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Stair v. Maricopa County

Court of Appeals of Arizona, First Division

September 4, 2018

CHERYL LYNN STAIR, et al., Plaintiffs/Appellants,
v.
MARICOPA COUNTY, et al., Defendants/Appellees.

          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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