SUPREME COURT OF ARIZONA
En Banc
WILLIAM H. DICKEY, on his own ) Arizona Supreme Court
behalf and as Guardian Ad Litem ) No. CV-99-0273-PR
of the minor child WILLIAM )
DICKEY; REBECCA CARLSON DICKEY, ) Court of Appeals
wife of WILLIAM H. DICKEY; and ) Division One
JANE DOE, natural mother of ) No. 1 CA-CV 98-0026
minor WILLIAM DICKEY, )
) Coconino County
Plaintiffs-Appellants,) Superior Court
) No. CV 95-0564
v. )
)
CITY OF FLAGSTAFF, a municipal )
corporation, )
) O P I N I O N
Defendant-Appellee.)
)
Appeal from the Superior Court in Coconino County
The Honorable J. Michael Flournoy, Judge
AFFIRMED
Opinion of the Court of Appeals, Division One
197 Ariz. 422, 4 P.3d 965 (App. 1998)
VACATED
Dale H. Itschner Flagstaff
and
Jerry L. Smith Flagstaff
Attorneys for Plaintiffs-Appellants
MANGUM WALL STOOPS & WARDEN, P.L.L.C. Flagstaff
by Daniel J. Stoops
Attorneys for Defendant-Appellee
ARIZONA TRIAL LAWYERS ASSOCIATION Phoenix
by Amy G. Langerman
Attorneys for Amicus Curiae, Arizona
Trial Lawyers Association
B E R C H, Justice
¶1 This case presents a challenge to the constitutionality
of Arizona’s recreational use statute, Ariz. Rev. Stat. (“A.R.S.”)
§ 33-1551 (2000).1 We conclude, as did the trial and appellate
courts, that the law is constitutional.
FACTS2
¶2 On January 7, 1995, William Dickey’s step-mother took
ten-year-old William and two of his siblings to go sledding. She
saw people on Mars Hill in Thorpe Park in Flagstaff, so she dropped
the children off and left to park the car. While she was gone,
William began sliding down Mars Hill on a rubber tube. About a
quarter of the way down the hill on his first run, William crashed
into a tree and was severely injured.
¶3 Although Mars Hill had been used as a wintertime
recreational area since the early days of the City, the City had
posted signs warning that Mars Hill was unsafe for sledding. The
evidence conflicts on whether the signs were in place on the day of
1
This opinion refers to the current version of A.R.S. §
33-1551, which is essentially the same as that in effect at the
relevant time.
2
Because summary judgment was granted to the City, we
review the facts in the light most favorable to Petitioners, the
parties against whom summary judgment was entered. See Orme Sch.
v. Reeves, 166 Ariz. 301, 309-10, 802 P.2d 1000, 1008-09 (1990)
(subscribing to the views of Justice White in Anderson v. Liberty
Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986) (citations
omitted)).
-2-
the accident.
¶4 William’s parents, the Petitioners, sued the City to
recover for William’s injuries. The City defended on the ground
that, because the Park was held open for recreational use,
Petitioners could not prevail unless they showed that city
employees had been grossly negligent or had wilfully or maliciously
caused injury to William. The trial court granted summary judgment
for the City, finding that Petitioners failed to present any
evidence that the City had acted wilfully, maliciously, or grossly
negligently. The trial court further determined that the
recreational use statute did not abrogate William’s negligence
cause of action and therefore did not violate Article 18, Section
6, of the Arizona Constitution.
¶5 The court of appeals affirmed. Dickey v. City of
Flagstaff, 197 Ariz. 422, 430, ¶¶ 36-37, 4 P.3d 965, 973 (App.
1999). We granted review to decide whether the recreational use
statute’s requirement that a plaintiff show gross negligence or
wilful or malicious conduct abrogates a cause of action that
William would have otherwise enjoyed, in violation of the anti-
abrogation provision of the Arizona Constitution. We have
jurisdiction pursuant to Article 6, Section 5(3), of the Arizona
Constitution and A.R.S. § 12-2101 (1994).
-3-
DISCUSSION
A. The Recreational Use Statute
¶6 Arizona’s recreational use statute, A.R.S. § 33-1551,
limits a landowner’s liability to parties injured while on the land
for recreational purposes. It provides that the owner of land held
open for public use “is not liable to a recreational or educational
user except upon a showing that the owner . . . was guilty of
wilful, malicious or grossly negligent conduct which was a direct
cause of the injury to the recreational or educational user.” Id.
§ 33-1551(A). The statute defines grossly negligent conduct as
conduct that demonstrates “a knowing or reckless indifference to
the health and safety of others.” Id. § 33-1551(C)(2).
¶7 The statute, based on a model act proposed by the Council
of State Governments, was first enacted here in 1983. See Ward v.
State, 181 Ariz. 359, 361-62, 890 P.2d 1144, 1146-47 (1995). Its
purpose is to encourage landowners to open their lands to the
public for recreational use. Id. at 362, 890 P.2d at 1147. It
accomplishes this goal by “limiting their liability toward persons
entering thereon for such purposes.” Id. (quoting Suggested State
Legislation on Public Recreation on Private Lands, 24 Council of
State Governments 150 (1965)). Since the publication of the model
act in 1965, all fifty states have enacted recreational use
statutes limiting the liability of landowners who open their land
to recreational users. Terrence J. Centner, Tort Liability for
-4-
Sports and Recreational Activities: Expanding Statutory Immunity
for Protected Classes and Activities, 26 J. Legis. 1, 2 (2000)
(citing the recreational use statutes of all fifty states).
B. The Constitutionality of the Recreational Use Statute
1. The Anti-Abrogation Provision.
¶8 William argues that the recreational use statute is
unconstitutional because it deprives him of the right to bring a
lawsuit sounding in simple negligence against the City of
Flagstaff. Instead, because of the statute, he must prove that the
City was grossly negligent, in violation, he maintains, of the
anti-abrogation provision of the Arizona Constitution. Ariz.
Const. art. 18, § 6.
¶9 The anti-abrogation provision states that “[t]he right of
action to recover damages for injuries shall never be abrogated,
and the amount recovered shall not be subject to any statutory
limitation.” Id. It protects from legislative repeal or
revocation those tort actions that “either existed at common law or
evolved from rights recognized at common law.” Cronin v. Sheldon,
195 Ariz. 531, 539, ¶ 39, 991 P.2d 231, 239 (1999); see also
Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 14, 730 P.2d 186,
191 (1986) (observing that the anti-abrogation provision extends
the right to recover damages for injuries to all actions existing
under the common law); Morrell v. City of Phoenix, 16 Ariz. 511,
517, 147 P. 732, 735 (1915) (superseded by statute) (finding that
-5-
the anti-abrogation provision preserves those “rights already
cognizable by law, and does not undertake to create new rights of
action”). Therefore, to fall within the protection of the anti-
abrogation provision of the Arizona Constitution, William’s right
of action for simple negligence against the City must have existed
at common law or have found its basis in the common law at the time
the constitution was adopted. See Cronin, 195 Ariz. at 539, ¶ 39,
991 P.2d at 239. We conclude that William has failed to establish
that a right of action for simple negligence, against a
municipality engaged in a governmental function, existed at common
law.3
2. Municipal Liability Under the Common Law.
¶10 In 1913, a year after Arizona’s statehood and three years
after the Arizona Constitution was drafted, a treatise on municipal
law reported that cities engaged in governmental functions were not
subject to liability for negligence:
3
Although negligence suits certainly have their basis in
common law, governments generally enjoyed sovereign immunity from
suits sounding in tort, a tradition that carried over to this
country. See Stone v. Ariz. Highway Comm’n, 93 Ariz. 384, 389, 381
P.2d 107, 110 (1963) (quoting State v. Sharp, 21 Ariz. 424, 426,
189 P. 631, 632 (1920), for the proposition that “it is well
settled by the great weight of authority that the state, in
consequence of its sovereignty, is immune from prosecution in the
courts and from liability to respond in damages for negligence,
except in those cases where it has expressly waived immunity or
assumed liability by constitutional or legislative enactment”); see
also ¶¶ 10-13, infra (discussing common-law treatment of suits
against municipalities engaged in governmental functions).
-6-
The rule is firmly established in our law that
where the municipal corporation is performing
a duty imposed upon it as the agent of the
state in the exercise of strictly governmental
functions, there is no liability to private
action on account of injuries resulting from
the wrongful acts or negligence of its
officers or agents thereunder, unless made
liable by statute. In other words, unless a
right of action is given by statute, municipal
corporations may not be held civilly liable to
individuals for “neglect to perform or
negligence in performing” duties which are
governmental in their nature, and including
generally all duties existent or imposed upon
them by law solely for the public benefit.
6 Eugene McQuillin, MUNICIPAL CORPORATIONS § 2623 (1913) (footnote
omitted). Two years later, this court upheld municipal
governmental immunity, finding that the City of Phoenix could not
be held liable for the mere negligence of its employees. Morrell
v. City of Phoenix, 16 Ariz. 511, 517, 147 P. 732, 735 (1915). In
doing so, the court observed that it was “quite certain that it was
the intention of the legislature of the territory of Arizona . . .
that Phoenix should be immune from damages for injuries or loss
occasioned by or through the malfeasance, misfeasance or neglect of
duty of any of its officers or other authorities.” Id. at 512, 147
P. at 733.
¶11 In Morrell, a city employee sued the City of Phoenix for
assigning to him a sprinkling cart pulled by a team of unruly
horses, which bolted and dragged him through the city streets,
resulting in the serious injuries. Id. The city defended that it
was exempted from suit by a clause in its charter that immunized
-7-
the city from liability for simple negligence, while leaving the
city liable for “willful neglect, . . . gross negligence or willful
misconduct.” Id. at 513, 147 P. at 733.
¶12 The plaintiff claimed there, as the Petitioners do here,
that the immunity provision violated Article 18, Section 6 of the
Arizona Constitution. Id. at 517, 147 P. at 735. This court found
that the plaintiff’s position was “not tenable, for the reason that
said section only undertakes to preserve rights already cognizable
by law, and does not undertake to create new rights of action.”
Id. This decision demonstrates that municipalities were immune
from civil suits for ordinary negligence at common law.4
¶13 Ten years later, this court again spoke on the subject of
municipal immunity in Jones v. City of Phoenix, 29 Ariz. 181, 239
P. 1030 (1925), overruled in part by Stone v. Arizona Highway
Commission, 93 Ariz. 384, 381 P.2d 107 (1963). In Jones, a city
employee sued the City of Phoenix. Id. at 181-82, 239 P. at 1030-
31. The court determined that the city’s liability turned upon
whether the function in which the city was engaged was
“proprietary” or “governmental” because when a municipality was
“acting in its governmental capacity, it had the exemptions of the
4
Phoenix’s immunity was later repealed by removing the
immunity provision from the city charter. See City of Phoenix v.
Williams, 89 Ariz. 299, 303-04, 361 P.2d 651, 654-55 (1961). We
cite Morrell here only for the proposition that sovereign immunity
was the law in 1915.
-8-
sovereignty.” Id. at 183, 239 P. at 1031. The court concluded
that the rule was “of such almost universal acceptance . . . that
we accept it as the undoubted law of Arizona.” Id.
¶14 Almost forty years later, this court abolished the
common-law rule of sovereign immunity. See Stone, 93 Ariz. at 387,
381 P.2d at 109. In doing so, however, we acknowledged that
municipalities acting in a governmental capacity had historically
been immune from negligence actions. Id. at 388-89, 381 P.2d at
109-10. Moreover, we invited the legislature to enact laws to
protect the public and those it deemed “necessary to avoid a severe
hampering of a governmental function or thwarting of established
public policy.” Ryan v. State, 134 Ariz. 308, 310-11, 656 P.2d
597, 599-600 (1982) (modified by statute as stated in Tucson
Unified Sch. Dist. v. Owens-Corning Fiberglas Corp., 174 Ariz. 336,
339, 849 P.2d 790, 793 (1993)). The legislature accepted the
court’s invitation and, among other acts, passed the recreational
use statute.
¶15 Arizona is not the only state with a constitutional anti-
abrogation provision to find that the provision protects only those
rights of action in existence when it was adopted. See, e.g., N.Y.
Const. art. 1, § 16; Okla. Const. art. 23, § 7; Utah Const. art.
16, § 5; see also Wilson v. Gipson, 753 P.2d 1349, 1353-55 (Okla.
1988) (holding that a tort reform act limiting recovery for
wrongful death did not violate the anti-abrogation provision
-9-
because the right to recover for wrongful death did not exist at
common law); Tiede v. State, 915 P.2d 500, 504 (Utah 1996) (holding
that “the scope of protection afforded by the [anti-abrogation]
provision is limited to rights of action that existed at the time
the provision was adopted”).
¶16 This court has stated that if the provisions of another
state’s constitution are similar in nature and meaning to
provisions in Arizona’s Constitution, then the decisions of the
judiciary in those states should be considered “very persuasive” in
interpreting Arizona’s similar provision. Faires v. Frohmiller, 49
Ariz. 366, 371-72, 67 P.2d 470, 472 (1937) (superseded by statute
as stated in Ward v. Stevens, 86 Ariz. 222, 230, 344 P.2d 491, 496
(1959)). Arizona’s anti-abrogation provision is based on a similar
provision in the Oklahoma Constitution. See Bryant v. Cont’l
Conveyor & Equip. Co., 156 Ariz. 193, 199, 751 P.2d 509, 515 (1988)
(Feldman, V.C.J., dissenting) (criticizing the majority for
ignoring a case on point from Oklahoma “constru[ing] the parent
constitutional clause” of our own anti-abrogation provision),
overruled by Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 344,
861 P.2d 625, 629 (1993). We therefore review Oklahoma’s
assessment of its anti-abrogation provision’s application to
municipal liability.
¶17 In Wilson v. Gipson, the Oklahoma Supreme Court upheld
that state’s Political Subdivision Tort Claims Act’s protection of
-10-
a school district against a claim that the Act violated Oklahoma’s
anti-abrogation provision. 753 P.2d at 1355. The case arose when
five school children and a teacher were killed in a boiler
explosion at an elementary school. Id. at 1350. The Political
Subdivision Tort Claims Act limited the parents’ damages to
approximately $18,000 per family. Id. The parents argued that the
limitation violated the anti-abrogation provision of the Oklahoma
Constitution which states, much as Arizona’s provision does, that
“[t]he right of action to recover damages for injuries resulting in
death shall never be abrogated, and the amount recoverable shall
not be subject to any statutory limitation.” Id. at 1354 (citing
Okla. Const. art. 23, § 7) (emphasis in original). The Oklahoma
Supreme Court held that while the anti-abrogation provision was
designed “to embody into the fundamental law, the constitution, the
statutory right of action for wrongful death,” it nonetheless did
not apply to public entities because “as a part of the sovereignty
of Oklahoma, [school districts] were entitled to sovereign immunity
when Art. 23, § 7 was adopted.” Id. (citations omitted). The
court therefore concluded that the anti-abrogation provision did
not protect a right to sue for damages that did not exist when the
Oklahoma Constitution was adopted. Id. at 1355.
¶18 Similarly, Arizona’s anti-abrogation provision was
designed to protect rights of action in existence at the time it
was adopted, but not necessarily those later created. See Morrell,
-11-
16 Ariz. at 517, 147 P. at 735. Accordingly, because a suit
against a city for simple negligence could not have been maintained
at the time the anti-abrogation provision was instituted, it is not
protected by that provision, if the city was acting in its
governmental capacity. We therefore turn to the latter question.
3. Was the Maintenance of Thorpe Park a Governmental
Function?
¶19 At the time Arizona’s Constitution was written, the
common-law rule was that “there is no municipal liability for
negligence in connection with public buildings or other property
used exclusively for public purposes and from which no income is
received.” McQuillin, supra ¶ 10, § 2672.
¶20 The cases cited in McQuillin suggest that in determining
whether the maintenance of a public park is a governmental
function, courts should examine whether the government charges an
admission fee or otherwise derives revenue from the use of the park
and whether the park is held open to all. See id. § 2678 (citing,
among other cases, Russell v. City of Tacoma, 35 P. 605, 606-07
(Wash. 1894)). In those cases in which maintenance of parks has
been found to be a proprietary function, the government usually
leased the park or otherwise generated revenue from its use, a
typically proprietary action. See Russell, 35 P. at 606.
¶21 Although the case is more than 100 years old, the Russell
court’s analysis reflects the analysis courts applied in that era
-12-
and still apply to distinguish park operations that are
governmental from those that are not. See id. at 606-07. When the
city receives no revenue and the park is available to all citizens,
the operation and maintenance has been held to be a governmental
function, while limiting access to the park or generating revenue
from it has led courts to conclude that the government was
operating the park in a proprietary manner. Id.; see also Board of
Park Comm’rs of City of Louisville v. Prinz, 105 S.W. 948 (Ky. Ct.
App. 1907) (holding that a municipality was not liable for injury
in a city park that was held open to the general public and from
which the city received no revenue, but noting that the city might
be liable if the city restricted access or gained revenue from use
of the park); Bisbing v. City of Asbury Park, 78 A. 196 (N.J. Err.
& App. 1910) (same); cf. City of Denver v. Spencer, 82 P. 590
(Colo. 1905) (holding city liable for an injury suffered on park
bleachers when the city received revenue from licensing the sale of
beverages at the park).
¶22 In this case, the City of Flagstaff did not charge an
admission fee or otherwise derive revenue from the public’s use of
Thorpe Park. As did the City of Tacoma in the Russell case,
Flagstaff obtained the land that is now Thorpe Park from the
federal government on the stipulation that it be used as a public
park. The Park is so used and is open to all who come there, not
just to the residents of Flagstaff. Indeed, the Petitioners
-13-
themselves were residents of Prescott, not Flagstaff. These
factors lead us to conclude that the operation and maintenance of
Thorpe Park at the time William was injured were governmental in
nature.
¶23 In sum, we conclude that the City holds Thorpe Park open
to the public for recreational use. Its maintenance of the Park is
a governmental function; as such, the Government’s acts are
shielded by the recreational use statute. Because the City’s
stewardship of the Park was governmental in nature, the City would
have been immune at common law from tort liability for acts of
ordinary negligence arising from its maintenance of the Park.
Therefore, we hold that because Petitioners would have had no
action when the anti-abrogation provision was adopted, the limited
immunity afforded to the City of Flagstaff by the recreational use
statute did not wrongfully abrogate Petitioners’ right to sue the
City for negligence.
CONCLUSION
¶24 Based on the foregoing, we vacate the opinion of the
court of appeals and reinstate the judgment of the trial court.
Rebecca White Berch, Justice
CONCURRING:
Charles E. Jones, Chief Justice
-14-
Ruth V. McGregor, Vice Chief Justice
Michael D. Ryan, Justice
F E L D M A N, Justice (retired), dissenting
¶25 The court today concludes that because of the doctrine of
sovereign immunity, the “right of action for simple negligence,
against a municipality engaged in a governmental function [did not
exist] at common law.” Opinion at ¶ 9; see also ¶ 17. The court
goes on to adopt a rule of municipal sovereign immunity for simple
negligence when performing governmental functions. Thus, the court
holds the recreational use statute, A.R.S. § 33-1551, does not
violate the anti-abrogation clause contained in Article 18, Section
6 of the Arizona Constitution when applied to such municipalities.
I dissent from these conclusions for several reasons.
¶26 First, I do not agree that the anti-abrogation clause is
inapplicable to actions for negligence against governmental
entities. This issue was addressed in my dissent in Clouse ex rel.
Clouse v. State, 199 Ariz. 196, 204-15 ¶¶ 30-79, 16 P.3d 757, 765-
76 ¶¶ 30-79 (2001) (Feldman, J., dissenting). The reasons given
there need not be repeated here.
¶27 Next, the majority holds that the protection of Article
-15-
18, Section 6 does not apply because at common law there was no
right of action in Arizona “for simple negligence[] against a
municipality engaged in a governmental function.” Opinion at ¶ 9,
relying primarily on Morrell v. City of Phoenix, 16 Ariz. 511, 147
P. 732 (1915). But Morrell does not support that conclusion. The
doctrine of sovereign immunity is not mentioned in Morrell; the
basis for the holding that Morrell had no cause of action against
the City of Phoenix was that prior to adoption of our constitution
and its anti-abrogation clause, the Phoenix city charter contained
an immunity provision that had been approved by the legislature in
the 1881 grant of the charter. Thus, no right of action against
the City of Phoenix existed at common law prior to or at the time
our constitution went into effect. Id. at 512-13, 147 P. at 733.
Thus, I disagree with the majority’s conclusion that Morrell
“demonstrates that municipalities were immune from civil suits for
ordinary negligence at common law.” Opinion at ¶ 12.5 Morrell
demonstrates only that the City of Phoenix was immune by charter
provision, so that no action could have been maintained against it
when Article 18, Section 6 was adopted. Article 18 protects only
those “rights already cognizable by law” at the time our
constitution was adopted. Morrell, 16 Ariz. at 517, 147 P. at 735.
¶28 No case in Arizona has ever explicitly addressed the
5
Indeed, the Phoenix ordinance was later repealed. See
opinion at ¶ 12 n.3.
-16-
question of whether the anti-abrogation clause was applicable to
actions against a municipality. It is notable that in Clouse the
majority did not adopt the state’s argument that actions against
governmental entities were outside the protection of Article 18,
Section 6 but instead based the state’s immunity on the specific
provisions of the claims clause of Article 4 of the constitution.
The court held that Article 4 provided independent and
particularized grounds for the conclusion that the legislative
branch might reinstate sovereign immunity as to claims against the
state should it desire to do so. Clouse, 199 Ariz. at 207 ¶ 24, 16
P.3d at 768 ¶ 24. But Article 4 is inapplicable to municipalities
because it provides only that the legislature may regulate suits
against the state. Ariz. Const. art. IV, pt. 2, § 18. The suit
that is the subject of the present case is not against the state
but against the City of Flagstaff. Municipalities have always been
considered entities separate from the state.
¶29 Finally, I disagree with the court’s decision that
running an admission-free park is a governmental function. Opinion
at ¶¶ 22-23. Arizona’s law on the question of
governmental/proprietary functions is, to put it tactfully, a
morass. See Clouse, 199 Ariz. at 213-14 ¶¶ 74-77, 16 P.3d at 774-
75 ¶¶ 74-77 (Feldman, J., dissenting). There was, in fact, “utmost
confusion” about what was governmental and what was proprietary.
Jones v. City of Phoenix, 29 Ariz. 181, 183, 239 P. 1030, 1031
-17-
(1925). Today’s opinion will do little to cure that problem.
___________________________________
STANLEY G. FELDMAN, Justice (retired)
-18-