PHOENIX — State police can be held liable for the death of a Tucson woman killed in a fiery 2009 crash on Interstate 10, the Arizona Supreme Court ruled Thursday.
The justices rejected arguments by the Department of Public Safety that its officers could not be held liable because Arizona law gives immunity to the state and its employees for any “injury caused to the driver of a motor vehicle” that is attributable to that person driving drunk or reckless. And they pointed out the only reason Faith Mascolino was in the back of the patrol car was that she had been stopped for driving while intoxicated.
But Justice John Pelander, writing for the unanimous court, said the fact she had been driving — even if drunk — did not make her a “driver” at the time of the crash.
Thursday’s ruling does not mean her three children will get money from the state. But it gives them a second chance to make the claim.
Attorney Ronald Mercaldo, who represents the children, said he does not know how quickly there could be a new trial.
Court records say there is no dispute about what happened.
Mascolino, 45, was observed late at night driving on I-10 near West Orange Grove Road, drifting across lanes and traveling well below the speed limit. Pursued by a DPS officer, she eventually stopped in the emergency lane, close to a guardrail on the rising approach to a freeway overpass.
The officer said she admitted she had been drinking “a lot” that night. A subsequent test by the DPS laboratory showed a blood-alcohol content of 0.25 pecent, more than three times the legal limit.
A second officer arrived, arrested Mascolino and put her in the back seat of his patrol car. He then began calling family members to find someone who could retrieve her vehicle.
During that time, driver Robert Gallivan approached the overpass at what was described as “high speed.”
The officers managed to jump over the guardrail. But Gallivan’s vehicle smashed into the cruiser, resulting in an explosion and fire, killing Mascolino.
At trial, Pima County Superior Court Judge Ted Borek told jurors about the law immunizing the state for injuries caused to the drunken driver of a motor vehicle. They ultimately awarded $750,000 but concluded 25 percent of the fault was due to Mascolino; the balance was assessed against Gallivan.
In Thursday’s ruling, Pelander acknowledged there is no definition of the word “driver” in state law. But the justices said that “to drive” means “an act of driving,” and that a “driver” is “one who drives.”
“Consistent with these definitions, once the act of driving ends, the person is no longer one who drives and thus not a driver,” Pelander wrote.
Mercaldo still has to prove his claim. But he said Thursday there is evidence that would convince a jury that DPS shares in the blame for Mascolino’s death. Part of his argument is based on what he called the “moth effect.”
“People driving, not seeing any lights ahead of them if they’re on a hill where there’s a vertical obstruction ... people tend to drive to the lights they see ahead of them,” Mercaldo said.
The justices left in place the possibility that jurors may conclude that Mascolino, by virtue of driving drunk, was entirely or at least partly responsible for her own death.
Mercaldo said he will argue that is irrelevant. “She was certainly drunk driving and we don’t condone that. It shouldn’t be a death sentence.” He said he will argue that Mascolino had admitted she’d been drinking, had been placed under arrest and should have been “removed from the scene immediately” to a safer place.
