Lead Opinion
OPINION
¶ 1 In this wrongful death action, plaintiff/appellant Gloria Yasquez appeals from the trial court’s grant of motions for summary judgment and dismissal of the complaint in favor of defendants/appellees Cochise County, the State of Arizona, and the Arizona Department of Public Safety (DPS). She contends the trial court erred in finding her notice of claim against the state insufficient under A.R.S. § 12-821.01(A) and in ruling that the county and state owed no duty to her. We agree in part with her first contention and, therefore, reverse the judgment in favor of the state on Vasquez’s wrongful death claim against it. We otherwise find no error and affirm the remaining judgments.
Background
¶ 2 “On appeal from a grant of summary judgment, we view all facts and reasonable inferences therefrom in the light most favorable to the party against whom judgment was entered.” Bothell v. Two Point Acres, Inc.,
¶ 3 When Wiedemann ultimately initiated a traffic stop by activating his emergency lights and siren, the driver of the truck started to move toward the shoulder of the road, but he then accelerated and fled. A high-speed pursuit ensued, during which the truck, according to Wiedemann, “went into the on-coming lane numerous times.” At that point, other DPS and county officers had blocked off the highway ahead and were prepared to deploy “spike strips” to stop the truck. Wiedemann “backed off’ his pursuit and the truck hit the strips, causing it to leave the roadway and roll into the desert. The driver died at the scene.
¶ 5 Vasquez subsequently filed this action against the state, DPS, Cochise County, and the City of Douglas. Before filing her complaint, Vasquez timely “filed” and served a notice of claim against the state, notifying it that she had a claim for wrongful death pursuant to A.R.S. § 12-611 and for “violation of her son’s Fourteenth Amendment rights under 42 U.S.C.A. § 1983 in that the DPS employees actively created a dangerous situation that led to Angel Romo’s death.” In her original complaint, she alleged a wrongful death claim only against the state, DPS, and the City of Douglas and separate claims against Cochise County for wrongful handling of a dead body and negligent infliction of emotional distress. Vasquez later amended her complaint, adding those two latter claims against the state and DPS and withdrawing the claims against Douglas. She did not file or serve a notice of claim as to those two new claims against the state.
¶ 6 Cochise County moved for summary judgment, arguing, inter alia, it had no duty to identify the deceased driver or to notify Vasquez of her son’s death. The county also maintained it was not liable for any alleged negligence on the part of the county’s medical examiner because he was an independent contractor. The state joined in the county’s motion and also moved to dismiss the action against it pursuant to Rule 12(b)(6), Ariz. R. Civ. P., based on Vasquez’s failure to strictly comply with the notice-of-claim requirements in § 12-821.01(A). The trial court granted both motions, ruling that neither the county nor the state “owed [any] legal duty to [Vasquez] to identify the human remains of [her] decedent,” Angel Romo. The court further ruled that Vasquez had not satisfied the requirements of § 12-821.01(A) on any of her claims against the state, mandating dismissal of those claims on that ground as well. This appeal followed.
Discussion
1. Notice of claim on wrongful death claim
¶ 7 Vasquez’s notice of claim against the state set forth in some detail her factual allegations concerning the events surrounding the incident in which her son was killed and demanded $750,000 to settle the claim. She also described the decedent, Angel Romo, as her “15-year old son” but said nothing more to explain the settlement amount she demanded. In finding the notice of claim insufficient under § 12-821.01(A), the trial court noted that Vasquez had provided “no information about the relationship between [her] and the son” and “no facts ... which would permit a governmental entity to evaluate damages.” Those deficiencies in the notice of claim, the court ruled, required dismissal of the wrongful death claim against the state. In challenging that ruling, Vas
¶ 8 Preliminarily, we note that, although the trial court granted the state’s motion to dismiss pursuant to Rule 12(b)(6), it considered Vasquez’s notice of claim, which was not included in the complaint but rather was an exhibit to the state’s motion. Because the court considered “matters outside the pleading,” it should have treated the motion as one for summary judgment. See Ariz. R. Civ. P. 12(b); Jones v. Cochise County,
¶ 9 In pertinent part, Arizona’s notice of claim statute, § 12-821.01(A), provides:
Persons who have claims against a public entity or a public employee shall file claims with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the public entity or public employee to understand the basis upon which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim which is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.
These “statutory requirements serve several important functions: They “ ‘allow the public entity to investigate and assess liability, ... permit the possibility of settlement prior to litigation, and ... assist the public entity in financial planning and budgeting.”’” Deer Valley Unified Sch. Dist. No. 97 v. Houser,
¶ 10 Vasquez argues her notice of claim “complied in all necessary respects with A.R.S. § 12-821.01.” She maintains that, because “a claim for ‘wrongful death’ cannot be mathematically liquidated” and “is dependent upon ... many intangibles which cannot be documented effectively,” it would be “unreasonable to suggest that [she] ... should have been required to provide more detailed information in her Notice of Claim.” Relying primarily on Deer Valley, however, the state argues the trial court properly dismissed Vasquez’s wrongful death claim because her “notice of claim contained no facts supporting the amount demanded in settlement as the notice-of-claim statute requires.”
H 11 In Deer Valley, our supreme court addressed the sufficiency of a notice of claim filed in an employment case involving a wrongful termination claim against a school district.
¶ 12 Importantly, the court in Deer Valley addressed only the limited issue of whether the claimant’s notice of claim included a “specific sum,” as § 12-821.01(A) requires. Id. n. 3; see also Backus,
¶ 13 Deer Valley established that a notice of claim must demand a clear, unqualified, and specific sum for which the claim can be settled. See Jones,
The attendant statutory obligation that claimants present “facts supporting that amount” requires that claimants explain the amounts identified in the claim by providing the government entity with a factual foundation to. permit the entity to evaluate the amount claimed. This latter requirement ensures that claimants will not demand unfounded amounts that constitute “quick unrealistic exaggerated demands.” In tandem, these two statutory mandates ensure that government entities will be able to realistically consider a claim.
¶ 14 According to the state, the Deer Valley court found, albeit in dicta, the claim letter in that case lacked “any facts supporting the claimed amounts for emotional distress and for damages to [plaintiff’s] reputation,” id. n. 3, even though her claim letter was more detailed and extensive than Vasquez’s notice of claim in this case.
¶ 15 Nonetheless, the state maintains, and the trial court agreed, that Vasquez’s notice of claim lacked any facts to support the amount she demanded to settle the claim. According to the state, Vasquez was required to include a “description of the nature and quality of her relationship with her son and the emotional impact of his death on her.” Section 12-821.01(A), however, does not expressly require any such facts, but rather merely requires “a specific amount for which the claim can be settled and the facts supporting that amount.” And, unlike the second sentence of subsection A, which pertains to liability claims, the third sentence addressing the amount of damages claimed does not require such facts to be “sufficient to permit the public entity or public employee to understand the basis upon which liability is claimed.” § 12-821.01(A); Backus,
¶ 16 We turn, then, to Vasquez’s notice of claim and consider whether it contains any facts to support her demand in the “specific amount” of $750,000. § 12-821.01(A). We agree with the state that “[tjhe plain language of the statute does not support ... an exemption” for wrongful death claims from the statutory requirements. Nonetheless, in gauging compliance with § 12-821.01(A), we find it appropriate to consider the cause of action in determining what facts must be provided in support of the
¶ 17 As noted earlier, Vasquez stated in her notice of claim that the decedent, Angel Romo, was her “15-year old son.” Although “it may have been optimal” for Vasquez to have provided some details about her relationship with her son, Backus,
¶ 18 Thus, because Vasquez provided some facts in support of the amount claimed, “regardless of how meager,” her notice “met not only the literal language of the statute but also any requirement that may be implied from Deer Valley.” Backus,
¶ 19 As the court held in Backus, we similarly hold that, “[i]n the context of the wrongful death claim[ ] being advanced here,” Vasquez’s “notice[ ] of claim w[as] sufficient to meet any requirement implied by Deer Valley with respect to ‘a factual foundation’ supporting the proposed settlement amount.” Id. ¶ 28, quoting Deer Valley,
II. Other tort claims
¶ 20 We next address Vasquez’s claims for wrongful handling of a dead body and infliction of emotional distress based on alleged negligence in “inspect[ing] or investigat[ing] the scene and related facts of the accident and the person of Angel Romo.” In granting summary judgment in favor of both defendants on those claims, the trial court ruled the county and state “owed no legal duty to [Vasquez] to identify the human remains of [the] decedent.” Contrary to that ruling, Vasquez argues, the county and state “owed a duty of care to Angel Romo and to [her].” “On appeal from a summary judgment, we must determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law.” Bothell,
¶ 21 “To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey,
¶ 22 Because Vasquez alleged negligence as the basis for both her claims of infliction of emotional distress and wrongful handling of a dead body, we first analyze whether the county owed a duty to Vasquez. Whether a defendant owes a duty of care is a question of law, which we review de novo. See Markowitz,
¶ 23 Quoting from A.R.S. § 28-624(D), Vasquez argues the county and state “owed a duty to [Angel] and his mother to conduct [the] pursuit and his apprehension” “ ‘with due regard for the safety of all persons.’ ” Section 28-624 provides that, under certain circumstances, drivers of authorized emergency vehicles may violate specified traffic laws when in pursuit of a suspect or responding to an emergency call. Subsection D, on which Vasquez relies, imposes on such drivers a “duty to drive with due regard for the safety of all persons and does not protect the driver from the consequences of the driver’s reckless disregard for the safety of others.” See also A.R.S. § 28-775(C).
¶ 25 Vasquez further maintains that the county and state’s “apprehension of Angel created a special relationship between him, [her] and [those entities].” She relies on the Restatement (Second) of Torts § 314A(4) (1965) for that proposition. That section of the Restatement provides: “One who is required by law to take or voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.” See DeMontiney v. Desert Manor Convalescent Ctr., Inc.,
¶ 26 As the defendants point out, however, Angel never was apprehended or taken into custody, and “[n]o custodial relationship was ever established” between him and the various law enforcement officers “before he flipped the truck and was lolled.” See, e.g., Wertheim v. Pima County,
¶ 27 Moreover, neither the language of Restatement § 314A(4) nor its related comments or illustrations suggests that that provision might apply to one who “takes the custody” of a dead body rather than of a living person. Vasquez has not cited, nor have we found, any case in which that section has been so applied. And the “similar duty” of which § 314A(4) speaks is the duty “to protect Lthe other] against unreasonable risk of physical harm” and “to give them first aid after [the defendant] knows or has reason to know that [the other is] ill or injured.” Restatement § 314A(1). Such duties clearly are meaningless when the other person to whom they allegedly are owed is dead. Thus, no special relationship under Restatement § 314A(4) existed so as to create a duty owed by defendants to Vasquez or the decedent.
¶ 28 Vasquez correctly argues, however, that “while a special relationship may foster a duty, its existence is not essential for a duty to exist — particularly if public policy warrants the same.” As our supreme court stated in Gipson, “[a] special or direct relationship ... is not essential in order for there to be a duty of care.”
¶ 29 Vasquez also contends a duty of care “arose merely by the fact |the state and county] undertook an investigation following [Angel’s] death.” In Gipson, our supreme court observed that “[d]uties of care may arise from ... conduct undertaken by the defendant.”
¶ 30 Likewise, although a law enforcement agency might have some duty to investigate an accident, see McDonald v. City of Prescott,
¶31 The thoughtful dissent would find a duty here based merely on the defendants supposedly having undertaken “to participate in a high-speed chase that resulted in [Angel’s] death,” to exercise “exclusive responsibility for his body,” and to make “some effort to identify it.” See ¶¶ 48, 50, infra (Eeker-strom, J., concurring in part and dissenting in part). We do not quarrel with the dissent’s general proposition that defendants, including law enforcement agencies, “may acquire a duty of care to others by undertaking conduct.” See ¶ 53, infra. In our view, however, the dissent’s reasoning stretches that concept well beyond reasonable limits in this case. Everything law enforcement undertakes conceivably might have some impact on a particular family or individual. If the dissent’s broad view of “duty by undertaking” were the law, as the state points out, “[e]very unsolved crime could then theoretically give rise to a cause of action by the victim or a deceased victim’s relatives for negligent investigation.”
¶ 32 We also disagree with the dissent’s assertion that Austin is not only “controlling” in this case but also should have governed our decision in Morton. See ¶ 52, infra. In summarily finding a duty in Austin, the court primarily focused on the trial court’s improper reliance on old, and since overruled, concepts of duty that hinged on whether a governmental entity owed “a specific obligation” to a particular individual. Austin,
¶ 33 We also question, particularly with respect to the county, whether Vasquez met her burden of establishing any factual basis in the record that might support the dissent’s conclusion that the county owed a duty to Vasquez because it “undertook some effort to identify” Angel’s body. See ¶ 50, infra. See Tollenaar v. Chino Valley Sch. Dist.,
¶ 34 The “analytical task” of resolving duty issues is sometimes difficult and can create “understandable confusion among the bar and lower courts.” Gipson,
¶ 35 Additionally, our decision in Morton was based not only on the lack of a special relationship between the parties, but also on public policy considerations. See Gipson,
The state’s interest in identifying human remains is primarily to foster public safety through the investigation of suspected homicides. The identification of remains, of course, incidentally benefits friends and relatives. Because this is not the primary purpose, however, no relationship is created which would give rise to a duty to the [decedent’s surviving family].
¶ 36 Vasquez, however, attempts to distinguish Morton on the ground that the decedent there was murdered and that Maricopa County, therefore, “was not even involved in the events giving rise to [his] death.” In contrast, she argues, “[t]he relationship between Angel Romo’s death and the standard investigation which was to follow, or should have followed, and [her] emotional distress was proximate and real, not tangential or remote.” But our ruling in Morton did not turn on whether the county had causally been involved in the decedent’s death. Additionally, to the extent Vasquez suggests we should find a duty because harm to her was foreseeable, our supreme court has foreclosed that argument. “[F]oreseeability is not a factor to be considered by courts when making determinations of duty____” Gipson,
¶ 37 For that same reason, we decline to follow Vogelaar v. United States,
¶ 38 That conclusion does not necessarily end our inquiry because Vasquez also contends her claims are “grounded in” and independently actionable under the Restatement (Second) of Torts § 868 (1979). That section provides: “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.” Vasquez correctly
¶ 39 In our view, Restatement § 868 might apply and support a liability claim when the dead body is identified. It is not clear, however, whether that section applies when, as here, the defendant’s allegedly negligent failure to identify the body leads to the type of conduct and harm to which § 868 refers. Although it also is not clear whether the concept of duty is inherently subsumed in that provision, we conclude a separate, preliminary analysis on the duty issue is required in a case such as this before § 868’s rule of liability comes into play.
¶ 40 Because Vasquez does not allege any intentional or reckless acts or omissions, her various negligence claims, although anchored in Restatement § 868, hinge on her meeting the threshold, legal requirement of establishing that defendants owed her a legal duty of care. See Gipson,
¶ 41 In Motion, however, this court concluded “Maricopa County had a legal duty through its medical examiner’s office to not negligently prevent the proper interment or cremation of [the plaintiffs’ son’s] dead body.”
¶ 42 In support of her argument, Vasquez relies on both Tomasits and Motion. We find both cases distinguishable. Tomasits dealt with “the question of liability for wrongful disinterment,”
¶ 43 In Morton, the county medical examiner’s office admitted it had incinerated the deceased victim’s remains despite the fact that “statutes in force at the time ... required the interment or cremation of dead bodies.” Id. at 151-52,
¶ 44 The situation in this case is quite different. As the county argues, its medical examiner followed the statutory requirements for handling Angel’s body.
¶ 45 Vasquez maintains, however, that she “has never asserted that ... a duty [to investigate the accident and identify Angel] fell on anybody but the Cochise County Sheriffs Department and/or the Department of Public Safety.” But, as discussed above, Restatement § 868 does not impose liability for failing to thoroughly investigate an accident or identify .a dead body. Vasquez does not explain how the alleged acts or omissions of the county sheriffs office and DPS can somehow be characterized as “removing], withholding], mutilating] or operating] upon” a dead body, the types of actionable conduct set forth in § 868. And unlike the situation in Motion, where the body of the decedent was destroyed, the county here followed the statutory requirements for burial and Vasquez did not establish an inability to eventually bury her son according to her wishes.
¶46 On this record, we cannot say the county or state “prevent[ed Angel’s] proper interment or cremation” within the meaning of Restatement § 868 and Morton. See Aguirre-Alvarez v. Regents of the Univ. of Cal.,
Disposition
¶ 47 The trial court’s judgments in favor of the state and county on Vasquez’s claims for infliction of emotional distress and wrongful handling of a dead body are affirmed. The judgment in favor of the state on Vasquez’s wrongful death claim is reversed, and the case is remanded for further proceedings on that claim.
Notes
. Although Cochise County did not move for dismissal or summary judgment below based on the notice-of-claim statute, A.R.S. § 12-821.01, and does not urge us to affirm the judgment in its favor on that ground, the record does not reflect whether Vasquez ever filed a notice of claim against the county.
. Vasquez appealed from the trial court’s unsigned minute entry order and “any judgments entered with respect thereto.” The trial court subsequently signed and entered final judgments. Although Vasquez's notice of appeal was premature, we have jurisdiction of the appeal. See Ariz. R. Civ.App. P. 9(a); Barassi v. Matison,
. In support of its argument, the stale also points to the following statement in Yollin,
. We do not suggest, however, the state has an obligation under any circumstances to request more facts, and certainly not when the claimant has failed to provide any facts in support of the damage amount claimed. Nonetheless, "[t]he claim statute anticipates that government entities will investigate claims, and the supporting facts requirement is intended to be a relatively light burden on claimants, just enough to facilitate tire government's investigation.” Yollin,
. Aside from its notice-of-claim contentions, the state does not argue that the trial court’s dismissal of Vasquez's wrongful death claim was proper and should be upheld on any other basis. Because we reverse that, ruling, and because we conclude in section II below that the trial court properly entered summary judgment in favor of the county and state on her other two claims based on lack of duty, we need not decide whether Deer Valley is retroactively applicable. See Backus,
. The amicus curiae Arizona Trial Lawyers Association (ATLA) urges us to find that the state waived its notice-of-claim argument because it did not move to dismiss on that ground until about a year and a half after Vasquez filed her complaint. In light of our conclusion that Vasquez complied with the statute on her wrongful death claim, and because she did not assert waiver below or on appeal, we do not address ATLA's waiver issues. See Yollin,
. The other cases on which the dissent relies are similarly unavailing. In Stanley, our supreme court held “only that[, despite the absence of a formal doctor-patient relationship between the parties,] a doctor who, for consideration, undertakes to read x-rays, on which he observes serious abnormalities, must act reasonably in reading the x-rays and reporting the results.”
. We acknowledge that the court in Gipson recognized, but did not resolve, "whatever tension may exist between language in cases such as Wertheim and Bloxham and the concepts of duty suggested by Ontiveros or the draft Third Restatement [of Torts].”
. In Ramirez v. Health Partners of Southern Arizona,
. Citing Keck v. Jackson,
. In view of our disposition of this matter, we need not address the county's argument that it is not liable for the actions of its medical examiner’s office because it is an independent contractor.
. At oral argument in this court, Vasquez cited for the first time and without elaboration A.R.S. § 11 — 593(B). Any argument based on that statute, however, is waived. See Mitchell v. Gamble,
Concurrence Opinion
concurring in part and dissenting in part.
¶ 48 In this case, we address whether state and county law enforcement agencies owed a duty to the mother of a deceased juvenile to make reasonable efforts to identify the boy’s remains, when those agencies undertook to participate in a high-speed chase that resulted in his death
¶ 49 Our supreme court repeatedly has observed that duties of care can arise from the conduct a person has undertaken. Gipson,
¶ 50 In this case, the agencies undertook to pursue the boy, undertook exclusive responsibility for his body, and consistent with the responsibilities arising from those actions,
¶ 51 The majority relies on this court’s decision in Morton in holding the named agencies nonetheless owed no duty to Vasquez to identify her son. In that case, in the context of a claim that the county medical examiner’s office and county sheriff negligently had failed to identify a body, we held that neither the sheriff nor the examiner owed a duty to a murder victim’s family “either to submit dental records to the Department of Public Safety or to solve a homicide within any specific time frame.”
¶ 52 Notwithstanding the similarity between the claim presented in Morton and the claim here, I would decline to follow that case for several reasons. First, although in Morton we addressed whether a state law enforcement agency owed a duty of care to others, this court did not discuss or cite Austin, a controlling Arizona supreme court opinion setting forth the relevant standards for analyzing that very question. Second, the holding in Motion is anchored almost exclusively in the reasoning of a California appellate court in Shelton v. City of Westminster,
¶ 53 Thus, to the extent Morton fails to discuss Austin or any other Arizona case following Austin, it does not answer the question raised here: By undertaking the responsibility of identifying Angel’s body, did the defendants owe a duty to Vasquez to conduct those actions in a reasonably prudent fashion? To the extent Morton’s reliance on Shelton suggests this court may have implicitly rejected the notion that an agency’s own conduct may give rise to a duty, any such holding would no longer accurately characterize Arizona law. As discussed above, more recent opinions of our supreme court and the bulk of our state appellate jurisprudence applying Austin have clarified not only the general proposition that defendants may acquire a duty of care to others by undertaking conduct, but also that law enforcement agencies in particular may acquire a duty of care by doing so. See Gipson,
¶ 54 Finally, in Morton, we found that the state’s primary motivation to identify the human remains did not support the imposition of a duty. Under the circumstances there, we reasoned that
The state’s interest in identifying human remains is primarily to foster public safety through the investigation of suspected homicides. The identification of remains, of course, incidentally benefits friends and relatives. Because this is not the primary purpose, however, no relationship is created which would give rise to a duty to the Mortons.
¶ 55 Although the majority agrees with the general proposition that defendants, including law enforcement, may acquire a duty of care to others by undertaking conduct, it fears the lack of “reasonable limits” on potential causes of action arising from application of that principle. But, both our legislature and our courts are capable of narrowing the range of actionable conduct in the interests of public policy. See Gipson,
¶ 56 For the foregoing reasons, I would hold that the defendants, through their respective agencies, DPS and the Cochise County Sheriffs Department, owed a duty of care to Vasquez once they undertook the task of identifying her son’s remains. Of course, were we to find a duty here, it would remain for the trier of fact to determine whether the agencies acted as would “a reasonably careful and prudent police department under the circumstances” in attempting to identify Angel’s remains and what damages Vasquez suffered, if any, from any alleged breach of that duty.
¶ 57 I join the majority’s opinion as to all other issues addressed.
. I do not thereby suggest that the officers of the respective agencies necessarily engaged in any improper or negligent conduct in deciding to chase Angel. Whether the officers breached a reasonable standard of care in so doing is a jury question on the wrongful death claim unrelated to the issue of whether the agencies owed Vasquez any separate duty to identify her son.