Luchanski v. Congrove
Luchanski v. Congrove, 193 Ariz. 176, 971 P.2d 636 (App. 1998), involved an arrestee who was seriously injured when she got out of a patrol vehicle in which she had been left handcuffed and unattended. 193 Ariz. at 177, P 2, 971 P.2d at 637.
She sued the arresting officer, arguing that his leaving her unattended permitted her to fall down an embankment when she exited the car. Id.
In that case, the arrestee argued for the first time on appeal that her injury occurred while she was in custody and therefore the "failure to retain in custody" immunity provision could not apply. Id. at 178 n.2, 971 P.2d at 638 n.2.
Because that issue had not been raised in the trial court, the Luchanski court declined to decide the provision's applicability to an arrestee who was still in custody and analyzed the incident as though it had occurred in the context of a release from custody. Id.
The issue actually presented in Luchanski was whether the "failure to retain in custody" provision could apply when the injury was not inflicted by the released arrestee upon a third person but was suffered by the released arrestee herself. 193 Ariz. at 178 P7, 971 P.2d at 638.
The Court construed the statute as applying in either situation. Id. at 178-79 PP9, 14, 971 P.2d at 638-39.