                                        IN THE

           SUPREME COURT OF THE STATE OF ARIZONA

            ROBERT FLEMING, CONSERVATOR, ON BEHALF OF THE SURVIVING
                      MINOR CHILDREN OF FAITH MASCOLINO,
                               Plaintiff/Appellant,

                                           v.

                  STATE OF ARIZONA DEPARTMENT OF PUBLIC SAFETY,
                                Defendant/Appellee.


                                  No. CV-14-0315-PR
                                   Filed July 9, 2015


                   Appeal from the Superior Court in Pima County
                        The Honorable Ted B. Borek, Judge
                                  No. C20095459
                          REVERSED AND REMANDED

                    Opinion of the Court of Appeals, Division Two
                       236 Ariz. 210, 337 P.3d 1192 (App. 2014)
                                VACATED IN PART


COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Daniel P.
Schaack (argued), Assistant Attorney General, Phoenix; and Robert R. McCright,
Assistant Attorney General, Tucson, Attorneys for State of Arizona

Ronald D. Mercaldo, Carlo Mercaldo, Mercaldo Law Firm, Tucson; Thomas A. Zlaket
(argued), Thomas A. Zlaket, PLLC, Tucson; and JoJene E. Mills, Law Office of JoJene
Mills, PC, Tucson, Attorneys for Robert Fleming, Conservator, on behalf of the surviving
minor children of Faith Mascolino
                                   FLEMING V. STATE
                                  Opinion of the Court

VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, JUSTICES BERCH and BRUTINEL, and JUDGE GOULD* joined.


VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶1            Under A.R.S. § 12-820.02(A)(7), public entities and employees enjoy
qualified immunity from liability for an injury to a motor-vehicle driver that is
attributable to the driver’s violation of statutes prohibiting reckless driving and driving
while under the influence of alcohol or drugs. Today we hold that § 12-820.02(A)(7)’s
qualified immunity applies only when the driver was injured while driving or in actual
physical control of a motor vehicle.

                                            I.

¶2            The material facts are undisputed. Department of Public Safety (“DPS”)
Officer Scott Walter observed a vehicle driven by Faith Mascolino drifting across traffic
lanes and traveling well below the speed limit on Interstate 10. He called for backup and
attempted to pull Mascolino over, but she failed to yield and continued driving
erratically. She eventually stopped in the emergency lane, close to a guardrail on the
rising approach to a freeway overpass. As Officer Walter spoke with Mascolino, she
exhibited signs of intoxication and admitted that she had been drinking “a lot” that night.

¶3            DPS Officer Fred Rivera arrived on the scene and attempted to administer
field-sobriety tests, which Mascolino could not complete. Officer Rivera arrested
Mascolino for driving while under the influence and placed her in the rear seat of his DPS
cruiser. Mascolino submitted to a portable breath test at Officer Rivera’s request, which
registered her breath-alcohol concentration well above the legal limit.

¶4           Officer Rivera began calling Mascolino’s family members to find someone
who could retrieve her vehicle. While he was on the phone (about twenty minutes after
placing Mascolino in custody), a vehicle driven by Robert Gallivan approached the
freeway overpass at high speed, moving diagonally from the middle lane toward the
emergency lane. Officer Walter shouted a warning to Officer Rivera, and both of them
managed to jump over the guardrail just in time to avoid being struck. Gallivan’s vehicle
crashed into the cruiser in which Mascolino was seated, and she died on impact. The

*      Justice Ann A. Scott Timmer recused herself from this case. Pursuant to Article 6,
Section 3, of the Arizona Constitution, the Honorable Andrew W. Gould, Judge of the
Court of Appeals, Division One, was designated to sit in this matter.
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                                     FLEMING V. STATE
                                    Opinion of the Court

officers testified that they had approximately one second to react to Gallivan’s vehicle
and no time to rescue Mascolino before the collision.

¶5             The conservator for Mascolino’s minor children, Robert Fleming, filed this
wrongful death action against Gallivan and DPS. Before trial, DPS moved for a jury
instruction on qualified immunity under § 12-820.02(A)(7). Fleming objected, contending
that the statute was inapplicable because Mascolino was neither driving nor in control of
her vehicle when the collision occurred. The trial court ruled that DPS would be allowed
to present evidence supporting the requested jury instruction, but deferred deciding
whether the instruction would be given.

¶6             At the close of evidence, the court decided to instruct the jury on
§ 12-820.02(A)(7)’s qualified immunity and related statutes. The jury returned a verdict
in favor of Fleming, finding Gallivan seventy-five percent at fault, Mascolino twenty-five
percent at fault, and assigning no fault to DPS.

¶7            The court of appeals affirmed, upholding the giving of the § 12-820.02(A)(7)
instruction. Fleming v. Ariz. Dep’t of Pub. Safety, 236 Ariz. 210, 211 ¶ 1, 337 P.3d 1192, 1193
(App. 2014). The court concluded that Mascolino was a “driver” under the statute and
that the record contained sufficient evidence from which a reasonable juror could have
found her death “attributable to” her driving while under the influence. Id. at 213 ¶ 12,
215 ¶ 17, 337 P.3d at 1195, 1197. We granted review because the interpretation of § 12-
820.02(A)(7) is an issue of first impression and statewide importance. We have
jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and A.R.S.
§ 12-120.24.

                                              II.

¶8             Since this Court abolished sovereign immunity in 1963, public entities such
as DPS generally have been liable for injuries they negligently cause. See Glazer v. State,
237 Ariz. 160, 163 ¶ 10, 347 P.3d 1141, 1144 (2015). Consequently, under our common
law, when DPS takes custody of someone in a manner that deprives the person of the
opportunity for self-protection, it assumes a duty to protect that person against
unreasonable risk of physical harm. See DeMontiney v. Desert Manor Convalescent Ctr. Inc.,
144 Ariz. 6, 11, 695 P.2d 255, 260 (1985); Restatement (Second) of Torts § 314A(1)(a), (4)
(1965). “The duty to protect the other against unreasonable risk of harm extends to risks
arising out of . . . the acts of third persons, whether they be innocent, negligent,
intentional, or even criminal[,] . . . [and] also to risks arising from pure accident, or from
the negligence of the plaintiff [her]self . . . .” Restatement (Second) of Torts § 314A cmt.
d; see also DeMontiney, 144 Ariz. at 11, 695 P.2d at 260.

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                                      FLEMING V. STATE
                                     Opinion of the Court


¶9             The legislature, however, enacted limited statutory exceptions to the
general liability of governmental entities for tortious conduct. See Clouse ex rel. Clouse v.
State, 199 Ariz. 196, 199 ¶ 13, 16 P.3d 757, 760 (2001) (describing the legislature’s
enactment of the Actions Against Public Entities or Public Employees Act (the “Act”),
codified at A.R.S. §§ 12-820 to -826, providing for absolute immunity, qualified immunity,
and affirmative defenses for public entities and employees). One of those exceptions is
found in § 12-820.02(A)(7):

       Unless a public employee acting within the scope of the public employee’s
       employment intended to cause injury or was grossly negligent, neither a
       public entity nor a public employee is liable for . . . [a]n injury to the driver
       of a motor vehicle that is attributable to the violation by the driver of
       § 28-693, 28-1381 or 28-1382.

The title 28 statutes referenced in § 12-820.02(A)(7) prohibit reckless driving, § 28-693;
driving while under the influence, § 28-1381; and driving while under the extreme
influence, § 28-1382.

¶10            Section 12-820.02(A)(7)’s language implies a two-part test for determining
whether the statute’s qualified immunity applies: first, there must have been “[a]n injury
to the driver of a motor vehicle”; second, that injury must be “attributable to” the driver’s
violation of one of the specified title 28 statutes. If the two-part test is satisfied, the public
entity cannot be held liable unless it acted with gross negligence or intentionally, instead
of being held to the ordinary negligence standard of reasonable care. See A.R.S. § 12-
820.02(A)(7); Glazer, 237 Ariz. at 163 ¶ 11, 347 P.3d at 1144 (“The Act leaves intact the
common-law rule that the government is liable for its tortious conduct unless immunity
applies.”).

¶11             Fleming contends that the trial court erred by instructing the jury on
§ 12-820.02(A)(7), arguing that neither part of the statute was met. See Sparks v. Republic
Nat’l Life Ins. Co., 132 Ariz. 529, 539, 647 P.2d 1127, 1137 (1982) (finding it “reversible error
to instruct the jury on a legal theory which is not supported by the evidence”). “When a
jury instruction is challenged, we must view the evidence in [the] light most favorable to
the party who requested the instruction.” Jones v. Munn, 140 Ariz. 216, 218, 681 P.2d 368,
370 (1984). But the proper interpretation of a statute on which the court instructs the jury
is a legal issue we review de novo. See Glazer, 237 Ariz. at 163 ¶ 12, 347 P.3d at 1144.




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                                     FLEMING V. STATE
                                    Opinion of the Court


                                               A.

¶12            We first address whether Mascolino was a “driver of a motor vehicle”
under § 12-820.02(A)(7) when Gallivan crashed into the DPS cruiser in which she was
seated in the rear. “If a statute is unambiguous, we apply its terms without resorting to
other tools of statutory interpretation, unless doing so leads to impossible or absurd
results.” Orca Commc’ns Unlimited, LLC v. Noder, 236 Ariz. 180, 182 ¶ 9, 337 P.3d 545, 547
(2014). “Words in statutes, however, cannot be read in isolation from the context in which
they are used.” J.D. v. Hegyi, 236 Ariz. 39, 41 ¶ 6, 335 P.3d 1118, 1120 (2014). And when
statutes relate to the same subject matter, we construe them together as though they
constitute one law and attempt to reconcile them to give effect to all provisions involved.
Bell v. Indus. Comm’n, 236 Ariz. 478, 480 ¶ 7, 341 P.3d 1149, 1151 (2015). If we conclude
that the language is ambiguous, “we may consider the statute’s subject matter, legislative
history, and purpose, as well as the effect of different interpretations, to derive its
meaning.” Id.

¶13            Neither § 12-820.02 nor § 12-820 (“Definitions”) defines the word “driver.”
The court of appeals therefore appropriately consulted a dictionary defining “driver” as
“[o]ne that drives, as the operator of a motor vehicle.” Fleming, 236 Ariz. at 213 ¶ 12, 337
P.3d at 1195 (alteration in original) (quoting The American Heritage Dictionary 548 (5th
ed. 2011)); see State v. Pena, 235 Ariz. 277, 279 ¶ 6, 331 P.3d 412, 414 (2014) (“Absent
statutory definitions, courts apply common meanings and may look to dictionaries.”
(citations omitted)). Based on that definition, the court concluded that “the term ‘driver’
does not require that one be in the act of driving; rather, it describes a person who drives.”
Fleming, 236 Ariz. at 213 ¶ 12, 337 P.3d at 1195. The court reasoned that “[i]f the legislature
had intended to limit application of § 12-820.02(A)(7) to persons actively driving at the
time of injury, it could have included language to that effect . . . [and] it is not the function
of the courts to rewrite statutes.” Id.

¶14             The word “driver” in § 12-820.02(A)(7), however, also reasonably lends
itself to a different interpretation. The definition of driver as “one that drives” does not
necessarily include one who merely drove in the past. To “drive” is commonly
understood to mean “an act of driving.” Webster’s Ninth New Collegiate Dictionary 384
(1983). A “driver,” being “one that drives,” id., can therefore be fairly understood to mean
someone who does “an act of driving.” Consistent with these definitions, once the act of
driving ends, the person is no longer one who drives and thus not a driver. For purposes
of the statute then, an injury to a person who is no longer driving is not “[a]n injury to
the driver of a motor vehicle.” A.R.S. § 12-820.02(A)(7). This alternative, reasonable
reading does not require any rewriting of the statute.

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                                      FLEMING V. STATE
                                     Opinion of the Court


¶15           The court of appeals further reasoned that “while perhaps persuasive,” the
definitions of “drive” and “driver” in title 28 “are not mandatory with respect to
§ 12-820.02(A)(7).” Fleming, 236 Ariz. at 213 ¶ 12 n.2, 337 P.3d at 1195 n.2. The court
nonetheless remarked that its conclusion that “driver” in § 12-820.02(A)(7) does not
require the person to be in the act of driving “closely tracks” the title 28 definition of a
driver as “a person who drives or is in actual physical control of a vehicle.” Id. at 213
¶ 12, 337 P.3d at 1195 (quoting A.R.S. § 28-101(18)).

¶16            As the court of appeals correctly observed, § 28-101 defines “drive” and
“driver” for title 28 purposes. See A.R.S. § 28-101(17)–(18). But we disagree that the court
of appeals’ construction of “driver” in § 12-820.02(A)(7) closely tracks the title 28
counterpart in anything but language. Reading “a person who drives” in the title 28
definition of “driver” to encompass someone who has driven in the past strains its
meaning when what follows—“or is in actual physical control”—is clearly stated in and
limited to the present tense. A.R.S. § 28-101(18) (emphasis added). In State v. Zaragoza,
we explained that “[f]or many years the legislature limited Arizona’s driving while
intoxicated statute to actual driving . . . [but] [i]n 1950, the legislature extended the statute
to [also] prohibit ‘actual physical control’ . . . to include more than just driving.” 221 Ariz.
49, 51 ¶¶ 7–8, 209 P.3d 629, 631 (2009) (emphasis added). Consistent with Zaragoza, a
“driver” under title 28 is a person who is driving or in actual physical control of a vehicle.
It does not include one who is neither in the act of driving nor in actual physical control
of a vehicle.

¶17               Moreover, although the title 28 definition of “driver” applies to title 28, it is
reasonable to interpret “driver” in § 12-820.02(A)(7) to conform with that definition.
Section 12-820.02(A)(7) not only refers to the title 28 statutes of §§ 28-693, -1381, and -1382,
but would also be meaningless without that reference. See A.R.S. § 12-820.02(A)(7) (“An
injury to the driver of a motor vehicle that is attributable to the violation by the driver of
[. . .] .”). This militates toward reading § 12-820.02(A)(7) together with the title 28 statutes
as though they constituted one law and reconciling them to give effect to all provisions
involved. See Bell, 236 Ariz. at 480 ¶ 7, 341 P.3d at 1151. So construed, “[a]n injury to the
driver of a motor vehicle” in § 12-820.02(A)(7) means an injury to a person who is driving
or in actual physical control of a vehicle when she is injured. See A.R.S. §§ 12-820.02(A)(7);
28-101(17)–(18); Zaragoza, 221 Ariz. at 51 ¶¶ 7–8, 209 P.3d at 631. We thus disagree with
the court of appeals’ conclusion that § 12-820.02(A)(7) necessarily encompasses an injury
to a person who drove at some point in the past. See Fleming, 236 Ariz. at 213 ¶ 12, 337
P.3d at 1195.



                                                6
                                     FLEMING V. STATE
                                    Opinion of the Court

¶18            As the discussion above demonstrates, the term “driver” as used in
§ 12-820.02(A)(7) is reasonably susceptible to differing interpretations and therefore
ambiguous. It is well established, however, that “[s]ince immunity is the exception and
not the rule, . . . judicial construction of immunity provisions in statutes applicable to
government entities should be restrained and narrow.” Fid. Sec. Life Ins. Co. v. Ariz. Dep’t
of Ins., 191 Ariz. 222, 225 ¶ 7, 954 P.2d 580, 583 (1998) (citing Schabel v. Deer Valley Unified
Sch. Dist. No. 97, 186 Ariz. 161, 164, 920 P.2d 41, 44 (1996)); see also Glazer, 237 Ariz. at 163
¶ 12, 347 P.3d at 1144 (“Because § 12-820.03 bars recovery against public entities if the
defense is proven, we construe it narrowly.”); Doe ex rel. Doe v. State, 200 Ariz. 174, 176
¶ 4, 24 P.3d 1269, 1271 (2001) (“[Courts] construe immunity provisions narrowly.”).
Narrowly construing immunity provisions, including § 12-820.02(A)(7), respects the
legislature’s statement of purpose and intent in enacting them:

       [I]t is hereby declared to be the public policy of this state that public entities
       are liable for acts and omissions of employees in accordance with the
       statutes and common law of this state. All of the provisions of this act
       should be construed with a view to carry out the above legislative purpose.

1984 Ariz. Sess. Laws, ch. 285, § 1(A) (2d Reg. Sess.).

¶19            Under the court of appeals’ interpretation of § 12-820.02(A)(7), qualified
immunity applies if an injury to the “driver of a motor vehicle” occurs either while the
driver is driving or at any time after the driver is no longer driving, as long as the driver’s
injury is found to be attributable to his or her violation of the title 28 statutes. See Fleming,
236 Ariz. at 213 ¶ 12, 337 P.3d at 1195. Under our interpretation, the injury must occur
while the driver is driving or in actual physical control of the motor vehicle. This latter
interpretation represents a narrower application of the statute, without undermining the
legislature’s grant of qualified immunity, see Greenwood v. State, 217 Ariz. 438, 443 ¶ 16,
175 P.3d 687, 692 (App. 2008) (stating that courts may not “construe an immunity
provision so narrowly as to abrogate the legislature’s grant of immunity”), and while
remaining consistent with the court of appeals’ application of § 12-820.02(A)(7) in DeVries
v. State, in which the driver suffered injury while driving, 221 Ariz. 201, 203 ¶ 2, 211 P.3d
1185, 1187 (App. 2009).

¶20           Accordingly, we hold that “[a]n injury to the driver of a motor vehicle” in
§ 12-820.02(A)(7) means an injury to a person who is driving or in actual physical control
of a motor vehicle when she is injured. The trial court erred by instructing the jury on
§ 12-820.02(A)(7), because on this record no reasonable juror could find (nor does DPS
suggest) that Mascolino was either driving or in actual physical control of a vehicle when
Gallivan collided with the DPS cruiser in which she died.

                                               7
                                    FLEMING V. STATE
                                   Opinion of the Court


                                             B.

¶21           Because we hold that § 12-820.02(A)(7) was inapplicable as Mascolino was
not a driver of a motor vehicle at the relevant time, we leave for another day the
interpretation of “attributable to” in the same statute. It is better to address that issue in
a case in which it is squarely presented—that is, where the injured person was a “driver.”

                                             III.

¶22          We vacate ¶¶ 9–17 and 23 of the court of appeals’ opinion, reverse the
judgment of the superior court, and remand this case to that court for further
proceedings.




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