Officers liable for erroneously notifying next of kin after death - East Valley Tribune: Politics

Officers liable for erroneously notifying next of kin after death

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Posted: Tuesday, May 6, 2014 4:00 pm

Police officers who notify next of kin after someone has been killed can be held liable if they were wrong, the state Court of Appeals ruled Tuesday.

The judges rejected arguments by the Department of Public Safety that its officers did no wrong in telling the parents of April Guerra, 19 at the time, that she had died in a 2010 traffic accident on Interstate 10 west of Phoenix. It was only after the medical examiner raised questions a week later that the family learned she had been in the hospital all along — and the other family, which had been sitting with the girl they thought was their daughter, Marlena Cantu, learned it was not her but April instead.

Judge Kenton Jones, writing for the unanimous court, also rejected claims that their decision will result in delays in police providing the public “timely communications” about what they have discovered.

“Although timeliness in situations such as this is clearly a concern, so too is the public interest in being able to relay upon the accuracy of what law enforcement agencies and officers communicate,” Jones wrote.

But the appellate judges said there was no basis for the family to sue for intentional infliction of emotional distress. The decision, unless appealed, sends the case back to a trial court to determine the monetary damages.

DPS spokesman Bart Graves would not comment on the ruling or whether DPS has changed its policies since the incident “except to say DPS officers still make next-of-kin notifications.”

The case stems from a July 18, 2010 accident where five friends were traveling home to Arizona from Disneyland in California when their vehicle suffered a rear tire failure, causing it to roll. Two of the passengers were ejected, with one girl pronounced dead at the scene; a male passenger died later at the hospital.

DPS officers found a purse near the unidentified girl's body that contained Arizona driver's licenses for both April and Marlena, age 21, who were described as close friends who shared similar physical attributes. After the accident, both of the girls had badly swollen and bruised faces.

Unable to identify the body, it was sent to the Maricopa County Medical Examiner's Office as a “Jane Doe.”

Based on information from the hospital's charge nurse of who they believed was there, officers concluded by process of elimination that the dead girl had to be April and notified her family.

The next day the family contacted the medical examiner who said they could not view the body until it was released to a funeral home the following week. They also were asked to forward dental records to help with identification.

But before releasing the body, the medical examiner concluded those dental records did not match the body. That resulted in officers talking with the other girl's family who were at the hospital at the bedside of who they thought was their daughter. Only after getting various other records and examining the hospitalized girl's body did they finally identify the passenger as Marlena.

Jones said DPS recognizes it has a responsibility to notify next of kin.

He said the agency even has created a special manual for its officers to use. And it provides training to ensure officers “related timely and direct information to surviving family members.”

“Taken together, these actions illustrate DPS has assumed the task of providing next-of-kin notifications, and therefore has a duty to provide those notification with reasonable care,” Jones wrote.

The judges rejected arguments by attorneys for DPS that notification is part of a larger investigation where there is no special duty owed to those involved. But Jones said it once police say they have sufficient information to notify next of kin, the officers have concluded that part of the investigation is over.

Potentially more significant, Jones said the DPS manual itself says that the purpose of notification is not to benefit the public at large but specifically to help those left behind, requiring officers to “provide survivors with sufficient useful information and support in a manner consistent with professionally accepted crisis intervention techniques.”

“When the state undertakes the actual next-of-kin notification it must communicate the information with reasonable care being given to the accuracy of what is conveyed,” Jones wrote.

In deciding the girl and her family can sue, the appellate court rejected arguments by attorneys for the state that the ruling would expose law enforcement to “a flood of litigation.”

Jones, however, said nothing in the ruling requires police to do anything “beyond reasonable limits.”

In deciding the girl and the family could sue for negligence, the judges said there was no evidence to support the claim that the officers or the DPS acted intentionally to inflict emotional distress.

“The Guerras failed to presented any evidence illustrating the officers acted in anything other than good faith upon what the charge nurse had told them in attempting to provide the next-of-kin notification,” Jones wrote.

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