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Noriega v. Town of Miami

Court of Appeals of Arizona, Second Division

October 26, 2017

Roger Noriega, Plaintiff/Appellant,
Town of Miami, Defendant/Appellee.

         Appeal 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

          Titus 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 concurred.



         ¶1 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.

         Factual and Procedural Background

         ¶2 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.

         ¶3 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. [1] 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.

         ¶4 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 Moreno.

         ¶5 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.

         ¶6 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."

         ¶7 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."

         ¶8 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 "speculative."

         ¶9 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.

         ¶10 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).

         Standard of Review

         ¶11 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).

         ¶12 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 advanced ...

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