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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 cannot sue the state for negligence after officers mistakenly told them Guerra died in a rollover crash west of Phoenix.

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(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 that of a close friend who was killed in the Interstate 10 wreck. That woman's parents stood vigil at a hospital with a paralyzed and badly bruised Guerra, thinking she was their daughter. The 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 the woman in critical condition at a Phoenix hospital. Her family sued, arguing Department of Public Safety officers owed them a duty to ensure they properly identified the 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 ringer, and now they're thrilled to death they have their daughter. But why did they have to go through such emotional turmoil?" their lawyer, Mick Levin, said Friday. "It was needless."

The ruling by the sharply divided Arizona Supreme Court 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 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.

At the time of 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 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 injuries. Her bruised face prevented hospital staff and Cantu's parents from recognizing her. Guerra has recovered from the brain injury but was left a paraplegic and now 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, and 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 purse. The two shared similar physical characteristics. Another team of officers then went to a Phoenix hospital to try to identify the survivors. The officers, working with a nurse, determined incorrectly that the unconscious survivor was Cantu, the ruling said. The officers used process of elimination to determine the dead woman was Guerra.

The Guerras said in a statement they hope no one ever has to endure the trauma they went though. 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.

IMPORTANT NOTICE AND DISCLAIMER: All articles and papers on this site are published for general informational purposes and do not constitute legal advice, nor create an attorney-client relationship between Mick Levin, PLC and the reader. The articles are believed to be accurate on the date written but may not be updated to incorporate changes in the law after the date of publication on the site, and therefore, any information contained therein should be researched and confirmed to assure currency.
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