In Clouse ex rel. Clouse v. State, 199 Ariz. 196, 16 P.3d 757 (2001), the Arizona Supreme Court examined the constitutionality of the immunity granted by A.R.S. § 12-820.02(A)(1). 199 Ariz. at 197, P 1, 16 P.3d at 758.
The primary issue was whether the statute constituted an impermissible grant of immunity. Id.
Holding that the immunity clause found in Article IV, Part 2, Section 18, of the Arizona Constitution "directly addresses the authority of the legislature in relation to actions against the state," the court applied the immunity clause to resolve the case. Id. at P 11.
The Clouse court observed that after sovereign immunity was abolished by Stone, the government was intended to be immune from suit only when necessary to avoid severely hindering a governmental function or thwarting established public policy. Clouse, 199 Ariz. at 198-99, PP 9, 12, 16 P.3d at 759-60.
In City of Tucson v. Fahringer, 164 Ariz. 599, 600, 795 P.2d 819, 820 (1990), the City of Tucson argued that plaintiffs' claims were barred by A.R.S. § 12-820.03(2), which provided that "neither a public entity nor a public employee is liable for an injury . . . which is attributable to the fault of a person, other than a public employee, driving a motor vehicle while the person was under the influence of intoxicating liquor." Id. at 600, 795 P.2d at 820.
The City argued that A.R.S. § 12-820.03(2) did not relate to contributory negligence but instead was "based on the legislative determination that governmental liability should not exist when an accident is caused in whole or part by a drunk driver." Id. at 602, 795 P.2d at 822.
The supreme court disagreed, finding instead that the statute embodied the common law defense of contributory negligence triggered by the plaintiff's conduct. Id. Noting that A.R.S. § 12-820.03(2) did not purport to restore governmental immunity, the Fahringer court held that the statute violated Article 18, Section 5 and was therefore void. Id. at 602-03, 795 P.2d at 822-23.