NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT 

PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

RICHARD SUDBERRY, individually and on behalf of all statutory 

beneficiaries, Plaintiff/Appellee,

v.

CITY OF PHOENIX, a governmental entity, Defendant/Appellant.

No. 1 CA-CV 14-0175

Appeal from the Superior Court in Maricopa County

No. CV2009-050501

The Honorable Michael D. Gordon, Judge

VACATED AND REMANDED

COUNSEL

Carmichael & Powell, PC, Phoenix

By David J. Sandoval

Counsel for Plaintiff/Appellee

Iafrate & Associates, Phoenix

By Michele M. Iafrate

Counsel for Defendant/Appellant
SUDBERRY v. PHOENIX

Decision of the Court

2

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge John C. Gemmill and Judge Kenton D. Jones joined.

K E S S L E R, Judge:

¶1 Defendant/Appellant the City of Phoenix (“the City”) 

appeals a jury verdict and judgment in favor of Plaintiff/Appellee Richard 

Sudberry (“Sudberry”), individually and on behalf of all statutory 

beneficiaries, in this action for the wrongful death of Sudberry’s daughter, 

Kaitlyn. The City contends the trial court erred by refusing to allow the 

jury to allocate fault to certain non-parties. For the following reasons, we

vacate the judgment and remand for further proceedings consistent with 

this decision.

FACTUAL AND PROCEDURAL HISTORY

¶2 On January 28, 2008, Daniel Byrd (“Byrd”) murdered his exgirlfriend, seventeen-year-old Kaitlyn Sudberry, and then committed 

suicide. Byrd, who was also seventeen-years-old, had been subject to 

juvenile treatment and detention, juvenile intensive probation services, or 

standard probation for the preceding six years. In the days and weeks prior 

to the murder, Byrd twice assaulted Kaitlyn at school and his mother 

notified the Phoenix Police Department on January 22nd that Byrd had 

threatened to kill Kaitlyn and himself at school the following day. During 

this time, Byrd was also expelled from school, fired from his job, and failed 

a drug test. Despite knowing about these events and that Byrd was living 

alone without adult supervision, Byrd’s Probation Officer, Cynthia 

Mancinelli (“Mancinelli”), did not attempt to contact him directly or assist 

the police in detaining him. Instead, she continued her efforts to reduce 

Byrd’s probation supervision requirements and to have Byrd’s twentyfour-year-old friend (who was himself on probation for drug charges) 

established as Byrd’s legal guardian. 

¶3 After Byrd’s mother reported his threat to the police, Phoenix 

police officers attempted to contact Byrd, but could not find him at his 

home. The officers increased their presence at the school on January 23rd 

and 24th and notified Kaitlyn’s family about the threat, advising them to 

obtain an order of protection and keep Kaitlyn home from school. Police 
SUDBERRY v. PHOENIX

Decision of the Court

3

officers also told Mancinelli about the threat and asked her to violate Byrd’s

probation, but she refused, explaining that the Juvenile Probation 

Department pressured probation officers to not detain juveniles nearing 

eighteen years of age.1 Byrd murdered Kaitlyn while she was walking 

home from school on January 28th. 

¶4 Sudberry filed this action for wrongful death, alleging that the 

Phoenix Police Department’s negligence was a proximate cause of Kaitlyn’s 

death. Sudberry also asserted that the State, through the acts and omissions 

of Child Protective Services and the Juvenile Probation Department, and 

Mancinelli were responsible for Kaitlyn’s death and violated her civil 

rights. Sudberry later stipulated to dismiss those claims with prejudice. 

The City then named the State, the Juvenile Probation Department, and 

Mancinelli as non-parties at fault. 

¶5 At trial, the court granted Sudberry’s motion for judgment as 

a matter of law and prohibited the City from asking the jury to allocate fault 

to the Juvenile Probation Department or Mancinelli. The court ruled that 

the City was required, and failed, to present expert testimony regarding the 

standard of care applicable to Mancinelli. The jury returned a $3 million 

verdict for Sudberry, allocating 40% fault to the City, 40% to Sudberry, 10% 

to Byrd, and 10% to Byrd’s mother.

¶6 The City filed a renewed motion for judgment as a matter of 

law, a motion to alter or amend the judgment, and a motion for new trial, 

arguing that the court had misapplied the law and deprived the City of a 

fair trial by refusing to allow the jury to apportion fault to the Juvenile 

Probation Department or Mancinelli. The court denied the motion and the 

City timely appealed that order and the underlying judgment. 

¶7 We have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) sections 12-120.21(A)(1) (2003) and 12-2101(A)(1), (5)(a) (Supp. 

2014). 

 

1 Some witnesses at trial used the terms “violate probation” and “revoke 

probation” interchangeably. The evidence, however, showed these are 

slightly different concepts; a probation officer may notify the court of a 

probation violation and ask the court to issue a warrant for the 

probationer’s arrest, and may also petition the court to revoke a juvenile’s 

probation. 
SUDBERRY v. PHOENIX

Decision of the Court

4

ISSUES

¶8 The City argues the court erred by granting Sudberry’s 

motion for judgment as a matter of law and prohibiting the jury from 

allocating fault to the Juvenile Probation Department or Mancinelli.

DISCUSSION

¶9 We review de novo the trial court’s ruling on a motion for 

judgment as a matter of law (“JMOL”). Felder v. Physiotherapy Associates, 

215 Ariz. 154, 162, ¶ 36, 158 P.3d 877, 885 (App. 2007). The court should 

grant a motion for JMOL “if the facts produced in support of the claim or 

defense have so little probative value, given the quantum of evidence 

required, that reasonable people could not agree with the conclusion 

advanced by the proponent of the claim or defense.” Orme Sch. v. 

Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). 

¶10 Because Arizona has abolished joint and several tort liability, 

a defendant is liable to an injured party only for his percentage of fault and 

may ask the trier of fact to apportion fault among all those who contributed 

to the injury, whether they were, or could have been, named as parties to 

the action. A.R.S. § 12–2506(A), (B), (F)(2) (2003). The defendant bears the 

burden of proving that the non-party was at fault and the trial court may 

only instruct a jury on assigning fault to a non-party if the evidence offered 

at trial is adequate to support a finding that the non-party was negligent. A

Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515, 

540, ¶ 83, 217 P.3d 1220, 1245 (App. 2009) (stating that defendant has the 

burden to prove a non-party is at fault); A.R.S. § 12-2506(B), (F)(2); see

also Czarnecki v. Volkswagen of Am., 172 Ariz. 408, 411, 837 P.2d 1143, 1146 

(App. 1991) (stating a trial court should give a requested jury instruction if 

there is “any evidence tending to establish the theory posed in the 

instruction, . . . even if contradictory facts are presented”). 

¶11 To prove that Mancinelli was comparatively at fault, the City 

was required to show that she breached a duty owed to Kaitlyn and that 

the breach caused Kaitlyn’s injury. Ocotillo W. Joint Venture v. Superior 

Court, 173 Ariz. 486, 488, 844 P.2d 653, 655 (App. 1992) (defendant must 

show that the non-party owed a duty to the plaintiff, the duty was 

breached, and the breach caused injury to the plaintiff); see also A.R.S. § 12-
SUDBERRY v. PHOENIX

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2506(F)(2). In this case, only one of these elements--whether Mancinelli 

breached her duty of care--is in dispute.

2

¶12 To prove Mancinelli breached the applicable standard of care, 

the City had the burden to establish what conduct the standard of care 

required and that Mancinelli’s actions did not meet that standard. Kreisman 

v. Thomas, 12 Ariz. App. 215, 220, 469 P.2d 107, 112 (1970). “Ordinarily, the 

standard of care to be applied in a negligence action focuses on the conduct 

of a reasonably prudent person under the circumstances,” Sw. Auto Painting 

and Body Repair, Inc. v. Binsfeld, 183 Ariz. 444, 448, 904 P.2d 1268, 1272 (App. 

1995), and the jury may rely on its own experience in determining whether 

the defendant acted with reasonable care, Bell v. Maricopa Med. Ctr., 157 

Ariz. 192, 194, 755 P.2d 1180, 1182 (App. 1988). In actions concerning 

whether an individual negligently rendered services in the practice of a 

trade or profession, however, the applicable standard of care is that of the 

“skill and knowledge normally possessed by members of that trade or 

profession in good standing in similar communities.” Kreisman, 12 Ariz. 

App. at 220, 469 P.2d at 112; see also Restatement (Second) of Torts § 299A 

(1965). In such cases, expert testimony is required to educate the jury 

regarding that standard. St. Joseph’s Hosp. v. Reserve Life Ins. Co., 154 Ariz. 

307, 315, 742 P.2d 808, 816 (1987) (“Where . . . the alleged lack of care 

occurred during the professional or business activity, the plaintiff must 

present expert testimony as to the care and competence prevalent in the 

business and profession.”); cf. Bell, 157 Ariz. at 195 n.1, 755 P.2d at 1183 n.1 

(stating that expert testimony “is not required in cases where the negligence 

is so grossly apparent that a layman would have no difficulty in recognizing 

it”) (citation and internal quotation marks omitted).

¶13 Here, we need not decide whether expert testimony was 

necessary to establish the applicable standard of care. Mancinelli testified 

that she had worked for the Maricopa County Juvenile Probation 

Department for fourteen years and was familiar with the duties required to 

perform her job as a juvenile probation officer. She testified that a juvenile 

probation officer monitors whether a juvenile on probation is complying 

 

2 We do not consider Sudberry’s cursory assertion that a lack of causation 

evidence is an alternate basis to affirm the superior court’s ruling. See MT 

Builders, L.L.C. v. Fisher Roofing, 219 Ariz. 297, 305 n.7, ¶ 19, 197 P.3d 758, 

765 n.7 (App. 2008) (stating one-sentence reference to appellate argument 

in footnote without any analysis was insufficient to present argument and 

deeming it waived).
SUDBERRY v. PHOENIX

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6

with the terms of probation set by the court and explained that the officer 

may notify the court if a juvenile probationer violates any probation terms 

and make an expedited request that the court issue a warrant for the

juvenile’s arrest. Critically, Mancinelli claimed that no policies governed 

when a juvenile probation officer should notify the court about a probation 

violation and asserted that decision was wholly within the officer’s 

discretion. Based upon that testimony, a jury was entitled to evaluate 

whether Mancinelli acted reasonably in the exercise of her discretion or 

whether her acts amounted to gross negligence. 3 

¶14 The evidence showed that Mancinelli knew Byrd was living 

alone and had violated at least five of the twelve terms of his probation 

during the weeks prior to the murder, but chose not to notify the court 

about those violations, even though she admitted that a juvenile probation 

officer who discovers that a juvenile is not in the custody of an adult has an 

obligation to report that fact to Child Protective Services and the court. 

Further, even after the police informed Mancinelli of Byrd’s threat against 

Kaitlyn and their attempts to locate him, she refused to advise the court of 

Byrd’s probation violations or otherwise assist the police in detaining him. 

Indeed, she had indirect contact with Byrd (through his Big Brother 

program mentor, Mike Cassidy) on January 25th, but did not ask Cassidy 

for Byrd’s location, tell him she needed to see Byrd, or tell him that the 

police were looking for Byrd. 

¶15 Mancinelli defended her inaction by claiming that she did not 

believe that Byrd’s mother’s report of his threat against Kaitlyn was 

accurate and did not view Byrd as a threat to himself or others. However, 

Byrd’s guardian ad litem, Lon Taubman, opined, based on his twenty-four 

years of experience as a guardian ad litem, that Byrd’s probation violations 

in January 2008 indicated that he was in “serious trouble emotionally” and 

 

3 Because the parties do not dispute that the jury would have been required 

to find that Mancinelli was grossly negligent before it could attribute any 

fault to her, see A.R.S. § 12-820.02(A) (2003), we do not address the issue. 

Cf. A.R.S. §§ 12-2506(F)(2) (defining fault to be “an actionable breach of legal 

duty, act or omission proximately causing or contributing to injury or 

damages sustained by a person seeking recovery, including negligence in 

all of its degrees . . . .”), -2506(B) (in assessing percentages of fault, the trier 

of fact shall consider the fault of all persons who contributed to the alleged 

injury “regardless of whether the person was, or could have been, named 

as a party.”).
SUDBERRY v. PHOENIX

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7

needed “very, very quick action to stop him from hurting somebody or 

himself.” Taubman, a former prosecutor, also explained that the quickest 

action for Mancinelli to have taken in this case would have been a violation 

of probation petition, which would have allowed her to request a warrant 

for Byrd’s arrest. 

¶16 Even if expert testimony was necessary to establish the 

standard of care, Mancinelli and Taubman’s testimony satisfied that 

obligation. Given their testimony, the trial court erred by granting JMOL 

on the City’s non-party at fault claim against the State, the Juvenile 

Probation Department, and Mancinelli.4

CONCLUSION

¶17 For the foregoing reasons, we reverse the trial court’s ruling 

granting JMOL on the City’s non-party at fault claim, vacate the judgment, 

and remand this matter for a new trial.

 

4 Whether the verdict on damages and the allocation of fault must be set 

aside and retried on remand was not briefed by the parties, and our 

decision does not address those issues.