ROBERT FLEMING, CONSERVATOR, ON BEHALF OF THE SURVIVING MINOR CHILDREN OF FAITH MASCOLINO, Plaintiff/Appellant,
STATE OF ARIZONA DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellee
Opinion of the Court of Appeals, Division Two. 236 Ariz. 210, 337 P.3d 1192 (App. 2014) . Appeal from the Superior Court in Pima County. The Honorable Ted B. Borek, Judge. No. C20095459.
Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Daniel P. Schaack (argued), Assistant Attorney General, Phoenix; and Robert R. McCright, Assistant Attorney General, Tucson, Attorneys for State of Arizona.
Ronald D. Mercaldo, Carlo Mercaldo, Mercaldo Law Firm, Tucson; Thomas A. Zlaket (argued), Thomas A. Zlaket, PLLC, Tucson; and JoJene E. Mills, Law Office of JoJene Mills, PC, Tucson, Attorneys for Robert Fleming, Conservator, on behalf of the surviving minor children of Faith Mascolino.
VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, JUSTICES BERCH and BRUTINEL, and JUDGE GOULD[*] joined.
PELANDER, VICE CHIEF JUSTICE.
[¶1] 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.
[¶2] The material facts are undisputed. Department of Public Safety (" DPS" ) Officer Scott Walter observed a vehicle driven by Faith Mascolino drifting across traffic lanes and traveling well below the speed limit on Interstate 10. He called for backup and attempted to pull Mascolino over, but she failed to yield and continued driving erratically. She eventually stopped in the emergency lane, close to a guardrail on the rising approach to a freeway overpass. As Officer Walter spoke with Mascolino, she exhibited signs of intoxication and admitted that she had been drinking " a lot" that night.
[¶3] DPS Officer Fred Rivera arrived on the scene and attempted to administer field-sobriety tests, which Mascolino could not complete. Officer Rivera arrested Mascolino for driving while under the influence and placed her in the rear seat of his DPS cruiser. Mascolino submitted to a portable breath test at Officer Rivera's request, which registered her breath-alcohol concentration well above the legal limit.
[¶4] Officer Rivera began calling Mascolino's family members to find someone who could retrieve her vehicle. While he was on the phone (about twenty minutes after placing Mascolino in custody), a vehicle driven by Robert Gallivan approached the freeway overpass at high speed, moving diagonally from the middle lane toward the emergency lane. Officer Walter shouted a warning to Officer Rivera, and both of them managed to jump over the guardrail just in time to avoid being struck. Gallivan's vehicle crashed into the cruiser in which Mascolino was seated, and she died on impact. The officers testified that they had approximately one second to react to Gallivan's vehicle and no time to rescue Mascolino before the collision.
[¶5] The conservator for Mascolino's minor children, Robert Fleming, filed this wrongful death action against Gallivan and DPS. Before trial, DPS moved for a jury instruction on qualified immunity under § 12-820.02(A)(7). Fleming objected, contending that the statute was inapplicable because Mascolino was neither driving nor in control of her vehicle when the collision occurred. The trial court ruled that DPS would be allowed to present evidence supporting the requested jury instruction, but deferred deciding whether the instruction would be given.
[¶6] At the close of evidence, the court decided to instruct the jury on § 12-820.02(A)(7)'s qualified immunity and related statutes. The ...