                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

               APRIL ABIGAIL GUERRA, A SINGLE WOMAN,
                          Plaintiff/Appellant,

                                   v.

 STATE OF ARIZONA, A GOVERNMENTAL ENTITY; ROBERT HALLIDAY, IN HIS
   INDIVIDUAL AND OFFICIAL CAPACITY AS DIRECTOR OF THE ARIZONA
      DEPARTMENT OF PUBLIC SAFETY; OFFICER JOHN DOE DUDAS
 (BADGE #6381); OFFICER JOHN DOE GUERRERO (BADGE #6756); OFFICER
 JOHN DOE ORTIZ (BADGE #6760); AND SERGEANT JOHN DOE ORTOLANO
                           (BADGE #5439),
                         Defendants/Appellees.


                          No. CV-14-0144-PR
                           Filed May 8, 2015


          Appeal from the Superior Court in Maricopa County
              The Honorable John Christian Rea, Judge
                         No. CV2011-011444
                            AFFIRMED

             Opinion of the Court of Appeals, Division One
                234 Ariz. 482, 323 P.3d 765 (App. 2014)
                         VACATED IN PART


COUNSEL:

Mick Levin (argued), Tidmore Law Offices, L.L.P., Phoenix, Attorney for
April Abigail Guerra

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Daniel P. Schaack (argued), Assistant Attorney General, Phoenix,
                              GUERRA V. STATE
                             Opinion of the Court

Robert R. McCright, Assistant Attorney General, Tucson, Attorneys for
State of Arizona

Elliot Glicksman, Law Office of Elliot Glicksman, P.L.L.C., Tucson,
Attorney for Amicus Curiae Homicide Survivors, Inc.

Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally P.L.C.,
Tucson, and David L. Abney, Knapp & Roberts, P.C., Scottsdale, Attorneys
for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers
Association


VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in
which JUSTICES BRUTINEL and TIMMER joined; CHIEF JUSTICE BALES
and JUSTICE BERCH, dissenting.


VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶1            The question presented is whether law enforcement officers
assume a duty of care to an accident victim’s family by notifying the family
of the victim’s apparent injury or death. We hold that no duty arises from
such notifications alone.

                                       I.

¶2             The material facts, as set forth in the court of appeals’ opinion,
are undisputed. Guerra v. State, 234 Ariz. 482, 484–85 ¶¶ 2–13, 323 P.3d 765,
767–68 (App. 2014). In July 2010, April Guerra and her close friend, M.C.,
were seriously injured in a single-vehicle rollover. M.C. died at the scene
and April was hospitalized. Because of their physical similarities and the
severity of their injuries, however, the investigating Arizona Department of
Public Safety (“DPS”) officers and hospital medical staff had difficulty
identifying which of the women died and who was hospitalized.

¶3             Hours after the accident, a hospital charge nurse identified
the surviving patient as M.C. and told DPS officers that she was certain of
that identification. The officers, joined by a DPS chaplain, then informed
April’s mother and aunt that April had died, but cautioned that the mother


                                       2
                              GUERRA V. STATE
                             Opinion of the Court

would still need to positively identify the body. The mother then informed
April’s father, who was out of town, of April’s death.

¶4             Based on additional information the Guerras furnished over
the next several days, including April’s dental records and thumbprint,
further investigation revealed that April was the hospital patient, not the
decedent. Six days after the accident and notification, April was positively
identified as the hospital patient, and later, M.C. as the deceased passenger.

¶5             The Guerras sued the State and various State employees
(collectively, “the State”), alleging negligence, negligent training, and
intentional infliction of emotional distress. Only the negligence claim is at
issue here, in which the Guerras alleged that the officers “performed a
negligent and/or grossly negligent investigation into the identity of the
deceased victim and wrongly concluded that [April] had died at the scene.”
The State moved for summary judgment, arguing that law enforcement
officers owe no duty “to conduct an investigation that results in accurate
identification of a deceased person.” The Guerras cross-moved for partial
summary judgment, arguing that the officers assumed a duty when they
undertook to investigate and notify the Guerras of their daughter’s death.
The superior court granted the State’s motion and denied the Guerras’
cross-motion, implicitly finding that the officers did not owe a duty to the
Guerras.

¶6            The court of appeals reversed and ordered partial summary
judgment in favor of the Guerras on the duty issue. Id. at 491 ¶ 37, 323 P.3d
at 774. We granted review because the legal issue presented is one of first
impression for this Court and of statewide importance. We have
jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. § 12-120.24.

                                       II.

¶7            Under Arizona’s common law of negligence, “duty” is “an
expression of the sum total of those considerations of policy which lead the
law to say that the particular plaintiff is entitled to protection.” Ontiveros v.
Borak, 136 Ariz. 500, 508, 667 P.2d 200, 208 (1983) (quoting William L.
Prosser, Handbook of the Law of Torts § 42, at 325–26 (4th ed. 1971)); see also
Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985)
(describing “duty” as “the relation between individuals which imposes

                                       3
                              GUERRA V. STATE
                             Opinion of the Court

upon one a legal obligation for the benefit of the other” (quoting Coburn v.
City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984))). Whether a duty
exists is a question of law which we determine de novo. Stanley v. McCarver,
208 Ariz. 219, 221 ¶ 5, 92 P.3d 849, 851 (2004). “[A]bsent some duty, an
action for negligence cannot be maintained.” Gipson v. Kasey, 214 Ariz. 141,
143 ¶ 11, 150 P.3d 228, 230 (2007).

¶8             “Duties of care may arise from special relationships based on
contract, family relations, or conduct undertaken by the defendant,” id. at
145 ¶ 18, 150 P.3d at 232, and from public policy considerations, id. at ¶ 23.
Foreseeability of harm is not a relevant consideration in determining the
threshold legal issue of whether a duty exists, nor are case-specific facts. Id.
at 144 ¶ 15, 145 ¶ 21, 150 P.3d at 231–32.

                                       A.

¶9            The court of appeals acknowledged, and the Guerras agree,
that neither a contractual relationship nor a traditional common-law
relationship (such as landowner–invitee) gives rise to a duty here. Guerra,
234 Ariz. at 486 ¶ 18, 323 P.3d at 769. The court nevertheless held that by
undertaking to provide a next-of-kin (“NOK”) notification, DPS assumed a
duty of care to the Guerras—at least as to the accuracy of the information
conveyed. Id. at 488 ¶ 21, 489 ¶ 24 n.7, 323 P.3d at 771, 772 n.7. In so holding,
the court cited common law and declined to determine the applicability of
Restatement (Second) of Torts § 323 (1965) (“Restatement”), the sole
authority the Guerras relied on in both the superior court and court of
appeals. See id. at 486 ¶ 18 n.5, 487–88 ¶ 21, 323 P.3d at 769 n.5, 770–71.
Restatement § 323 provides:

       One who undertakes, gratuitously or for consideration, to
       render services to another which he should recognize as
       necessary for the protection of the other’s person or things, is
       subject to liability to the other for physical harm resulting
       from his failure to exercise reasonable care to perform his
       undertaking, if

          (a) his failure to exercise such care increases the risk of
              such harm, or




                                       4
                             GUERRA V. STATE
                            Opinion of the Court

          (b) the harm is suffered because of the other’s reliance
              upon the undertaking.

(Emphasis added.)

¶10            The State argues that Restatement § 323 does not impose a
duty on law enforcement officers who undertake to provide NOK
notifications because such notifications “are neither intended nor necessary
to protect the recipients from physical harm to their persons or their
things.” Given the clear wording of § 323, the State’s argument has merit.
See Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 268 ¶ 10, 229 P.3d 1008,
1010 (2010) (citing Restatement § 323 for the proposition that “the common
law imposes a duty of reasonable care on a party who voluntarily
undertakes to protect persons or property from physical harm”); see also
Stanley, 208 Ariz. at 223 ¶¶ 13–15, 92 P.3d at 853 (noting that our conclusion,
that “public policy is better served by imposing a duty” on a doctor who
“undertook a professional obligation with respect to [the plaintiff’s]
physical well being,” comports with related Restatement § 324A).

¶11           This Court, however, has extended the reach of Restatement
§ 323 to claims of economic as well as physical harm. McCutchen v. Hill, 147
Ariz. 401, 404, 710 P.2d 1056, 1059 (1985) (citing Restatement § 323 to hold
that a deputy’s agreement not to release a father from custody until he
posted a cash bond “gave rise to ‘the duty to use proper care in the
performance of the task’ assumed” and subjected him to liability for loss of
the bond (quoting W. Page Keeton et al., Prosser and Keeton on Torts § 56, at
379 (5th ed. 1984))). We question McCutchen to the extent it found a duty
under Restatement § 323 without discussing whether that section
encompasses economic harm. Nonetheless, other Arizona courts have since
followed suit. See Steinberger v. McVey, 234 Ariz. 125, 137 ¶ 47, 318 P.3d 419,
431 (App. 2014) (collecting cases).

¶12           The dissent asserts, infra ¶ 30, that Restatement § 323’s plain
language should be stretched even further to encompass claims for purely
emotional harm, separate and apart from claims for negligent infliction of
emotional distress, a tort which Arizona recognizes but which clearly does
not apply here. See Villareal v. Ariz. Dep’t of Transp., 160 Ariz. 474, 481, 774
P.2d 213, 220 (1989) (“Negligent infliction of emotional distress requires
that the plaintiff witness an injury to a closely related person, suffer mental
anguish that manifests itself as a physical injury, and be within the zone of

                                       5
                              GUERRA V. STATE
                             Opinion of the Court

danger so as to be subject to an unreasonable risk of bodily harm created by
the defendant.”). Even if we interpret the word “person” broadly to refer
to not only physical but also emotional wellbeing, we are not persuaded by
the dissent’s argument, infra ¶ 31, that notifying next of kin of a loved one’s
death is a service an officer “should recognize as necessary for the
protection” of the next-of-kin’s “person.” Restatement § 323. Rather than
protecting next of kin from emotional harm, NOK notifications are, in the
dissent’s words, infra ¶ 32, most “likely to cause continued, long-term
mental disturbance.”        Cf. Dan B. Dobbs, Undertakings and Special
Relationships in Claims for Negligent Infliction of Emotional Distress, 50 Ariz. L.
Rev. 49, 63 (2008) (noting that in an action for emotional distress, the
plaintiff “will lose any case that depends upon undertakings if she cannot
sustain her burden of showing that the defendant undertook to use care to
protect her from the particular invasion she now claims”).

¶13            Moreover, imposing a duty of care whenever law
enforcement officers deliver NOK notifications would be inconsistent with
cases holding that officers do not owe a duty to victims or their families by
undertaking to investigate a crime or accident and identify victims. See
Vasquez v. State, 220 Ariz. 304, 313 ¶ 30, 206 P.3d 753, 762 (App. 2008) (“[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 an accident or resulting death.”); Morton v.
Maricopa County, 177 Ariz. 147, 149–50, 865 P.2d 808, 810–11 (App. 1993).

¶14            In Morton, a county sheriff’s office undertook to investigate
and identify partial human remains found in the desert. 177 Ariz. at 149,
865 P.2d at 810. When deputies identified the remains years after their
disposal, they notified the victim’s parents. Id. The parents sued the sheriff
for negligently failing to timely identify the remains. Id. Relying on a
California case which held that “the undertaking by the police to make a
report and assure appropriate action will be taken does not create a ‘special
relationship’ from which ‘duty’ is born,” id. at 150, 865 P.2d at 811 (quoting
Shelton v. City of Westminster, 188 Cal. Rptr. 205, 213 (Cal. Ct. App. 1982)),
the Morton court concluded that the undertaking to identify human remains
primarily “foster[s] public safety through the investigation of suspected
homicides” and only “incidentally benefits friends and relatives,” id. at 151,
865 P.2d at 812. Because this incidental purpose was insufficient to create a
relationship between the sheriff’s office and the victim’s parents, the court
held that no duty existed. Id.

                                        6
                             GUERRA V. STATE
                            Opinion of the Court


¶15           Similarly, Vasquez held that police officers, despite having
undertaken an investigation into a fatal accident following a high-speed
pursuit, had no duty to identify the motorist who died or to notify his next
of kin. 220 Ariz. at 313 ¶ 30, 206 P.3d at 762. In so holding, the court found
Restatement § 323 “clearly inapplicable.” Id. at 314 ¶ 32 n.7, 206 P.3d at 763
n.7.

¶16            Although the Guerras allege that the DPS officers negligently
informed them that their daughter was deceased, the core of their
complaint is that the officers failed to reasonably investigate the decedent’s
identity. The Guerras have not alleged negligence in the method or manner
in which the notification was given; rather, the officers’ alleged negligence
arises solely from the deficient investigation that failed to reveal the charge
nurse’s misidentification. Given the thrust and actual underpinnings of the
Guerras’ negligence claim, it is difficult to square finding a duty of care in
this case when no duty was found in Morton and Vasquez, cases with which
we agree.

¶17            The dissent’s attempt to distinguish this case as involving a
“direct relationship [that] resulted once police officers undertook to contact
the Guerras,” infra ¶ 38, is unavailing. The California case on which Morton
relied specifically rejected the argument that a “special relationship” was
created when the police “represented [to the plaintiffs that] the missing
person report would be fully and completely investigated.” Morton, 177
Ariz. at 150, 865 P.2d at 811 (quoting Shelton, 188 Cal. Rptr. at 212). Contrary
to the dissent’s suggestion, infra ¶ 38, we are not persuaded that the
outcome in Morton or Vasquez would have been different had the officers
made inaccurate representations to the plaintiffs regarding their
investigations.

¶18          Nor are we persuaded by the court of appeals’ reasoning that
“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.” Guerra, 234 Ariz. at 488 ¶ 22,
323 P.3d at 771. The undisputed facts of this case belie this distinction.
Despite the NOK notification, the Guerras were told that they would still
need to identify the body, and they later furnished additional identifying
information.


                                       7
                              GUERRA V. STATE
                             Opinion of the Court

¶19           The court of appeals and the dissent do not disagree with
Morton or Vasquez, nor do the Guerras. Because those cases evince sound
reasoning that is equally applicable here, we likewise agree that officers do
not owe a duty to a victim’s family or friends by undertaking to investigate
a crime or accident and identify victims. No principled distinction exists
between the investigation and notification for purposes of imposing a duty.
In both instances, officers do not undertake a duty to the victim’s family or
friends.

                                       B.

¶20           Just as “[p]ublic policy may support the recognition of a duty
of care,” Gipson, 214 Ariz. at 145 ¶ 23, 150 P.3d at 232, policy considerations
may militate against finding a duty in certain contexts. “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.” Id. at 146 ¶ 29, 150 P.3d at 233. Apart from the
absence of a special relationship, in considering public policy ramifications,
we conclude that the potential drawbacks of finding a duty in this case
outweigh the potential benefits.

¶21           The Guerras contend—and the dissent apparently agrees—
that a duty would exist even if officers inform next of kin, based on a
preliminary but ongoing investigation, that a loved one “might” have died
in an accident. According to the dissent, “the care that police exercised in
carrying out the investigation matters once they undertake to communicate
the results to next of kin.” Infra ¶ 40. But if this broad view of duty by
undertaking were the law, everything law enforcement says to a victim’s
family during the course of an investigation could then theoretically give
rise to a cause of action by the victim or the victim’s family for negligent
investigation. Cf. Vasquez, 220 Ariz. at 313 ¶ 31, 206 P.3d at 762.

¶22             Imposing such a duty, at a minimum, would cause officers to
delay in making NOK notifications. At worst, it may deter officers from
sharing whatever information they have with anxious family members for
fear of litigation and possible liability. Cf. Gipson, 214 Ariz. at 146 ¶ 29, 150
P.3d at 233 (noting that the no-duty rule for social hosts is justified by
concerns that “[h]olding social hosts liable for harm caused by guests to
whom they serve alcohol might curb desirable social exchanges”); Wertheim
v. Pima County, 211 Ariz. 422, 427 ¶ 20, 122 P.3d 1, 6 (App. 2005) (noting that

                                       8
                             GUERRA V. STATE
                            Opinion of the Court

“[c]ourts traditionally fix the duty point by balancing factors,” among them
“the proliferation of claims,” and “public policies affecting the expansion
or limitation of new channels of liability”) (citation and internal quotation
marks omitted); Murillo v. Seymour Ambulance Ass’n, 823 A.2d 1202, 1206
(Conn. 2003) (finding no duty by medical providers to bystanders
witnessing medical procedures in part because of interest in “avoiding
increased litigation”).

¶23            Medical research confirms that uncertainty or lack of
information about a loved one’s status as dead or alive is traumatizing for
most people. Pauline Boss, Ambiguous Loss Theory: Challenges for Scholars
and Practitioners, 56 Fam. Rel. 105, 105 (2007); see also Pauline Boss et al.,
Healing Loss, Ambiguity, and Trauma: A Community-Based Intervention with
Families of Union Workers Missing After the 9/11 Attack in New York City, 29 J.
Marital & Fam. Therapy 455, 458 (2003) (describing ambiguous loss as
“chronic trauma”). The lack of clarity may generate conflict, ambivalence,
depression, anxiety and guilt, often manifested by not being able to move
on with one’s life. Pauline Boss, Ambiguous Loss, in Living Beyond Loss:
Death in the Family 237, 238 (Froma Walsh & Monica McGoldrick eds., 2d
ed. 2004). Inasmuch as prompt, open, and frank communication with
distraught family members of potential crime or accident victims is both
critical and considerate, imposing a duty in this context would contravene
rather than advance public policy.

¶24            Conversely, holding that police have no duty in this context
is unlikely to cause officers to be careless or cavalier in their investigations
and NOK notifications. We expect that officers will continue to use great
care to ensure that family members receive accurate and timely information
in a supportive and sensitive manner. Nor is our holding likely to result in
many similar claims going unredressed. Even the Guerras acknowledge
the “rarity” of this case, noting that a recurrence of this sort of mistaken
identification “appears as unlikely as getting struck by lightning.”

                                      C.

¶25           The dissent would adopt Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 47 (2012) (“Restatement
Third”) to find that the DPS officers assumed a duty to the Guerras by
delivering the NOK notification. Infra ¶ 34. The parties, however, never
cited or argued that new provision in the trial court, the court of appeals, or

                                       9
                             GUERRA V. STATE
                            Opinion of the Court

this Court; nor did those other courts mention it. Regardless of the potential
advantage or applicability of Restatement Third § 47 in cases such as this, it
would be quite unusual and unwise for this Court to sua sponte adopt a
new Restatement section that would significantly alter our jurisprudence
without the benefit of any briefing or argument by the parties or amici. See
Gipson, 214 Ariz. at 148 ¶ 41, 150 P.3d at 235 (Hurwitz, J., concurring)
(expressing personal approval of Restatement Third § 7 but declining to
recommend its adoption because neither party argued for it).

¶26            Although the dissent apparently restricts its proposed
holding “to cases involving notifications to next of kin of a child or loved
one’s death,” infra ¶ 31, Restatement Third § 47 is not so limited. But even
were we to consider adopting Restatement Third § 47, it would not change
our result. The comments to that section recognize that, “in the area of
emotional harm, a court may decide that an identified and articulated
policy is weighty enough to require the withdrawal of liability.”
Restatement Third § 47 cmt. d. As discussed above, the strong public
interest in encouraging officers’ timely communication with anxious family
members of significant facts discovered through police investigations
compels us to conclude that a no-duty rule in this narrow context is
necessary and appropriate. We therefore hold, as a matter of policy, that
the DPS officers did not assume a legal duty to the Guerras by undertaking
to provide the NOK notification.

                                     III.

¶27          For the foregoing reasons, we vacate ¶¶ 15–28 of the court of
appeals’ opinion and its reinstatement of the Guerras’ negligence claim, and
we affirm the superior court’s entry of summary judgment in favor of the
State.




                                     10
                        GUERRA V. STATE
        CHIEF JUSTICE BALES and JUSTICE BERCH, Dissenting

CHIEF JUSTICE BALES, with whom JUSTICE BERCH joins, dissenting.

¶28           Today’s decision immunizes officers for negligently
misinforming parents or others of the death of a loved one. This result does
not promote desirable conduct by law enforcement officers; instead, it
means that those who have suffered emotional trauma and even physical
injury will have no potential for redress from those who incorrectly tell
them they have lost a child or other family member. Because law
enforcement officers who undertake to provide next-of-kin notifications
should owe a duty of care in these circumstances, I respectfully dissent.

¶29           Concluding that no duty exists means that, “for certain
categories of cases, defendants may not be held accountable for damages
they carelessly cause, no matter how unreasonable their conduct.” Gipson
v. Kasey, 214 Ariz. 141, 143–44 ¶ 11, 150 P.3d 228, 230–31 (2007). But
recognizing a duty does not itself mean that a defendant will incur liability;
a plaintiff must still prove the other elements of negligence (breach of the
duty, causation, and damages). Id. at 143 ¶ 9, 150 P.3d at 230. Here,
recognizing that law enforcement officers have a duty of care when they
undertake to notify next of kin of the death of a family member comports
with our common law, the Restatement (Second) of Torts § 323, and also the
Restatement (Third) of Torts § 47(b). It is also good public policy.

¶30            We have not restricted the concept of duty to circumstances
recognized in the Restatement. Instead, we have looked to whether the
defendant, by virtue of his undertaking, has placed himself in a unique
position to prevent harm to the plaintiff. See Stanley v. McCarver, 208 Ariz.
219, 223 ¶¶ 14–15, 92 P.3d 849, 853 (2004) (holding that duty existed as a
matter of public policy independent of the Restatement). But even § 323, at
least as interpreted by Arizona courts, would support the recognition of a
duty here. As the majority acknowledges, we have applied the doctrine to
purely economic harms. See McCutchen v. Hill, 147 Ariz. 401, 404, 710 P.2d
1056, 1059 (1985). I would similarly apply § 323 to recognize a duty when,
as is the case here, the plaintiffs allege that they have suffered serious
emotional harm as a result of another’s undertaking.

¶31           But even if we were to limit the doctrine to cases involving
physical harm, I would still hold that the doctrine applies to cases involving
notifications to next of kin of a child or loved one’s death. Such an
undertaking categorically is one that an actor “should recognize as

                                     11
                        GUERRA V. STATE
        CHIEF JUSTICE BALES and JUSTICE BERCH, Dissenting

necessary for the protection of the other’s person or things,” Restatement
(Second) of Torts § 323, even if we interpret “person or things” to mean only
bodily or tangible harm. This is so because the Second Restatement defines
“bodily harm” broadly:

       [L]ong continued nausea or headaches may amount to
       physical illness, which is bodily harm; and even long
       continued mental disturbance, as for example in the case of
       repeated hysterical attacks, or mental aberration, may be
       classified by the courts as illness, notwithstanding their
       mental character. This becomes a medical or psychiatric
       problem, rather than one of law.

Restatement (Second) of Torts § 436A cmt. c. 1

¶32            Learning of a child’s death is an event likely to cause
continued, long-term mental disturbance, often with resulting physical
manifestations. Such manifestations, we have previously recognized,
provide a guarantee that damages are not purely speculative. See Keck v.
Jackson, 122 Ariz. 114, 115, 593 P.2d 668, 669 (1979). Bereaved parents are at
a significantly increased risk of psychiatric hospitalization. Jiong Li et al.,
Hospitalization for Mental Illness Among Parents After the Death of a Child, 352
New Eng. J. Med. 1190, 1196 (2005); see also Shirley A. Murphey et al., PTSD
Among Bereaved Parents Following the Violent Deaths of Their 12- to 28-Year-
Old Children: A Longitudinal Prospective Analysis, 12 J. Traumatic Stress 273
(1999) (finding that “[p]arents describe the death of a child as ‘devastating,’
‘a pain like no other,’ and as an event that has incomprehensible, lasting
changes on the family”). Learning that a close family member has been
violently killed in an accident can trigger post-traumatic stress disorder. See
American Psychiatric Association, PTSD Fact Sheet 1 (2013) (discussing
new guidelines for the diagnosis of post-traumatic stress disorder in the
Diagnostic and Statistical Manual of Mental Disorders, 5th ed.).

1      The Third Restatement rejects such a broad definition of bodily
harm, but does so because it provides recovery for negligently inflicted
emotional harms, whereas the Second Restatement did not. Restatement
(Third) of Torts: Phys. & Emot. Harm § 4 cmt. d (“By explicitly providing
for claims for negligently inflicted emotional harm in Chapter 8, this
Restatement does not adopt [the Restatement (Second)’s] approach and
indeed rejects it.”); see also id. § 47 (discussed infra ¶¶ 34–36).
                                      12
                         GUERRA V. STATE
         CHIEF JUSTICE BALES and JUSTICE BERCH, Dissenting


¶33            The majority suggests that, because the devastation from
learning of a loved one’s death will occur irrespective of how one hears
about it, the delivery of the news is not “necessary for the protection” of the
next-of-kin’s person. See supra ¶ 12. This conclusion is belied by DPS’s own
Next-of-Kin Notification Manual, which indicates that officers undertake to
make these notifications precisely because they recognize that improperly
delivered notifications can exacerbate the harm of learning of a loved one’s
death. The undertaking thus seeks to protect against the increased harm
risked by an improperly delivered notification, not from emotional harm
altogether. Recognizing that officers are responsible for public safety, most
people would believe the information they provide. And by undertaking
to identify victims of accidents and notify their next of kin, the police protect
the public from hearing the news from other, less reliable sources and from
receiving it in a potentially unprofessional manner.

¶34          The best approach in this case, however, would be to simply
adopt § 47 of the Restatement (Third) of Torts: Liability for Physical and
Emotional Harm, which squarely addresses cases such as this one. That
section provides:

       An actor whose negligent conduct causes serious emotional
       harm to another is subject to liability to the other if the
       conduct:

       (a) places the other in danger of immediate bodily harm and
       the emotional harm results from the danger; or

       (b) occurs in the course of specified categories of activities,
       undertakings, or relationships in which negligent conduct is
       especially likely to cause serious emotional harm.

Section 47 even contains an illustration with facts strikingly similar to those
of this case:

       The Jonestown morgue negligently determines the identity of
       a corpse brought to it by the police department. Sadie, the
       sister and next of kin of the person who was erroneously
       determined to be the corpse, is contacted by the morgue, told
       of the death, and provided instructions about making final

                                       13
                          GUERRA V. STATE
          CHIEF JUSTICE BALES and JUSTICE BERCH, Dissenting

        arrangements for disposal of the body. Sadie, who lives out
        of town, does so. Upon viewing the deceased, Sadie discovers
        that the deceased is not her sister. As a result of this episode,
        Sadie suffers serious emotional harm. Jonestown is subject to
        liability under Subsection (b).

Id. cmt. f. illus. 4.

¶35           Although the Guerras do not specifically urge us to adopt
§ 47, they do argue that the common-law principles underlying the duty-
by-undertaking doctrine are broader than the rule stated in § 323. These
principles are embodied in § 47(b). We have previously adopted the
principle expressed in § 47(a) by endorsing its predecessor in earlier
Restatements, see Keck, 122 Ariz. at 115, 593 P.2d at 669, and we should also
endorse § 47(b). Although we ordinarily would not consider arguments not
formally preserved for our review, “we have made exceptions to questions
that are of great public importance or likely to recur.” In re Leon G., 200
Ariz. 298, 301, 26 P.3d 481, 484 (2001), vacated on other grounds, Glick v.
Arizona, 535 U.S. 982 (2002). The duty of care owed by the State to its
citizens by virtue of its undertakings is, in my view, such a question. And
the directness with which § 47(b) applies to cases such as this counsels even
more strongly in favor of its adoption.

¶36           In adopting the precursor to § 47(b), the District of Columbia
Court of Appeals observed that “[c]ourts’ historic skepticism of emotional
distress claims focused on three concerns: avoiding fictitious or trivial
claims, the difficulty of establishing (or disproving) the nature and extent
of the alleged mental injury, and limiting liability.” Hedgepeth v. Whitman
Walker Clinic, 22 A.3d 789, 795 (D.C. 2011). I agree with that court and the
commentary to § 47(b) that the rule as stated in the Third Restatement
adequately accounts for each of these concerns. First, by limiting itself to
“serious emotional harms,” the rule excludes trivial injuries. Second, by
limiting its scope to those categories of activities “in which negligent
conduct is especially likely to cause serious emotional harm,” such as
notifications of a loved one’s death, the rule ensures recovery for only
genuine harms whose authenticity is not likely to be in question. (Such is
the case involving the death of a child.) And third, the rule protects against
indeterminate liability by requiring a special relationship between the
tortfeasor and the plaintiff by virtue of the undertaking.


                                       14
                         GUERRA V. STATE
         CHIEF JUSTICE BALES and JUSTICE BERCH, Dissenting

¶37            I would thus endorse Professor Dobbs’s view that “[t]he
undertaking initiates a duty commensurate with what the defendant has
undertaken. That principle should apply no less in claims for emotional
distress than it does in physical injury cases,” Dan B. Dobbs, Undertakings
and Special Relationships in Claims for Negligent Infliction of Emotional Distress,
50 Ariz. L. Rev. 49, 51 (2008). This is consistent with the principle
underlying the duty-by-undertaking doctrine—namely, that an actor incurs
liability when, by virtue of his undertaking, he “has made the situation
worse, either by increasing the danger, by misleading the plaintiff into the
belief that it has been removed, or by depriving him of the possibility of
help from other sources.” W. Page Keeton et al., Prosser and Keeton on Torts
§ 56, at 381 (5th ed. 1984) [hereinafter Prosser and Keeton].

¶38            Recognizing that the State owed the Guerras a duty of care
here is not inconsistent with the decisions in Vasquez v. State, 220 Ariz. 304,
206 P.3d 753 (App. 2008), or Morton v. Maricopa County, 177 Ariz. 147, 865
P.2d 808 (App. 1993). Neither of those cases involved a direct relationship
between the police and the relatives of the deceased. Rather, the plaintiffs’
claims in those cases centered on what the police did not do (such as failing
to solve a homicide quickly, to identify an accident victim, or to promptly
reach out to the family). Here, by contrast, a direct relationship resulted
once police officers undertook to contact the Guerras to advise them of their
daughter’s death (a function whose primary purpose, unlike that in Morton,
was to benefit the surviving relatives). See 177 Ariz. at 151, 865 P.2d at 812
(holding that no special relationship existed because the purpose of
“identifying human remains is primarily to foster public safety through the
investigation of suspected homicides,” and this function only “incidentally
benefits friends and relatives”). Moreover, the Guerras’ complaint rests on
what the officers did do: delivering inaccurate news of their daughter’s
death.

¶39            The majority finds it unconvincing that the police could have
no duty to conduct the underlying investigation, but that they could be held
liable for carelessly communicating its conclusion. The Guerras, after all,
do not fault the police for the manner of the delivery, but rather for the
contents of what they communicated. The contents of what was
communicated, the majority maintains, cannot be separated from the
underlying investigation which the police originally had no duty to
perform.


                                        15
                        GUERRA V. STATE
        CHIEF JUSTICE BALES and JUSTICE BERCH, Dissenting

¶40           But that is precisely how the duty-by-undertaking doctrine
works. Consider the case of the truck driver who undertakes to signal to
other drivers that they may safely pass. That driver “may be under no
obligation whatever to signal to a car behind him that it may safely pass.”
Prosser and Keeton at 378. Similarly, police officers may be under no
obligation to conduct an investigation. Vasquez, 220 Ariz. at 313 ¶ 30, 206
P.3d at 762; Morton, 177 Ariz. at 151, 865 P.2d at 812. But if the truck driver
does signal, “he will be liable if he fails to exercise proper care and injury
results.” Prosser and Keeton at 378. The care with which he carried out the
signaling—a function which, like police investigations, he otherwise had no
underlying duty to perform—becomes legally relevant once a special
relationship is created between him and the drivers relying on him to signal
with due care. Likewise, the care that police exercised in carrying out the
investigation matters once they undertake to communicate the results to
next of kin. At that point, a special relationship between the police and the
next of kin exists so as to sustain a duty of care. Like the truck driver’s not
having a duty to wave drivers through in the first place, the police not
having an underlying duty to conduct the investigation is beside the point
once a special relationship is created.

¶41            In addition to concluding that no duty was created by
undertaking, the majority argues that policy concerns support a “no-duty”
rule. I respectfully disagree. As discussed above, § 47 of the Third
Restatement circumscribes duty to such limited circumstances so as to
prevent indeterminate liability. More importantly, though, the policy
arguments made by the majority either expect too little of law enforcement
officers (taking at face value the State’s assertion that they will refuse to
undertake tasks unless they can do so with impunity), or they exaggerate
the “drawbacks,” supra ¶ 20, of holding that officers owe a duty of care in
telling someone a loved one has died.

¶42           “We do not favor special rules of tort nonliability or
immunity.” Ontiveros v. Borak, 136 Ariz. 500, 512, 667 P.2d 200, 212 (1983).
Indeed, judicially created rules of non-liability are exceedingly rare. Rather,
“[t]his court is committed to the principle that no person and no group
should be given special privileges to negligently injure others without
bearing the consequences of such conduct.” Id. The same principle should
apply to the State. No-duty rules “should be invoked only when all cases
they cover fall substantially within the policy that frees the defendant of


                                      16
                        GUERRA V. STATE
        CHIEF JUSTICE BALES and JUSTICE BERCH, Dissenting

liability.” 1 Dan B. Dobbs, The Law of Torts § 227, at 579 (2001). This is not
such a case.

¶43            The State maintains that imposing a duty in this case would
risk having police officers abstain from delivering next-of-kin notifications
altogether or to delay delivering notifications until they could be absolutely
sure of their accuracy. But to entertain this argument is to accept the facile
notion that one will not engage in conduct unless he can do so recklessly
and with impunity. All members of society regularly engage in activities
for which they owe duties of reasonable care to others. That we have a duty
of care in operating a motor vehicle does not keep most of us from driving
to work every day.

¶44            It is true that Gipson recognized that no-duty rules may be
appropriate when “potential liability would chill socially desirable conduct
or otherwise have adverse effects.” 214 Ariz. at 146 ¶ 29, 150 P.3d at 233.
But it is important to maintain the distinction between duty and the actual
likelihood of liability. No-duty rules are appropriate when liability could
realistically result and therefore deter socially beneficial conduct. It is
impossible to assess “potential liability,” id., without some reference to the
standard of care. The State’s claim that officers will delay notifications or
avoid giving them altogether is credible only if the standard of care
required that officers give perfect, conclusive information about a loved
one’s fate or else face liability. But the standard of reasonable care does not
demand perfection. See Coburn v. City of Tucson, 143 Ariz. 50, 54, 691 P.2d
1078, 1082 (1984) (“The city is not bound to provide perfect intersections or
streets, but only those which are ‘reasonably safe.’”). A factfinder is
extremely unlikely to find that the State breached its duty of care if it
hedged its news by emphasizing that the identification was tentative and
the investigation ongoing.

¶45           More generally, the fact that certain conduct may be socially
desirable does not itself warrant a no-duty rule. Duty, after all, is but “an
expression of the sum total of those considerations of policy which lead the
law to say that the particular plaintiff is entitled to protection.” Ontiveros,
136 Ariz. at 508, 667 P.2d at 208. Although potential liability may
discourage some desirable conduct, recognizing a duty of care serves the
important goals of deterring unsafe conduct and compensating those
injured by another’s carelessness. That misidentification may rarely occur,
see supra ¶ 24, does not support broadly absolving officers of any duty of

                                      17
                         GUERRA V. STATE
         CHIEF JUSTICE BALES and JUSTICE BERCH, Dissenting

care or denying persons injured by careless notifications any chance for
redress. And the duty-by-undertaking doctrine—which we all agree
applies to at least some physical harms—subjects actors who undertake to
help others to potential liability. Thus, our endorsement of the doctrine
rejects the notion that socially desirable undertakings should, merely by
virtue of their public benefit, be immunized from liability.

¶46            Because our law strongly disfavors categorical tort immunity,
see Ontiveros, 136 Ariz. at 512, 667 P.2d at 212, and the interests in deterrence
and compensation have particular force with respect to negligent
notifications of the death of a child or other loved one, a no-duty rule is
simply not appropriate here. I respectfully dissent.




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