Family Mistakenly Notified of Woman's Death Can't Sue
Arizona Supreme Court says family can't sue over incorrect death report.
PHOENIX — For six days, the family of 19-year-old April Guerra mourned her death because they thought she was killed in a car wreck. It turns out she wasn't. Arizona's highest court said Friday the family could not sue the state for negligence after officers mistakenly told them Guerra died in a rollover crash west of Phoenix.
(ABOVE PHOTO) April "Abby" Guerra speaks to reporters in Phoenix Friday, May 8, 2015. In 2010, Arizona Department of Public Safety officers told her parents in that Abby, then 19, had been killed in a rollover car accident. (Matthew Casey/Arizona Republic via AP)(Credit: AP)
The officers confused Guerra's identity with another woman who was killed in the crash. That woman's parents stood vigil at the hospital with a paralyzed and badly bruised Guerra, thinking she was their daughter. Both families discovered the truth when a medical examiner used dental records to confirm it was 21-year-old Marlena Cantu in the morgue. Guerra, who goes by the name Abby, was alive and at the hospital in critical condition. Her family sued, arguing that the Department of Public Safety officers owed them the duty of correctly identifying a victim before telling the family their daughter was dead.
Maria and Jose Guerra spent six days thinking their daughter was dead when instead it was one of her friends who died. The Guerras sued for negligence, saying the officer owed a duty of care to ensure they had correctly identified the victim. The Arizona Supreme Court ruled Friday, May 8, 2015, that the family can't sue the state, saying imposing such a duty could cause officers to delay next-of-kin notifications.
"For six days, they went through the wringer, and now they're thrilled to death they have their daughter. But why did they have to go through such emotional turmoil?" their attorney, Mick Levin, said Friday. "It was needless."
The sharply divided Arizona Supreme Court ruling said allowing the lawsuit to proceed could cause officers to delay notifying families that their loved ones have died.
"At worst, it may deter officers from sharing whatever information they have with an anxious family member for fear of litigation and possible liability," Vice Chief Justice John Pelander wrote in the majority opinion.
Two of the five justices would have allowed the Guerras to sue, saying shielding officers from claims for incorrect identifications left their families no way to be compensated for their undue grief.
"They're not looking for money, they're looking for a policy change and they're looking for a conversation, so that something like this doesn't happen again," said Mick Levin.
"This result does not promote desirable conduct," Chief Justice Scott Bales wrote in a dissent joined by Justice Rebecca Berch. "Instead, it means that those who have suffered emotional trauma and even physical injury will have no potential for redress from those who incorrectly tell them they have lost a child or other family member."
The attorney for the Guerra family, Mick Levin, said the family is not looking for money and would rather get a commitment from DPS to improve their protocols.
Before the crash, Guerra was about to start her sophomore year at the University of Evansville in Indiana, where she studied nursing and played soccer. She and Cantu were among a group of five friends from Ironwood High School in Glendale who were returning from Disneyland when the sport utility vehicle they were riding in blew a tire on July 18, 2010. The driver lost control, and the SUV rolled several times, authorities said. Also fatally injured was 20-year-old Tyler Parker.
Guerra sustained a brain injury, broken back, collapsed lung, and other damages. Her bruised face prevented hospital staff and Cantu's parents from recognizing her. Guerra has recovered from the brain injury but is now a person with paraplegia and uses a wheelchair. She had to give up her nursing studies but has returned to school in hopes of becoming a pharmacist, Levin said. She lives with her parents. Members of her church and community raised money to make their home wheelchair accessible.
"Today's decision immunizes police officers when they negligently misinform parents or others of the death of a loved one," their statement said. "In other words, victims' families cannot trust anything police officers tell them."
According to an earlier appeals court ruling, state police who responded to the car crash discovered a purse with Guerra's identification next to Cantu's body at the scene. Cantu's license also was in the bag. The two shared similar physical characteristics. Another team of officers then went to a Phoenix hospital to try to identify the survivors. Working with a nurse, the officers determined incorrectly that the unconscious survivor was Cantu, the ruling said. The officers used the process of elimination to determine the dead woman was Guerra.
In a statement, the Guerras said they hope no one else ever endures the trauma they went through. They said they filed the case to hold the officers responsible and prevent such mistakes from happening again. They pledged to contact state lawmakers and seek a change in the law.
