Vasquez v. State

• Citation: 206 P.3d 753,220 Ariz. 304
• Decision Date: 29 September 2008
• Docket Number: No. 2 CA-CV 2007-0148.,2 CA-CV 2007-0148.
• Parties: Gloria R. VASQUEZ, Plaintiff/Appellant, v. The STATE of Arizona; The State of Arizona Department of Public Safety; and Cochise County, Defendants/Appellees.
• Court: Court of Appeals of Arizona

206 P.3d 753

220 Ariz. 304

Gloria R. VASQUEZ, Plaintiff/Appellant, v. The STATE of Arizona; The State of Arizona Department of Public Safety; and Cochise County, Defendants/Appellees.

No. 2 CA-CV 2007-0148.

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

September 29, 2008.

Review Denied April 20, 2009.

Law Office of David E. Hill, P.L.C. By David E. Hill, Tucson, Attorney for Plaintiff/Appellant.

Terry Goddard, Arizona Attorney General By Catherine M. Stewart, Tucson, Attorneys for Defendants/Appellees, The State of Arizona and The Arizona Department of Public Safety.

Kimble, Nelson, Audilett & Kastner, P.C. By Daryl A. Audilett and Rebecca Parker-Perry, Tucson, Attorneys for Defendant/Appellee, Cochise County.

Law Offices of Charles M. Brewer, Ltd. By David L. Abney, Phoenix, and Haralson, Miller, Pitt, Feldman & McAnally, PLC By Stanley G. Feldman, Tucson, Attorneys for Amicus Curiae, The Arizona Trial Lawyers Association.

OPINION

PELANDER, Chief Judge.

¶ 1 In this wrongful death action, plaintiff/appellant Gloria Vasquez 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., 192 Ariz. 313, ¶ 2, 965 P.2d 47, 49 (App. 1998). In November 2004, DPS Officer Tim Wiedemann and a Cochise County Sheriff deputy noticed a Dodge pickup truck that Wiedemann suspected might have been stolen. A records check on its license plate confirmed the truck had been reported stolen, and Wiedemann followed it for about twenty-five minutes while coordinating with other officers in the area to assist him in stopping it.

¶ 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.

¶ 4 Officers did not find any identification in the truck, at the scene, or on the driver's person, but a cellular telephone as well as some unspecified photographs were found in the truck and scattered about. The driver's body was taken to the Cochise County Medical Examiner's Office for an autopsy. Because the driver's identity remained unknown, the body received an indigent burial at county expense. About two months after the incident, the deceased driver was identified as Angel Romo, a fifteen-year-old runaway who had been on juvenile intensive probation at the time. The identification was made when Angel's mother, appellant Gloria Vasquez, provided his fingerprints to the county's Medical Examiner's Office. She was notified of that identification and his death in January 2005. Her last contact with Angel had been in September 2004, about two months before the incident, when he had left home without permission for the last time.

¶ 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.¹

¶ 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.²

Discussion

I. 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, Vasquez maintains she complied with the statutory requirements and, consequently, her claims against the state should not have been dismissed.

¶ 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, 218 Ariz. 372, ¶ 7, 187 P.3d 97, 100 (App.2008); see also Backus v. State, 220 Ariz. 141, ¶¶ 13-14, 204 P.3d 399 (Ct.App. 2008); Yollin v. City of Glendale, 219 Ariz. 24, ¶ 6, 191 P.3d 1040 (Ct.App.2008). We therefore review de novo whether any dispute of material fact exists and whether the trial court erred in applying the law. See Jones, 218 Ariz. 372, ¶ 7, 187 P.3d at 100. We also review de novo the "trial court's determination that [Vasquez]'s notice of claim failed to comply with § 12-821.01." Id.

¶ 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, 214 Ariz. 293, ¶ 6, 152 P.3d 490, 492 (2007), quoting Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, ¶ 9, 144 P.3d 1254, 1256 (2006), quoting Martineau v. Maricopa County, 207 Ariz. 332, ¶ 19, 86 P.3d 912, 915-16 (App.2004).

¶ 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."

¶ 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. 214 Ariz. 293, ¶¶ 1-2, 152 P.3d at 491. In that case, the...