Liability Is the Rule and Immunity the Exception, Yet Immunities Abound
In Arizona, government liability is the rule and immunity the exception. The Arizona Supreme Court abolished the doctrine of sovereign immunity in 1963. 1
In 1984, recognizing the “inherently unfair and inequitable results” that result from sovereign immunity, while also acknowledging that “government should not have the duty to do everything that might be done,” the Arizona legislature passed the Actions Against Public Entities or Public Employees Act, which specifies circumstances in which governmental entities and public employees are immune from tort liability. 2
In addition to common immunities such as judicial-function immunity, legislative immunity, and discretionary-function immunity, Arizona’s immunity statute confers qualified immunity on state and public employees in enumerated circumstances, including the failure to make an arrest; injury caused by an escaping prisoner; injury related to a prisoner’s probation, community supervision or discharge; and failing to prevent transfer of handguns. 3
This immunity is a qualified, applying only when public employees act without willful intent or gross negligence. 4
Public entities can be liable for their employees’ intentional acts under the theory of respondeat superior, but they are not liable for “a criminal felony by a public employee unless the public entity knew of the public employee’s propensity for that action.” 5
Notably, Arizona’s immunity statute contains no limitation on damages, but neither a public entity nor a public employee within the scope of employment is liable for punitive or exemplary damages. 6
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