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Torts: No Duty to Exercise Reasonable Care Notifying Next of Kin

Posted by Matt Schmidt | May 26, 2015 | 0 Comments

Guerra v. State of Arizona, 712 Ariz. Adv. Rep. 24 (May 8, 2015) (V.C.J. Pelander)


Plaintiffs were informed their daughter had died in an auto accident by the Arizona Department of Public Safety.  Six days later it was determined there was a mistake in the identity of the deceased and that plaintiffs' daughter was not killed, but seriously injured.  Plaintiffs sued for negligence and negligent infliction of emotional distress.  The trial court granted the defendant summary judgment and denied plaintiffs' cross motion for summary judgment on the question of duty. The Arizona Court of Appeals reversed the granting of defendant's motion and gave plaintiffs partial summary judgment on the question of duty. The Arizona Supreme Court reversed the court of appeals. 

The supreme court found no special relationship existed to create a duty, relying upon Vasquez v. State, 220 Ariz. 304, 313 ¶30, 206 P.3d 753, 762 (App. 2008) ("[A] special relationship between an investigating law enforcement agency and a decedent's family member does not arise merely by the agency undertaking to investigate an accident or resulting death."); Morton v. Maricopa County, 177 Ariz. 147, 149-50, 865 P.2d 808, 810-11 (App. 1993).

It further found no statutory or common law duty was created by Restatement § 323 which  provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.

Here investigating a death and reporting it to the next of kin does not place the peace officers in the position of appreciating the need to exercise care for the "protection" of the next of kin or their "things." Hence the Restatement creates no duty under these circumstances.

Lastly, the supreme court found no public policy upon which to impose liability. The likelihood that officers will negligently investigate the identity  or negligently  report it to  next of kin is so remote that creating a public policy would be inappropriate.

About the Author

Matt Schmidt

Matt graduated from the James E Rogers College of Law at the University of Arizona in passing the Arizona bar exam in 2010. Matt's primary interest in law focuses on general personal injury and insurance bad faith.


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