Jennings v. Hon agne/al-furaji

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

BETH JENNINGS and CITY OF MESA, Petitioners,

v.

THE HONORABLE SARA J. AGNE, Judge of the SUPERIOR COURT OF

THE STATE OF ARIZONA, in and for the County of MARICOPA,

Respondent Judge,

NOOR AL-FURAJI, Real Party in Interest.

No. 1 CA-SA 22-0090

FILED 10-20-2022

Petition for Special Action from the Superior Court in Maricopa County

No. CV2021-052198

The Honorable Sara J. Agne, Judge

JURISDICTION ACCEPTED/RELIEF GRANTED

COUNSEL

City of Mesa Attorney’s Office, Phoenix

By Alexander J. Lindvall

Counsel for Petitioners

Ahwatukee Legal Office PC, Phoenix

By David L. Abney

Co-Counsel for Real Party in Interest

Zachar Law Firm PC, Phoenix

By Christopher J. Zachar

Co-Counsel for Real Party in Interest

JENNINGS et al. v. HON AGNE/AL-FUAJI

Opinion of the Court

OPINION

Judge Jennifer M. Perkins delivered the opinion of the Court, in which

Presiding Judge David D. Weinzweig and Judge Brian Y. Furuya joined.

P E R K I N S, Judge:

¶1 In this special action, we consider which standard of care

applies to a police officer involved in a crash while responding to an

emergency call for service. We hold that the operator of an emergency

vehicle who properly exercises the relevant statutory privileges is not liable

unless she acted with reckless disregard.

FACTS AND PROCEDURAL BACKGROUND

¶2 City of Mesa Police Officer Beth Jennings got an emergency

call for backup in October 2020—another officer had his gun drawn on an

armed suspect and needed help. Jennings turned on her lights and sirens

and led two other cruisers toward the scene. When the convoy hit a red

light, Officer Jennings moved into the intersection to clear the way. Noor

Al-Furaji’s vehicle entered the intersection, striking Officer Jennings’

cruiser.

¶3 Al-Furaji sued Officer Jennings and the City of Mesa for

negligence. Petitioners moved for summary judgment, arguing the proper

standard of care for Officer Jennings was either recklessness or gross

negligence, but the complaint only alleged simple negligence. The superior

court denied the motion in a one-sentence order without analysis. This

special action followed.

JURISDICTION

¶4 Accepting special action jurisdiction is discretionary, State v.

Hutt, 195 Ariz. 256, 259, ¶ 5 (App. 1999), and appropriate when a party lacks

“an equally plain, speedy, and adequate remedy by appeal,” Ariz. R.P.

Spec. Act. 1(a). This court usually disfavors exercising special action

jurisdiction to address a denial of summary judgment. Piner v. Superior

Court, 192 Ariz. 182, 184, ¶ 8 (1998). But we confront here a pure legal

question, and emergency responder liability is a matter of statewide

importance, two factors that call for the exercise of special action

jurisdiction. Id. at 185, ¶ 9. And this petition involves a question of qualified

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Opinion of the Court

immunity, which is particularly appropriate for special action review. City

of Phoenix v. Yarnell, 184 Ariz. 310, 315 (1995). Accordingly, we accept

jurisdiction.

DISCUSSION

¶5 The superior court did not explain why it denied summary

judgment. See Ariz. R. Civ. P. 56(a) (“The court should state on the record

the reasons for granting or denying the motion.”). Thus, we do not know if

the court found a disputed fact question, determined that a simple

negligence standard applied, or something else. Because the parties placed

emergency responder liability squarely at issue, we take this opportunity

to clarify the proper standard of care for the driver of an emergency vehicle

and remand for further proceedings consistent with this opinion.

¶6 Petitioners first argue that an emergency vehicle operator

cannot be liable for injury unless the operator acted with “reckless

disregard.” A.R.S. § 28-624(D). Second, they argue Officer Jennings is

protected by discretionary act immunity, which limits liability to “gross

negligence.” We take each point in turn.

I. The standard of care under A.R.S. § 28-624(D)

¶7 This appeal requires us to interpret A.R.S. § 28-624(D), which

identifies the applicable standard of care. We review de novo a question of

statutory construction. BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz.

17, 19, ¶ 9 (2018). “Our task in statutory construction is to effectuate the text

if it is clear and unambiguous. Words in statutes should be read in context

in determining their meaning.” Id. (cleaned up). “A cardinal principle of

statutory interpretation is to give meaning, if possible, to every word and

provision so that no word or provision is rendered superfluous.” Nicaise v.

Sundaram, 245 Ariz. 566, 568, ¶ 11 (2019). We also attempt to harmonize

seemingly contradictory provisions. Bekelian v. JP Morgan Chase Bank NA,

246 Ariz. 352, 354, ¶ 6 (App. 2019).

¶8 Arizona law affords greater leeway to drivers of authorized

emergency vehicles when “responding to an emergency or fire, or pursuing

a suspect.” A.R.S. § 28-624(A), (D). More specifically, authorized emergency

vehicle drivers have special privileges to (1) park or stand, (2) pass stop

signals “after slowing down as necessary for safe operation,” (3) exceed the

speed limit “if the driver does not endanger life or property,” and (4)

“disregard laws . . . governing the direction of movement or turning.”

A.R.S. § 28-624(B)(1)–(4). To exercise these privileges, the emergency

vehicle must display lights and sirens “as reasonably necessary,” A.R.S. §

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Opinion of the Court

28-624(C). Police vehicles need not display lights but must sound an audible

siren. A.R.S. § 28-624(C); Herderick v. State, 23 Ariz. App. 111, 114 (1975).

Ordinary drivers must then yield when approached by an emergency

vehicle. A.R.S. § 28-775(A)(1).

¶9 These statutory privileges are not unbounded. As explained

by the legislature:

This section does not relieve the driver of an authorized

emergency vehicle from the duty to drive with due regard for

the safety of all persons and does not protect the driver from

the consequences of the driver’s reckless disregard for the

safety of others.

A.R.S. § 28-624(D).

¶10 The parties argue about the meaning of “duty to drive with

due regard” and “reckless disregard.” Petitioners argue the “reckless

disregard” language limits liability to reckless acts, while Al-Furaji

contends “due regard” calls for ordinary negligence application.

¶11 We interpret Section 28-624(D) to require “reckless disregard”

for liability. The statute uses two descriptions for one standard. “Due

regard” generally means “consideration in a degree appropriate to

demands of the particular case.” Due Regard, Black’s Law Dictionary (6th

ed. 1990). With that definition, when the statute requires that first-

responders drive with “due regard,” it means that drivers must not drive

with “reckless disregard.” After all, if “due regard” meant ordinary care,

the words “reckless disregard” would be meaningless. See Deer Valley Unif.

Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 296, ¶ 8 (2007) (“Each word, phrase,

clause, and sentence [of the statute] must be given meaning.”). Said

differently, the “duty to drive with due regard” signals the imposition of a

specific standard of care, while “reckless disregard” sets that standard.

¶12 We pause to address two earlier opinions from this court

which described the standard as ordinary negligence. Herderick, 23 Ariz.

App. at 115; Est. of Aten, 169 Ariz. 147, 151 (App. 1991). The first case is

Herderick, which applied a simple negligence standard, but never explained

why. By contrast, we reach the plain language of the statute. Above that,

this discussion in Herdick was arguably dicta. Id. at 115 (finding that the

officer was not liable under a negligence standard rendered moot the

question of liability under a recklessness standard). The second case is

Estate of Aten. But it offers no greater direction, only pointing to Herderick,

and noting the issue had not been raised. In any event, we decline to follow

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Opinion of the Court

either case if construed to recognize an ordinary negligence standard. See

State v. Dungan, 149 Ariz. 357, 361 (App. 1985) (“[P]revious decisions of this

court are considered highly persuasive and binding, unless we are

convinced that the previous prior decision is clearly erroneous.”).

¶13 To repeat, we hold that subsection (D) establishes a reckless

disregard standard for a driver of an authorized emergency vehicle—but

only when the driver used an emergency “bell, siren or exhaust whistle”

and operated at least one emergency light, while exercising one of the

privileged activities in subsection (B). A.R.S. § 28-624. The plaintiff must

then show that the operator committed an act that constitutes “the driver’s

reckless disregard for the safety of others.” Absent these statutory

conditions, A.R.S. § 28-624 does not apply.

II. Discretionary Act Immunity

¶14 In the alternative, Petitioners argue that Officer Jennings is

entitled to qualified immunity and would be liable only for gross

negligence. We agree.

¶15 Police officers enjoy “limited protection from liability when

performing an act that inherently requires judgment or discretion.” Spooner

v. City of Phoenix, 246 Ariz. 119, 123, ¶ 9 (App. 2018) (cleaned up); see also

Portonova v. Wilkinson, 128 Ariz. 501, 503 (1981) (“[A] police officer acting

within the scope of [her] authority has at least a conditional immunity from

civil liability.”). The purpose of discretionary act immunity is to preserve

the “independence of action without deterrence or intimidation by the fear

of personal liability and vexatious suits.” Spooner, 246 Ariz. at 124, ¶ 9

(quoting Restatement (Second) of Torts § 895D cmt. b). If immunity applies,

an officer is shielded from liability unless the conduct rises to gross

negligence or recklessness. Id. at ¶ 10. “A public official’s conscious

disregard of the law or the rights of others constitutes gross negligence.” Id.

¶16 Al-Furaji argues Officer Jennings is not entitled to

discretionary act immunity because driving is not a discretionary act. He

relies on our supreme court’s opinion in Chamberlain v. Mathis, which

stated, “[d]riving is not a discretionary governmental function that must be

shielded by immunity for government to function effectively.” 151 Ariz.

551, 556 (1986). The court described driving as a ministerial act, such as

when a government official “drive[s] from point A to point B to carry out

his official duties.” Id.

¶17 Driving is generally a ministerial task that precedes official

duties. But driving in response to an emergency call for police backup is not

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a ministerial task. Section 28-624 recognizes that such conduct is a key part

of an officer’s official duties to respond to crime promptly. And speeding

toward an active emergency is exactly when an officer needs the discretion

to make prompt choices. “The public simply cannot afford for those

individuals charged with securing and preserving community safety to

have their judgment shaded out of fear of subsequent lawsuits.” Spooner,

246 Ariz. at 124, ¶ 11 (citation omitted).

CONCLUSION

¶18 We accept special action jurisdiction and remand for the

superior court to reconsider Petitioners’ summary judgment arguments in

light of this opinion.

AMY M. WOOD • Clerk of the Court

FILED: AA

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