State Qualified Immunity Constitutionally Limits Suits by Those Under the Influence

Torts-State Qualified Immunity Constitutionally Limits Suits by Those Under the Influence

Devries v. State of Arizona, __Az. Adv. Rep.__ 1 CA-CV 07-0399 (App., March 31, 2009)(Justice Gemmill)

STATE QUALIFIED IMMUNITY BARRING CLAIM BY INTOXICATED DRIVER WHO SUES STATE FOR ROAD BARRIER DESIGN IS CONSTITUTIONAL AND IS OVERCOME ONLY BY SHOWING OF RECKLESS DISREGARD

Plaintiffs' decedent with a .16 blood alcohol crashed his car through a barrier on the freeway and was allegedly killed by a defect in the barrier.

ARS section 12-820.02 (A) (7) gives the state qualified immunity where a plaintiff or plaintiffs' decedent was intoxicated at the time of injury or death. Where intoxication is established, the state cannot be found liable except for gross negligence.

Plaintiffs claimed this statute violates Article IV, Part 2, section 18 of the Arizona Constitution which states that in all cases contributory negligence and assumption of the risk shall be a question of fact for the jury. The matter was tried to jury and the jury was instructed that if they found the plaintiff's decedent was driving intoxicated at the time of his death the plaintiff could only prevail by a showing of gross negligence or intent by the state. The jury found for the defense and the plaintiff appealed claiming the qualified immunity defense should not have been presented to the jury.

The Arizona Court of Appeals disagreed with the plaintiff and held that ARS sec. 12-820.02 (A) (7) is a constitutional exercise of the legislature's authority to define when it is immune from suit and not an imposition on the jury's right to decide contributory negligence and assumption of the risk.

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