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Government Entity Immunity in Arizona

Statutory immunity can make claims against Arizona's government entities difficult

Thinking of suing the State of Arizona for a bad road? Thinking of suing the Sheriff’s Department for not making an arrest and letting someone go who later causes harm? Thinking of suing the City for a bad intersection? Think twice. It is not so easy.

The Arizona Supreme Court did away with blanket governmental immunity in 1963 in the Landmark case of Stone v Arizona Highway Commission. Justice Lorna Lockwood writing for the majority held that: “the substantive defense of governmental immunity is now abolished not only for the instant case, but for all other pending cases, those not yet filed which are not barred by the statute of limitations, and all future causes of action. All previous decisions to the contrary are specifically overruled.” That was then, this is now.

Arizona passed a qualified governmental immunity statute in 1984 and again in 1993 partially in response to the Stone case and other later cases brought against the State. All governmental entities fall under the qualified immunity statute be they School Districts, Colleges, Water Districts, Counties, Municipalities, Sheriff Departments or Police departments:

  • ARS section 12-820.01 provides absolute immunity to public entities for: 1. Exercise of judicial or legislative function: 2. Exercise of an administrative function involving the determination of fundamental governmental policy. (Can you think of much that doesn’t fall under this umbrella?)
  • ARS section 820.02 provides qualified immunity to public entities unless the public entity employee intended to cause injury or was grossly negligent for the following events:

    1. Injury caused by an escaping prisoner: 2. Failure to make an arrest: 3. Injury caused by supervision of a parolee or probationer: 4: Prisoner on prisoner injuries: 5. Failure to suspend or revoke a license: 7. Failure to prevent illegal firearms sales: 8. Failure to make a proper inspection required by law: 9: Failure to detain a juvenile in custody: 10. Negligence of a contractor working for the public entity: 11. Injury to a driver who was in violation of any serious moving infraction at the time of the injury such as drunk driving, reckless driving, or drag racing.

  • ARS 12-820.03 gives immunity for road design if the road met acceptable standards when built with the exception that if the road has become obsolete, adequate warnings have to be given.
  • ARS 12-820.04 gives immunity for an award of punitive or exemplary damages. Meaning: you can’t allege or get punitive (damages meant to punish, not compensate) damages against a governmental entity.
  • ARS 12-820.05 gives immunity to the public entity for any criminal acts perpetrated by a public employee other than acts arising out of the operation of a motor vehicle.
  • ARS 12-821 shortens the statute of limitations from two years to one year.
  • ARS 12-821.01 requires a formal “Notice of Claim” be served upon the public entity within 180 days of the occurrence. If that deadline is missed, there is no claim.

Of course, there are “exceptions,” but they present a challenge to the injured person and the lawyer bringing the claim. The deck is definitely stacked in favor of the public entity. Public entities fight claims against them vigorously and the law is on their side.

The next time you think that your government is there for you and cares about your well-being, think again. “Protecting the public pocketbook protects the taxpayers” is the mantra. Left out is the injured person who is also a taxpayer and was maimed by a drunk driver previously stopped, but not detained by the police, and later ran head on into the victim.

Governmental Immunity was recently confirmed in Harianto v State. In that case, a wrong way driver on I 10 was reported multiple times to DPS by multiple sources. He was not apprehended timely and later ran head on into a car killing 4 persons in that car and the wrong way driver himself. A very harsh result, but under current law, a correct one. Sometimes the law is cruel.

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