or any type of witchcraft practice." During
these two encounters, Rodriguez did not arrest Moreno.
On September 22, Moreno entered Noriega's backyard and
shot him in the head while Noriega was working on a car.
Shortly thereafter, Moreno turned himself in, explaining he
had shot Noriega "to stop the witchcraft directed at his
mother." Noriega survived the shooting. Rodriguez
subsequently interviewed M.B. and his wife about the events.
After the interview finished and Rodriguez had turned off the
audio recorder, Rodriguez told M.B., "Off the record, I
knew he was gonna shoot him."
In August 2014, Noriega filed this tort action against the
Town, "by and through the acts and omissions of the
[MPD]." Specifically, Noriega alleged that the MPD
"ha[d] a duty to investigate all credible threats of
specific harm against any citizen" and that Rodriguez
had been "both negligent and grossly negligent for
beginning to investigate, but then failing . . . to complete
a full investigation into this conflict." He maintained
that, "[h]ad Rodriguez conducted a full investigation .
. ., he would have acquired more than enough evidence to
arrest Moreno" and could have "properly warned
[Noriega] about the danger" and "protected] . . .
him from being shot."
The Town filed a motion for summary judgment, asserting there
was "no issue of fact or law in dispute" and it was
"not liable." The Town construed Noriega's
complaint as alleging that it should have protected Noriega
by "civilly apprehending Moreno" or "arresting
Moreno for an unspecified crime prior to the shooting."
As to the former allegation, the Town maintained it had
absolute immunity pursuant to A.R.S. § 36-525(B). And as
to the latter, the Town argued it had qualified immunity
under § 12-820.02(A)(1), leaving only Noriega's
claim for gross negligence. The Town asserted Noriega could
not establish gross negligence because of Rodriguez's
lack of gross or wanton conduct. In addition, the Town
suggested that it "had no general duty to
'protect' Noriega" and that causation was
In response, Noriega argued he had "two separate
negligence claims" - "failure to investigate"
and "failure to protect/misrepresentation"-and that
the Town had misconstrued those as a "failure to
arrest." He therefore reasoned that the Town was not
entitled to qualified immunity under § 12-820.02(A)(1),
which specifically applies to a failure to arrest. Even if
§ 12-820.02(A)(1) applied, therefore precluding his
negligence claim, Noriega argued that "there [were]
genuine issues of material fact regarding [Rodriguez's]
gross negligence." Noriega conceded that, to the extent
he had asserted a claim for failing to apprehend Moreno
pursuant to § 36-525, the Town had absolute immunity.
After hearing oral argument, the trial court granted the
motion for summary judgment. The court explained that the
Town had qualified immunity under § 12-820.02(A)(1)
because the essence of Noriega's claim was a failure to
arrest. Turning to the issue of gross negligence, the court
concluded that the Town did not owe a duty of care to Noriega
because no special relationship existed. The court further
noted that, "[e]ven if such a relationship did exist,
" the facts did not "support any finding of
intentional behavior or gross negligence on the part of [the
Town]." This appeal followed the court's entry of a
final judgment. We have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1) and 12-2101(A)(1).
We review a grant of summary judgment de novo. Andrews v.
Blake, 205 Ariz. 236, ¶ 12, 69 P.3d 7, 11 (2003).
Similarly, we review de novo questions of law concerning the
interpretation of statutes, Hogue v. City of
Phoenix, 240 Ariz. 277, ¶ 8, 378 P.3d 720, 722
(App. 2016), a municipality's immunity for negligence,
Smyser v. City of Peoria, 215 Ariz. 428, ¶ 8,
160 P.3d 1186, 1190 (App. 2007), and the existence of a duty
of care, Vasquez v. State, 220 Ariz. 304, ¶ 22,
206 P.3d 753, 760 (App. 2008).
Summary judgment is appropriate "if the moving party
shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter
of law." Ariz. R. Civ. P. 56(a). Thus, a motion for
summary judgment "should be granted 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