Morton v. Maricopa County By and Through Maricopa County Bd. of Sup'rs

• Decision Date: 04 March 1993
• Docket Number: CA-CV,No. 2,2
• Citation: 177 Ariz. 147,865 P.2d 808
• Parties: Howard L. MORTON and M. Virginia Morton; Alex J. Morton; Jan E. Clark; Bonnie C. Morton; Jonathan T. Morton; Walter R. Morton; Brian David Morton, by and through his parents and Guardians Ad Litem, Howard and Virginia Morton, Audrey Pryor, and Thomas H. Morton, Plaintiffs/Appellees, v. MARICOPA COUNTY, a County Government, By and Through its MARICOPA COUNTY BOARD OF SUPERVISORS in their representative capacity. Defendant/Appellant. 92-0185.
• Court: Arizona Court of Appeals

Page 808

865 P.2d 808

177 Ariz. 147

Howard L. MORTON and M. Virginia Morton; Alex J. Morton; Jan E. Clark; Bonnie C. Morton; Jonathan T. Morton; Walter R. Morton; Brian David Morton, by and through his parents and Guardians Ad Litem, Howard and Virginia Morton, Audrey Pryor, and Thomas H. Morton, Plaintiffs/Appellees, v. MARICOPA COUNTY, a County Government, By and Through its MARICOPA COUNTY BOARD OF SUPERVISORS in their representative capacity. Defendant/Appellant.

No. 2 CA-CV 92-0185.

Court of Appeals of Arizona, Division 2, Department B.

March 4, 1993.

Review Denied Jan. 19, 1994.

[177 Ariz. 148] Piatt & Livoni, P.C. by William M. Piatt, Phoenix, for plaintiffs/appellees.

Maricopa County Atty.'s Office by Gordon J. Goodnow, Jr., Phoenix, for defendant/appellant.

OPINION

HATHAWAY, Judge.

This is an appeal from a judgment against appellant, Maricopa County, in favor of appellees, Howard and Virginia Morton and their eight living children (sometimes referred to collectively as "Mortons"), following a jury verdict for damages arising from the alleged negligence of the Maricopa County Sheriff's Office and the Maricopa County Medical Examiner's Office in identifying and disposing of human remains. We affirm the judgment of liability against Maricopa County, we reverse the judgment for damages, and we remand for a new trial, with directions, to determine damages only.

FACTS AND PROCEDURAL HISTORY

Eighteen-year-old Guy Morton (Guy), the eldest son of Howard and Virginia Morton, was apparently murdered in Arizona and his body dumped in the desert near New River sometime after his disappearance on June 23, 1975. Guy's then-unidentified, incomplete skeletal remains were found by hunters in November 1975. Homicide was suspected and the remains were kept by the Medical Examiner until 1984, when they were incinerated, the Medical Examiner explained, due to space needs and lack of hope of discovering the decedent's identity.

Guy had suffered a head injury in a motorcycle accident in 1973, which reduced his mental capacity. In April 1975, Guy had hitchhiked from Iowa to Florida. A convenience store clerk telephoned Guy's parents to inform them that Guy was broke and did not know where he was. In early May 1975, the Mortons sent Guy a bus ticket to return to Iowa. On May 10, 1975, Guy wanted to leave home again and his father drove him to the interstate and gave him $4, all the money in his wallet, so he could hitchhike west. Guy went to Colorado, then to Arizona where he visited a cousin in Phoenix. Guy's family never saw him again.

Andrew Maisano, a landscaper in Flagstaff who had employed Guy, dropped him off at the I-17 freeway outside of Flagstaff on June 23, 1975, to hitchhike to Phoenix to obtain a refund of a deposit he had made to purchase a used car. When he did not return, Maisano called Guy's father to report his disappearance. Upon recommendation of the Coconino County Sheriff's Office, Howard Morton filed a missing persons report with the Marion, Iowa Police Department in June 1975. Howard Morton testified that he called the Maricopa County Sheriff's Office for information in June or July 1975, but the Mortons filed no report there. He did not call the sheriff's office for information again until 1984. The next time Howard Morton had contact with the sheriff's office was in August 1987. The Mortons never communicated with the medical examiner's office.

In June 1987, 12 years after Guy's disappearance and three years after incineration of the unidentified remains, Guy's parents made a trip to Arizona to search for him. The Mortons maintained that they could not afford to look for him earlier. Howard and Virginia Morton spoke to the media and stories of Guy's disappearance permeated the news. Articles reported that Guy had a serious head injury from a motorcycle accident in 1973, resulting in mental slowness. A July 29, 1987, front page article in the Arizona Republic reported, "[b]ecause of the injury, Guy frequently was unable to use or understand words, Virginia Morton said."

By chance, this article was read by Sterling Hillebert, an investigator for the Navajo County Attorney's Office, formerly a sheriff's deputy who had previously attempted to identify the partial remains found in the desert in 1975. Hillebert contacted Detective Jeff Green in the Coconino County Sheriff's Office and suggested that Green request Guy's dental records for comparison. Detective Green obtained the records and they matched. Guy's parents, who then lived in Colorado, were notified of the identification on August 6, 1987. In October 1987, the homicide investigation was reopened by the sheriff's office. Guy's case remains an active, unsolved homicide.

On September 22, 1988, the Mortons filed this lawsuit. The Mortons contended that the Maricopa County Sheriff's Office was negligent in not identifying the partial skeletal remains before 1987, and the Maricopa County Medical Examiner was negligent in unceremoniously and disrespectfully incinerating Guy's then-unidentified remains. After a two-week trial, the jury found for the Mortons against the Maricopa County Sheriff's Office, the Maricopa County Medical Examiner's Office, and the Maricopa County Medical Examiner. The jury awarded each parent $250,000, Alex Morton $100,000, and the other seven siblings $50,000 each, for a total of $950,000. All post-trial motions were denied. This appeal was timely filed on December 18, 1990. ¹

ISSUES ON APPEAL

Maricopa County argues on appeal that the trial court erred in denying its motion for: (1) judgment because the evidence presented was insufficient regarding any element of the alleged negligence to support the verdict; (2) a new trial under Ariz.R.Civ.P. 59(a)(8), 16 A.R.S., because the verdict was not justified by the evidence and was contrary to law; (3) a new trial under Ariz.R.Civ.P. 59(a)(7), because the verdict was a result of passion and prejudice; and, (4) a new trial or remittitur under Ariz.R.Civ.P. 59(a)(5), because the damages awarded were excessive. We affirm in part and reverse in part.

DUTY TO IDENTIFY DEAD BODIES

Maricopa County contends that the trial court erred in denying its motion for judgment because the evidence presented was insufficient to support the jury's verdict, including evidence to prove a violation of duty. Whether there is a duty is an issue for the court. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). In Markowitz, the court stated:

We have previously explained that we disapprove of attempts to equate the concept of duty with specific details of conduct. Coburn v. City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984). We there approved Dean Prosser's postulate that it is "better to reserve 'duty' for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other ..." Id., quoting W. Prosser & W. Keeton, THE LAW OF TORTS, § 53 at 356 (5th ed.1984). We again point out that the existence of a duty is not to be confused with details of the standard of conduct.... These details of conduct bear upon the issue of whether the defendant who does have a duty has breached the applicable standard of care and not whether such a standard of care exists in the first instance.

Id. at 355, 706 P.2d at 367.

Maricopa County cites Shelton v. City of Westminster, 138 Cal.App.3d 610, 188 Cal.Rptr. 205 (1982), as authority for the proposition that no "special relationship" exists to create a legal duty between Maricopa County and the Mortons. We find Shelton instructive and persuasive. The Sheltons filed a missing person's report with the Westminster Police Department in October 1979, after their son had been missing two months. The Sheltons claimed the defendant police department told them that the report would be investigated completely and fully. The Sheltons' son's body had been found in August 1979, a week after he had disappeared. California Penal Code § 11114 requires an investigating sheriff, after 30 days and consultation with the coroner or medical examiner, to file a missing person report and the dental records of any unidentified person with the Department of Justice for identification purposes. Dental records were not filed with the Department of Justice and the Sheltons were not advised that their son's body was being held by the medical examiner until April 1980. The Sheltons brought suit against the city for not filing dental records sooner, as they alleged the statute required. The trial court dismissed the suit and the California Court of Appeals affirmed. The Shelton court stated:

The police failure to act here is at best only in a remote causal relationship to the damage suffered. The prime cause, the direct and immediate cause of plaintiff's [sic] suffering is the murderous act of the person who killed a beloved son. The failure to request dental records with resultant delay in identification is not even a remote, tangential, cause of this wrongful act.

Id. at 618-619, 188 Cal.Rptr. at 210-211.

The Sheltons claimed that the city was negligent and "allege[d] there was a 'special relationship' when the City represented the missing person report would be fully and completely investigated." Id. at 621, 188 Cal.Rptr. at 212. In conclusion on this issue, the Shelton court said:

Here there are no facts alleged to give rise to such "special relationship" between Sheltons and the City. Sheltons alleged only a failure to comply with Penal Code section 11114. This does not create a special relationship.

Many duties are imposed in connection with investigating a missing person report including the dental record process. The request for such police aid, or 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. The grasp of that doctrine does not reach so far. The trial court properly sustained the...