Paradise Valley wrongful death lawsuit awaits Superior Court judgment

A police photograph of the car that struck Paradise Valley resident Howard Brown. (PVPD photograph)

Since August of last year, the Town of Paradise Valley has quietly been fighting against legal claims of investigative negligence by its police department filed in Maricopa County Superior Court.

The case and subsequent legal maneuvers stem from an April 2016 notice of claim filed against the Town of Paradise Valley on behalf of Judith Brown, the surviving spouse of Howard Brown, a Town of Paradise Valley resident.

Schmitt Schneck Smyth Casey & Even Attorneys at Law have filed a notice of claim against the Town of Paradise Valley alleging the municipality’s police department did not properly handle the investigation into a fatal accident that claimed the life of Mr. Brown.

The accident also involved the daughter of an elected leader of the community.

The lawsuit names the Town of Paradise Valley, Police Officer Steve Hovorka, Police Cpl. Mark Garrity and Paradise Valley Councilman Paul Dembow and seeks a payout ranging from $3.8 million to $4.2 million.

Written on behalf of Judith V. Brown, the suit states the Brown family would have settled for $2.7 million if paid within 60 days of the April 26 notice. The family is pursuing claims alleging:

• Gross negligence by the Paradise Valley Police Department;
• Negligent interference/influence of a police investigation by Paul Dembow;
• Negligent infliction of emotional distress against PVPD and Paul Dembow.

According to court records, on Feb. 22 Superior Court Judge Jo Lynn Gentry dismissed the case against Councilman Dembow that alleged he interfered or influenced the police investigation into the car accident that killed Mr. Brown. The automobile that struck Mr. Brown was operated by Paige Dembow, the councilman’s daughter.

The Town of Paradise Valley is represented by William H. Doyle of the Phoenix-based The Doyle Firm, while Ms. Dembow is represented solely by Benjamin C. Thomas of the Law Firm of Thomas Markson Rubin & Kelly, court records show.

The Town of Paradise Valley filed a motion to dismiss the suit Friday, June 2 at Superior Court.

“The town’s motion is based on the same arguments and case law that supported the motion to dismiss the claims made against Council Member Dembow in his official capacity,” Paradise Valley Town Attorney Andrew Miller said in a June 2 written response to e-mailed questions.

Andrew Miller

“The gist of the argument is that there is no legal duty to the plaintiffs for the police to conduct their investigation in the particular manner that the Browns have suggested, that is, to conduct the investigation in such a manner that charges would have been filed against Paige Dembow.”

In the court filings, legal representation for the Town of Paradise Valley asserts several court cases illustrate two major items: no police investigation can be done with a particular outcome in mind and all allegations against the local police outfit do not ascend to the charge of gross negligence.

Furthermore, the town alleges the damages pursued by the Brown family are not recoverable in a wrongful death action at Superior Court.

In all, the town cites five examples of established case law that supports its claim the Paradise Valley Police Department had no duty or obligation to investigate the accident in a manner the Brown family believed to be appropriate.

An excerpt of the motion illustrates the point:

“This cause of action may proceed only if the Paradise Valley defendants breached a recognized duty to these plaintiffs to conduct their investigation in any particular manner. But the Supreme Court has held that the police have no duty to persons who may be interested in the outcome of an investigation to conduct the investigation in any particular manner.”

Mr. Miller contends the police have a duty to investigate — and in this manner used their professional judgment to conduct the one they did then turning it over to a neighboring jurisdiction — but they do not have a duty to investigate with a particular outcome in mind.

“The issue is not that the police have no duty to investigate; it is that they don’t have a duty to conduct an investigation in a manner that leads to a particular result desired by a third party, in this case, the plaintiffs,” he said.

“The court should dismiss the claims against the town and Officers Hovorka and Garrity just as it dismissed the claims against Council Member Dembow.”

A motion for summary judgment was accepted by the Superior Court on June 2, with a ruling coming from Judge Genry in the coming weeks.

What records show

Paradise Valley Police Officer Steve Hovorka was the first officer on the scene of the accident. The accident occurred in the area of north Invergordon Road and east Horseshoe Lane in the Town of Paradise Valley, police reports show.

“Upon my arrival I observed a male lying in the southbound bike lane; this subject, later (was) identified as Mr. Howard Brown, had visible severe bleeding on the head and facial area,” he said in his Nov. 15, 2015 report.

The Scottsdale Fire Department arrived on the scene shortly after Officer Hovorka when it was determined Mr. Brown’s injuries were life-threatening. He was transported to Scottsdale Osborn Hospital, according to the report.

Officer Hovorka was then approached by Paradise Valley resident Ernie Markle who claimed to have witnessed the accident in a car traveling behind Ms. Dembow prior to the collision. Mr. Markle says he saw Mr. Brown walking his dog across Invergordon Road from east to west at Horseshoe Lane.

“Mr. Markle said the pedestrian did not look any direction but straight ahead of himself,” Officer Hovorka said. “Mr. Markle also said that he did not see the car brake or swerve.”

In his Nov. 15 written statement Mr. Markle recalled a calm scene prior to collision.

“The moment the pedestrian stepped into the roadway, my attention was immediately focused on the car and pedestrian because it looked like the collision was unavoidable.

“Both the pedestrian and driver seemed to be so calm and collected under the circumstances that I felt certain my depth perception must have been off. The dog cleared the car, and just as I thought everything was OK, the car struck the pedestrian sending him head over heels over the right side of the car itself.”

Police reports state the roadway was wet and the weather was overcast at the time of the accident. Mr. Markle said he was traveling about 40 mph.

Officer Hovorka says he spoke with Ms. Dembow after his conversation with Mr. Markle and said she was extremely distraught and upset, did not immediately know which way Mr. Howard was coming from but did not show any signs of impairment.

“While talking to Paige, I did not detect any visible impairment,” he said. “There was no odor of an alcoholic beverage upon her breath nor she appeared to be under any type of drugs or medication.”

In his report, Officer Hovorka said Ms. Dembow said she tried to stop but due to the wet roadway she “skidded, hitting Mr. Brown and then coming to a rest about 25 feet south of where the pedestrian, Mr. Brown, had been laying.”

According to his report, Councilman Dembow arrived when Officer Hovorka was speaking with the councilman’s daughter.

“Mr. Dembow, Paige’s father, had arrived and asked if they were able to leave,” he said. “I said they could go and that someone would be in contact with them soon.”

Officer Hovorka states after Ms. Dembow was released from the scene he checked her vehicle for registration papers and, “again, I could not locate any type of open containers of alcohol or prescription medication.”

At 6 p.m. later that day, Paradise Valley Det. Houk and Cpl. Mark Garrity went to the Dembow residence to further interview Ms. Dembow, Cpl. Garrity’s Nov. 15, 2015 report states.

“Her parents answered the door and stated that Paige was extremely distraught over the incident, was not home at the time, and that they had contacted an attorney and would request that she be interviewed at a later date with him present,” he said.

“Detective Houk and I then returned to the accident scene. Oncoming PVPD shift supervisor Sgt. Nigel Williams had responded to the accident scene and I briefed him on what has transpired and Scottsdale PD would be on scene handling the investigation.”

The Scottsdale perspective

Scottsdale police reports show its accident investigative team arrived on the scene sometime after 5 p.m. as Officer K. Strohmeyer was contacted at 5 p.m. the day of the accident, his narrative report states.

“I spoke with Cpl. Garrity of the Paradise Valley Police Department. He advised that his department was not staffed to handle a collision of this type and asked us to complete the investigation,” Officer Strohmeyer said in his report. “Cpl. Garrity informed me that the fire department had washed the victim’s blood away before they left.”

In his report, Officer Strohmeyer says he instructed Paradise Valley officers to conduct a formal interview of Ms. Paige, which appears to be the catalyst for the early evening visit to the Dembow residence the day of the accident.

“I asked Cpl. Garrity where the driver of the vehicle currently was located and he advised me they had allowed her father to take her home,” he said. “I asked Cpl. Garrity to accompany Detective Houk to the residence to see if he could get a statement.”

The notice of claim against the town alleges Officer Hovorka made determinations of Ms. Dembow’s role prior to conducting a thorough investigation. A transcript of audio from Officer Hovorka’s body camera when he spoke with Ms. Dembow states:

“Okay, you can come with me,” the notice of claim reads. “I’m not, I’m not, I am just, you know, trying to get each side of the story. You’re not going to jail for this or anything. I am just going to ask you what happened. I mean he is being transferred, he was obviously hit by your car, right? Do you have your DL? Your driver’s license on you?”

Officer Strohmeyer points out the witness — Mr. Markle — was also allowed to leave the scene before Scottsdale investigators arrived.

“There was a vehicle following the involved vehicle. It was driven by Ernie Markle,” he said. “He was not at the scene when I arrived. Cpl. Garrity said he was going to provide a statement at the PVPD station on 11/16/15.”

Andrea Ford, a Paradise Valley Police Department employee, provided the Independent and it appears legal representation of the Brown family — days after initial investigative files were disclosed and five months after the accident — a hand-written note penned by Mr. Markle to Ms. Dembow following the fatal accident.

The April 26 notice of claim makes reference to the nature of the note and points out the information was never disclosed in initial report gathering.

“I just wanted you to know that I am so sorry that you’re going through this,” he said in his Nov. 16 note. “If I can help you in any way, please contact me.”

Cpl. Garrity says the hand-written note was not included in the initial records disclosure because the note “contained nothing of evidentiary value” and he says he forgot about it until he was questioned by Paradise Valley command staff about the note.

Northeast Valley Managing Editor Terrance Thornton can be contacted at tthornton@newszap.com

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