Arizona Court of Appeals Division Two Holds That: (1) a Notice of Claim for Wrongful Death Is Sufficient if It Sets Forth Any Facts Supporting the Amount Demanded; and (2) Government Entities Do Not Have a Duty to Identify Individuals Killed During High-Speed Pursuits.

In November 2004, a suspect was killed during a high-speed pursuit involving State and Cochise County officers.  The officers were unable to identify the suspect and after an autopsy, the body was buried at county expense.  Two months later, the suspect was identified as 15-year-old Angel Romo.  Romo’s mother, Plaintiff Gloria Vasquez, subsequently brought a wrongful death suit against the State and Department of Public Safety (“State”), as well as separate claims against the State and Cochise County (“County”) for wrongful handling of a dead body and negligent infliction of emotional distress.  Before suing, she filed a notice of claim with the State for wrongful death in which she demanded $750,000, supporting that amount only with the fact that Romo was her “15-year-old son.”  The County moved for summary judgment arguing that it had no duty to identify Romo or to notify Vasquez of his death.  The State joined the motion and additionally moved to dismiss based on Vasquez’s failure to strictly comply with the notice of claim statute, A.R.S. § 12-821.01.  The trial court granted both motions, and Vasquez appealed. 

The Arizona Appeals Court affirmed in part and reversed in part.  The Court first addressed whether Vasquez’s notice of claim contained “facts supporting” the amount she demanded, as required under A.R.S. § 12-821.01(A).  Citing Backus v. State, 534 Ariz. Adv. Rep. 26 (Ct. App. July 17, 2008) and Yollin v. City of Glendale, 536 Ariz. Adv. Rep. 20 (Ct. App. Aug. 5, 2008), the Court explained that a notice of claim for wrongful death is sufficient if it provides any facts, no matter how meager, to support the amount claimed.  Applying that standard, and noting that it is appropriate to consider the type of action when determining what facts must be provided, the Court held that the fact that Romo was Vasquez’s son and died prematurely was sufficient to satisfy the notice of claim statute.  The Court, therefore, reversed on the wrongful death claim.    

The Court then held that the State and County did not have a duty to identify Romo or notify Vasquez of his death.  The Court first rejected Vasquez’s argument that such a duty arises from A.R.S. § 28-624(D), which imposes on drivers of emergency vehicles a “duty to drive with due regard for the safety of all persons,” because that statute does not impose any duty related to post-pursuit identification of a suspect or notification of family members.  The Court next rejected the argument, based on Restatement (Second) of Torts § 314A(4), that a duty arose as a result of the “apprehension” of Romo.  No special relationship, and thus no duty, arose because Romo died before being apprehended or taken into custody, and nothing in § 314A(4) suggests that a special relationship is created when custody is taken of a dead body.  Next, the Court rejected the argument that a special relationship, and therefore a duty, arose by virtue of the State and County’s investigation following Romo’s death.  Citing Morton v. Maricopa County, 177 Ariz. 147, 865 P.2d 808 (App. 1993), the Court held that a special relationship does not arise merely when an investigation is undertaken.  Finally, the Court rejected Vasquez’s argument that her claims were independently actionable under Restatement § 868, which prohibits the improper treatment of bodies.  Regardless of the theory of her claims, Vasquez failed to demonstrate that the State or County had a duty to identify Romo’s body.  Moreover, the County acted properly in disposing of Romo’s body under A.R.S. § 11-600(A), which applies to unidentified bodies.  The Court, therefore, upheld the trial court’s grant of summary judgment on the wrongful handling of a dead body and negligent infliction of emotional distress claims.

Judge Eckerstrom concurred in part and dissented in part.  He disagreed with the majority’s holding that the State and County had no duty to identify Romo, and argued that such a duty existed by virtue of the State and County’s conduct in pursuing Romo, taking sole responsibility and custody of his body, and undertaking some effort to identify his body.

Chief Judge Pelander authored the opinion; Judge Vasquez concurred; Judge Eckerstrom concurred in part and dissented in part.