FLORENCE — A lawsuit filed by Tonya Hensley against Pinal County in 2014 was dismissed for a second time for failure to name the county sheriff as a defendant.
The civil complaint filed on behalf of Chris Hensley, who died in 2013 at the age of 34 while hiking alone through the Superstition Mountains, had been previously dismissed by Superior Court Judge Jason Holmberg.
Holmberg did not allow the testimony of an expert witness, which led the Arizona Court of Appeals to overturn that decision in January 2017, sending the case back to the lower court.
Hensley’s family accuses the Pinal County Sheriff’s Office of ignoring information that could have led to finding the missing hiker. The PCSO was under the supervision of Sheriff Paul Babeu at the time of Hensley’s death.
Chris Hensley’s body was found four days later, not by PCSO, but by Superstition Search and Rescue, a nonprofit search-and-rescue organization.
The wife claims if PCSO had not ignored vital information she had on Hensley’s presumed whereabouts, then he would have been found before he died. Hensley’s death was ruled accidental by authorities, likely the result of him falling from a cliff in No Name Canyon.
The amount of time that transpired between Hensley’s fall and his death is the determining factor to prove whether PCSO was negligent. If he died soon after his fall, then it wouldn’t have mattered when or if PCSO found him.
But if he remained alive in the days that followed, when PCSO was searching for him, then the wife believes that would prove negligence.
Attorneys for the plaintiff maintain PCSO was negligent during the search.
In court documents, the attorneys highlighted how Superstition Search and Rescue found Hensley within 45 minutes of searching for him — and how the organization only found one set of footprints leading to Hensley’s body, suggesting PCSO had never entered the canyon where Hensley hiked.
The lawsuit was set to go to trial before a jury on Aug. 26 but that date was vacated when Pinal County Superior Court Judge Brenda Oldham dismissed the case after reading written and hearing oral arguments from both sides on May 23.
James Jellison, attorney for Pinal County, argued that the county is not legally responsible for the actions of the county sheriff, an elected official.
“It is the sheriff who shall conduct or coordinate county search and rescue operations, not the county,” Jellison wrote in a brief to the court. “If the Legislature had wished a County Board of Supervisors to possess the power to control, or coordinate search and rescue operations within a county, it could have easily said so. It did not.”
Jellison told the court that instead the Legislature placed the sheriff in charge of search and rescue operations and the county has to “provide support for the sheriff in the form of personnel, facilities, equipment and supplies.”
The huge hole that Jellison shot into the keel of the Hensley lawsuit is that only the county is named in the suit, not the sheriff.
“Finally, as to the footnote, Pinal County does not dispute that Plaintiff could have submitted a notice of claim to the sheriff, and named the Sheriff as a Defendant. As this Court already noted correctly, Plaintiff could have done so as to (name) both the Sheriff and the individual Deputies involved in the search, but chose not to,” Jellison wrote.
The Plaintiff’s choice to sue only Pinal County doesn’t hold the county accountable just because it is paying the bills, Jellison told the court.
“Arizona law has held since 1972 that an Arizona County cannot be held liable under state law for the statutorily mandated activities of separately elected officials,” Jellison wrote in his brief. “Plaintiff could have, but did not, sue the Sheriff (as employer) or any individual Sheriff’s Deputy involved in the search.”
The saga is not yet over as Tonya Hensley filed a notice of appeal of the dismissal to the Arizona Court of Appeals on Aug. 28. In a final judgment on July 31, the Pinal County court also ordered Hensley to pay the county $13,379 in costs associated with the lawsuit.