Arizona Court of Appeals Division One Holds That the Qualified Immunity Provided in A.R.S. § 12-820.02(A)(7) Is Constitutional.

Devries lost control of his vehicle and crashed into a highway median.  He was killed in the crash.  An autopsy revealed that his vitreous and blood alcohol levels were at levels sufficient to show he was driving under the influence of intoxicating liquor.  The surviving parent sued the State for negligent highway design and wrongful death.  The State claimed qualified immunity under A.R.S. § 12-820.02(A)(7), which provides for qualified immunity if the accident was “attributable to” the violation of certain drunk-driving laws and if the State did not act intentionally or with gross negligence.  After a jury trial, the jury returned a verdict in favor of the state.  Plaintiff appealed, contending that the statute granting qualified immunity is unconstitutional, and arguing that the trial court erroneously instructed the jury to resolve the legal question of whether the State had qualified immunity.

Judge Gemmil, writing for a unanimous court, held that A.R.S. § 12-820.02(A)(7) was a constitutional exercise of the legislature’s power to grant specific, limited immunity.  Relying on the holding in Clouse ex rel. Clouse v. State, 199 Ariz. 196, 16 P.3d 757 (2001),  the Court of Appeals held that A.R.S. § 12-820.02(A) did not exceed the authority granted by article IV, part 2, section 18 of the Arizona Constitution, which gives power to the legislature to direct “what manner and in what courts suits may be brought against the State.”  

The Court distinguished City of Tucson v. Fahringer, 164 Ariz. 599, 795 P.2d 819 (1990), on the grounds that Fahringer did not address the legislature’s constitutional authority to grant limited immunity.  Relying on Clouse, the Court would not second guess the legislature’s determination that section 12-820.02(A)(7) was an appropriate extension of qualified immunity.  The Court further held that the statute does not “diminish or destroy” the government’s duty to take reasonable care in designing and maintaining highways because it only denied negligence claims in the limited circumstances when a person was injured as a result of driving under the influence.  Finally, the Court rejected the plaintiff’s argument that “attribute to” as used in section 12-820.02(A)(7) is unconstitutionally vague.  The Court relied on dictionary definitions to conclude that the words put a driver on notice that the statute may apply when driving under the influence “is a cause or source” of injury to the driver.

Turning to the jury instruction issue, the Court held that the trial court properly instructed the jury to determine whether the necessary facts existed to allow the State to assert qualified immunity.  Because the trial court determined the legal question of whether qualified immunity was available, it was appropriate to instruct the jury to resolve whether the statutorily required facts supported an assertion of qualified immunity.

Judge Gemmil authored the opinion; Judges Norris and Kessler concurred.