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Muscat v. Creative Innervisions LLC

Court of Appeals of Arizona, First Division

December 26, 2017

ANDREW MUSCAT, an incompetent person, by Marcie Berman, hispermanent guardian, and MARCIE BERMAN, individually, Plaintiffs/Appellants,
CREATIVE INNERVISIONS LLC, an Arizona limited liability company, and TEMITAYO AKANDE, Defendants/Appellees.

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

          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

          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

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


          BROWN, 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.


         ¶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 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 because it resulted from [his] own illegal ...

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