Vasquez v. State

206 P.3d 753 VASQUEZ, Plaintiff/Appellant, R.

Gloria Arizona; A ri The State The STATE Safety; Department of Public zona County, Defendants/Appellees. Cochise 2007-0148. No. CA-CV Arizona, Appeals of Court of 2, Department A. Division Sept. April Review Denied

OPINION

PELANDER, Judge. Chief action, plain- this death 1 In Yasquez appeals

tiff/appellant Gloria for sum- grant court’s motions the trial judgment dismissal of the com- mary and defendants/appellees Co- plaint in favor of Arizona, County, and the State chise (DPS). Safety Department of Public Arizona finding the trial court erred She contends against the insuffi- notice of claim state 12-821.01(A) in rul- cient under A.R.S. duty to county and state owed no that the agree part with her first conten- her. We and, therefore, judgment tion reverse the Vasquez’s wrongful of the favor state against find no it. We otherwise death remaining judgments. and affirm the error

Background summary grant appeal from a “On judgment, we all facts and reasonable view light in the favor inferences therefrom most judgment party against whom able Acres, v. Two Point was entered.” Bothell Inc., (App. 1998). Tim November DPS Officer County Cochise Sheriff Wiedemann Dodge deputy pickup noticed a truck suspected might have been sto Wiedemann plate on its len. A records check license reported confirmed the truck had been sto len, followed it for about and Wiedemann Hill, By E. Law of David P.L.C. Office coordinating twenty-five while minutes Hill, Tucson, Attorney Plain- David E. him in other officers in the area assist tiff/Appellant. stopping it. Goddard, Terry Attorney Arizona General ultimately initiated 3 When Wiedemann Tucson, Stewart, Attorneys By M. Catherine emergency stop activating traffic Defendants/Appellees, Ari- The State of siren, lights and driver of the truck start- Department of Public zona and The road, ed move the shoulder of the toward Safety. high- A but he then accelerated fled. Kastner, Nelson, Kimble, & P.C. Audilett ensued, speed pursuit during which Rebecca By Daryl A. Audilett and Parker- truck, Wiedemann, according into “went Tucson, Defendant/Ap- Perry, Attorneys for At on-coming times.” lane numerous pellee, County. Cochise had point, other DPS and officers Brewer, highway and were M. Ltd. blocked off ahead Law Offices Charles Phoenix, Haralson, “spike strips” stop the Abney, prepared deploy By L. David Miller, Pitt, pursuit McAnally, By off’ his Feldman & PLC truck. Wiedemann “backed Feldman, Tucson, causing strips, truck it Stanley Attorneys for and the hit G. Curiae, desert. Lawyers roadway Trial and roll into the The Arizona leave Amicus driver died at the scene. The Association. County 4 Officers did not find summary identification 6 Cochise moved for truck, scene, alia,

in the at the or on the judgment, arguing, driver’s inter it had no person, telephone but a cellular as well notify as the deceased driver or to unspecified photographs some were found in Vasquez of her son’s death. The truck scattered about. The driver’s any alleged maintained it liable for body County was taken to the Cochise Medi- negligence part county’s on the medi- cal autopsy. Examiner’s Office for an Be- independent cal examiner because he was an identity cause the driver’s remained un- joined county’s contractor. The state in the known, indigent received an burial motion and also moved to dismiss the action county expense. About two months 12(b)(6), after against pursuant it to Rule Ariz. R. incident, the the deceased driver P., was identi- Vasquez’s strictly Civ. based on failure to Romo, Angel fifteen-year-old fied as runa- comply requirements with the notice-of-claim way 12-821.01(A). juvenile pro- who had been on § intensive granted The trial court motions, bation at the time. The identification was ruling both that neither the mother, Angel’s appellant made when Gloria [any] legal duty nor the state “owed to [Vas- Vasquez, provided fingerprints quez] the human remains of [her] county’s Medical Examiner’s Office. decedent,” She Angel Romo. The court further was notified of that identification and his Vasquez ruled that had not satisfied the re- January 12-821.01(A) death 2005. Her last contact quirements § of her Angel September had been in state, about against claims mandating dismissal incident, two months before the when he had ground of those claims on that as well. This permission left home without for the last appeal followed.2 time. Discussion Vasquez subsequently 5 filed this action state, DPS, against County, Cochise wrongful 1. Notice of claim on death City Douglas. filing Before her com- claim

plaint, Vasquez timely “filed” and served a state, against notice of claim notifying it 7 against notice of claim wrongful she had a claim for death state set forth in some detail her factual pursuant § allegations to A.R.S. 12-611 and for “viola- concerning the events surround- tion of her son’s Fourteenth Amendment the incident in which her son was killed rights $750,000 under 42 U.S.C.A. 1983 that the and demanded to settle the claim. employees actively decedent, DPS dangerous created a She also Angel described the Romo, Angel situation that led to “15-year Romo’s death.” as her old son” but said In original complaint, alleged nothing explain she more to the settlement state, wrongful only against death claim finding amount she demanded. In the notice DPS, City and the Douglas separate 12-821.01(A), of claim insufficient under against County claims wrongful Cochise Vasquez pro- the trial court noted that had handling of a dead negligent inflic- vided “no information about the tion of emotional distress. later between ... [her] and son” “no facts complaint, adding permit amended her those two governmental entity which would against latter claims the state and damages.” DPS and evaluate Those deficiencies in the withdrawing against claim, ruled, Douglas. claims required notice of the court She did not file or serve a notice claim as dismissal of the against death claim against to those two new claims challenging ruling, state.1 the state. Vas- Although County Vasquez appealed Cochise did not move for from the trial court’s un signed entry “any judgments summary judgment minute order and dismissal or below based on respect statute, 12-821.01, entered with subsequently signed thereto.” The trial court the notice-of-claim A.R.S. judgments. and entered final urge judgment and does not us to affirm the Although Vasquez's appeal prema notice of was ground, its favor on that the record does not ture, jurisdiction appeal. we have reflect whether ever filed a notice of 9(a); Matison, Civ.App. Ariz. R. P. Barassi v. against county. claim (1981). Houser, v. Dist. No. 97 Valley Sch. complied with the statu- she quez maintains Unified (2007), and, P.3d consequently, her tory requirements Maricopa v. quoting not have been Falcon ex rel. Sandoval against the state should claims County, 213 dismissed. (2006), Maricopa quoting Martineau that, Preliminarily, note al we 915- County, 207 Ariz. granted state’s though the trial (App.2004). 12(b)(6), pursuant to Rule to dismiss motion claim, which Vasquez’s notice it considered Vasquez argues her notice complaint but rather included in the was not necessary respects “complied in all motion. Be to the state’s exhibit § 12-821.01.” She maintains with A.R.S. outside considered “matters cause the court ‘wrongful cannot “a claim for death’ because have treated the pleading,” it should depen mathematically liquidated” and “is be summary judgment. See one for motion as many intangibles ... which cannot upon dent 12(b); P. Jones v. Cochise Ariz. R. Civ. effectively,” it be “un would be documented County, ... should suggest [she] reasonable State, (App.2008); also Backus provide detailed required to more have been ¶¶ 13-14, (Ct.App. Relying in her Notice of Claim.” information Glendale, 2008); City 219 Ariz. Yollin v. Valley, the state primarily on Deer ¶ (Ct.App.2008). 191 P.3d 1040 We properly court dismissed argues the trial any dis review de novo whether therefore Vasquez’s wrongful death claim because her the fact exists and whether pute of material supporting claim no facts “notice of contained applying in the law. See trial court erred as the the amount demanded settlement Jones, P.3d at 100. 218 Ariz. requires.” notice-of-claim statute “trial review de novo the court’s We also Valley, supreme our court H11 In Deer [Vasquezj’s notice of determination that sufficiency of claim the of notice addressed comply with 12-821.01.” Id. claim failed to involving a employment in an case filed part, Arizona’s notice pertinent 9 In against claim a school wrongful termination statute, 12-821.01(A),provides: of claim ¶¶ 1-2, 214 Ariz. district. against pub- Persons who have claims case, plaintiff had sent a In that the entity public employee shall file lic or a “ ” district, alleging that ‘claim letter’ to the person persons author- claims with the or anticipated salary raises she had lost entity accept public the ized to service for damages “no and also had sustained less public employee as set forth the or specified than” certain amounts for emotional procedure civil within one Arizona rules of reputation and for harm to “her distress eighty days the cause of hundred after ¶¶ employment.” 2-3. The court con- Id. claim contain action accrues. The shall that, “[bjy failing specific to state a cluded permit public entity facts sufficient to the accept that she would to settle her amount the public employee or to understand basis claims, plaintiff] comply failed to [the liability upon which is claimed. The claim statutory requirement.” Id. 11. that specific amount for shall also contain the claim can be settled and the which Valley Importantly, the court in Deer Any that claim supporting facts amount. only the limited issue of whether addressed not filed within one hundred which is “spe- notice of claim included a the claimant’s days the of action ac- eighty after cause 12-821.01(A) sum,” requires. n. as Id. cific is barred and no action be crues Backus, 3; see also thereon. maintained expressly The court declined to P.3d 399. notice question of whether reach “statutory requirements serve several These “ supporting the provide to facts They public “fail[ed] important functions: ‘allow Valley, 214 Ariz. liability, ... amount claimed.” Deer entity investigate and assess n. 3. The court prior to 152 P.3d at 494 permit possibility of settlement dictum, however, that “the claim entity in public ... noted litigation, and assist provide any supporting facts letter planning budgeting.”’” d[id] Deer financial did not address death claim and the claimed amounts for emotional distress claimantj’s required to damages reputa- nature or extent of facts [the and for Id.; for Backus, specific amount demanded support tion.” ¶¶ 17-18, claim. such a 204 P.3d 399. Valley 13 Deer established that a notice maintains, Nonetheless, state clear, unqualified, must claim demand agreed, and the trial court specific sum which be can any support of claim facts to notice lacked Jones, settled. settle the claim. the amount she demanded to But,

P.3d at 100. as Division One of this state, According required noted, recently “provides guidance it court no “description include a of the nature may may on what not be sufficient facts quality of her with her son and beyond support of such a [in sum] the one impact of death on her.” the emotional narrow of no at all.” circumstance facts Bac- 12-821.01(A), however, does not ex Section kus, P.3d 399. At facts, pressly require such but rather court, however, argument oral in this the merely requires specific “a amount which wrongly state asserted that Backus was de- sup settled the claim can be facts cided and that Division One overlooked the And, porting that unlike the sec amount.” guidance gave our Deer A, pertains ond which sentence subsection Valley. points Specifically, the state claims, liability the third sentence address Valley: following language in Deer damages the amount claimed does not obligation permit statutory require The attendant such facts be “sufficient to present entity public employee un supporting public claimants “facts upon requires explain liability amount” that claimants derstand the basis which is 12-821.01(A); Backus, § by pro- the amounts in claim claimed.” 220 Ariz. identified the ¶¶ 141, 16, 399; Yollin, 19, viding government entity with P.3d see also a factual ¶¶ entity 24, 23-24, 27, permit foundation to evaluate 219 Ariz. 191 P.3d 1040. to. Thus, provides “any claimed. if' a require- amount This latter claimant facts to amounts, support proposed ment ensures will that claimants not de- settlement regardless meager,” mand unfounded amounts that of he or she has constitute how “quick exaggerated complied statutory requirements. with unrealistic demands.” ¶ tandem, Backus, 399; statutory In these two 220 Ariz. 204 P.3d mandates ¶ government ensure that entities will be also id. realistically able to consider a claim. ¶ turn, then, to Vasquez’s 16 We ¶ (citation

214 Ariz. 152 P.3d at 493 of con notice claim and consider whether it omitted). any support tains facts to her demand in the state, $750,000. 14 According “specific to the 12- Deer Val- amount” of found, dicta, 821.01(A). ley agree in albeit the claim We with state “[tjhe letter in that “any support- plain language case lacked facts of not the statute does ing the claimed support exemption” wrongful amounts for emotional dis- ... for damages [plaintiff’s] reputa- statutory tress and to require- death claims from the tion,” 3, Nonetheless, though id. even her claim in gauging compliance letter ments. 12-821.01(A), was appropriate more detailed and extensive than we to Vas- find it quez’s determining notice of in Unlike in claim this case.3 consider the cause of action Backus, however, Valley provided support Deer did not involve what facts must be of support argument, points ditionally, paragraph of its the stale also in the to which the same Yollin, refers, following statement in 536 Ariz. state the court Yollin stated that ¶27, 24, Rep. every plaintiff possible Adv. does "not need to disclose offer, plain meaning supporting including "The 1040: of the statute and its fact how to calcu- purpose support pain sup- suffering.” alike the inference that the late his Id. It also stated porting requirement require “[a] facts demands recitation notice claim not trial does past damages proof of how events harmed the claimant and led level or a disclosure slatement view, however, 26.1, Vasquez's satisfy to his offer.” In our to Rule sufficient Rules requirements. notice those Procedure.” Id. satisfied Ad- Civil expect ... Backus, to may it be “unreasonable 220 action claimed. See

monetary amount ¶¶ 28, 141, In the surviving family provide 204 P.3d 399. members to some Ariz. claim, the trier of wrongful death context of justify and value of factual detail level damages as it “give such fact is asked intangible grief over the loss loved their just with reference deems fair and one”). to the surviv injury resulting from death may be entitled to recover.” ing parties who Thus, Vasquez provided because may party such who 12-613. One A.R.S. claimed, support facts of the amount some § 12- surviving parent. A.R.S. is recover meager,” notice “met “regardless how her Co., 612; v. DND see also Knauss Neffson only language of the statute not the literal 199, 271, (App. P.2d may be requirement im any but 1997). injury” for which items “Allowable Backus, Valley.” plied from Deer damages claimed and recovered “are may be ¶ 28, Rep. Adv. love, affection, companionship, consor loss (in 399; wrongful death id. see also tium, suffering.” Mul personal anguish and action, support the claimed “any facts Ctr., Health len v. Posada del Sol Care compliance the minimal amount constitute (App.1991). statute”). If necessary satisfy the earlier, Vasquez stated in 17 As noted facts it needed more about state believed decedent, Angel claim that the her notice of Vasquez’s relationship with her son Romo, Although “15-year was old son.” her investigate in order other information optimal” been “it have claim, certainly it could have evaluate her her provided have some details about rela- ¶¶ statute, 29. The asked.4 Id. son, Backus, tionship with her require more Id. 29. ¶¶ does facts. the facts that Vas- mother that her son quez is decedent’s Backus, we As held in simi- the court he prematurely died when fifteen larly “[i]n hold the context support years old sufficient were being claim[ ] advanced death damages. Id. 28-31. Those facts claimed here,” Vasquez’s “notice[ ] w[as] of claim suf- surviving party showed that was a any requirement implied by ficient to meet § wrongful under the death statutes. 12-612. Valley respect to ‘a factual founda- Deer with damages just” “fair in the amount And and supporting proposed settlement tion’ could for which offered to settle be ¶ 28, Valley, quoting 214 amount.” Id. Deer Angel merely on the fact that was her based ¶ 293, 9, Accordingly, P.3d at 152 493.5 age. young at such a See son and had died 141, trial court 12-613; Backus, we conclude the erred dismiss- also 220 see ¶ against 30, Vasquez’s wrongful (noting wrongful death death duty, suggest, on we decide wheth We do the state has an based lack of need not 4. any request obligation Valley retroactively applicable. circumstances to under Deer er is See facts, Backus, 8, certainly 26, not when the claimant Rep. more and Adv. n. 220 Ariz. 534 Ariz. any support provide 399; 372, 141, 8, Jones, has failed facts in to 218 Ariz. n. Nonetheless, damage "[t]he amount claimed. 106 n. 11. do we 187 P.3d at Nor address anticipates government entities claim statute Vasquez's arguments that state should be claims, investigate supporting will and the facts equitably estopped asserting its notice-of- relatively light requirement intended to a is be that, contrary claim defense and to trial claimants, just enough on to facilitate tire burden ruling, required file a she was not new court’s Yollin, investigation.” government's 536 Ariz. or amended notice of claim on her amended 20, 25, ¶ Rep. Adv. 219 Ariz. 191 P.3d against negligent infliction of counts the state handling wrongful and emotional distress body. Maricopa, County Haab v. dead See contentions, 5. Aside from its notice-of-claim 1, 6, ¶¶ Rep. Adv. Ariz. 6, 24, argue that the state does not trial court’s dismiss- (because (Ct.App.2008) 191 P.3d 1025 proper Vasquez's wrongful death claim was al plaintiff's original did not notice of claim de upheld other basis. Be- and should be that, complaint, alleged of acts in his scribe second set ruling, because we cause we reverse and (A) comply § 12-821.01 claim notice did not II below that the trial court conclude section plaintiff required or summary judgment to amend notice file properly in favor and entered claims). preserve county new one in order to additional state on her other two claims allegedly duty, the state based on the negligence deficient sent some an action for 12-821.01(A).6 maintained.”). notice of claim under cannot be Vasquez alleged negli Because II. Other tort claims gence as the basis for both her claims of nextWe address claims for infliction of emotional distress wrongful handling of a dead and inflic- handling body, analyze of a dead we first alleged tion of emotional distress based on county duty Vasquez. whether the owed negligence “inspect[ing] investigat[ing] duty Whether a defendant owes a of care is a the scene and related facts of the accident law, question of which we review de novo. person Angel granting and the Romo.” In Markowitz, Ariz. at P.2d at summary judgment in favor of both defen- (“The usually issue of one is for the claims, dants on those the trial court ruled law.”); court as a matter of county legal duty and state “owed no (“The 214 Ariz. 150 P.3d at 230 first [Vasquez] the human remains of negligence], [of element whether a ex Contrary ruling, [the] decedent.” to that ists, is a matter of law for the court Vasquez argues, county and state “owed decide.”); Henning Hospitali v. Montecini Angel of care to Romo and to [her].” Inc., ty, appeal summary “On judgment, from a we (App.2007) (appellate legal reviews must determine de novo whether there are novo). question Vasquez posits de any genuine issues of material fact and several different but interrelated theories in whether the trial applying court erred in support argument of her that the state and Bothell, law.” reasonably investigate had a death, Angel’s body, his and return it proper to her for burial. We address each in ¶ 21 negli “To establish a claim for turn. gence, plaintiff prove must four elements: (1) duty requiring the defendant to conform Quoting from A.R.S. 28- care; (2) to a certain standard of a breach 624(D), Vasquez argues (3) state standard; the defendant of that a causal “owed [Angel] and his mother to connection between the defendant’s conduct pursuit (4) conduct apprehension” [the] resulting injury; and the actual dam “ regard ‘with safety per due for the of all ages.” Gipson Kasey, ” (2007). Thus, provides sons.’ Section 28-624 under negli “a circumstances, certain gence may drivers of action be authorized maintained if there emergency specified vehicles obligation, law, is a violate recognized by requires pursuit suspect traffic laws when in which of a defendant to conform to a responding particular emergency standard to an call. of conduct in Subsection order to D, relies, protect on which against imposes others on such unreasonable risks of Bd., “duty harm.” Markowitz v. drivers a regard Ariz. Parks 146 to drive with due 352, 354, 364, (1985); safety Ariz. persons 706 P.2d 366 of all protect see and does not 214 Ariz. consequences the driver from the of the driv (“Whether 230 plain the defendant disregard safety owes the er’s reckless for the of oth issue; 28-775(C). tiff a of care is a threshold § ab- ers.” See also A.R.S. (“We Lawyers

6. The amicus curiae Trial Asso- n. also id. 9 will not new address issues (ATLA)urges ciation us to find Haab, that the state curiae.”); by raised the amicus 532 argument waived its notice-of-claim because it 25, 4, 9, 4, Rep. Adv. n. 219 Ariz. n. 191 P.3d ground did not move to dismiss that until (refusing 1025 to address claimant's new asser- year about a and a half after filed her appeal argument tion on that “waived its complaint. light of our conclusion that Vas- Found, statute”); under the Robert Schalkenbach quez complied wrongful with the statute on her Found., Inc., 176, ¶ 17, v. Lincoln 91 claim, death and because she did not assert waiv- (App.2004) ("Generally, P.3d we will appeal, er below or on we do not address ATLA's appellant's consider an issue not raised an Yollin, Rep. waiver issues. See 536 Ariz. Adv. conceded.”). opening brief as abandoned or 1040; n. see (absent any spe 196, 198, 199-200(App.2002) appli do not address Although we by gun manu relationship, owed no cial cability of that statute operator parents gun show facturer or claim, creating a view it as do not death we handgun by party with killed third children Angel’s investigate Vasquez to duty toward show). Indeed, on the record gun sold pursuit body after the identify his death or us, “deprive[d] ... of Angel never before vehicle. had crashed his and he had ended protection” and opportunities for normal his here, merely ad D subsection relevant As vehicle, pursu as the stopped have could emergency duty a driver of dresses the do, him at attempted to have ing DPS officer due care. See pursue with vehicle has to 314A(4). § any time. Restatement State, Ariz.App. Herderick (1975); also Estate ¶ Moreover, language neither the Tucson, City Aten 314A(4) § its related nor of Restatement agree (App.1991). We that that suggests or illustrations comments § “establish[es] neither the state “takes the might apply to one who provision killed while flee identify suspects body rather than custody” of a dead make next-of-kin police in order to cited, nor Vasquez has not living person. applies “to activities other nor notifications” found, any in which that section we case have other than driving and to individuals than duty” applied. And the “similar has been so bystanders on suspects and innocent fleeing 314A(4) duty “to speaks § is the of which roadway.” The statute vicinity of a or in the against unreasonable risk protect other] Lthe related simply not address does give them first aid physical harm” and “to investigations. post-pursuit knows or has reason defendant] [the after injured.” Re ill or [the is] know that other Vasquez further maintains 314A(1). clearly are § Such duties statement Angel “apprehension of and state’s person other to whom meaningless when the him, relationship between special created a Thus, no they allegedly are owed is dead. relies on the entities].” She [those [her] Restatement relationship under special 314A(4) (Second) of Torts Restatement 314A(4) duty owed existed so as to create a (1965) That section of proposition. by Vasquez or the decedent. defendants to who is re- provides: Restatement “One voluntarily to take or takes quired law Vasquez correctly argues, such custody of another under circumstances however, relationship special that “while oppor- other of his normal deprive as to duty, existence is not essen may foster a its protection is under similar tunities for public particularly if tial for a to exist— DeMontiney v. Desert the other.” See As our policy warrants the same.” Ctr., Inc., Manor Convalescent special or direct Gipson, “[a] court stated (1985) (applying Re- ... in order for is not essential noting “duty pro- statement 314A of care.” there to be against risk of the other unreasonable tect Similarly, the court 150 P.3d at 232. arising risks from the acts harm extends to “[ajs law [has] the common noted himself’). injured party ..., scope extended the [have] evolved courts out, by recognizing a more negligence actions point defendants 26 As the applicable general duty of care to suits apprehended or taken into Angel never was Gipson’s Id. n. 3. But relationship among strangers.” custody, “[n]o and custodial duty issues did not alter clarifying gloss him the vari on between ever established” that, in order principle he the well-established officers “before ous law enforcement exist, See, ‘relationship e.g., duty to “the lolled.” for a flipped the truck and was 422, [i]s that the defendant parties be] 211 such County, [must Ariz. Wertheim v. Pima ¶¶ care to avoid 11-14, 21-22, 1, 3-4, obligation an to use some (App.2005) under 122 P.3d 6 ” (no injury plaintiff.’ prevent or to to create special existed Grafitti- City Phoe person ex v. by to Valenzuela rel. duty government owed entities Grafitti ¶ 711, 454, 8, nix, Ariz. 167 P.3d 715 216 off-duty employee); Bloxham by killed their Markowitz, ¶¶ 1, 7-8, Ariz. at Inc., 271, quoting 146 (App.2007), Ariz. 53 v. 203 Glock

313 356, 368; agency investigate an Stanley undertaking 706 P.2d at see also to acci- McCarver, 219, 10, 12, Similarly, resulting 208 Ariz. 92 P.3d dent death.

849, 852, (2004); Borak, obviously county investigated, 853 Ontiveros 136 or DPS 200, 500, 508, (1983); extent, subject 667 P.2d Wer- least to some incident that ¶ theim, 3; Angel’s P.3d at resulted in death does not necessari- ¶ Bloxham, ly duty P.3d at 199. create a broader owed to to identify notify her of his death. ¶ Vasquez duty a also contends of care Indeed, expressly this court has ruled that |the merely by “arose fact state and duty agencies law enforcement owe no county] investigation following undertook an family identify or friends of a to decedent [Angel’s] death.” In our 150-51, that decedent. Id. at 865 P.2d at court observed that “[d]uties care Although broadly 811-12. asserts ... by arise from undertaken conduct negligent in and state were 141, 18, defendant.” 214 Ariz. death, investigation Angel’s the core of her 232; Stanley, 208 Ariz. complaint is the failure to him-some- P.3d at 851. And the court has stated that thing state and had no to do. “opted once a municipality provide has Id. police protection, a [it] ha[s] to act as reasonably prudent would a po ¶31 careful thoughtful The dissent would find a department lice in the same circumstances.” duty here on merely based the defendants Scottsdale, City Austin v. 140 Ariz. supposedly having participate undertaken “to (1984). The high-speed in a in [An- chase that resulted cautioned, however, in Austin death,” gel’s] responsi- to exercise “exclusive protect “Lt]his is not a each citizen bility body,” for his make and to “some effort within [municipality’s] geographic (Eeker- ¶¶ 48, 50, it.” See infra By boundaries from establishing all harms. strom, J., concurring part dissenting in police department, a municipality a becomes part). in quarrel We do not with the dis- general neither safety insurer nor abso defendants, general proposition sent’s lutely liable for all harms its citizens.” including agencies, “may law enforcement ac- And, Id. at 684 P.2d at 154 n. 2. quire duty by undertaking of care to others despite the broad statement of Aus view, In conduct.” See our how- infra. tin, we have not construed that case to ever, reasoning the dissent’s stretches that police by very mean that “a agency, its exis concept beyond well reasonable limits this tence, persons owes a all to act Everything case. law enforcement under- reasonably at all under all times circum conceivably impact might takes have some on Wertheim, 422, ¶ 17, stances.” particular family If or individual. the dis- P.3d at 5. “duty by undertaking” sent’s broad view of law, out, points “[e]very were as the state Likewise, although a law en theoretically give unsolved crime could then agency forcement might have some rise to a cause of the victim action or a accident, investigate City see McDonald v. negligent deceased victim’s relatives in- Prescott, “ vestigation.” (App.2000), ‘request even a ... aid, police undertaking by police or the disagree 32 We also with the dissent’s report make a appropriate assure action assertion that Austin is “control- will “special ling” be taken does not create rela should gov- this case but also have ” tionship” “duty” from which is born.’ Mor erned our decision in Morton. See in- v. Maricopa Austin, ton County, summarily finding fra. (App.1993), quoting primarily Shel the court on the trial focused Westminster, old, City Cal.App.3d ton v. improper court’s reliance since 610, (1982). 205, Thus, overruled, Cal.Rptr. 188 213 concepts duty hinged on special relationship entity an investigating governmental spe- between owed whether “a law agency obligation” enforcement and a particular decedent’s cific to a individual. family Austin, 581, 153, merely by member does arise not 140 Ariz. at 684 P.2d at

314 310, on him at the 308, had State, [identification] see if he Ariz. 656 134 Ryan v. citing Finally, we note that accident.” (1982), Massengill time of the 597, overriding 599 P.2d duty tethering the 518, approach of P.2d 376 456 the dissent’s County, 104 Ariz. v. Yuma question of wheth- fact-intensive (1969). concept nor outdated issue Neither that “the task had undertaken on defendants police protection,” er the “provi[sion of] remains,” [Vasquez’s] son’s identifying was duty in Austin finding of which the ¶ 56, impermissibly] infra, “necessarily [but case. Id. based, anything to do with this has specific facts of inquiry into the 581-82, an 153-54.7 involves 684 P.2d at at 141, Gipson, 214 Ariz. case.” an individual ¶ particularly question, 33 alsoWe 16, But issue “[t]he P.3d at 231. 150 county, Vasquez whether respect to the matter; legal it is a a factual is not establishing any factual burden of met her the case- matter to be determined before support the might in the record that basis ¶ 21. Id. specific facts are considered.” county owed a that the conclusion dissent’s resolving “analytical task” of 34 The it “undertook some because can create difficult and issues is sometimes ¶ 50, body. identify” Angel’s See effort among the bar confusion “understandable Valley Sch. Tollenaar v. Chino infra. 141, Gipson, 214 Ariz. courts.” and lower 1310, 179, 181-82, P.2d Dist., 945 190 Ariz. (Hurwitz, J., 39, concur- P.3d at 235 150 (rejecting theory of liabil (App.1997) 1312-13 supreme point, our ring). At this “undertaking” when ity on defendant’s based conceptu- “adopt[ed] a different court has supporting to meet burden of plaintiffs failed peo- “all approach,” id. under which al theory “by ‘showing that there is evi ” at all ple duty of care to all others owe a on creating genuine issue of fact’ dence Gipson Nor did involve times.” Id. 24.8 Reeves, it), 166 Ariz. quoting Orme Sch. v. agencies or (1990). against claims law enforcement 1000, 1009 In 802 P.2d pro- Despite the broad public other entities. summary county’s motion for opposing the government en- nouncements of visá-vis below, Vasquez argued that “there judgment Austin and Newman v. tities in cases such as County that Cochise under is no evidence 503, 501, Maricopa County, 167 Ariz. 808 the remains took sort of effort 1253, which Romo, cursory (App.1991), on Vas- than a look to P.2d Angel other procedural posture-the by trial court’s relies are enced its cases on which the dissent 7. The other granting unavailing. Stanley, supreme premature under similarly our of a motion to dismiss that[, Newman, despite 12(b)(6), “only the absence P. 167 Ariz. court held Rule Ariz. R. Civ. 505-06, 1255, doctor-patient relationship between the formal Fi P.2d at 1257-58. consideration, who, parties,] under a doctor disregards nally, recent dissent this court's x-rays, which he observes seri Wertheim, read takes to specifically opinion in which we abnormalities, reasonably in read must act ous distinguished Austin and New addressed and reporting x-rays the results.” 208 Wertheim, man. See support at 855. In of its Ariz. 92 P.3d P.3d at 5-6. §§ holding, the court cited the related (Second) of Torts 324A of the Restatement acknowledge Gipson rec- 8. We that the court (1965). Stanley, Ariz. 92 P.3d at resolve, ognized, tension but did not "whatever clearly are so Those Restatement sections language in cases such as exist between inapplicable not even cited here that has concepts and Bloxham and the Wertheim Collette v. Tolleson Uni or relied on them. See suggested the draft Third Restate- Ontiveros or Dist., ¶¶ 31-34, Sch. No. fied Ariz. Torts].” ment [of (App.2002); 835-36 Tollenaar " draft, proposed ‘[a]n 233 n. 4. Under that new 179, 180-82, Dist., Valley Chino Sch. ordinarily has a to exercise reasonable actor (App.1997); Daggett v. P.2d 1311-13 creates a risk of care when the actor's conduct 80, 85-86, Maricopa, County ” (alteration Gipson), physical Id. harm.' (App.1989). As for Newman (Third) Liability quoting Restatement of Torts: 501, 503, 504, Maricopa County, 7(a) Physical (Proposed Draft Harm Final (App.1991), a case J., (Hurwitz, 1, 2005); see also id. No. issued, the court's which a forceful dissent urge adoption concurring). Vasquez does not concept analysis included the foresee here, that rule it is but even under harm, that standard approach our risks of able alleged acts or omis- how defendants' not clear clearly abandoned. See court has now physical 141, ¶ 15, "create[d] a risk of sions in this case if at 231. And even decided, heavily correctly influ- harm” to others. Newman was quez rely, and the dissent also argument. this court has foreclosed that “[F]oresee subsequently ruled in ability Morton that no rela- is not a factor to be considered tionship giving rise to a existed between making courts when determinations of family police agency of decedent and a duty____” Gipson, 214 Ariz. investigating his death. 177 Ariz. at P.3d at 231. agree 865 P.2d at 811-12. We with the trial reason, 37 For that same we decline to Morton, “although court that not identical [to States, Vogelaar F.Supp. follow v. United case], sufficiently provide this is similar to (E.D.Mich.1987), Vasquez on which guidance” and undermines case, In relies. that the district court found

based failure to the decedent’s Michigan impose law would “a of body Angel’s. as plaintiff reasonable care to in the identifica Additionally, our decision in tion her son’s remains.” Id. at It law, Morton was based not on the lack aof ruled that under that state’s a court special relationship parties, between the but degree “consider[ ] would such factors as the public also on policy considerations. See foreseeability negligent conduct would Gipson, 214 Ariz. victim, 232 create a risk of harm to the (“Public policy may support recognition risk, severity of such and the likelihood of care.”). of a As we stated in Morton: imposing duty occurrence before of reason The identifying state’s interest able care.” human Id. The court ruled in view primarily “cherished, remains is public safety importance to foster respect of the through investigation ed, suspected dead,” right bury sacred ... [and] our remains, homicides. The identification of “mental [wa]s distress both foreseeable and course, incidentally however, benefits friends and likely Again, type to occur.” Id. relatives. primary Because this is not the foreseeability analysis in determining the however, purpose, no is creat- legal threshold place issue of has no give ed which would rise to a Arizona law. See surviving family]. [decedent’s addition, 150 P.3d at 231. In unlike the case, county and state in this federal 177 Ariz. at Although 865 P.2d at 812. government entity directly Vogel involved in this case does not involve homicide or the aar had responsibility “[t]he ultimate discovery corpse or human remains after identifying casualties from the death, Vietnam unexplained the Morton court’s F.Supp. light War.” 665 In sound, Gip reasoning and conclusion remain even Morton, son and we concepts flux; if do not find the duty currently court’s are in reasoning Vogelaar persuasive or its provided has result principled no basis to sum, applicable here. the trial court did depart previous from our ruling duty- on the in ruling not err that the to-identify state issue in Morton. duty Vasquez owed no investigate Vasquez, attempts to thoroughly accident more or to her

distinguish ground Morton on the that the and, therefore, deceased son were entitled to decedent there was murdered and that Mari summary judgment on that basis. therefore, copa County, “was not in even volved in the giving events rise to [his] 38 That necessarily conclusion does not contrast, argues, death.” In inquiry she rela “[t]he end our because also con- tionship Angel between “grounded Romo’s death and tends her claims are in” and inde- investigation standard pendently which was to fol actionable under the Restatement low, followed, (Second) (1979). or should have and [her] emo of Torts That section real, proximate tional distress provides: was intentionally, “One who recklessly tangential removes, or ruling withholds, remote.” But our negligently or mutilates Morton did not turn on whether the operates upon person of a dead causally had prevents been involved in the proper decedent’s its interment or crema- Additionally, death. to the extent Vasquez subject tion liability is to a member of the suggests we family should find a because harm of the deceased who is entitled to the foreseeable, disposition our body.” Vasquez correctly

316 346, (1988) (suggesting liability that recognized court has a 349-50 points that this out § hinge § recovery cause action under Restatement 868. and under Restatement 868 of Gardens, Memory duty); See v. Cochise of legal Tomasits on threshold determination cf. 40, 1166, Inc., 39, Gardens, Inc., 721 1167 Ariz. 150 Walser Mem’l 98 v. Resthaven Motion, (1993) Ariz. at (App.1986); 371, 466, (“If, also 177 472 Md.App. 633 A.2d 151, Relying P.2d at 812.9 on that sec- indeed, 865 cognizable legally right is a to there classifying tion her cause of action under have the of the deceased next-of-kin bodies “wrongful handling of a dead the rubric of ... there must ... a remain undisturbed be body,” erroneously the trial argues she part not corresponding on others summary judgment claims granted on her right.”). that to interfere with county negli- that state were both Motion, 41 In this court gent failing proper steps take to identi- “in to County a “Maricopa legal concluded had body, body,” “in fy” burying her son’s through examiner’s office to not its medical body” failing and “in to return to her proper negligently prevent the interment or upon request. plaintiffs’ cremation of dead [the son’s] view, might § 39 In our Restatement 868 151, body.” at 865 P.2d at 812. apply liability a support claim when G(3) § Vasquez argues A.R.S. that clear, body It is dead is identified. not how- bury imposes her to a on her son’s ever, when, applies whether that section as body. By preventing fulfilling her from here, allegedly fail- negligent the defendant’s obligation, argues, the her she caused body type ure to leads to the by “taking “severe distress” emotional custo § conduct and harm to which refers. 868 dy Angel, failing perform appropri Although it is not clear whether failing investigation, ate accident inherently concept of is subsumed allowing his remains and his remains to be pre- a provision, separate, we conclude knowledge bulled [her] without or con liminary analysis on the re- issue is 10 sent.” quired § this a case such as before 868’s liability play. rule into comes support argument, 42 In of her relies on both Tomasits Motion. We allege any Because does not distinguishable. find both cases Tomasits omissions, reckless acts or intentional or her question liability dealt with “the claims, negligence although various anchored disinterment,” wrongful 40, at 868, hinge meeting Restatement 1167, and, particularly, P.2d at more threshold, whether legal requirement of establish punitive damage supported by award was legal that defendants owed her a 39, 2, sufficient evidence. Id. at care. 11 & n. case, cemetery 1166. In that sold the same Having at 231 n. 2. concluded plots and, burial different to two families and state owed no body, Vasquez’s family, when identify Angel’s under sued the first disinterred arguably par- and re-interred the bodies of Restatement fails for that Tomasits’s ents, plots purchased reason alone. See Strachan v. F. Ken who had after the John nedy Hosp., family already bought Mem’l N.J. 538 A.2d first had them. Id. long v. Health Partners Ari zona held that Southern courts have a claim for Ramirez zona, (App.1998), negligent requires of emotional infliction distress court, retreating holdings this in "without from our bodily injury.” assuming showing Even Morton,” id. noted that Tomasits apply Vasquez's analysis Keck would claim for "appears represent a mi Restatement distress, negligent infliction of emotional it does nority majority view" and that "the rule contin separate apply to her claim for malicious, require op ues posed 'intentional or as body handling of a dead under Restatement negligent, interference' with dead Rathci, § 868. no "‘[l]here is need to show ¶¶ 27, liability quot body Id. to attach." physical consequences the mental distress' for Perdue, ing Burgess Kan. resulting damages negligent emotional in (1986). Morton, terference with dead bodies.” quoting at 151 n. 865 P.2d at 812 Restate Jackson, Citing Keck (alteration ). §ment cmt. a in Morton (1979), county points "Ari- P.2d 668 out that 39-40, 721 P.2d at 1166-67. Tomasits was to be delivered [closest] which, upon not notified of funeral determin the disinterment. Id. establishment” ing indigency, perform “shall the normal at 1167. This court affirmed a 11-600(A). indigent § county burial.” That judgment, punitive the including damage award, is what examiner did exactly the medical jury’s entered on the verdict in Toma- Although may “pro here. Arizona statutes sits’s favor. Id. at 721 P.2d at 1168. But care,” a vide a basis for of sufficient didwe not rule in en- Tomasits that a law 141, 24, 150 Gipson, 214 Ariz. P.3d at it agency forcement be could liable under Re- statutory would be inconsistent with the re failing identify § statement 868 for a 11-600(A) quirement §in for us to find a body crux of claim here. —the liability claim medical viable when the exam Rather, only liability Tomasits addressed for procedures pres iner the followed the law unlawful disinterment. cribes.12 Morton, 43 In county the medical exam- maintains, that she iner’s office admitted it had the incinerated “has never asserted that ... a [to inves- despite deceased victim’s remains fact the tigate Angel] accident and fell the on that “statutes in at the force time ... re- anybody County but the Cochise Sheriffs quired the or interment cremation dead of Department Department of the Public and/or bodies.” Id. at 865 P.2d at 812-13. But, above, Safety.” as discussed Restate- judgment liability We affirmed the of impose liability §ment 868 does not for fail- plaintiffs’ solely favor on “negligence based ing thoroughly investigate an accident or because, of the by medical examiner’s office” body. dead Vasquez does not ex- .a incinerating body the when it not should plain alleged the how acts omissions of or the have, prevented it had proper burial of the county sheriffs office and DPS can somehow body. Thus, Id. at P.2d at 814. “removing], be characterized as with- liability in Motion not did arise from the holding], mutilating] operating] upon” or county failure the sheriffs office to identi- body, types dead the of actionable conduct decedent, fy the rather from but the actions § set forth in 868. And unlike the situation of the medical handling examiner’s office in Motion, body where of the the decedent body, implicitly the as we ruled it had a destroyed, here followed the 11-251(27), 11-599, §§ do under A.R.S. requirements statutory burial and for Vas- Motion, and 11-600. 177 Ariz. at quez inability did not establish an to eventu- P.2d at 814. ally bury her according son to her wishes. ¶ 44 The ¶46 situation this case is record, say On this we cannot quite county argues, different. As the its “prevent[ed Angel’s] proper or state statutory medical examiner followed the re meaning interment cremation” within quirements handling Angel’s body.11 Un of Restatement Morton. law, der Arizona when medical examiner Aguirre-Alvarez Regents the Univ. completed investigation Cal., has a death “no Cal.App.4th Cal.Rptr.2d (when person charge (1998) other body takes public hospital at which deceased,” the medical examiner “shall cause died special relationship decedent “had no matter, waived, 11-593(B) disposition argument In view sup- of our we not this does not county's argument need not address the it is port finding requires here. statute That not liable for the of its officer, actions medical examin- peace when a citizen informed independent office er’s because it is an contrac- body, "promptly dead make or cause to be tor. investigation made an facts and circum- surrounding report stances the death court, argument At oral in this cited the medical results to examiner alternate med- first time and without elaboration A.R.S. Therefore, ical examiner.” the statute re- 593(B). Any argument based on stat 11— quires investigate officer to the death and how ute, however, Gamble, is waived. See Mitchell v. it occurred—"the facts and circumstances” of (App. decedent, identity the death—not the ex- 2004) ("[IJssues arguments raised for cept as an would aid in insofar identification argument appeal time first at oral are untime determining the of the death. circumstances waived.”). ly and deemed But even were of, Although the well- body. custody family members” of decedent’s

with majority opinion consistent with pre* reasoned is statutory requirement by with complied Morton, coroner, holding in I hospital previous “owed no this court’s senting and, my notify colleagues under family] agree with cannot [decedent’s agen- demise, pertinent jurisprudence, family did not of decedent’s the circum- of care under right to cies owed no have decedent [their] interfere this case. interred”); stances of District Columbia properly (when (D.C.1981) Smith, 436 A.2d repeatedly has supreme court 49 Our to was admitted decedent unidentified of arise from that duties care can observed Doe,” facility “John court as defendant’s person Gip undertaken. the conduct a has § 868 liability under Restatement found no 232; son, P.3d at identify to decedent for defendant’s failure McCarver, Stanley v. interfering family’s right bury or to with (2004) (special cre P.3d dispose body, and distin court otherwise “may find in ... under ating duty its basis liability guished other in which stemmed ease previously applied that The court takings”). notify to hospital’s defendant failure from scope very assessing of a principle when the death, “given surviving spouse of husband’s agency’s duty of care to law enforcement knowledge of decedent’s the defendant’s Scottsdale, City others. See Austin Ry. identity”); Awtrey v. & W. Norfolk cf. 151, 153-54 n. Ariz. 581-82 & (1917) Co., 121 Va. 93 S.E. (1984) (although duty police owed no & 2 family of death not (failing notify to harms,” agency protect to from “all citizens sum, withholding body). the trial [surviving family of crime victim “duty had to summary judgment in in granting err did not reasonably a careful and to] act as would Vasquez’s county and state on favor they prudent department” police once have handling body. wrongful dead claim for by “opted provide police protection” re to calls). And, subsequent ceiving emergency Disposition jurisprudence relied on that ana has judgments in favor of 47 The trial court’s lytical framework to determine whether law county Vasquez’s on claims state duty agencies of care enforcement owed wrongful distress and infliction emotional specific plaintiffs. City to McDonald handling a are The dead affirmed. Prescott, judgment in of the state on favor (App.2000) (citing Austin and reversed, wrongful death is and the that, although duty owed no holding officers ” proceedings further on case is remanded for maintenance, “per perform to road once se that claim. routinely to remove dan officers undertook road, gerous they duty from owed conditions “ VÁSQUEZ, L. GARYE CONCURRING: ‘reasonably to do so in a careful drivers to ” Judge. manner), Austin, prudent’ quoting 154; at at Newman v. ECKERSTROM, Judge, concurring in County, 167 Maricopa dissenting part. part and 1253, 1255(App.1991)(citing Austin and case, In this we address whether state law interpreting it to anchor enforce agencies county law enforcement owed agencies to in the affirmative ment others juvenile of a deceased to to mother enforcement). activities of law boy’s identify efforts to make reasonable case, remains, agencies agencies to In this undertook to when those undertook pursue boy, respon- chase undertook exclusive participate high-speed that result- sibility body, agencies and when those for his and consistent ed in his death13 actions, for, arising responsibilities those subsequently responsibility had sole doing jury suggest is a thereby standard care in so 13. I do not the officers reasonable question necessarily respective agencies engaged claim unrelated death agencies deciding owed any improper negligent of whether the Vas- conduct in the issue identify Angel. quez any separate son. Whether the officers breached chase identify undertook some effort it. Accord- the defendants owe a they ingly, owed “a to act as would a reasonably pru conduct those in a actions reasonably prudent police depart- careful and dent fashion? To the extent Morton’s reli doing. ment in the same in so circumstances” suggests ance on Shelton this court have Austin, 684 P.2d at 154. implicitly rejected agen the notion that an cy’s may give duty, any own conduct rise to a majority 51 The relies on this court’s holding longer accurately such would no holding decision in Morton the named characterize Arizona law. As discussed agencies nonetheless owed no to Vas above, opinions more recent of our case, quez her son. In that in the appellate court and the bulk of our state context of a claim that medical jurisprudence applying Austin have clarified negli examiner’s office and sheriff general proposition that defen gently body, had failed to we held may acquire duty dants of care to others neither sheriff nor the examiner conduct, undertaking but also that law en owed a family to a murder victim’s agencies forcement particular may acquire in “either to submit dental records to the De duty by doing a of care so. See partment Safety of Public or to solve a homi ¶ (special 150 P.3d at 232 rela any specific cide within time frame.” 177 tionships supporting duty can arise from con Ariz. at 865 P.2d at defendant); by duct undertaken Stanley, 208 Notwithstanding similarity the be (imposing duty presented tween the claim in Morton and the physician of care on with no direct relation here, I would decline to follow that case ship patient physician’s based on under First, for several although reasons. in Mor taking to review an x-ray report its ton we addressed whether a state law en results); McDonald, see also agency forcement duty owed a of care to ¶¶ 13-17, (law 5 P.3d at 902-03 enforcement others, this court did not discuss or cite agency acquired duty to remove hazards on Austin, controlling a road agency routinely because undertook opinion setting forth the relevant standards Newman, responsibility); that 167 Ariz. at Second, analyzing very question. for that (law 503, 808 P.2d at 1255 enforcement ac holding the in Motion is anchored almost quires duty to exercise reasonable care as to exclusively in the reasoning of a California undertakes). activities it appellate court in City Shelton v. West Morton, Finally, in minster, we found that Cal.App.3d Cal.Rptr. primary (1982). state’s motivation to the hu- Morton, 177 Ariz. at support man remains did imposition P.2d at 811. But Shelton does not focus on duty. there, Under the circumstances agency whether a law enforcement ac we reasoned that quire duty by undertaking a of care specific responsibility. Cal.Rptr. See 188 at 211-13. The identifying state’s interest in human And, portion quoted in Shelton Morton primarily public remains is safety foster suggests that law enforcement cannot ac through investigation suspected quire by of care that method under remains, homicides. The identification of Morton, California law. course, incidentally benefits friends and (“ by P.2d at 811 undertaking police ‘[T]he relatives. primary Because this is not the [missing person] make a report and assure purpose, relationship no is creat- appropriate [that] action will be taken does give ed which would rise to a “special relationship” not create a from which Mortons. ”),

“duty” Shelton, quoting is born.’ 188 Cal. here, 177 Ariz. at at 812. But Rptr. at 213. unlike the circumstances that resulted in the Thus, Morton, to the extent Morton fails to identification of the the offi- discuss Austin or other precisely Angel Arizona case cers knew how had died—as Austin, following it does not answer the a result of a rollover car crash that occurred question By Therefore, raised undertaking pursued here: as the officers him. responsibility identifying Angel’s body, did support finding record here would not that 141, 35, 150 rule,” Gipson, 214 Ariz. identifying general primary motivation

the state’s And, (Hurwitz, J., concurring), yet has a homicide case. P.3d at 234 boy was to solve primary by supreme court. See id. assuming rejected a defendant’s our that to be even that, acknowledging re- based on engaging specific (majority conduct n. 4 purpose for Ontiveros, in determin- “one could conclude holding consideration mains a relevant its special to exercise generally conduct creates ‘owe a people whether such claimants, little causing physical there can be relationship to care to avoid reasonable others, would have boy’s exceptions that the mother subject doubt here harm’ to beneficiary of primary an obvious reasons of modify been this eliminate (Third) remains— agencies’ efforts policy”), quoting Restatement doing undertaking task of Liability Physical Hawn Torts: so, special 2005). agencies created (Proposed Final Draft No. with her. reasons, I would foregoing 56 For majority agrees with the Although the defendants, through their re- hold that the defendants, includ- general proposition and the Cochise spective agencies, DPS enforcement, may acquire a ing law Department, owed a County Sheriffs conduct, by undertaking it to others care they Vasquez once undertook care to po- limits” on fears the lack of “reasonable Of identifying her son’s remains. task of arising applica- action tential causes of here, course, it find a would were we to But, legisla- principle. both our tion of that the trier of fact to determine remain for narrowing capable are ture and our courts agencies acted as would “a rea- whether the range conduct in the inter- of actionable police depart- sonably prudent careful public policy. Gipson, 214 Ariz. ests of attempting ment under the circumstances” ¶¶ (Hurwitz, J., con- 150 P.3d 228 identify Angel’s remains and what dam- (analyzing public policy as curring) whether suffered, any, if from al- ages Vasquez justifies by legislature and courts articulated duty. leged breach of that And, duty). long- a thread of imposition of all join majority’s opinion I as to Arizona standing and recent other issues addressed. by contemporary jurisprudence, supported wisdom, scholarly practice has eschewed care based limiting an actor’s

exclusively preexisting “categorical rela- tionships” identified the common law See, (majority e.g., id. 18-22 restatement. Stanley, opinion); (acknowledging trend requirement 206 P.3d 769 jurisprudence to erode “[t]he par- a formalized between Arizona, Appellee, The STATE of assessing of care owed ties” when another); party Ontiveros v. Bo- one rak, 136 Ariz. Enrique ORTEGA, Appellant. Luis (1983) (every person under to avoid 2No. CA-CR 2007-0403. pose creating situations that unreasonable others); Dobbs, of harm to 1 Dan B. The risk Arizona, Appeals Court (2001) (“[N]o Torts at 579 Law of 2, Department Division B. be invoked when all cases rules should Oct. they substantially policy fall within the cover liability.”). the defendant of In- that frees April Review Denied deed, sugges- even Justice Hurwitz’s broader tion that the court should “view norm, depart care as the

reasonable only in that norm those cases where justifies exception public policy

Case Details

Case Name: Vasquez v. State

Court Name: Court of Appeals of Arizona

Date Published: Sep 29, 2008

Citation: 206 P.3d 753

Docket Number: 2 CA-CV 2007-0148

Court Abbreviation: Ariz. Ct. App.