Guerra v. State – 5/8/2015

May 18, 2015

Arizona Supreme Court holds that law enforcement officers do not assume a legal duty when undertaking to provide next-of-kin notifications.

April Guerra and her friend, M.C., were involved in a single-vehicle rollover accident.  M.C. died at the scene.  April survived and was hospitalized.  Due to the women’s physical similarities and severe injuries, a hospital nurse mistakenly identified M.C. as the survivor.  Based on the nurse’s identification, Arizona Department of Public Safety (“DPS”) officers and a DPS chaplain informed April’s family that April had died.  Six days after the accident and the mistaken notification, April was positively identified as the surviving hospital patient.  The Guerras sued the State and various State employees for negligence (and other claims not at issue on appeal).

The Arizona Supreme Court held that law enforcement officers do not assume a duty of care to convey accurate information when they provide next-of-kin notifications.  The Court cited the Restatement (Second) of Torts § 323 (1965), which provides that rendering services “necessary for the protection of the other’s person or things” creates a duty of care, and noted that next-of-kin notifications do not protect next-of-kin from emotional harm but rather inflict it.  Moreover, the “core” of the Guerras’ complaint was “that the officers failed to reasonably investigate the decedent’s identity,” a duty that does not exist under Arizona law.  See Vasquez v. State, 220 Ariz. 304, 313 ¶ 30 (App. 2008); Morton v. Maricopa County, 177 Ariz. 147, 149–50 (App. 1993).

The Court further concluded that “imposing a duty in this context would contravene rather than advance public policy,” as threat of liability could cause officers to delay or avoid making next-of-kin notifications, and such notifications help to alleviate anxiety and uncertainty.  The Court expected that in the absence of a duty, officers nonetheless will continue to take “great care” in making notifications, noting that the mistaken identification was a “rarity.”

Chief Justice Bales, joined by Justice Berch, filed a dissenting opinion maintaining that law enforcement officer who makes next-of-kin notifications should have a duty of care, as the undertaking “seeks to protect against the increased harm risked by an improperly delivered notification, not from emotional harm altogether.”  Justice Bales advocated adoption of § 47 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, which imposes a duty on undertakings “especially likely to cause serious emotional harm.”  The majority declined to adopt the Restatement section sua sponte in the absence of briefing or argument.

The dissent suggested that the existence of a duty of reasonable care would not likely deter officers from making notifications because cautioning next-of-kin that the identification was tentative satisfies the duty of care.  The dissent further noted that the duty-by-undertaking doctrine necessarily entails imposing a duty on socially desirable conduct, and thus the dissenters maintained that public policy does not demand immunizing such conduct.

Vice Chief Justice Pelander authored the opinion of the Court.  Chief Justice Bales dissented, joined by Justice Berch.