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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Opinion of the Court

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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