Appeal
from the Superior Court in Maricopa County No. CV2014-004744
The Honorable J. Richard Gama, Judge, Retired
Grant
Woods Law, Phoenix By J. Grant Woods Co-Counsel for
Plaintiffs/Appellants.
Michael Riikola, Esq, Phoenix By Michael E. Riikola
Co-Counsel for Plaintiffs/Appellants.
Sacks
Tierney, PA, Scottsdale By Jeffrey S. Leonard, Sharon B.
Shively, James W. Armstrong Counsel for Defendant/Appellee
Maricopa County.
Wieneke Law Group, PLC, Tempe By Kathleen L. Wieneke,
Christina Retts Co-Counsel for Defendant/Appellee City of
Phoenix.
Struck, Love, Bojanowski & Acedo, PLC, Chandler By
Nicholas D. Acedo Co-Counsel for Defendant/Appellee City of
Phoenix.
Ryan,
Rapp & Underwood, PLC, Phoenix By Christopher T. Rapp,
Ian A. Macpherson Counsel for Defendant/Appellee Mukavetz.
Presiding Judge Diane M. Johnsen delivered the opinion of the
Court, in which Judge James P. Beene and Judge Randall M.
Howe joined.
OPINION
JOHNSEN, JUDGE.
¶1
Cheryl Lynn Stair is the widow of Steven Stair, who was
murdered by a member of a criminal street gang awaiting trial
on several felony charges. Stair sued various government
entities and one government employee, alleging their
negligence and gross negligence caused or failed to prevent
her husband's death. The superior court granted the
defendants' motions to dismiss, rejecting Stair's
arguments that the defendants owed duties created by public
policy found in statutes, codes of ethics or the common law.
Concluding that none of the defendants owed a duty that might
give rise to liability, we affirm.
FACTS
AND PROCEDURAL BACKGROUND
¶2
One of the defendants Stair sued is Jessica Mukavetz, a
mitigation specialist who worked for the Maricopa County
Office of the Legal Defender ("OLD"). OLD
represented Rene Durgin, a member of the Mexican Mafia
criminal street gang charged with capital murder. Mukavetz
was assigned to assist in Durgin's case, and the two
became romantically involved during her many visits with him
in jail. From January 2012 through January 2013, Mukavetz
visited Durgin in jail 75 times. Recorded telephone calls,
text messages, social media posts and witness accounts
identified Mukavetz as Durgin's "wife," and
Durgin considered himself her husband even though she was
married to someone else. Mukavetz hoped to become pregnant
with Durgin's child, and to that end, Durgin passed semen
concealed in a pen to her during her jail visits.
¶3
Bobby Hoover, another member of the Mexican Mafia, also was
in jail, charged with auto theft, armed robbery and home
invasion. In October 2012, at Durgin's direction,
Mukavetz paid Hoover's $5, 000 bail, and he was released
wearing an electronic ankle monitor.
¶4
Stair's complaint alleged that, having gained
Hoover's release, Mukavetz proceeded to help him and
Durgin carry out the business of the Mexican Mafia. According
to the complaint, Mukavetz had a copy of a Mexican Mafia
"hit list" on her cell phone and directly involved
herself in "extortion and threats of violent crime to be
undertaken by Durgin and Hoover." Phone records showed a
"substantial" amount of communication between her
and Hoover.
¶5
Meanwhile, the Maricopa County Sheriff's Office and the
Phoenix Police Department had created a joint task force
aimed at combatting criminal street gangs, including the
Mexican Mafia. According to the complaint, the task force
knew of the Durgin-Mukavetz relationship. The complaint
alleged the task force had obtained "recorded jail
calls, interviews, electronic records, including [social
media], text messaging, inmate account records, and inmate
jail visitation records" showing Mukavetz was using her
role as a mitigation specialist to pass information and jail
contraband for Mexican Mafia members.
¶6
According to the complaint, the task force knew the Mexican
Mafia commonly employed "compromised females" to
move information and contraband in and out of jails, knew
Mukavetz and Durgin were romantically involved, knew Mukavetz
was providing financial support to the Mexican Mafia, knew
Mukavetz had bailed Hoover out of jail at Durgin's
direction, and knew she was directly involved "with
extortion and threats of violent crime" Durgin and
Hoover planned to commit. The complaint specifically alleged
Phoenix police knew that Hoover's release from jail
"posed a threat of murder or substantial bodily
harm."
¶7
Indeed, having been released from jail, Hoover proceeded to
illegally acquire a sawed-off shotgun. According to the
complaint, Mesa police learned on January 17, 2013, that
Hoover had acquired the gun and forwarded that information to
the Maricopa County Sheriffs Office. The complaint also
alleged that Mukavetz was present during a telephone call
between Durgin and Hoover on January 19 and heard Hoover rack
the slide of a gun. Mukavetz also was present during a phone
call ten days later in which Durgin and Hoover
"extensively discussed preparations for a 'hit'
on the streets" that Durgin had ordered Hoover to carry
out.
¶8
On February 4, as Mukavetz watched, Hoover removed his
electronic ankle monitor. According to the complaint, Phoenix
police learned that same day that Hoover had slipped out of
his monitor and found out a day later that Mukavetz had been
present when he did so. Mukavetz failed to notify authorities
that Hoover had acquired a gun, had removed his ankle monitor
or had talked to Durgin about a planned "hit." And,
despite knowing that Hoover had acquired a gun and removed
his monitor, the anti-gang task force did not move
immediately to arrest him.
¶9
The criminal activities alleged in the complaint did not
touch the Stair family until February 11, 2013. Stair and her
husband managed several apartment properties in the Phoenix
area. A week after Hoover removed his ankle monitor, Stair
noticed a light in an unoccupied apartment unit and asked her
husband to check on it. Mr. Stair knocked on the door of the
unit, surprising Hoover, who was hiding inside. Hoover shot
Mr. Stair four times, killing him instantly.
¶10
On behalf of herself and her family, Stair sued Mukavetz,
Maricopa County and the City of Phoenix, alleging their
negligence and gross negligence caused or failed to prevent
Mr. Stair's death. The defendants moved to dismiss,
arguing, inter alia, that they owed no duty to Mr.
Stair. Stair moved for leave to file a third amended
complaint. The superior court granted the motions to dismiss,
then denied the motion to file another complaint. Stair
timely appealed. We have jurisdiction pursuant to Article 6,
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