Court holds law enforcement liable for notification mix-up in girl's death

2014-05-08T00:00:00Z Court holds law enforcement liable for notification mix-up in girl's deathBy Howard Fischer Capitol Media Services Arizona Daily Star

PHOENIX — For more than a week, Maria and Jose Guerra mourned the loss of their daughter after being informed by the Department of Public Safety that she had been killed in an accident.

Meanwhile, the parents of Marlena Cantu sat in a hospital with a comatose victim of the same accident, believing she was their daughter.

But it turned out DPS had misidentified who was who. And now the state Court of Appeals has given the Guerras the go-ahead to sue the state for its negligence.

The judges on Tuesday rejected Department of Public Safety arguments that the officers did no wrong in telling the parents of April Guerra, 19 at the time, that she had died in a 2010 traffic accident on Interstate 10 west of Phoenix.

It was only after the medical examiner raised questions a week later that the family learned she had been in the hospital all along — and the other family, which had been sitting with the girl they thought was their daughter Marlena, learned it was not her but April instead.

Judge Kenton Jones, writing for the unanimous court, also rejected claims their decision will result in delays in police providing the public “timely communications” about what they have discovered.

“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,” Jones wrote.

The decision, unless appealed, sends the case back to a trial court to determine monetary damages, although the judges noted that while the family can sue for negligence, there was no basis to sue for intentional infliction of emotional distress.

DPS spokesman Bart Graves would not comment on the ruling.

The case stems from a July 18, 2010, accident where five friends were returning home from Disneyland when their vehicle blew a tire and rolled, ejecting two of the passengers. One girl was pronounced dead at the scene; a male passenger died later at the hospital.

DPS officers found a purse near the unidentified girl’s body that contained Arizona driver’s licenses for both April and Marlena, 21, who were described as close friends who shared similar physical attributes.

After the accident, both of the girls had badly swollen and bruised faces.

Unable to identify the body, authorities sent it to the Maricopa County Medical Examiner’s Office as a “Jane Doe.”

Based on information from the hospital’s charge nurse, officers concluded by process of elimination the dead girl had to be April and notified her family.

The next day the family contacted the medical examiner, who said they could not view the body until it was released to a funeral home the following week. They also were asked to forward dental records to help with identification.

But before releasing the body, the medical examiner concluded the dental records did not match the body. Only after getting various other records and examining the hospitalized girl did they finally identify the deceased passenger as Marlena. 

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