Robert Fleming v. State of Arizona, Az. Dept. of Public Safety, Gallivan
236 Ariz. 210
| Ariz. Ct. App. | 2014Background
- Faith Mascolino was stopped by DPS after erratic driving; officers arrested her for suspected DUI and administered a portable breath test showing .252 BrAC.
- While officers were at her vehicle (one officer had Mascolino in his cruiser), another car driven by Robert Gallivan struck the patrol car; Mascolino died on impact.
- Autopsy blood tests later showed post-mortem BACs of .250 (DPS lab) and .231 (independent lab).
- Robert Fleming, conservator for Mascolino’s children, sued Gallivan and the Arizona Department of Public Safety (DPS) for wrongful death.
- At trial the court, over Fleming’s objection, instructed the jury on qualified immunity under A.R.S. § 12-820.02(A)(7) (immunity for injuries "attributable to" a driver’s DUI/reckless driving), and admitted BrAC/BAC results.
- The jury allocated fault 75% to Gallivan and 25% to Mascolino, assigned no fault to DPS; Fleming appealed arguing (1) § 12-820.02(A)(7) did not apply because Mascolino was not driving at death and her death was not attributable to DUI, and (2) admission of breath/blood tests was erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 12-820.02(A)(7) qualified immunity applies when the intoxicated person is injured after ceasing to actively drive | Fleming: "Driver" means one actively driving; Mascolino was not driving at time of death, so immunity inapplicable | DPS: "Driver" includes a person who drives or is in actual physical control; statute can apply when injury is attributable to prior DUI | Court: "Driver" need not be actively driving; jury may decide whether death was "attributable to" DUI and thus trigger qualified immunity |
| Whether Mascolino’s death was "attributable to" her DUI as a matter of law (precluding jury instruction) | Fleming: No reasonable jury could find causation; instruction improperly lowers DPS’s standard of care | DPS: Sufficient facts (high BAC, erratic driving, failure to yield) made causation a jury question | Court: Causation was reasonably supported by evidence; leaving the issue to the jury was proper |
| Whether introducing BrAC and post-mortem BAC was irrelevant under Rule 401 | Fleming: Test results irrelevant to consequential issues because she was not driving at death | DPS: Results directly relevant to whether statutory DUI elements were met and to fault allocation | Court: Results were relevant to statutory elements and comparative fault; admission proper |
| Whether BrAC/BAC were unfairly prejudicial or cumulative under Rule 403 | Fleming: Numerical alcohol results were inflammatory and cumulative | DPS: Probative to rebut claims that Mascolino was not intoxicated; not unduly prejudicial | Court: Probative value outweighed any danger of prejudice; admission did not abuse discretion |
Key Cases Cited
- DeVries v. State, 221 Ariz. 201 (App. 2009) (qualified immunity applies if jury finds factual prerequisites)
- Luchanski v. Congrove, 193 Ariz. 176 (App. 1998) (standard of care analysis under immunity framework)
- Calnimptewa v. Flagstaff Police Dept., 200 Ariz. 567 (App. 2001) (distinguishing negligence and gross negligence standards when immunity applies)
- Patterson v. Thunder Pass, Inc., 214 Ariz. 435 (App. 2007) (legal causation broken by events too attenuated)
- Hawkins v. Allstate Ins. Co., 152 Ariz. 490 (1987) (pleadings and substantive law determine consequential facts for relevance)
- Zuern v. Ford Motor Co., 188 Ariz. 486 (App. 1996) (admission of intoxication evidence in comparative fault allocation)
- Clouse ex rel. Clouse v. State, 199 Ariz. 196 (App. 2000) (legislature may retain or confer immunity; courts defer to legislative policy choices)
- State v. Poshka, 210 Ariz. 218 (App. 2005) (noting strong public policy interest in preventing DUI-related harm)