Fleming v. State Department of Public Safety

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

ROBERT FLEMING, CONSERVATOR, ON BEHALF OF THE SURVIVING

MINOR CHILDREN OF FAITH MASCOLINO,

Plaintiff/Appellant,

v.

STATE OF ARIZONA DEPARTMENT OF PUBLIC SAFETY,

Defendant/Appellee.

No. CV-14-0315-PR

Filed July 9, 2015

Appeal from the Superior Court in Pima County

The Honorable Ted B. Borek, Judge

No. C20095459

REVERSED AND REMANDED

Opinion of the Court of Appeals, Division Two

236 Ariz. 210, 337 P.3d 1192 (App. 2014)

VACATED IN PART

COUNSEL:

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

FLEMING V. STATE

Opinion of the Court

VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF

JUSTICE BALES, JUSTICES BERCH and BRUTINEL, and JUDGE GOULD* joined.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶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.

I.

¶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

* Justice Ann A. Scott Timmer recused herself from this case. Pursuant to Article 6,

Section 3, of the Arizona Constitution, the Honorable Andrew W. Gould, Judge of the

Court of Appeals, Division One, was designated to sit in this matter.

2

FLEMING V. STATE

Opinion of the Court

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 jury returned a verdict

in favor of Fleming, finding Gallivan seventy-five percent at fault, Mascolino twenty-five

percent at fault, and assigning no fault to DPS.

¶7 The court of appeals affirmed, upholding the giving of the § 12-820.02(A)(7)

instruction. Fleming v. Ariz. Dep’t of Pub. Safety, 236 Ariz. 210, 211 ¶ 1, 337 P.3d 1192, 1193

(App. 2014). The court concluded that Mascolino was a “driver” under the statute and

that the record contained sufficient evidence from which a reasonable juror could have

found her death “attributable to” her driving while under the influence. Id. at 213 ¶ 12,

215 ¶ 17, 337 P.3d at 1195, 1197. We granted review because the interpretation of § 12-

820.02(A)(7) is an issue of first impression and statewide importance. We have

jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and A.R.S.

§ 12-120.24.

II.

¶8 Since this Court abolished sovereign immunity in 1963, public entities such

as DPS generally have been liable for injuries they negligently cause. See Glazer v. State,

237 Ariz. 160, 163 ¶ 10, 347 P.3d 1141, 1144 (2015). Consequently, under our common

law, when DPS takes custody of someone in a manner that deprives the person of the

opportunity for self-protection, it assumes a duty to protect that person against

unreasonable risk of physical harm. See DeMontiney v. Desert Manor Convalescent Ctr. Inc.,

144 Ariz. 6, 11, 695 P.2d 255, 260 (1985); Restatement (Second) of Torts § 314A(1)(a), (4)

(1965). “The duty to protect the other against unreasonable risk of harm extends to risks

arising out of . . . the acts of third persons, whether they be innocent, negligent,

intentional, or even criminal[,] . . . [and] also to risks arising from pure accident, or from

the negligence of the plaintiff [her]self . . . .” Restatement (Second) of Torts § 314A cmt.

d; see also DeMontiney, 144 Ariz. at 11, 695 P.2d at 260.

3

FLEMING V. STATE

Opinion of the Court

¶9 The legislature, however, enacted limited statutory exceptions to the

general liability of governmental entities for tortious conduct. See Clouse ex rel. Clouse v.

State, 199 Ariz. 196, 199 ¶ 13, 16 P.3d 757, 760 (2001) (describing the legislature’s

enactment of the Actions Against Public Entities or Public Employees Act (the “Act”),

codified at A.R.S. §§ 12-820 to -826, providing for absolute immunity, qualified immunity,

and affirmative defenses for public entities and employees). One of those exceptions is

found in § 12-820.02(A)(7):

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 title 28 statutes referenced in § 12-820.02(A)(7) prohibit reckless driving, § 28-693;

driving while under the influence, § 28-1381; and driving while under the extreme

influence, § 28-1382.

¶10 Section 12-820.02(A)(7)’s language implies a two-part test for determining

whether the statute’s qualified immunity applies: first, there must have been “[a]n injury

to the driver of a motor vehicle”; second, that injury must be “attributable to” the driver’s

violation of one of the specified title 28 statutes. If the two-part test is satisfied, the public

entity cannot be held liable unless it acted with gross negligence or intentionally, instead

of being held to the ordinary negligence standard of reasonable care. See A.R.S. § 12-

820.02(A)(7); Glazer, 237 Ariz. at 163 ¶ 11, 347 P.3d at 1144 (“The Act leaves intact the

common-law rule that the government is liable for its tortious conduct unless immunity

applies.”).

¶11 Fleming contends that the trial court erred by instructing the jury on

§ 12-820.02(A)(7), arguing that neither part of the statute was met. See Sparks v. Republic

Nat’l Life Ins. Co., 132 Ariz. 529, 539, 647 P.2d 1127, 1137 (1982) (finding it “reversible error

to instruct the jury on a legal theory which is not supported by the evidence”). “When a

jury instruction is challenged, we must view the evidence in [the] light most favorable to

the party who requested the instruction.” Jones v. Munn, 140 Ariz. 216, 218, 681 P.2d 368,

370 (1984). But the proper interpretation of a statute on which the court instructs the jury

is a legal issue we review de novo. See Glazer, 237 Ariz. at 163 ¶ 12, 347 P.3d at 1144.

4

FLEMING V. STATE

Opinion of the Court

A.

¶12 We first address whether Mascolino was a “driver of a motor vehicle”

under § 12-820.02(A)(7) when Gallivan crashed into the DPS cruiser in which she was

seated in the rear. “If a statute is unambiguous, we apply its terms without resorting to

other tools of statutory interpretation, unless doing so leads to impossible or absurd

results.” Orca Commc’ns Unlimited, LLC v. Noder, 236 Ariz. 180, 182 ¶ 9, 337 P.3d 545, 547

(2014). “Words in statutes, however, cannot be read in isolation from the context in which

they are used.” J.D. v. Hegyi, 236 Ariz. 39, 41 ¶ 6, 335 P.3d 1118, 1120 (2014). And when

statutes relate to the same subject matter, we construe them together as though they

constitute one law and attempt to reconcile them to give effect to all provisions involved.

Bell v. Indus. Comm’n, 236 Ariz. 478, 480 ¶ 7, 341 P.3d 1149, 1151 (2015). If we conclude

that the language is ambiguous, “we may consider the statute’s subject matter, legislative

history, and purpose, as well as the effect of different interpretations, to derive its

meaning.” Id.

¶13 Neither § 12-820.02 nor § 12-820 (“Definitions”) defines the word “driver.”

The court of appeals therefore appropriately consulted a dictionary defining “driver” as

“[o]ne that drives, as the operator of a motor vehicle.” Fleming, 236 Ariz. at 213 ¶ 12, 337

P.3d at 1195 (alteration in original) (quoting The American Heritage Dictionary 548 (5th

ed. 2011)); see State v. Pena, 235 Ariz. 277, 279 ¶ 6, 331 P.3d 412, 414 (2014) (“Absent

statutory definitions, courts apply common meanings and may look to dictionaries.”

(citations omitted)). Based on that definition, the court concluded that “the term ‘driver’

does not require that one be in the act of driving; rather, it describes a person who drives.”

Fleming, 236 Ariz. at 213 ¶ 12, 337 P.3d at 1195. The court reasoned that “[i]f the legislature

had intended to limit application of § 12-820.02(A)(7) to persons actively driving at the

time of injury, it could have included language to that effect . . . [and] it is not the function

of the courts to rewrite statutes.” Id.

¶14 The word “driver” in § 12-820.02(A)(7), however, also reasonably lends

itself to a different interpretation. The definition of driver as “one that drives” does not

necessarily include one who merely drove in the past. To “drive” is commonly

understood to mean “an act of driving.” Webster’s Ninth New Collegiate Dictionary 384

(1983). A “driver,” being “one that drives,” id., can therefore be fairly understood to mean

someone who does “an act of driving.” Consistent with these definitions, once the act of

driving ends, the person is no longer one who drives and thus not a driver. For purposes

of the statute then, an injury to a person who is no longer driving is not “[a]n injury to

the driver of a motor vehicle.” A.R.S. § 12-820.02(A)(7). This alternative, reasonable

reading does not require any rewriting of the statute.

5

FLEMING V. STATE

Opinion of the Court

¶15 The court of appeals further reasoned that “while perhaps persuasive,” the

definitions of “drive” and “driver” in title 28 “are not mandatory with respect to

§ 12-820.02(A)(7).” Fleming, 236 Ariz. at 213 ¶ 12 n.2, 337 P.3d at 1195 n.2. The court

nonetheless remarked that its conclusion that “driver” in § 12-820.02(A)(7) does not

require the person to be in the act of driving “closely tracks” the title 28 definition of a

driver as “a person who drives or is in actual physical control of a vehicle.” Id. at 213

¶ 12, 337 P.3d at 1195 (quoting A.R.S. § 28-101(18)).

¶16 As the court of appeals correctly observed, § 28-101 defines “drive” and

“driver” for title 28 purposes. See A.R.S. § 28-101(17)–(18). But we disagree that the court

of appeals’ construction of “driver” in § 12-820.02(A)(7) closely tracks the title 28

counterpart in anything but language. Reading “a person who drives” in the title 28

definition of “driver” to encompass someone who has driven in the past strains its

meaning when what follows—“or is in actual physical control”—is clearly stated in and

limited to the present tense. A.R.S. § 28-101(18) (emphasis added). In State v. Zaragoza,

we explained that “[f]or many years the legislature limited Arizona’s driving while

intoxicated statute to actual driving . . . [but] [i]n 1950, the legislature extended the statute

to [also] prohibit ‘actual physical control’ . . . to include more than just driving.” 221 Ariz.

49, 51 ¶¶ 7–8, 209 P.3d 629, 631 (2009) (emphasis added). Consistent with Zaragoza, a

“driver” under title 28 is a person who is driving or in actual physical control of a vehicle.

It does not include one who is neither in the act of driving nor in actual physical control

of a vehicle.

¶17 Moreover, although the title 28 definition of “driver” applies to title 28, it is

reasonable to interpret “driver” in § 12-820.02(A)(7) to conform with that definition.

Section 12-820.02(A)(7) not only refers to the title 28 statutes of §§ 28-693, -1381, and -1382,

but would also be meaningless without that reference. See A.R.S. § 12-820.02(A)(7) (“An

injury to the driver of a motor vehicle that is attributable to the violation by the driver of

[. . .] .”). This militates toward reading § 12-820.02(A)(7) together with the title 28 statutes

as though they constituted one law and reconciling them to give effect to all provisions

involved. See Bell, 236 Ariz. at 480 ¶ 7, 341 P.3d at 1151. So construed, “[a]n injury to the

driver of a motor vehicle” in § 12-820.02(A)(7) means an injury to a person who is driving

or in actual physical control of a vehicle when she is injured. See A.R.S. §§ 12-820.02(A)(7);

28-101(17)–(18); Zaragoza, 221 Ariz. at 51 ¶¶ 7–8, 209 P.3d at 631. We thus disagree with

the court of appeals’ conclusion that § 12-820.02(A)(7) necessarily encompasses an injury

to a person who drove at some point in the past. See Fleming, 236 Ariz. at 213 ¶ 12, 337

P.3d at 1195.

6

FLEMING V. STATE

Opinion of the Court

¶18 As the discussion above demonstrates, the term “driver” as used in

§ 12-820.02(A)(7) is reasonably susceptible to differing interpretations and therefore

ambiguous. It is well established, however, that “[s]ince immunity is the exception and

not the rule, . . . judicial construction of immunity provisions in statutes applicable to

government entities should be restrained and narrow.” Fid. Sec. Life Ins. Co. v. Ariz. Dep’t

of Ins., 191 Ariz. 222, 225 ¶ 7, 954 P.2d 580, 583 (1998) (citing Schabel v. Deer Valley Unified

Sch. Dist. No. 97, 186 Ariz. 161, 164, 920 P.2d 41, 44 (1996)); see also Glazer, 237 Ariz. at 163

¶ 12, 347 P.3d at 1144 (“Because § 12-820.03 bars recovery against public entities if the

defense is proven, we construe it narrowly.”); Doe ex rel. Doe v. State, 200 Ariz. 174, 176

¶ 4, 24 P.3d 1269, 1271 (2001) (“[Courts] construe immunity provisions narrowly.”).

Narrowly construing immunity provisions, including § 12-820.02(A)(7), respects the

legislature’s statement of purpose and intent in enacting them:

[I]t is hereby declared to be the public policy of this state that public entities

are liable for acts and omissions of employees in accordance with the

statutes and common law of this state. All of the provisions of this act

should be construed with a view to carry out the above legislative purpose.

1984 Ariz. Sess. Laws, ch. 285, § 1(A) (2d Reg. Sess.).

¶19 Under the court of appeals’ interpretation of § 12-820.02(A)(7), qualified

immunity applies if an injury to the “driver of a motor vehicle” occurs either while the

driver is driving or at any time after the driver is no longer driving, as long as the driver’s

injury is found to be attributable to his or her violation of the title 28 statutes. See Fleming,

236 Ariz. at 213 ¶ 12, 337 P.3d at 1195. Under our interpretation, the injury must occur

while the driver is driving or in actual physical control of the motor vehicle. This latter

interpretation represents a narrower application of the statute, without undermining the

legislature’s grant of qualified immunity, see Greenwood v. State, 217 Ariz. 438, 443 ¶ 16,

175 P.3d 687, 692 (App. 2008) (stating that courts may not “construe an immunity

provision so narrowly as to abrogate the legislature’s grant of immunity”), and while

remaining consistent with the court of appeals’ application of § 12-820.02(A)(7) in DeVries

v. State, in which the driver suffered injury while driving, 221 Ariz. 201, 203 ¶ 2, 211 P.3d

1185, 1187 (App. 2009).

¶20 Accordingly, we hold that “[a]n injury to the driver of a motor vehicle” in

§ 12-820.02(A)(7) means an injury to a person who is driving or in actual physical control

of a motor vehicle when she is injured. The trial court erred by instructing the jury on

§ 12-820.02(A)(7), because on this record no reasonable juror could find (nor does DPS

suggest) that Mascolino was either driving or in actual physical control of a vehicle when

Gallivan collided with the DPS cruiser in which she died.

7

FLEMING V. STATE

Opinion of the Court

B.

¶21 Because we hold that § 12-820.02(A)(7) was inapplicable as Mascolino was

not a driver of a motor vehicle at the relevant time, we leave for another day the

interpretation of “attributable to” in the same statute. It is better to address that issue in

a case in which it is squarely presented—that is, where the injured person was a “driver.”

III.

¶22 We vacate ¶¶ 9–17 and 23 of the court of appeals’ opinion, reverse the

judgment of the superior court, and remand this case to that court for further

proceedings.

8