Greenwood v. State

• Decision Date: 22 January 2008
• Docket Number: No. 1 CA-CV 07-0155.,1 CA-CV 07-0155.
• Citation: 217 Ariz. 438,175 P.3d 687
• Parties: Vickie GREENWOOD; Jonny Speer, a single woman, Plaintiffs/Appellants, v. The STATE of Arizona, a body politic; Sheriff Joe Arpaio, Defendants/Appellees.
• Court: Arizona Court of Appeals

175 P.3d 687

217 Ariz. 438

Vickie GREENWOOD; Jonny Speer, a single woman, Plaintiffs/Appellants, v. The STATE of Arizona, a body politic; Sheriff Joe Arpaio, Defendants/Appellees.

No. 1 CA-CV 07-0155.

Court of Appeals of Arizona, Division 1, Department C.

January 22, 2008.

Fennemore Craig, P.C. By Marc H. Lamber, Theresa Dwyer, Alexander R. Arpad, Phoenix, Attorneys for Plaintiffs/Appellants.

Iafrate & Associates By Michele M. Iafrate, Phoenix, Attorneys for Defendant/Appellee State of Arizona.

Swenson, Storer, Andrews, Frazelle & Riviere, P.C. By Michael J. Frazelle, Kimberly J. Sayre, Phoenix, Attorneys for Defendant/Appellee Sheriff Joe Arpaio.

OPINION

WINTHROP, Judge.

¶ 1 Vickie Greenwood, as surviving parent of Amanda McCormick, and Jonny Speer (collectively "Plaintiffs") appeal the trial court's grant of summary judgment in favor of the State of Arizona and Maricopa County Sheriff Joe Arpaio (collectively "Defendants") on Plaintiffs' negligence claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY¹

¶ 2 On January 5, 2003, while fleeing from Phoenix police officers through city streets at a speed of more than seventy miles per hour, Miguel Angel Tolentino-Ortiz struck Ms. McCormick's vehicle, killing her and severely injuring her passenger, Ms. Speer. Tolentino-Ortiz was later convicted of second degree murder, aggravated assault, theft of a means of transportation, and aggravated driving under the influence of alcohol ("DUI") in connection with this collision.

¶ 3 At the time of the collision, Tolentino-Ortiz had a lengthy criminal history, including six prior arrests by various Arizona law enforcement agencies for DUI and DUI-related offenses.² As relevant to this case, the Arizona Department of Public Safety ("DPS") arrested Tolentino-Ortiz on January 19, 2002, for theft of a means of transportation, unlawful flight, endangerment, DUI, and failure to produce a driver's license. Tolentino-Ortiz provided the alias Gerardo Montiel to the arresting officer, and he was processed into the Cochise County Jail under this name.³ On January 20, 2002 Tolentino-Ortiz's fingerprints were submitted to Arizona's fingerprint database, the Automated Fingerprint Identification System ("AFIS"), for comparison to the fingerprints of past offenders, Although Tolentino-Ortiz's fingerprints were stored in AFIS as a result of one of his earlier arrests, the fingerprint technician failed to correctly process Tolentino-Ortiz's fingerprints and AFIS failed to match them to those on file for Tolentino-Ortiz. As a result, AFIS assigned the submitted fingerprints a unique identification number instead of associating them with Tolentino-Ortiz and his prior criminal behavior.

¶ The following day, the National Crime Information Center ("NCIC") alerted Arizona authorities that the same fingerprints had been assigned two identification numbers. AFIS did not correct this error until April 1, 2002, when it consolidated its records to reflect that the fingerprints submitted on January 20, 2002 belonged to Tolentino-Ortiz.

¶ 5 In the meantime, Cochise County Probation. Officer Francisco Villegas relied on the non-updated version of Tolentino-Ortiz's criminal history information in preparing a presentence report recommending that the court sentence Tolentino-Ortiz to probation for his January 19, 2002 criminal conduct. Tolentino-Ortiz pled guilty to felony charges of theft of a means of transportation and endangerment. Unaware that Tolentino-Ortiz had a prior criminal history, the Cochise County Superior Court placed him on unsupervised probation for five years and, as a condition of his probation, ordered that he was not to re-enter the United States without permission.⁴ Federal authorities arrested Tolentino-Ortiz at the Cochise County Jail on April 19, 2002, and, on May 7, 2002, he was ordered deported to Mexico.

¶ 6 On October 2, 2002, Tolentino-Ortiz was again arrested by DPS after an officer observed him driving a stolen vehicle, swerving, speeding, and ultimately colliding with four other vehicles. DPS booked Tolentino-Ortiz into Maricopa County Jail, whereupon jail personnel submitted Tolentino-Ortiz's fingerprints to AFIS and received Tolentino-Ortiz's consolidated criminal history. Tolentino-Ortiz's conduct clearly violated the terms of probation previously imposed by the Cochise County Superior Court; however, it is undisputed that no Maricopa County Jail personnel notified the Cochise County Attorney's Office or the Cochise County Probation Department of Tolentino-Ortiz's probation violation. Soon after his arrest, federal immigration authorities placed a detainer on Tolentino-Ortiz and, on October, 30, 2002, took custody of him from the Maricopa County Sheriffs Office and deported him to Mexico. Sometime thereafter, Tolentino-Ortiz reentered the United States and, on January 5, 2003, caused the vehicle collision that killed Ms. McCormick and seriously injured Ms. Speer.

¶ 7 On December 23, 2003, Plaintiffs initiated this action for negligence against the State and Sheriff Arpaio.⁵ Plaintiffs alleged that the State, through DPS, and the Sheriff breached a duty to properly maintain and disseminate Tolentino-Ortiz's criminal history, to report to other law enforcement agencies on his outstanding criminal warrants, and to report to or otherwise alert his Cochise County Probation Officer that Tolentino-Ortiz had violated the terms of his probation.

¶ 8 On August 15, 2006, Sheriff Arpaio moved for summary judgment, arguing that Plaintiffs could not show that he had breached a duty of care because the Sheriff did not have a duty to notify other law enforcement agencies of an arrestee's criminal history, probation violations, or the like. He also argued that he could not be held jointly and severally liable with Tolentino-Ortiz and that any liability must be comparative.

¶ 9 Shortly thereafter, the State also moved for summary judgment, arguing that because Plaintiffs could not demonstrate any gross negligence on the part of the State employees involved, the State was entitled to the qualified immunity extended by Arizona Revised Statutes ("A.R.S.") section 12-820.02(A)(1) (2003) to law enforcement agencies for the alleged failure to properly retain an arrested person in custody. In addition, the State argued that DPS's conduct was not the proximate cause of Plaintiffs' injuries. Sheriff Arpaio later joined the State's proximate cause argument.

¶ 10 After oral argument, the trial court granted the Defendants' motions, ruling that A.R.S. § 12-820.02(A)(1) applied and that the Plaintiffs had offered no evidence of gross negligence. The court also ruled that the Plaintiffs had offered no credible evidence that Defendants' acts were the proximate cause of the injury.⁶ The trial court entered a formal judgment on January 2, 2007.

¶ 11 Plaintiffs timely appealed the judgment. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003).

ANALYSIS

¶ 12 Plaintiffs challenge on appeal the trial court's rulings that A.R.S. §12-820.02(A)(1) grants the State and Sheriff Arpaio qualified immunity for Plaintiffs' claims⁷ and that the State's and Sheriff Arpaio's alleged negligence was not the proximate cause of Plaintiffs' injuries. As we find the resolution of the qualified immunity issue to be dispositive, we do not address the other issues raised on appeal.

¶ 13 We review an award of summary judgment de novo, both as to whether there are any genuine issues of material fact and as to whether the moving party is entitled to judgment as a matter of law. Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ ¶ 13-14, 38 P.3d 12, 20 (2002).

¶ 14 In Arizona, government entities and employees are generally subject to tort liability for their negligence, and immunity is the exception. City of Tucson v. Fahringer, 164 Ariz. 599, 600, 795 P.2d 819, 820 (1990) (citation omitted). In 1984, the legislature enacted the Actions Against Public Entities or Public Employees Act, codified at A.R.S. §§ 12-820 to -823 (2003),⁸ to address the issue of governmental liability for certain negligent acts. Bird v. State, 170 Ariz. 20, 21-22, 821 P.2d 287, 288-89 (App.1991). In that act, the legislature delineated several specific acts for which public entities and employees are extended a qualified immunity. See A.R.S. § 12-820.02.⁹ As relevant in this case, A.R.S. § 12-820.02, entitled "Qualified Immunity," provides:

A. Unless a public employee acting within the scope of the public employee's employment intended to cause injury or was grossly negligent, neither a public entity nor a public employee is liable for:

1. The failure to make an arrest or the failure to retain an arrested person in custody.

¶ 15 Plaintiffs argue that the statute does not afford Defendants immunity from Plaintiffs' claims because they did not allege that Defendants had failed to arrest or retain Tolentino-Ortiz. Rather, Plaintiffs assert that their allegations related only to Defendants' "recordkeeping," specifically, Defendants' failure to exercise reasonable care in gathering and disseminating information and failure to meet the statutory requirements for collecting and maintaining criminal history records and other criminal justice information.

¶ 16 Our primary goal in interpreting a statute is to determine and give effect to the intent of the legislature. In re Estate of Jung, 210 Ariz. 202, 204, ¶ 12, 109 P.3d 97, 99 (App.2005). To ascertain intent, we examine the language of the statute at issue, "the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose." Id. As immunity of government entities and employees is the exception in Arizona, Fahringer, 164 Ariz. at 600, 795 P.2d at 820, we narrowly construe immunity provisions applicable to government entities. Doe ex rel. Doe v. State, 198...