JONES, Judge.
¶ 1 This matter arises from a single vehicle accident in which one of five passengers died. Thereafter, due to confusion caused by the extent of the passengers' injuries, Officers of the Arizona Department of Public Safety errantly advised the family of a surviving passenger their daughter had died. Following the discovery of the true identity of the deceased, the errantly advised family brought suit for negligence, negligent training and intentional infliction of emotional distress. The trial court granted summary judgment to the State, and the family, Appellants April, Maria and Jose Guerra (collectively, the "Guerras"), appeal that ruling.
¶ 2 On July 18, 2010, five friends were traveling home to Arizona from California when their vehicle suffered a rear tire failure, causing it to roll. During the rollover, two female passengers were ejected; one of them was pronounced dead at the accident scene.
¶ 3 The Arizona Department of Public Safety ("DPS") responded to the accident scene. Once there, DPS officers discovered a purse near the deceased that contained Arizona driver's licenses for April Guerra and M.C., who were close friends and shared similar physical attributes. Due to the extent of their injuries, none of the passengers were positively identified at the accident scene. DPS released the body of the decedent to the Maricopa County Medical Examiner's Office as "Jane Doe," and airlifted the four remaining passengers, three females and one male, to St. Joseph's Hospital.
¶ 4 DPS Sergeant Ortolano directed DPS Officers Ortiz and Guerrero, who were not present at the accident scene, to identify the four passengers being treated at the hospital. Volunteer DPS Chaplain Eddingfield subsequently joined the two officers at the hospital.
¶ 5 Once at the hospital, Officers Ortiz and Guerrero interviewed the driver, Laura P. She self-identified and provided the officers with the names of the vehicle's other occupants, two of whom were M.C. and April.
¶ 6 Next, Officers Ortiz and Guerrero contacted the nurse who appeared to be in charge of the hospital's emergency care unit (the "charge nurse") to determine if the hospital had been able to identify any of the patients. After speaking with other hospital staff, the charge nurse told them two female patients had not yet been identified, but that she would find out their identities. After the charge nurse talked to family members and hospital staff, she concluded one of the female patients was G.M., meaning the remaining unidentified female patient was either M.C. or April.
¶ 8 April's mother, Maria, and aunt were then placed in a hospital conference room where, pursuant to DPS's Next of Kin ("NOK") Notification Manual, Officers Ortiz and Guerrero and Chaplain Eddingfield notified them of April's death. Following the notification, Chaplain Eddingfield told Maria she still needed to positively identify the body at the Medical Examiner's Office. Maria then called April's father, Jose, who was out of town, to inform him of their daughter's death.
¶ 9 The next day, April's family contacted the Medical Examiner's Office and was advised they would not be able to view the body until it was released to a funeral home. The family was also requested to have April's dental records forwarded to the Medical Examiner's Office to help with the identification. The Medical Examiner's Office informed the family that the body would be released for burial preparation on July 24, 2010.
¶ 10 Before releasing the body, however, the Medical Examiner's Office contacted Sergeant Ortolano and informed him that April's dental records did not match those of the decedent. Sergeant Ortolano, along with another DPS officer and a chaplain, visited the Guerra family to advise them of the development and gather more identifying information for April. The Guerra family informed the officers that April recently had her wisdom teeth removed, had the tragus of her left ear pierced, and stated again that April had a birth mark on her chest. The Guerra family also provided the officers with school identification cards for both April and M.C.
¶ 11 Officers then visited the hospital to examine the patient previously identified as M.C, and observed a small mark on the patient's chest and that her left ear tragus appeared to be pierced. While at the hospital, the officers spoke with M.C.'s family and informed them of the recent developments. When asked for further information to help positively identify the female patient, M.C.'s family stated they believed M.C. still had her wisdom teeth and they remembered she had a scar on her abdomen from an appendectomy. The patient, then believed to be M.C., did not have a scar on her abdomen.
¶ 12 The Guerra family then informed Sergeant Ortolano they had located a child identification card for April that contained her thumbprint. Officers matched the thumbprint of the patient at St. Joseph's to the thumbprint on April's identification card, and positively identified the person previously believed to be M.C. as April. On July 26, the deceased passenger was positively identified as M.C.
¶ 13 The Guerras sued the State, alleging claims of negligence, negligent training, and intentional infliction of emotional distress ("IIED"). The State then moved for summary judgment on all claims; the Guerras cross-moved for partial summary judgment on the issue of duty, arguing the State had assumed a duty of reasonable care when its officers undertook the NOK notification. The trial court granted the State's motion for summary judgment and denied the Guerras' cross-motion, impliedly finding the State did not owe a duty to the Guerras. The Guerras timely appealed.
¶ 14 Summary judgment is appropriate if the moving party shows there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). A court may grant summary judgment if the "facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). Even if the facts are not disputed, summary judgment is improper if the evidence does not demonstrate that the movant is entitled to judgment as a matter of law. Comerica Bank v. Mahmoodi, 224 Ariz. 289, 291, ¶ 12, 229 P.3d 1031, 1033 (App. 2010). We determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law. L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App.1997).
¶ 15 The Guerras first argue the trial court should not have granted summary judgment for the State on their negligence claim because the State assumes a duty of reasonable care when notifying next of kin of a person's death. We agree.
¶ 16 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 of that standard of care; 3) a causal link between the defendant's conduct and the resulting injury; and 4) actual damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). Whether the defendant owes the plaintiff a duty of care is a "threshold issue; absent some duty, an action for negligence cannot be maintained." Id. at 143, ¶ 11, 150 P.3d at 230. Therefore, absent a duty, the law does not require the defendant to conform to a particular standard of conduct in order to protect others from unreasonable risks of harm. Vasquez v. State, 220 Ariz. 304, 311, ¶ 21, 206 P.3d 753, 760 (App.2008). Whether a duty exists is a matter of law, which we review de novo. Gipson, 214 Ariz. at 143, ¶ 9, 150 P.3d at 230; Vasquez, 220 Ariz. at 311, ¶ 22, 206 P.3d at 760.
¶ 17 "As a legal matter, the issue of duty involves generalizations about categories of cases." Gipson, 214 Ariz. at 143, ¶ 10, 150 P.3d at 230. A duty is an obligation, recognized by law, "which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm." Id. In determining whether a duty exists, Arizona courts no longer consider whether the risk of harm to a person was foreseeable. Id. at 144, ¶ 15, 150 P.3d at 231. Instead, "[d]uties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant;" however, such a special relationship is not necessary to the finding of a duty. Id. ¶ 18; Delci v. Gutierrez Trucking Co., 229 Ariz. 333, 336, ¶ 12, 275 P.3d 632, 635 (App.2012); see also Stanley v. McCarver, 208 Ariz. 219, 221-22, ¶ 8, 92 P.3d 849, 851-52 (2004) (stating "courts have imposed duties for the protection of persons with whom no preexisting `relationship' existed"). A duty of care may also be based upon public policy. Gipson, 214 Ariz. at 145, ¶ 23, 150 P.3d at 232.
¶ 18 Neither a contractual relationship nor a traditional common law relationship giving rise to a duty, such as landowner-invitee or tavern owner-patron, is present here. The Guerras, however, contend the officers assumed a duty by undertaking to perform the NOK notification.
¶ 19 In Morton, police were alerted to unidentified and incomplete skeletal remains. 177 Ariz. 147, 148, 865 P.2d 808, 809 (App. 1993). Due to circumstances surrounding the person's disappearance and the body's condition, it was years before authorities identified the remains. Id. at 149, 865 P.2d at 810. The decedent's parents sued Maricopa County for negligence in identifying the body. Id. Unlike the immediate case, the Morton court noted that, "[N]either the sheriff's office nor the Medical Examiner made any representations to the Mortons regarding their investigation." Id. at 150-51, 865 P.2d at 811-12. The Morton court, relying upon the reasoning of Shelton v. City of Westminster, 138 Cal.App.3d 610, 188 Cal.Rptr. 205 (1982), held that "Maricopa County owed no legal duty to the Mortons either to submit dental records to the Department of Public Safety or to solve a homicide within any specific time frame." Morton, 177 Ariz. at 151, 865 P.2d at 812. In Vasquez, a person died when his vehicle rolled during a high speed pursuit with DPS and Cochise County Sherriff's Officers. 220 Ariz. at 306, ¶ 3, 206 P.3d at 755. Law enforcement did not identify the decedent until two months after he was buried as an indigent. Id. The Vasquez majority found the State and Cochise County owed no duty to the deceased's mother to investigate the accident more thoroughly or to identify her son. Id. at 315, ¶ 37, 206 P.3d at 764. The Vasquez majority also noted that a "special relationship between an investigating law enforcement agency and a decedent's family member does not arise merely by the agency undertaking to investigate" nor does the duty to identify the deceased arise because law enforcement does investigate. Id. at 313, ¶ 30, 206 P.3d at 762. The majority found Morton held that law enforcement agencies do not owe a duty to family or friends to identify a decedent. Id.
¶ 20 The dissent in Vasquez specifically recognized that duties of care may arise from conduct a person has undertaken, and that although the police owed no duty to protect citizens from "all harms," a duty of reasonable care arose to protect the surviving family members of a crime victim once the police "opted to provide police protection." Id. at 318, ¶ 49, 206 P.3d at 767 (citing Gipson, 214 Ariz. at 145, ¶ 18, 150 P.3d at 232) (quoting Austin v. City of Scottsdale, 140 Ariz. 579, 581-82, 684 P.2d 151, 153-54 (1984)); Stanley v. McCarver, 208 Ariz. 219, 221, ¶ 7, 92 P.3d 849, 851 (2004). Moreover, the Vasquez majority did not foreclose the existence of a duty of reasonable care arising, as in the immediate case, where law enforcement undertook to perform a specific act; to wit: the delivery of a NOK notification. Id. ("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.") (internal quotations omitted).
¶ 21 Arizona courts clearly acknowledge that conduct may give rise to a duty, and have previously applied this proposition to law enforcement. McDonald v. City of Prescott, 197 Ariz. 566, 5 P.3d 900 (App.2000) (finding police assumed a duty by routinely undertaking to remove or warn of dangerous highway conditions); see, e.g., Stanley, 208 Ariz. at 223-24, ¶¶ 14-16, 92 P.3d at 853-54; Knauss v. DND Neffson Co., 192 Ariz. 192, 198, 963 P.2d 271, 277 (App.1997) ("A party may voluntarily assume a duty not imposed at common law and, once assumed, must
¶ 22 The State argues a duty cannot attach in this circumstance because it is impossible to separate the underlying investigation, to which no duty attaches, from the NOK notification, which the State argues to be the culmination of the investigation. That is not the case. An investigation into the identity of a decedent can be completed, with nothing further to be done, without a NOK notification ever occurring. Everything precedent to notification of the next of kin might be determined to be investigative. However, once law enforcement concludes sufficient evidence exists to support a NOK notification, it is necessarily the case that the investigation into the decedent's identity is, at that point, complete. If law enforcement then undertakes a NOK notification, such is independent of the investigation itself.
¶ 23 The State also argues that public policy concerns dictate a finding that no duty exists in this circumstance. See Gipson, 214 Ariz. at 146, ¶ 29, 150 P.3d at 233 ("When a court or legislature adopts a no-duty rule, it generally does so based on concerns that potential liability would chill socially desirable conduct or otherwise have adverse effects."); Stanley, 208 Ariz. at 225, ¶ 20, 92 P.3d at 855 (considering whether the imposition of a duty on a physician to a non-patient would "`chill' doctors from doing pre-employment exams and open the floodgates of litigation"); Ontiveros v. Borak, 136 Ariz. 500, 512, 667 P.2d 200, 212 (1983) (stating that in some situations "the public interest ... require[s] special rules to protect certain businesses, professions or occupations from the ordinary theories of tort liability").
¶ 24 Both Vasquez and Morton found public policy militated against the imposition of a duty when law enforcement investigates a deceased's identity:
Vasquez, 220 Ariz. at 315, ¶ 35, 206 P.3d at 764 (quoting Morton, 177 Ariz. at 151, 865 P.2d at 812). However, a NOK notification is different than an investigation into the identity of a deceased. There is little doubt that the primary purpose of a NOK notification is not to foster public safety but is, instead, to directly benefit the decedent's next of kin. See id. at 319-20, ¶ 54, 206 P.3d at 768-69 (Eckerstrom, J., concurring in part, dissenting in part) (arguing the Court should have imposed a duty as "the [decedent's] mother would have been an obvious and primary beneficiary of the agencies' efforts to identify [the decedent's] remains — and that, by undertaking the task of doing so, the agencies created a special relationship with her"). DPS's own manual further evidences that the purpose of the NOK notification is to benefit specific, individual survivors, rather than the public at large:
Given the primary purpose of the notification is to benefit the survivors, coupled with the weight society gives law enforcement's statements, and the inarguably devastating emotional impact a family member's death has on survivors, when the State undertakes the actual NOK notification it must communicate the information with reasonable care being given to the accuracy of what is conveyed.
¶ 25 Nevertheless, the State argues the imposition of a duty in this situation would expose law enforcement agencies to a flood of litigation. However, the duty we recognize here does not require law enforcement "to protect each citizen within [a municipality's] geographic boundaries from all harms," nor does it impose "a duty to all persons to act reasonably at all times under all circumstances." Austin v. City of Scottsdale, 140 Ariz. 579, 582 n. 2, 684 P.2d 151, 154 n. 2 (1984); Vasquez, 220 Ariz. at 313, ¶ 29, 206 P.3d at 762. Further, the duty we recognize does not stretch the concept of acquiring a duty of care by undertaking conduct "beyond reasonable limits." Vasquez, 220 Ariz. at 313, ¶ 31, 206 P.3d at 762 (noting the concern of "theoretically giv[ing] rise to a cause of action by the victim or a deceased victim's relatives for negligent investigation" in every unsolved crime). The duty of reasonable care only arises after the underlying investigation is complete and law enforcement undertakes the affirmative act of communicating notice of a person's death to survivors.
¶ 26 The State further contends that the imposition of a duty would chill socially desirable communications between law enforcement and the public. However, DPS already has in place its NOK Notification Manual which requires DPS Officers to provide NOK notifications in an appropriate manner, and Sergeant Ortolano acknowledged that withholding the identification from the Guerra family "would have been improper."
¶ 27 The State also correctly asserts the "public interest in receiving timely communications about significant facts discovered through police work is undisputable." Although timeliness in situations such as this is clearly a concern, so too is the public interest in being able to rely upon the accuracy of what law enforcement agencies and officers communicate.
¶ 28 Consequently, we hold the State assumed a duty of reasonable care when officers delivered the NOK notification to the Guerra family.
¶ 29 The Guerras also argue the trial court should not have granted summary judgment in favor of the State on their negligent training claim because they presented sufficient evidence to preclude summary judgment. We disagree.
¶ 30 To prevail on a negligent training claim, a plaintiff must show a defendant's training or lack thereof was negligent and that such negligent training was the proximate cause of a plaintiff's injuries. Inmon v. Crane Rental Servs., Inc., 205 Ariz. 130, 137, ¶ 28, 67 P.3d 726, 733 (App.2003), disapproved of on a different ground, Tarron v. Bowen Mach. & Fabricating, 225 Ariz. 147, 235 P.3d 1030 (2010). A showing of an
¶ 31 Here, as the State argues, the Guerras made no showing that the training given to the DPS Officers, or omitted from their training, was negligent. The Guerras argue the DPS's NOK Notification Manual failed to provide: 1) a definition of positive identification; 2) guidelines for what is required to make a positive identification; and 3) guidance on what is required for a positive identification by a third party.
¶ 32 The Guerras argue that "DPS officers ineptly executed what little guidance they had from DPS on how to properly identify and notify the next-of-kin." Although the DPS officers may not have correctly determined the deceased's identity, alleged negligence in performing job duties does not automatically amount to a showing of negligent training. See Inmon, 205 Ariz. at 137, ¶ 28, 67 P.3d at 733. The trial court properly granted summary judgment on this count.
¶ 33 Finally, the Guerras argue the trial court should not have granted summary judgment on the IIED claim as a reasonable jury could have found the State's actions were extreme and outrageous. We disagree. Arizona courts have adopted the requisite elements of an IIED claim from the Restatement (Second) of Torts § 46 (1965). See Ford v. Revlon, 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987); Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 550, 554, 905 P.2d 559, 563 (App.1995). Under the Restatement test, 1) the defendant's conduct must be extreme and outrageous; 2) the defendant "must either [have] intend[ed] to cause emotional distress or recklessly disregard[ed] the near certainty that such distress would result from his conduct;" and 3) "severe emotional distress must indeed [have] occur[ed] as a result of defendant's conduct." Ford, 153 Ariz. at 43, 734 P.2d at 585.
¶ 34 It is the duty of the court to determine, in the first instance, whether the defendant's conduct is so extreme and outrageous to allow the issue to be submitted to the jury. Restatement § 46 cmt. h; Watts v. Golden Age Nursing Home, 127 Ariz. 255, 258, 619 P.2d 1032, 1035 (1980). Liability is appropriate "where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Ford, 153 Ariz. at 43, 734 P.2d at 585 (quoting Restatement § 46 cmt. d); Mintz, 183 Ariz. at 554, 905 P.2d at 563. Because the term "outrageous conduct" is "not readily capable of precise legal definition, a case-by-case analysis is required." Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 149 Ariz. 76, 79, 716 P.2d 1013, 1016 (1986).
¶ 35 The Guerras argue the conduct in this case was extreme and outrageous because the officers knew the Guerras were particularly susceptible to emotional distress and abused their position of authority. See Mintz, 183 Ariz. at 554-57, 905 P.2d at 563-66 (stating relevant factors in determining outrageousness are 1) defendant's knowledge that plaintiff is particularly susceptible to emotional distress, 2) whether a legitimate business purpose existed for defendant's actions, and 3) abuse by the actor of a position "which gives him actual or apparent authority over the other, or power to affect his interests") (citing Restatement § 46 cmts. e-g). Although the Guerras were clearly susceptible
¶ 36 As a matter of law, the conduct by the officers in this case cannot be said to have been so extreme or outrageous as to be utterly intolerable in a civilized society. The Guerras failed to present any evidence illustrating the officers acted in anything other than good faith upon what the charge nurse had told them in attempting to provide the NOK Notification. As the Guerras cannot satisfy the first element of their IIED claim, the trial court properly granted summary judgment for the State on this claim.
¶ 37 Based upon the foregoing, we reverse summary judgment on the Guerras' negligence claim, grant the Guerras' motion for partial summary judgment on the issue of duty on their negligence claim, and remand to the trial court for further proceedings consistent with this opinion. We affirm, however, summary judgment in favor of the State on the Guerras' claims for negligent training and intentional infliction of emotional distress.
The Vasquez Court stated that this section was "so clearly inapplicable" when police undertake to investigate the identity of a decedent that the plaintiff in that case had not even cited or relied upon it. Vasquez, 220 Ariz. at 314 n. 7, ¶ 32, 206 P.3d at 763 n. 7. Given how we resolve this issue, we need not decide whether this section is applicable to this case.
