ALDASARO v. PAVLINCH

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JUAN ALDASORO, Plaintiff/Appellant,

v.

GIOVANI PAVLINCH, et al., Defendants/Appellees.

No. 1 CA-CV 25-0533
FILED 09-24-2026

Appeal from the Superior Court in Maricopa County
No. CV2023-053700, CV2023-094787
The Honorable Michael D. Gordon, Judge, Retired

REVERSED AND REMANDED

COUNSEL

Sweet James Lawyers LLC, Phoenix
By Henry G. Hester
Counsel for Plaintiff/Appellant

Office of the Phoenix City Attorney, Phoenix
By Julie M. Kriegh, Jody C. Corbett
Counsel for Defendants/Appellees

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

OPINION

Judge Andrew J. Becke delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma1 and Judge Kent E. Cattani joined.

B E C K E, Judge:

¶1 Plaintiff Juan Aldasoro appeals from the superior court’s
entry of summary judgment against him on his negligence claim against the
City of Phoenix (“City”) and its police officer, Giovani Pavlinch, based on
common law qualified immunity. We hold that police officers enjoy no
common law qualified immunity from negligence claims. We further hold
that A.R.S. § 28-624 does not grant police officers statutory immunity and,
instead, sets forth a standard of due care. Accordingly, we reverse and
remand for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

¶2 While responding to an emergency call in a marked City
police car, Officer Pavlinch drove through a red light and crashed into
Aldasoro’s vehicle, which in turn crashed into another vehicle. Pavlinch
had his emergency lights on at the time. Whether his siren was on is a
disputed fact.

¶3 Aldasoro sued Pavlinch and the City for simple negligence.
After the close of discovery, Pavlinch and the City moved for summary
judgment, arguing they were entitled to common law qualified immunity.

¶4 Aldasoro responded that common law sovereign immunity
was abolished in 1963. See Stone v. Ariz. Highway Comm’n, 93 Ariz. 384, 387
(1963), overruled in part on other grounds by Grimm v. Ariz. Bd. of Pardons &
Paroles, 115 Ariz. 260, 266 (1977). Further, Aldasoro argued, A.R.S.

1 Judge Samuel A. Thumma was on the panel assigned to this case until

retiring effective August 28, 2026. Arizona Supreme Court Chief Justice
Ann A. Scott Timmer appointed Judge Thumma to continue to serve on the
Court through December 31, 2026, to resolve those cases in which he
previously participated like this case. See Arizona Supreme Court
Administrative Order 2026-124.

2

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

§ 28-624—which permits the driver of an emergency response vehicle to
violate certain motor vehicle laws when an audible signal like a siren is
activated—did not apply because Pavlinch did not activate his siren.

¶5 The superior court granted summary judgment, concluding
there were “no material questions of fact regarding whether Defendant
Pavlinch, a law enforcement officer, was exercising discretion when
responding to an emergency call,” and therefore, under Arizona’s common
law, “Defendants are entitled to qualified discretionary act immunity.” The
court also found that § 28-624 “did not preempt the [common law] qualified
discretionary act immunity, and it is a viable affirmative defense.”

¶6 We have jurisdiction over Aldasoro’s timely appeal under
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 Aldasoro argues the superior court erred in granting
summary judgment because the City and Pavlinch are potentially liable for
his claims. Summary judgment is proper when the moving party is entitled
to judgment as a matter of law and there are no genuine disputes of material
fact. Ariz. R. Civ. P. 56(a). We review the grant of summary judgment de
novo, viewing the facts in the light most favorable to Aldasoro. See Dinsmoor
v. City of Phoenix, 251 Ariz. 370, 373, ¶ 13 (2021). We review de novo the
existence of common law immunity. See Spooner v. City of Phoenix, 246 Ariz.
119, 123, ¶ 7 (App. 2018). We also review questions of statutory
interpretation and application de novo. Obregon v. Indus. Comm’n of Ariz., 217
Ariz. 612, 614, ¶ 9 (App. 2008).

¶8 The viability of Aldasoro’s claim turns on the existence of a
police officer’s immunity from negligence suit based on either (1) common
law qualified immunity or (2) a statutory privilege for operators of
authorized emergency vehicles.

I. Police Officers Are Not Entitled to Common Law Qualified
Immunity from Negligence Claims.

A. Abolition of the defense of governmental immunity for negligence
claims, creation of statutory immunity, and application of the
common law

¶9 Nearly 80 years ago, the Arizona Supreme Court held that a
police officer could be liable for negligence. See Ruth v. Rhodes, 66 Ariz. 129
(1947). The Ruth Court rejected the application of the defense of common

3

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

law immunity in a negligence claim against a highway patrol officer who
caused a collision while driving to the scene of an accident in response to a
radio dispatch. Id. at 134. The court noted with approval the general rule at
the time concerning the personal tort liability of state officers:

We think that a sound public policy requires that public
officers and employees shall be held accountable for their
negligent acts in the performance of their official duties, to
those who suffer injury by reason of their misconduct.

Id. at 133 (quoting Florio v. Schmolze, 129 A. 470, 472–73 (N.J. 1925)).

¶10 In 1963, the Arizona Supreme Court abolished common law
governmental immunity from liability for negligence claims. Stone, 93 Ariz.
at 392–93. The Stone Court explicitly stated that “where negligence is the
proximate cause of injury, the rule is liability and immunity is the
exception.” Id. at 392. Stone overruled all contrary precedent. Id. at 387.

¶11 And in 1982, the Arizona Supreme Court in Ryan v. State
reaffirmed the abolition of the common law governmental immunity
doctrine and invited the legislature to codify governmental immunity. 134
Ariz. 308, 310–11 (1982), superseded by statute as stated in Clouse ex rel. Clouse
v. State, 199 Ariz. 196, 203, ¶ 27 (2001) (“Clouse III”). The Ryan Court stated:

In electing to treat the state like a private litigant, we must
hasten to point out that certain areas of immunity must
remain. The more obvious of such immunities are legislative
immunity, judicial immunity, and high-level executive
immunity.

Id. at 310. The Ryan Court noted that application of judicial and legislative
immunity was clear, but application of high-level executive immunity was
difficult. Id. at 311. Ultimately, the court stated:

[W]e propose to endorse the use of governmental immunity
as a defense only when its application is necessary to avoid a
severe hampering of a governmental function or thwarting of
established public policy. Otherwise, the state and its agents
will be subject to the same tort law as private citizens.

Id. While inviting legislation on the topic, Ryan repeated the common law
rule of governmental liability in tort stated in Stone—liability for negligence
is the rule and immunity the exception. See Clouse III, 199 Ariz. at 199, ¶ 12
(noting that Ryan invited the legislature to address those areas that might

4

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

need the protection of absolute immunity or qualified immunity); Pritchard
v. State, 163 Ariz. 427, 431 (1990) (stating that Ryan “announced” the
common law rules of tort liability); City of Tucson v. Fahringer, 164 Ariz. 599,
602 (1990) (same).

¶12 In response to Ryan, the Arizona Legislature in 1984 enacted
the Actions Against Public Entities or Public Employees Act (“the Act”),
A.R.S. §§ 12-820 to -826. As relevant here, the Act provides (1) absolute
immunity for legislative and judicial functions and for administrative
functions that involve the determination of “fundamental governmental
policy,” § 12-820.01, and (2) qualified immunity for negligent conduct for
eleven discrete acts (none of which are applicable here) when done within
the scope of a public employee’s employment, § 12-820.02. In doing so, the
Act declared that “the public policy of” Arizona is “that public entities are
liable for acts and omissions of employees in accordance with the statutes
and common law of this state.” 1984 Ariz. Sess. Laws, ch. 285, § 1(A) (2d
Reg. Sess.) (S.B. 1225); accord Pritchard, 163 Ariz. at 431. The Act expressly
states it does “not affect, alter or otherwise modify any other rules of tort
immunity regarding public entities and public officers as developed at
common law and as established under the statutes and the constitution of
this state.” A.R.S. § 12-820.05(A). The Act codified the holding in Stone that
“the rule is [governmental] liability and immunity is the exception.” Backus
v. State, 220 Ariz. 101, 104, ¶ 9 (2009) (alteration in original) (quoting Stone,
93 Ariz. at 392).

¶13 Both before and after the Act, Arizona appellate courts have
repeatedly permitted negligence suits against public entities and police
officers in accordance with the well-settled public policy of this state. See,
e.g., Ryan v. Napier, 245 Ariz. 54, 62, ¶ 31 (2018) (permitting plaintiff to plead
a negligence claim against a police officer for conduct “independent of the
intentional use of force” or a claim alleged as an alternative to battery);
Calnimptewa v. Flagstaff Police Dep’t, 200 Ariz. 567, 572, ¶ 28 (App. 2001)
(concluding that because A.R.S. § 12-820.02(A) did not apply to a claim for
police officers’ failure to obtain medical care for arrestee, the officers were
not immune from simple negligence under the statute and ordinary
negligence claims could proceed); Austin v. City of Scottsdale, 140 Ariz. 579,
582 (1984) (reversing a directed verdict in favor of the City of Scottsdale on
a wrongful death claim for negligence by police department); Estate of Aten
v. City of Tucson, 169 Ariz. 147, 148, 150–51 (App. 1991) (reversing summary
judgment in favor of the City of Tucson on the issue of whether the police
pursuit of a fleeing vehicle was negligent); City of Scottsdale v. Kokaska, 17
Ariz. App. 120, 123, 130–31 (1972) (affirming judgment for plaintiff on
negligence claim against the City of Scottsdale and police officer for

5

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

negligent driving); City of Phoenix v. Camfield, 97 Ariz. 316, 318, 320–24
(1965) (affirming denial of the City’s motion for directed verdict on
negligent maintenance claim involving police officer and upholding jury
verdict against the City). These appellate opinions—spanning 60 years—
are all consistent with Arizona’s policy of governmental tort liability for
negligence.

¶14 But in 2018, Spooner v. City of Phoenix, 246 Ariz. 119 (App.
2018), took a wrong turn by appearing to recognize broad common law
police officer immunity for negligence.2 Spooner, a wrongful arrest case,
affirmed judgment as a matter of law for the City in a simple negligence
case. It did so on common law immunity grounds, based on the
discretionary acts of a police officer investigating criminal activity. Id. at
123–25, ¶¶ 7–13. Spooner relied heavily on the emphasis of immunity for
discretionary, as opposed to ministerial, tasks recognized in the common
law defamation case Chamberlain v. Mathis, 151 Ariz. 551 (1986). Spooner, 246
Ariz. at 123–25, ¶¶ 9–12. In doing so, Spooner reasoned that the nature of
criminal investigations, with the need for quick decisions as the case
develops, calls for deliberation and judgment that should be accorded
immunity from simple negligence claims. Id. at 124, ¶ 11. In contrast to
Stone’s mandate that “immunity is the exception,” 93 Ariz. at 392, Spooner
would allow lawsuits against police officers only when they knowingly
violated the law or recklessly disregarded the rights of other persons. 246
Ariz. at 124, ¶¶ 10–11.

2 Appellees incorrectly assert that this court held in Clouse v. State, 194 Ariz.

473 (App. 1998) (“Clouse I”) “that governmental immunity for simple
negligence based on claims related to ‘vital’ government functions such as
the ‘active investigation and prosecution of crime’ has been the public
policy in Arizona for its entire history and police officers can only be held
liable for gross negligence for their actions in a police investigation.” But
the Arizona Supreme Court vacated Clouse I—meaning that decision is not
the law—then later vacated its own opinion. Clouse v. State, 198 Ariz. 473
(2000) (“Clouse II”); Clouse ex. rel Clouse v. State, 199 Ariz. 196 (2001) (“Clouse
III”). Clouse III does not bear on common law immunity for simple
negligence for police officers and explicitly distinguished statutory
immunity from the common law immunity cases of Rhodes and Ryan. 199
Ariz. at 203, ¶ 27. In any event, Clouse I was a statutory immunity case, not
a common law immunity case, and held that A.R.S. § 12-820.02(A)(1)
(addressing the failure to make an arrest) does not violate the constitution’s
anti-abrogation clause. 194 Ariz. at 478, ¶ 22.

6

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

¶15 And Jennings v. Agne, 254 Ariz. 174 (App. 2022), continued
along the errant course that Spooner’s wrong turn had charted. In Jennings,
a plaintiff brought a simple negligence action against the City of Mesa and
a police officer stemming from a collision where the police officer had
stopped in an intersection to block traffic for the passage of approaching
emergency response vehicles. Id. at 176, ¶¶ 2–3. Citing Spooner and the
common law defamation case Portonova v. Wilkinson, 128 Ariz. 501 (1981),
the Jennings decision noted that “police officers enjoy limited protection
from liability when performing an act that inherently requires judgment or
discretion.” 254 Ariz. at 178, ¶ 15 (citation modified). Referring to this
“discretionary act immunity,” Jennings concluded that although “[d]riving
is generally a ministerial task that precedes official duties . . . driving in
response to an emergency call for police backup is not a ministerial task.”
Id. ¶¶ 15–17. Jennings noted that A.R.S. § 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.” Id. ¶ 17.

B. Application of Arizona law to this case

¶16 With this historical background, we turn to the facts of this
case. The narrow question before us is whether there is common law
qualified immunity for simple negligence by a police officer.

¶17 Pavlinch and the City argue they have common law qualified
immunity for Aldasoro’s negligence claim, relying primarily on Spooner
and Jennings. Recognizing that we are not bound by those cases, and
because we are convinced that both Jennings and Spooner are based on
“clearly erroneous principles,” we do not follow them here. See Castillo v.
Indus. Comm’n, 21 Ariz. App. 465, 471 (1974). Instead, we recognize and
apply the common law set forth in various cases decided before Spooner and
Jennings, which leads inexorably to the conclusion that Pavlinch and the
City are not absolved from liability for simple negligence based on common
law qualified immunity.

1. Inapposite application of defamation cases

¶18 Both Spooner and Jennings held that common law qualified
immunity applied to police officers, either in the discretionary investigative
process or in the discretionary response to an emergency. In doing so,
Spooner and Jennings relied on the application of common law qualified
immunity in three defamation cases: Chamberlain, Portonova, and Patterson
v. City of Phoenix, 103 Ariz. 64 (1968). Spooner, 246 Ariz. at 123–24, ¶¶ 9–10

7

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

(citing all three); Jennings, 254 Ariz. at 178, ¶¶ 15–16 (citing Chamberlain and
Portonova). But all three cases arose in the meaningfully different
defamation context and none of them provide a basis for extending
common law qualified immunity to police officers for simple negligence
claims.

¶19 In Patterson—issued after Stone’s abolition of the defense of
governmental immunity for negligence claims—the Arizona Supreme
Court carved out common law qualified immunity for police officers in the
defamation context. The court addressed whether under Stone, the City of
Phoenix could be liable for the discretionary acts—specifically, allegedly
defamatory statements—of its police officers acting within the scope of
their employment. 103 Ariz. at 66–67. The officer, while investigating a
report that two minor children were endangered, contacted the children’s
mother’s employer and disclosed information about the incidents to the
employer in an attempt to communicate with the mother. Id. at 66. In
addressing the mother’s defamation claim against the officer and the City,
Patterson rejected the dichotomy between ministerial and discretionary acts
and concluded the City could be liable under the doctrine of respondeat
superior for the alleged defamatory acts of its police officer acting within
the scope of his employment despite exercising some discretion. Id. at
67–68.

¶20 Patterson relied on a Texas defamation decision delineating
“five prerequisites that must be met before a conditional privilege will be
recognized,” including the making of a statement in good faith. Id. at 70–71
(citing with approval Mo. Pac. Ry. Co. v. Richmond, 11 S.W. 555, 557
(Tex. 1889)). After analyzing the specific facts of the case, Patterson noted
generally that a conditional privilege could be applied to a defamation
claim, stating that:

There is perhaps some logical support for according an officer
a qualified or conditional privilege which would protect him
from liability for statements made that bear on the
prosecution or detection of a crime and that are directed at an
individual who is, in some concrete manner, connected in
some capacity to that crime.

Id. at 70 (citation modified). Patterson ultimately found there was no
evidence that the investigating officer acted in bad faith and affirmed
summary judgment for the City on the defamation claim. Id. at 71.
Patterson’s analysis turns on five prerequisites for immunity from
defamation claims. Id. at 70–71. Patterson’s adoption of conditional common

8

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

law qualified immunity for police officers applies uniquely to defamation
actions; it has no application in negligence actions.

¶21 Next, in Portonova, the Arizona Supreme Court again
analyzed whether a police officer had common law immunity for a
defamation claim. A juvenile probation officer brought a defamation action
against a police officer for repeating to the press unverified statements by a
juvenile that the probation officer told the juvenile to “keep quiet” about
the juvenile’s involvement in burglaries and not report them to the police.
128 Ariz. at 502–03. The supreme court cited its recognition in Patterson of a
police officer’s “conditional immunity from civil liability” in a defamation
action. Id. at 503. The court recognized a conditional or qualified privilege
for defamation claims when the defendant has a “duty of making a
communication to a certain other person to whom he makes such
communication in the performance of such duty.” Id. (quoting Roscoe v.
Schoolitz, 105 Ariz. 310, 313 (1970)). Ultimately, the Portonova Court declined
to apply a qualified privilege under the facts of that case, stating that
“[r]epetition by a police officer of an unverified statement made by a
juvenile known to be an adept fabricator, and nothing more, does not rise
to [the] level” of evoking a qualified common law privilege. Id. As was the
case in Patterson, this conditional or qualified privilege to defame when
under a duty to communicate has no application in the negligence context.

¶22 Finally, in Chamberlain, the Arizona Supreme Court
conducted a fact-specific inquiry to determine whether absolute or
qualified common law immunity applied in a defamation action against a
high-level state executive. 151 Ariz. at 554–60. As explained in Chamberlain,
the framework for analyzing common law immunity in defamation actions
requires the court to decide: (1) whether there is an identifiable common
law immunity, (2) whether the conduct at issue was performed in the
actor’s discretionary or ministerial capacity, and (3) if absolute or qualified
immunity applies. 151 Ariz. at 554–56. Citing previous defamation cases,
Chamberlain found that there was an identifiable pre-existing common law
immunity for defamation actions. Id. at 555.

¶23 Chamberlain noted that both absolute and qualified immunity
could only be applied to discretionary acts (such as “setting policy or
performing an act that inherently requires judgment or discretion”), but not
to ministerial acts (acts not required to advance important public objectives,
such as “driving cars, posting warning signs, or moving office furniture”).
Id. at 555–56 (emphasis added). Chamberlain concluded that making
allegedly defamatory comments regarding an audit and state employees in
the presence of a newspaper reporter was within the high-level executive’s

9

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

discretionary authority and thus “entitled to some level of immunity.” Id.
at 556. Ultimately rejecting the application of absolute immunity,
Chamberlain concluded that, in a defamation case, qualified common law
immunity protects a high-level public official unless, under an objective
reasonableness standard, “he (1) acted outside the outer perimeter of his
required or discretionary functions, or (2) acted with malice in that he knew
his statements regarding plaintiffs were false or acted in reckless disregard
of the truth.” Id. at 558–60. In so doing, Chamberlain cited Portonova with an
explanatory parenthetical that Portonova granted “qualified immunity for
police officer accused of defamation,” but Chamberlain did so only in the
context of distinguishing between, and deciding whether to confer,
absolute or qualified common law immunity in a defamation case. Id. at
555. As with Patterson and Portonova, Chamberlain’s reasoning has no
application to negligence claims.

¶24 Both Spooner and Jennings read these three defamation cases
too broadly by taking the statement that “a police officer acting within the
scope of his authority has at least a conditional immunity from civil
liability” out of the defamation context in which it is grounded and grafting
it onto negligence claims generally. None of these three Arizona Supreme
Court cases broadly grant police officers common law immunity for all
causes of action. Spooner and Jennings improperly expanded common law
immunity from its limited application in the defamation context to apply
broadly to simple negligence claims against police officers despite the
clearly established common law that precludes governmental immunity for
simple negligence. See Stone, 93 Ariz. at 392; Ruth, 66 Ariz. at 133.

2. Discretionary act qualified immunity

¶25 Both Spooner and Jennings also relied heavily on the
dichotomy between ministerial and discretionary functions in applying
common law qualified immunity. Spooner concluded police investigative
work is discretionary, so common law qualified immunity applied. 246
Ariz. at 123–25, ¶¶ 7–12. And Jennings stated that driving in emergency
situations is discretionary, so common law qualified immunity applied. 254
Ariz. at 178, ¶¶ 15–17.

¶26 But because there is no common law qualified immunity for
negligence, it is immaterial whether the conduct at issue is discretionary or
ministerial. See Chamberlain, 151 Ariz. at 555–56 (distinction between
ministerial and discretionary functions is relevant only after first
identifying a potentially applicable common law immunity); Ryan, 134
Ariz. at 310 (expressing a “hope to avoid the semantic legerdemain

10

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

involved in applying a ‘discretionary acts’ exception to state liability for
negligent acts”); see also Patterson, 103 Ariz. at 68 (rejecting the distinction
between discretionary and ministerial acts in analyzing whether the City
was liable for alleged defamation by its police officers acting within the
scope of their authority if those acts were discretionary and explicitly noting
that the negligence cases of Ruth and Camfield did not recognize the
discretionary-ministerial dichotomy).

¶27 Even if the discretionary vs. ministerial inquiry had some
relevance to common law immunity for negligence, Chamberlain strongly
suggests that operating a motor vehicle falls on the ministerial side of that
line. 151 Ariz. at 556 (“[I]t is possible to characterize those situations in
which no immunity exists as those involving the performance of ministerial
acts, such as driving a car . . . . Driving is not a discretionary governmental
function that must be shielded by immunity for government to function
effectively.” (emphasis added)).

3. Public policy

¶28 Both Spooner and Jennings rely on public policy interests
attempting to balance the preservation of “independent action” without
“deterrence or intimidation by the fear of personal liability and vexatious
suit.” Spooner, 246 Ariz. at 124, ¶¶ 9, 11; Jennings, 254 Ariz. at 178, ¶¶ 15, 17.
But, like our supreme court, see Ruth, 66 Ariz. at 133, the Arizona
Legislature has declared that “the public policy of this state” is “that public
entities are liable for acts and omissions of employees in accordance with
the statutes and common law of this state.” Laws 1984, ch. 285, § 1(A);
Pritchard, 163 Ariz. at 431. No statute provides immunity here, and the
common law mandates governmental liability for negligence.

¶29 The threat of suit or financial loss is not a reason to override
Arizona’s express public policy, particularly when a city employee is
insured for negligence claims. See A.R.S. § 9-497 (authorizing a city “to
procure liability insurance covering their officers, agents, and employees
while employed in governmental or proprietary capacities”); see also
Patterson, 103 Ariz. at 67–68 (taking judicial notice of A.R.S. § 9-497 and
concluding that “whatever fear a police officer might suffer with regard to
personal financial loss is certainly diminished where liability insurance
exists” and given that a “municipality is liable for the tortious acts of its
police officers committed within the scope of their employment.”).

11

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

¶30 Both Spooner and Jennings granted common law immunity for
police officers in negligence actions. We expressly reject their holdings for
the reasons described here, including Arizona’s public policy that
governmental tort liability is the rule and immunity is the exception.
Because there is no common law immunity for police officers in negligence
actions, we vacate the grant of summary judgment on that basis.

II. A.R.S. § 28-624 Does Not Immunize Defendants for Simple
Negligence.

¶31 Aldasoro argues on appeal that A.R.S. § 28-624—which
grants the driver of an authorized emergency vehicle a privilege to violate
some traffic laws in certain circumstances—does not provide any immunity
to Pavlinch and the City. The City and Pavlinch contend Aldasoro’s
argument is irrelevant because they did not seek summary judgment based
on the application of any statutory “immunity” or “privilege.” The superior
court, however, noted that § 28-624 was a “viable affirmative defense” that
also provided qualified immunity. Accordingly, and given the need for
remand after vacating the grant of summary judgment, we address A.R.S.
§ 28-624.3

¶32 Section 28-624 provides:

A. If an authorized emergency vehicle is driven in response
to an emergency call, in pursuit of an actual or suspected
violator of law or in response to but not on return from a fire
alarm, the driver may exercise the privileges provided in this
section subject to the conditions stated in this section.

B. If the driver of an authorized emergency vehicle is
operating at least one lighted lamp displaying a red or red
and blue light or lens visible under normal atmospheric
conditions from a distance of five hundred feet to the front of
the vehicle, the driver may:
1. Notwithstanding this chapter, park or stand.
2. Proceed past a red or stop signal or stop sign, but
only after slowing down as necessary for safe
operation.
3. Exceed the prima facie speed limits if the driver does
not endanger life or property.

3 The City and Pavlinch agree there is a factual dispute whether Pavlinch

engaged his siren. If the jury determines he did, § 28-624 may apply.

12

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

4. Disregard laws or rules governing the direction of
movement or turning in specified directions.

C. The exemptions authorized by this section for an
authorized emergency vehicle apply only if the driver of the
vehicle while in motion sounds an audible signal by bell, siren
or exhaust whistle as reasonably necessary and if the vehicle
is equipped with at least one lighted lamp displaying a red or
red and blue light or lens visible under normal atmospheric
conditions from a distance of five hundred feet to the front of
the vehicle, except that an authorized emergency vehicle
operated as a police vehicle need not be equipped with or
display a red or red and blue light or lens visible from in front
of the vehicle.

D. 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.

¶33 When interpreting a statute, we first examine its language to
ascertain legislative intent. In re Estate of Jung, 210 Ariz. 202, 204, ¶ 12 (App.
2005). We “ascribe plain meaning” to a statute’s terms “unless the
legislature assigned a special meaning to one or more terms.” W. Corr. Grp.,
Inc. v. Tierney, 208 Ariz. 583, 587, ¶ 16 (App. 2004). We attempt to give
meaning to each provision and word to avoid superfluity. Nicaise v.
Sundaram, 245 Ariz. 566, 568, ¶ 11 (2019). “When possible, we seek to
harmonize statutory provisions and avoid interpretations that result in
contradictory provisions.” Premier Physicians Grp., PLLC v. Navarro, 240
Ariz. 193, 195, ¶ 9 (2016).

A. Section 28-624 does not grant immunity.

¶34 Section 28-624 grants “privileges” and “exemptions” to
drivers of authorized emergency vehicles to violate certain vehicular laws
(including proceeding past a red light), if sounding an audible bell, siren,
or exhaust whistle while driving in response to an emergency call. A.R.S.
§ 28-624(A) (“privileges”), 28-624(C) (“exemptions”). Both the parties and
the superior court referred to § 28-624 as an “immunity” statute. We clarify
that § 28-624 does not grant any immunity from tort liability.

13

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

¶35 When the legislature grants immunity, it does so
unequivocally, using terms like “not liable” or “immunity.” See, e.g., A.R.S.
§§ 9-500.02(A), (B) (“not liable”); 12-713 (“not liable”); 12-820.01
(“immunity” and “shall not be liable”); 12-820.02 (“immunity”);
12-820.03(A) (“not liable”); 12-820.04 (“immunity”); 12-820.05 (“immunity”
and “not liable”); 26-314 (“not liable”); 41-621(L) (“immune from liability”);
48-818 (“not liable” and “immunity”).

¶36 In contrast to those statutes, § 28-624 does not use the term
“not liable” or “immunity.” The statute provides for “privileges” or
“exemptions” from the law. A.R.S. § 28-624(A) (“privileges”), 28-624(C)
(“exemptions”). And these are privileges and exemptions to do specific
things that might be otherwise unlawful under our traffic laws, like
proceeding past a red light or exceeding the speed limit. A.R.S. § 28-624(B).
In other words, when an authorized emergency vehicle is using its lights
and sirens, its driver may exercise the privilege to violate certain traffic
laws.

¶37 To be clear, this privilege can impact whether the driver of an
emergency vehicle is liable for causing an accident, but not because it
renders the driver immune from suit. Rather, the privilege means that a
driver operating an emergency vehicle with lights and sirens who, for
instance, runs a red light resulting in an accident is not negligent per se.

¶38 “Negligence per se ‘describe[s] those instances where certain
acts or omissions constitute negligence without further inquiry [into] the
circumstances or reasonableness of their occurrence.’” Ibarra v. Gastelum, 249 Ariz. 493, 495, ¶ 7 (App. 2020) (alterations in original) (quoting Deering
v. Carter, 92 Ariz. 329, 333 (1962)). “A person who violates a statute enacted
for the protection and safety of the public is guilty of negligence per se.”
Alaface v. Nat’l Inv. Co., 181 Ariz. 586, 596 (App. 1994). But where the
violation of a safety statute is “excusable,” that violation cannot be the basis
of liability for negligence per se. See Brannigan v. Raybuck, 136 Ariz. 513, 518
& n.1 (1983). Section 28-624’s privileges and exemptions render violations
of the traffic laws “excusable” and therefore not negligent per se. But a party
who is not negligent per se can still be found negligent under the ordinary
“reasonable person” standard, if a plaintiff proves the required elements
for such a claim. See Griffith v. Valley of Sun Recovery & Adjustment Bureau,
Inc., 126 Ariz. 227, 230 (App. 1980); Saucedo ex rel. Sinaloa v. Salvation Army, 200 Ariz. 179, 183, ¶ 14 (App. 2001) (listing the elements of an Arizona
common law negligence claim).

14

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

B. Section 28-624 imposes a due care standard.

¶39 Rather than conferring immunity, A.R.S. § 28-624 sets forth
the standard of care for drivers of authorized emergency vehicles when
exercising the privileges and exemptions authorized by the statute.
Specifically, the statute provides that:

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). Subsection (D) refers to (1) “the duty to drive with due
regard for the safety of all persons” and (2) the absence of protections “from
the consequences of the driver’s reckless disregard for the safety of others.”
Id. In Jennings, this court analyzed whether the “reckless disregard”
language limits liability to reckless acts or whether the “due regard”
language calls for an ordinary negligence application. 254 Ariz. at 177, ¶ 10.

¶40 Jennings concluded that subsection (D) required “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.” 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. Said differently, the “duty to drive with due
regard” signals the imposition of a specific standard of care,
while “reckless disregard” sets that standard.

Id. at 177–78, ¶ 11 (citations omitted). Although Jennings couched its
analysis in terms of the applicable standard of care, Jennings effectively
granted immunity to police officers for simple negligence claims based on
actions taken in response to an emergency. We disagree with this
interpretation of the statute. See Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 273
(1994) (“[W]e will not interpret a law to deny, preempt, or abrogate
common-law damage actions unless the statute’s text or history shows an
explicit legislative intent to reach so severe a result.”).

15

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

¶41 Jennings implied that § 28-624(D) is ambiguous, using “two
descriptions for one standard” and characterizing those descriptions as
“seemingly contradictory.” 254 Ariz. at 177, ¶¶ 7, 11. If statutory language
is ambiguous—“if it can reasonably be read in two ways—we may use
alternative methods of statutory construction,” including an examination
of the statute’s “historical background.” Garibay v. Johnson, 259 Ariz. 248,
255, ¶ 23 (2025) (citation modified). An examination of § 28-624(D)’s history
helps illustrate its meaning.

¶42 Section 28-624 was first enacted in 1950, as part of the Arizona
Legislature’s Act “Regulating Traffic on Highways.” 1950 Ariz. Sess. Laws,
ch. 3, § 25.1 (1st Spec. Sess.). At that time, subsection (D) read:

The foregoing provisions shall not relieve the driver of an
authorized emergency vehicle from the duty to drive with
due regard for the safety of all persons, nor shall such
provisions protect the driver from the consequences of his
reckless disregard for the safety of others.

Id. But the statutory phrases “due regard for [] safety” and “consequences
of [] reckless disregard for the safety of others” are, in fact, far older than
1950.

¶43 A similar provision of Arizona’s 1939 Code conferred a
privilege to exceed the speed limit in response to an emergency. The
structure of that statute makes it clear that “due regard” and “reckless
disregard are not “two descriptions for one standard” (as Jennings would
have it) but rather descriptions of two different things:

The speed limitations set forth in this article shall not apply to
vehicles when operated with due regard for safety under the
direction of the police in the pursuit or apprehension of
persons charged with or suspected of any violation of law; to
fire department or fire patrol vehicles when traveling in
response to a fire alarm; or, to public or private ambulances
when traveling in emergencies; or, to the vehicles of licensed
physicians when actually traveling in response to emergency
calls. This exemption shall not however protect the driver of
any such vehicle from the consequences of a reckless disregard of
the safety of others.

1939 Code § 66-105 (emphasis added). Section 66-105 of the 1939 Code was
originally enacted in 1927 when the Arizona Legislature first passed the

16

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

Highway Code. See 1927 Ariz. Sess. Laws, ch. 2(5), § 5 (4th Spec. Sess.)
(using identical language).

¶44 Viewed through this historical lens, “due regard for safety”
referred to the manner in which drivers must operate their vehicles in order
to take advantage of the privilege to exceed the speed limit. The
contemporary understanding of the privilege to speed granted by § 66-105
in the 1939 Code was a privilege that must be exercised non-negligently. See
Young v. Campbell, 20 Ariz. 71, 78 (1918) (describing a driver “having due
regard to the traffic” as “not negligent”); Pickwick Stages Corp. v. Messinger, 44 Ariz. 174, 176 (1934) (describing negligent driving as “without having
due regard to the traffic”); Beltran v. Stroud, 63 Ariz. 249, 253 (1945)
(contrasting “due regard to the safety of the public” with acting
“unreasonabl[y] or negligent[ly]”).

¶45 “Due regard for safety” is, in substance, the same standard
employed in every negligence case: the duty to act as a reasonable person
would in light of the surrounding circumstances. Nunez v. Pro. Transit
Mgmt. of Tucson, Inc., 229 Ariz. 117, 121, ¶¶ 18–19 (2012). We agree with our
pre-Jennings opinions holding that § 28-624(D)’s use of the phrase “due
regard for safety” refers to the ordinary negligence standard of reasonable
care. See Estate of Aten, 169 Ariz. at 151 (rejecting the argument that § 28-
624(D) restricts liability to cases of gross negligence and concluding § 28-
624(D) did not preclude the plaintiff from pursuing a negligence action
against the City of Tucson stemming from a high-speed chase resulting in
the death of a motorist); Herderick v. State, 23 Ariz. App. 111, 115 (1975)
(interpreting § 28-624(D) as imposing the duty to use due care on users of
the highways with citations to “actionable negligence” and general
common law negligence standards).

C. Section 28-624 does not set a recklessness standard for liability.

¶46 What then of the “consequences of [] reckless disregard for
the safety of others”? As Jennings correctly points out, we must “give
meaning, if possible, to every word and provision [of a statute] so that no
word or provision is rendered superfluous.” Jennings, 254 Ariz. at 177, ¶ 7
(citing Nicaise, 245 Ariz. at 568, ¶ 11). When viewed in historical context,
however, the phrase had a commonly understood meaning that does not
immunize emergency vehicle drivers for claims of ordinary negligence.

17

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

¶47 When the Arizona Legislature passed the Highway Code in
1927, the “consequences of [] reckless disregard for the safety of others” fell
into three categories: (1) criminal prosecution, (2) exposure to punitive
damages, and (3) forfeiture of the defense of contributory negligence.

¶48 First, criminal prosecution. In 1927, the same year the Arizona
Legislature passed the Highway Code, our supreme court upheld an
aggravated assault conviction for driving “with reckless disregard of the lives
and safety of others” while intoxicated, at night, without headlights, on the
wrong side of the road and in excess of the speed limit. Brimhall v. State, 31
Ariz. 522, 524 (1927) (emphasis added). Other cases of that era reached
similar results. E.g., Gutierrez v. State, 44 Ariz. 114, 118 (1934) (upholding
the manslaughter conviction of a driver who drove “with reckless disregard
of his own safety, and willful indifference to the consequences likely to
follow, and in such manner as to endanger the life or limb of” others); Keller
v. State, 46 Ariz. 106, 108 (1935) (reversing, on unrelated grounds, the
reckless driving conviction of a driver who “in willful and wanton
disregard for the rights and safety of others” caused a crash).

¶49 Second, punitive damages. At the time the Highway Code
was adopted in 1927, it was well understood that causing harm while acting
in reckless disregard for the safety of others could result in the imposition
of punitive damages. In upholding a punitive damages award, our supreme
court noted: “[i]t is only when there is superadded to the legal wrong some
conduct or action showing a reckless or wanton disregard of the rights of others
that punitive damages are allowed.” Gila Water Co. v. Gila Land & Cattle Co.,
30 Ariz. 569, 577 (1926) (emphasis added); see also Ross v. Clark, 35 Ariz. 60,
62, 68 (1929) (upholding a punitive damages award against a taxi driver
who, while “driving at a reckless speed” and intoxicated, “wantonly,
culpably, and with utter disregard of the consequences to the life and limb
of plaintiffs” caused a collision); S. Pac. Co. v. Boyce, 26 Ariz. 162, 172 (1924)
(describing “conduct so malicious and reckless as to justify punitive
damages”); Iaeger v. Metcalf, 11 Ariz. 283, 291 (Ariz. Terr. 1908) (“If the
injury inflicted by the defendant was wanton, malicious, and committed in
reckless and willful disregard of the rights of plaintiff, exemplary damages
might be allowed.” (citation modified)).4

4 This discussion of punitive damages is largely academic today, because

most operators of emergency vehicles are public employees. Our legislature
immunized public entities and public employees from awards of punitive
damages in 1984. See A.R.S. § 12-820.04. But law enforcement officers were

18

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

¶50 Third, forfeiture of the contributory negligence defense.
Before its abolition in 1984,5 contributory negligence meant that, where a
“plaintiff’s negligence entered into and formed part of the efficient or
proximate cause of the injury, it defeated his right of action.” Salt River
Valley Water Users’ Ass’n v. Berry, 31 Ariz. 39, 47 (1926). Although, as a
matter of Arizona constitutional law, the application of the doctrine was
always left to the jury, see id. (citing Ariz. Const. art. 18, § 5), contributory
negligence’s complete bar to recovery was an “often harsh result,” Lerma v.
Keck, 186 Ariz. 228, 231 (App. 1996).

¶51 But there was an exception. “[A] plaintiff’s contributory
negligence does not bar recovery for harm caused by the defendant’s
reckless disregard for the plaintiff’s safety.” Womack v. Preach, 63 Ariz. 390, 398
(1945) (citing Restatement (First) of Torts § 500 (1939)) (emphasis added);
accord Alabam Freight Lines v. Phx. Bakery, Inc., 64 Ariz. 101, 107 (1946); see
also S. Pac. R.R. Co. v. Svensden, 13 Ariz. 111, 117 (Ariz. Terr. 1910) (“The
doctrine that contributory negligence will defeat recovery has no
application where the injury is the result of the willful, wanton, reckless
conduct of defendant.”). Even where plaintiffs were contributorily
negligent in causing their own injuries, defendants’ reckless disregard for
the safety of others rendered the defense unavailable.

D. The meaning of A.R.S. § 28-624(D)

¶52 Section 28-624(D) does not render emergency vehicle
operators immune from suit for simple negligence, even when using lights
and sirens. Looking at the text, and viewing it in its historical context, the
meaning is clear. Emergency vehicles operating while “displaying a red or
red and blue light” and “sound[ing] an audible signal by bell, siren or
exhaust whistle” are privileged to violate the otherwise applicable traffic
laws, as set forth in § 28-624(B). Drivers operating emergency vehicles
under these conditions are not negligent per se for violating traffic laws,
even if they cause a collision.

not generally immune from punitive damage awards when the Highway
Code first used the phrase “reckless disregard” in 1927. See Adair v.
Williams, 24 Ariz. 422, 432–33 (1922) (discussing that police officers sued for
false imprisonment could introduce evidence of good faith “in mitigation
of a claim for punitive or exemplary damages”).
5 See Arizona’s version of the Uniform Contribution Among Tortfeasors

Act, Laws 1984, ch. 237, § 1 (codified at A.R.S. §§ 12-2501 to -2509).

19

ALDASORO v. PAVLINCH, et al.
Opinion of the Court

¶53 But even when utilizing the privilege to violate traffic laws,
operators of emergency vehicles must do so with due regard for safety: as
a reasonable person would in light of the surrounding circumstances.6 They
remain liable for injuries caused by the breach of that duty of reasonable
care. And if they drive with “reckless disregard for the safety of others,”
they can be criminally liable and (if not a public entity or public employee)
subject to punitive damages for harm they cause. Our interpretation
reconciles the two parts of subsection (D) using the plain language of the
statute and does not read into the statute an immunity contrary to the
public policy of this state.

CONCLUSION

¶54 Neither Officer Pavlinch nor the City of Phoenix are immune
from claims for simple negligence under either common law discretionary
act immunity or A.R.S. § 28-624(D). Thus, we vacate the judgment and
remand for proceedings consistent with this opinion. We award costs to
Aldasoro upon compliance with ARCAP 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

6 To be clear, this standard of reasonable care allows the jury to consider

that the driver of an emergency vehicle is responding to an emergency.
What is reasonable for a police officer involved in a vehicle chase of a
dangerous suspect may not be reasonable in responding to a non-
emergency call. We leave the determination of what is reasonable in a given
circumstance to the collective wisdom of the jury.

20