Arizona Court of Appeals, Division One, holds there is no common-law qualified immunity against simple negligence claims.

As he was responding to an emergency call, a City of Phoenix police officer ran a red light. In doing so, he crashed into a passenger vehicle, which then ricocheted into another vehicle. The driver of the vehicle struck by the officer sued both the officer and the City for negligence as a result of the collision.

The City and officer moved for summary judgment, arguing that they were entitled to common-law qualified immunity. The driver argued that, because common-law sovereign immunity was abolished by Stone v. Arizona Highway Commission, 93 Ariz. 384, 384 (1963), the officer and City were entitled to no such immunity. The superior court sided with the officer and City and granted summary judgment.

The Arizona Court of Appeals reversed. The Court concluded that police officers were not entitled to common-law qualified immunity because the Arizona Supreme Court had long ago recognized that a police officer could be liable for negligence. This was further established by Stone, which held governmental liability was the rule and immunity the exception, and clarified by the fact that later case law only recognized specific, limited governmental immunities for the legislative, judicial, and high-level executive functions. As the Court explained, these immunities were now codified in statute, which also codified that government liability was the general rule.

For this reason, the Court concluded that two more recent cases—Spooner v. City of Phoenix, 246 Ariz. 119 (App. 2018), and Jennings v. Agne, 254 Ariz. 174 (App. 2022)—erred in applying common-law qualified immunity to police officers. Both of those cases incorrectly conflated suits for defamation with the simple negligence claims at issue. The history of sovereign immunity in Arizona demonstrated that, as to the latter, there was no common-law qualified immunity, and the Spooner and Jennings courts were wrong to conclude otherwise. For similar reasons, the Court also rejected an analysis of whether the officer’s actions were ministerial or discretionary—because there was no common-law qualified immunity, the distinction was meaningless.

The Court also rejected the officer’s argument that A.R.S. § 28-624, which allows the driver of an emergency vehicle to violate some traffic laws, immunized him from the driver’s tort claim. The statute itself does not claim to grant immunity, and instead imposes a due care standard. That is, the Court said, the same standard that applies in every negligence case.

Accordingly, the Court vacated the superior court’s judgment and remanded for further proceedings.

Judge Becke authored the opinion, joined by now-retired Judge Thumma and Judge Cattani.

Posted by: Joshua J. Messer