Court: Family can sue over incorrect death report
- Article by: BOB CHRISTIE
- Associated Press
- May 6, 2014 - 7:35 PM
PHOENIX — A family can sue the state for negligence after being incorrectly told by state police that a young woman had died in a car accident, the Arizona Court of Appeals ruled Tuesday, saying officers must use reasonable care when making next-of-kin notifications.
The ruling revives a lawsuit filed by Maria and Jose Guerra and their daughter April against the Department of Public Safety over the July 2010 mix-up that led officers to tell the parents that the then-19-year-old had been killed.
It was actually one of April's friends, 21-year-old Marlena Cantu, who was killed in the rollover accident. Cantu's parents stood vigil for days at a Phoenix hospital where she was reportedly being treated before learning they had been watching over Guerra and that their own daughter was dead.
Guerra, called Abby by her family and friends, sustained a brain injury, broken back, collapsed lung and other injuries. Her face was badly bruised, preventing hospital staff and Cantu's parents from recognizing her.
The Maricopa County Medical Examiner's Office didn't discover the mix-up until six days later when it compared dental records provided by the family of Guerra.
A trial court previously threw out the lawsuit that accused state police of negligence, negligent training and intentional infliction of emotional distress. The appeals court revived only the negligence claim.
"Given the ... inarguably devastating emotional impact a family member's death has on survivors, when the state undertakes the actual (next of kin) notification it must communicate the information with reasonable care being given to the accuracy of what is conveyed," Judge Kenton D. Jones wrote in the decision that was joined by two other appeal court judges.
Cantu and Guerra were among a group of five friends from Ironwood High School in Glendale who were returning from Disneyland when the sport utility vehicle they were riding in blew a tire on July 18, 2010. The driver lost control, and the SUV rolled several times, authorities said. Also fatally injured was 20-year-old Tyler Parker.
A nursing major and soccer player at the University of Evansville in Indiana, Guerra was about to start her sophomore year when she was injured.
Her attorney Mick Levin didn't immediately return a phone call seeking comment Tuesday. Bart Graves, a spokesman for the Department of Public Safety, said the agency can't comment on litigation.
According to the ruling, state police discovered a purse with Guerra's identification next to Cantu's body at the accident scene. Cantu's license also was in the purse. The two were close friends and shared similar physical characteristics.
Another team of officers then went to St. Joseph's Hospital in Phoenix to try to identify the survivors. The officers, working with a nurse, determined incorrectly that the unconscious survivor was Cantu, the ruling states. The officers then decided by the process of elimination that the dead woman was Guerra.
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