Fleming v. State of Arizona DPS, 716 Ariz. Adv. Rep. 17 (July 9, 2015) (J. Pelander)
QUALIFIED IMMUNITY FOR DUI APPLIES ONLY WHEN DRIVER IS DRIVING OR IN PHYSICAL CONTROL
Plaintiffs' decedent was seen weaving and driving far under the speed limit on Interstate 10. She was pulled over on an over pass by a DPS officer who administered a breathalyzer test which demonstrated she was significantly over the presumed limit for alcohol intoxication. She was placed in the back seat of the squad car while the arresting officer attempted to call family members to come get her car. Another motorist crashed into the rear of the parked squad car killing plaintiffs' decedent.
In the wrongful death action that ensued plaintiffs claimed DPS was negligent for placing plaintiffs' decedent in the back of the squad car in a dangerous location where it was more vulnerable to this sort of collision. The trial court, at the State's request, allowed evidence of decedent's intoxication and instructed the jury on the qualified immunity granted the state when a claim is brought by a driver under the influence. §12-820.02(A)(7) states:
Unless a public employee acting within the scope of the public employee's employment
intended to cause injury or was grossly negligent, neither a public entity nor a public employee is liable
for . . . [a]n injury to the driver of a motor vehicle that is attributable to the violation by the driver of §28-693, 28-1381 or 28-1382.
The statutes in question prohibit reckless driving, §28-693; driving while under the influence, §28-1381; and driving while under the extreme influence, §28-1382. Notably, “driver” is not defined in the statute.
Over plaintiffs' objection the court found “driver” to include someone who had been driving.
The jury returned a verdict finding the decedent 25% at fault for her own death and the nonparty at fault motorist who crashed into the squad car 75% at fault. No fault was attributed to DPS. The plaintiff appealed arguing that the immunity statute was inapplicable because plaintiffs' decedent was not driving at the time of the crash. The Arizona Court of Appeals affirmed and the Arizona Supreme Court reversed and remanded holding:
Under A.R.S. §12-820.02(A)(7), public entities and employees enjoy qualified immunity from liability for an injury to a motor-vehicle driver that is attributable to the driver's violation of statutes prohibiting reckless driving and driving while under the influence of alcohol or drugs. Today we hold that 12-820.02(A)(7)'s qualified immunity applies only when the driver was injured while driving or in actual physical control of a motor vehicle.