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Torts: Duty of Municipality for Failure to Arrest Perpetrator of Crime

Posted by Ted A. Schmidt | Jul 25, 2016 | 0 Comments

Hogue v. City of Phx., 743 Ariz. Adv. Rep. 10 (App. Div. I, July 14, 2016) (J. Howe)


This lawsuit was brought by a sexual assault victim and the families [Families] of several murder victims against the City of Phoenix [City] and its police department for gross negligence in failing to conduct a reasonable investigation and timely apprehension of the "Baseline Killer" Mark Goudeau, in violation of A.R.S. §12-820.02(A)(1). The trial court granted the City summary judgment finding it owed no duty to the Families. The Arizona Court of Appeals affirmed.

A.R.S. §12-820.02(A)(1), protects public employees from tort liability for failing to arrest unless they engage in grossly negligent behavior.

Here, because the City did not endeavor to provide the Families with specific protection against Goudeau, the City had no special relationship with the Families and owed them no duty to identify and arrest Goudeau. Further, public policy did not impose a duty on the City. A police agency's

mere existence does not create a duty to guarantee the safety of individual members of the public. To so hold would make the City insurers of the safety for all citizens within its jurisdiction.  If the police undertake to provide “specific protection to a particular person,” they must do so with reasonable care. Here the police did not undertake to provide specific protection to the Families.

Austin v. City of Scottsdale, 140 Ariz. 579, 581-82, 684 P.2d 151, 153-54 (1984) is distinguished. In Austin “a city owed a duty to the murder victim and his family because the police knew the victim's identity and location and had been warned that his life was in danger during a specific window of time.”  Here the City did not have this type of information—“information about a specific current threat against the victims in this case--the City had no special

relationship with them that would have created a duty owed to them.”

A.R.S. §12-820.02(A)(1) grants immunity; it does not create liability and cannot support a public policy argument that a duty existed here. Finally, Phoenix City Code §2-119, which mandates that the director of the Phoenix Police Department shall be responsible for investigating crimes and "shall arrest . . . all persons committing or attempting to commit an offense . . . ,” merely “articulates the general responsibilities of the police department's director and does not impose a duty upon all members of the police department.”

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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