Fleming v. State Department of Public Safety
237 Ariz. 414
| Ariz. | 2015Background
- DPS officers stopped Faith Mascolino for erratic driving and arrested her for DUI, placing her in the rear of a DPS cruiser after a portable breath test showed intoxication.
- While officers attempted to arrange retrieval of Mascolino’s vehicle, a third-party driver (Robert Gallivan) swerved at high speed and crashed into the cruiser, killing Mascolino.
- Fleming, conservator for Mascolino’s children, sued Gallivan and DPS for wrongful death; at trial DPS sought a jury instruction invoking qualified immunity under A.R.S. § 12-820.02(A)(7).
- The trial court gave the § 12-820.02(A)(7) instruction; the jury apportioned fault to Gallivan and Mascolino but none to DPS; the court of appeals upheld the instruction.
- The Arizona Supreme Court granted review to decide whether § 12-820.02(A)(7) applies when the injured person is no longer driving or in actual physical control of the vehicle.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 12-820.02(A)(7)’s immunity applies when the injured person is not driving or in actual physical control at time of injury | Fleming: statute does not apply because Mascolino was seated in the cruiser and no longer driving or in physical control | DPS: “driver” includes anyone who drove and whose injury is attributable to a prior violation of DUI/reckless-driving statutes | The Court held immunity applies only if the person is driving or in actual physical control when injured; § 12-820.02(A)(7) did not apply to Mascolino |
Key Cases Cited
- Glazer v. State, 237 Ariz. 160 (discussing scope of governmental liability after sovereign-immunity abolition)
- DeMontiney v. Desert Manor Convalescent Ctr. Inc., 144 Ariz. 6 (public custodian’s duty to protect persons deprived of self-protection)
- State v. Zaragoza, 221 Ariz. 49 (history and meaning of “actual physical control” in driving statutes)
- Fleming v. Ariz. Dep’t of Pub. Safety, 236 Ariz. 210 (App.) (court of appeals’ prior interpretation and application of § 12-820.02(A)(7))
- Bell v. Indus. Comm’n, 236 Ariz. 478 (statutory construction principles for related statutes)