This one is of limited interest but Division Two’s forays into civil law are rare enough to be mentioned.

The DPS stopped Plaintiffs’ decedent for DUI; her blood alcohol turned out to be over .20. As she was sitting in the DPS cruiser in the emergency lane of  I10 another vehicle hit it, killing her. Plaintiff sued the other driver and the DPS. Against the DPS Plaintiff lost at trial; the jury found the other driver 75% at fault and the decedent 25%. Plaintiff appealed. The Court of Appeals affirms.

The issue was whether the trial court should have instructed the jury on the qualified-immunity statute, 12-820.02(A)(7). Under it the State has no liability for negligence for the injury of a driver guilty of reckless driving or DUI.

Plaintiff argued that the decedent wasn’t a “driver” at the time of the accident. The Court of Appeals says that a “driver” is a person who drives. If the legislature had intended that the statute apply only to one in the act of driving it could have said so.

The statute requires that the injury be attributable to the violation. Plaintiff argued that if it applied here then it could be used to shield the State whenever a person held for DUI is injured in custody. The opinion says that its for the trial court to decide, depending on the facts, whether a chain of events is too attenuated to warrant the instruction.

It would be “absurd,” according to Plaintiff, if the officers’ liability depended on what violation they had pulled the decedent over for. The court doesn’t think it absurd; the legislature could conclude that the statute discouraged drunk driving.

Plaintiff also argued that the evidence of decedent’s very high alcohol level was irrelevant, inflammatory and cumulative. But reversing on an evidentiary ruling is tough even when the ruling isn’t consistent with the appellate court’s resolution of the principal issue. Plaintiff made things worse by having witnesses testify that, in effect, the decedent wasn’t really too drunk to drive, which the court also uses to justify admitting the evidence.

(link to opinion)