THIS OPINION HAS BEEN VACATED

This is a wrongful-non-death case.

After a serious car crash involving several victims the DPS told a family that their daughter had died; in fact she had survived. The family celebrated the miracle of her deliverance by suing the DPS and all the officers involved for negligence, negligent training, and intentional infliction. The trial court granted the defendants summary judgment. The Court of Appeals affirms on the negligent training and intentional infliction counts, for which there was basically no evidence, but reverses on negligence.

The court tells us, in a footnote, that the plaintiffs argument was based on a particular section of the Restatement that an earlier case had said was “clearly inapplicable” to this type of situation. So the court sidesteps this minor annoyance and decides the case on a different basis.

That earlier case (Vasquez 2008), among others, held that the state has no duty to identify victims accurately. The court now holds, though, that by telling the next-of-kin of its identification the state assumes a duty to them. “Given [sic] 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.”  The court does not use that Restatement provision, nor for that matter much other law that clearly points to such a conclusion.

In keeping with CA1 tradition the opinion recites facts at length, many of which have nothing to do with the holding. The court’s presentation gives the  impression, perhaps deliberately, that rather than acting negligently the defendants were doing their best under difficult circumstances.

(link to opinion)