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Stair v. Maricopa Cty. - 9/4/2018

The Arizona Court of Appeals Division One holds that a criminal statute imposes a duty in tort to a particular plaintiff only when the statute is designed to protect the class of persons that includes the plaintiff against the risk of the type of harm that occurred as a result of its violation.


A mitigation specialist at a county public defender’s office became romantically involved with a client, who was a gang member charged with murder.  The mitigation specialist eventually began to help carry out gang business.  To that end, the mitigation specialist bailed out a member of the gang, and she was aware that he removed his ankle monitor and acquired a shotgun to carry out a gang “hit,” or murder.

A week later, a man who managed an apartment complex noticed a light on in an unoccupied unit.  He knocked on the door, surprising the recently-bailed gang member hiding inside the unit.  The gang member shot dead the man.  The decedent’s wife sued the mitigation specialist, the city, and the county, alleging that their negligence and gross negligence caused or failed to prevent the man’s death.  The superior court dismissed, finding that the defendants owed the man no duty of care.  The wife timely appealed.

The Court of Appeals affirmed.  The wife argued that a duty of care arose from statutes, professional codes of conduct, and the Restatement.  A criminal statute imposes a duty in tort to a particular plaintiff only when the statute is designed to protect the class of persons that includes the plaintiff against the risk of the very type of harm that occurred as a result of its violation.  Under A.R.S. § 13-2321(A)(4), “[a] person commits participating in a criminal street gang by . . . [i]ntentionally promoting or furthering the criminal objectives of a criminal street gang by inducing or committing any act or omission by a public servant in violation of the public servant’s official duty.”  Although the mitigation specialist pleaded guilty to violating § 13-2321(A)(4), the man’s death in this case was not the type of risk of harm the statute was designed to protect against.  He was not the intended target of a gang hit, nor was he an innocent bystander to a gang-related crime.  Rather, he was murdered during a tragic chance encounter with an armed individual.  The codes of ethics and Restatement provisions cited by the wife similarly did not establish a duty of care from the defendants to the man.

Judge Johnsen authored the opinion, in which Judges Beene and Howe joined.

Posted by Phillip W. Londen

Posted On: 9/10/2018