Richard Sudberry, individually v. State of Arizona, a governmental entity

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD SUDBERRY, individually and
on behalf of all statutory beneficiaries;
personal representative of the Estate of
Kaitlyn M. Sudberry,
Plaintiff - Appellant,
v.
STATE OF ARIZONA, a governmental
entity; CITY OF PHOENIX, a
governmental entity; CYNTHIA
MANCINELLI, wife; GERALD T.
BAZZELL, AKA Unknown Mancinelli;
UNKNOWN PARTIES, named as John
and Jane Does I-X,
Defendants - Appellees.
No. 10-17076
D.C. No. 2:09-cv-00779-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted December 1, 2011
San Francisco, California
FILED
DEC 22 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

The Honorable James G. Carr, Senior District Judge for the U.S.**
District Court for the Northern District of Ohio, sitting by designation.
2
Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**
Richard Sudberry appeals from the district court’s grant of summary
judgment in favor of the City of Phoenix. We vacate the summary judgment and
remand for further proceedings.
Sudberry claims that the negligence of the Phoenix Police Department
contributed to the murder of his daughter, Kaitlyn, by Daniel Byrd. Under Arizona
law, once a municipality chooses to provide police protection, the police
department has a “duty to act as would a reasonably careful and prudent police
department in the same circumstances.” Austin v. City of Scottsdale, 684 P.2d 151,
154 (Ariz. 1984) (en banc). The parties agree that the City is not liable unless the
Police Department is found to have been grossly negligent, as required by Arizona
Revised Statute § 12-820.02.
“A party is grossly or wantonly negligent if he acts or fails to act when he
knows or has reason to know facts which would lead a reasonable person to realize
that his conduct not only creates an unreasonable risk of bodily harm to others but
also involves a high probability that substantial harm will result.” Walls v. Ariz.
Dep’t of Pub. Safety, 826 P.2d 1217, 1221 (Ariz. Ct. App. 1991). Gross or wanton

-- 2 of 4 --

3
negligence “differs from ordinary negligence in quality and not degree.” Id. The
issue of gross negligence is ordinarily a question of fact for the jury, but a court
may grant a defendant’s motion for summary judgment if “no evidence is
introduced that would lead a reasonable person to find gross negligence.” Id.
Sudberry introduced sufficient evidence such that a reasonable juror could
find gross negligence under Arizona law. There was evidence that the police
considered Byrd’s threat on Kaitlyn’s life to be a serious one. In response to the
threat, it sent five officers to Byrd’s house, reflecting concern for the danger Byrd
posed. The police informed the Sudberrys that they were going to work to arrest
Byrd and place him in custody. However, for the purpose of the summary
judgment motion, the police made no further effort to locate or arrest Byrd after
January 23. In light of the serious nature of the threats against Kaitlyn, a
reasonable juror could find that the Police Department’s lack of action after that
date constituted gross negligence.
Like gross negligence, proximate cause is generally a question of fact for the
jury, and it should reach the jury here. See Barrett v. Harris, 86 P.3d 954, 958
(Ariz. Ct. App. 2004). A reasonable juror could find that the Police Department’s
inaction was a “substantial factor” in Kaitlyn’s death, as required for proximate
cause. See id. at 960-61. There was sufficient evidence for a reasonable juror to

-- 3 of 4 --

4
conclude, for instance, that further efforts to locate and apprehend Byrd would
have been successful, or that Kaitlyn would not have returned to school if the
police had warned her that Byrd had not been caught.
VACATED and REMANDED.

-- 4 of 4 --