Tiana Marie Grafitti-Valenzuela, by and through her part and legal guardian, Marie Grafitti v. City of Phoenix, etc.

1 Plaintiff-Appellant Tiana Marie Grafitti-Valenzuela, by and through her parent and legal guardian Marie Grafitti, appeals from the trial court's summary judgment in favor of Defendant-Appellee City of Phoenix on Tiana's claim for negligence arising out out of injuries Tiana sustained when she was abducted from a City bus stop. For the following reasons, we affirm.

Facts and Procedural History1

2 At approximately 7 a.m. on January 6, 2003, eleven-year-old Tiana was waiting for a City bus at a City bus stop located at 35th Avenue and Acoma in Phoenix, Arizona (the "Bus Stop"). John Mathews, II, abducted Tiana from the Bus Stop and held her in his home for twenty-four hours while he repeatedly sexually assaulted her.

3 On September 29, 2004, Tiana filed a complaint against the City alleging that the City had negligently designed and constructed the Bus Stop, otherwise failed to make the Bus Stop safe, and failed to protect and warn Tiana against the foreseeable criminal acts of third parties at the Bus Stop. The City moved for summary judgment on the basis that Tiana could not establish (1) that the City owed Tiana any duty of care, (2) that the City had breached any alleged duty of care it owed Tiana, and (3) that any alleged breach of duty caused Tiana's injuries. The trial court granted the City's motion, ruling that there was no question of material fact for the jury on the issues of duty and breach because Tiana's abduction and sexual assault were unforeseeable as a matter of law. The court also ruled that Mathews' criminal acts were an intervening, superseding cause intervening, superseding cause of Tiana's injuries.

4 Tiana timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003).

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6 To establish the City's negligence, Tiana was required to prove: (1) the existence of a duty recognized by law requiring the City to conform to a certain standard of care; (2) the City's breach of that duty; (3) a causal connection between the breach and the resulting injury; and (4) actual damages. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983) (citing William L. Prosser, Handbook of the Law of Torts § 30, at 143 (4th ed. 1971)); Piccola By and Through Piccola v. Woodall, 186 Ariz. 307, 309, 921 P.2d 710, 712 (App. 1996). Tiana argues that the trial court erred by granting summary judgment in favor of the City because, as a matter of law, the City had a duty to keep the Bus Stop reasonably safe for users such as Tiana and to warn her and her mother about the dangerous condition of the Bus Stop. She argues that material questions of fact exist regarding whether the City breached that duty of care. In addition, Tiana asserts that the City's breach of its duty was the proximate cause of Tiana's injuries and that Mathews' criminal acts were not a superseding cause.

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8 Whether a duty is owed is a legal question decided by the court. Public policy may support the recognition of a duty of care. Gipson v. Kasey, 214 Ariz. 141, 145, 23, 150 P.3d 228, 232 (2007). And, a duty of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant. Id. at 18; see also Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985), superseded on other grounds by statute, A.R.S. § 33-1551 (2000), as recognized in Wringer v. United States, 790 F. Supp. 210, 212 (D. Ariz. 1992); Coburn v. City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984) (stating the concept of "duty" applies to a "relation between individuals which imposes upon one a legal obligation for the benefit of the other") (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 356 (5th ed. 1984)). A duty exists if the "relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff." Markowitz, 146 Ariz. at 356, 706 P.2d at 368.

9 It is well established under Arizona law that a municipality, such as the City, has a duty to keep its sidewalks and streets reasonably safe for users. Beach v. City of Phoenix, 136 Ariz. 601, 602, 667 P.2d 1316, 1317 (1983) (stating defendant city owed a duty to "keep its streets and sidewalks reasonably safe for travel by the public") (internal citation omitted); Coburn, 143 Ariz. at 52, 691 P.2d at 1080 (stating that a municipality is "under an obligation for the benefit of those who use the public streets" streets" and holding that the defendant city had a duty to keep its streets reasonably safe for travel); Sanchez v. City of Tucson, 191 Ariz. 128, 130, 10, 953 P.2d 168, 170 (1998) (stating, "a municipality owes a duty to the public to keep its streets in a reasonably safe condition"). We see no reason that this same standard of care should not govern the City's conduct with respect to City bus stops and therefore hold that it does.

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