dissenting:
I respectfully dissent from my colleagues’ conclusion that defendant Jack Brimer may claim employer immunity in this suit. I believe this to be a rare case in which the dual capacity doctrine can be properly applied.
To explain this view, I will first hypothesize a different case — one on which my colleagues and I would probably agree. Suppose that an accident, otherwise identical to this one, occurred on the roof of Brimer’s place of business, and was attributable to an allegedly negligent skylight installation that Brimer had accomplished as proprietor of B & B Associates. In such a case, I would agree, Brimer’s role as landowner would not constitute a separate capacity or persona that would permit him to be sued. As the Court of Appeals of New York has stated:
Employers are expected to provide their employees with a safe workplace that is reasonably free of hazards. This obligation to provide a safe workplace simply cannot be separated in a logical and orderly fashion from the duties owed by the employer to his employees by reason of his ownership of the premises or his manufacture of the equipment with which the employees must work. Indeed, these duties are merely subcategories within the complex of obligations that arise in connection with the employment relation.
Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 160, 412 N.E.2d 934, 939, 432 N.Y.S.2d 879, 884 (1980).
Similarly, Professor Larson has stated: An employer, as part of his business, will almost always own or occupy premises, and maintain them as an integral part of conducting his business. If every action and function connected with maintaining the premises could ground a tort suit, the concept of exclusiveness of remedy would be reduced to nothingness.
2A A. Larson, The Law of Workmen’s Compensation § 72.82 (1990).
This reasoning, however, is rooted in the duty to provide a safe workplace, and does not extend to immunize an employer from liability arising from a condition of his private, residential premises. Although immunity properly attaches to the constellation of duties one owes as an employer to avoid exposing one’s employees to unreasonable risks of harm, this immunity does not envelop the employer like a bubble as he passes from the workplace into private life.
Suppose, to take another example, that Swichtenberg had arrived, as here, to paint Brimer’s townhouse roof, but at a moment when Brimer was sitting in his kitchen cleaning a gun. Suppose that Brimer had neglected to unload the gun, that he accidentally discharged it toward the roof, and that the bullet struck and injured Swichtenberg. I do not believe employer immunity would apply, even though Swichtenberg’s employment placed him in the trajectory of Brimer’s negligence. The proper focus of inquiry, in my view, is not on the employee’s pathway to exposure, but on the liability-generating conduct of the employer.3 Because Brimer, in this hypothetical, does not act in the role of employer and because the risk he negligently generates is not a risk relating to employment, immunity, in my view, does not attach.
The test of separate capacity — or persona to use Larson’s term — has been well-stated by the Supreme Court of Ohio:
[W]hat must be determined is whether the employer stepped out of his role as such, and assumed another hat or cloak. If the facts would show the latter, the employer has accordingly assumed another capacity and also has assumed independent obligations to his employee unrelated to the obligations arising out of the employer-employee relationship.
*89Bakonyi v. Ralston Purina Co., 17 Ohio St.3d 154, 157, 478 N.E.2d 241, 244 (1985) (quoting Freese v. Consolidated Rail Corp., 4 Ohio St.3d 5, 11, 445 N.E.2d 1110, 1114 (1983)).
This test distinguishes the two hypothetical cases described above. The risk negligently generated in the gunshot hypothetical does not arise from Brimer’s role as an employer. Nor does the neglected duty lie “within the complex of obligations that arise in connection with the employment relation.” Billy, 51 N.Y.2d at 160, 412 N.E.2d at 939, 432 N.Y.S.2d at 884. Rather, in this hypothetical instance, to paraphrase Bakonyi, Brimer can be said to have “stepped out of his [employer] role ..., [to have] assumed another hat or cloak ..., [and to have] assumed independent obligations to his employee unrelated to the obligations arising out of the employer-employee relationship.” 17 Ohio St.3d at 157, 478 N.E.2d at 244.
The same may be said in the present case. We must assume for summary judgment purposes that Brimer installed his townhouse skylight in a manner that failed to satisfy the applicable code. This installation created a trajectory of risk, just as the hypothetical gunshot created a trajectory of risk; and here, as there, plaintiff’s employment led him into the pathway of that risk. Here again, however, as in the gunshot hypothetical, Brimer acted in his private role as homeowner, not employer, at the time of the liability-generating conduct; and Brimer created a danger to any painter, tree-trimmer, air-conditioning repairman, handyman, or guest who might traverse his roof, a danger wholly unrelated to the complex of duties Brimer owed his business employees.
The majority reasons that Brimer’s townhouse was a B & B worksite as to Swichtenberg and that this case accordingly may be resolved on the ground of employer immunity for worksite conditions. This reasoning, in my view, neglects the distinctions between this case and the first hypothetical above. Here Brimer was acting in the role of homeowner, not workplace premises manager, at the time that he negligently installed the skylight, and the actionable risk that he created by that act was wholly unrelated to employment.
I conclude with a comment on the general validity of the dual capacity doctrine. The majority states that it does not “totally reject the dual capacity doctrine for all purposes,” but that the doctrine “subverts the legislature's purpose in enacting the exclusive remedy provision.” At 1225, quoting Hills v. Salt River Project Ass’n, 144 Ariz. 421, 425, 426, 698 P.2d 216, 220, 221 (App.1985). I think this statement overbroad.
An employer who provides workers’ compensation coverage achieves tort immunity in return. This immunity is not limitless, however; it extends only to “the complex of obligations that arise in connection with the employment relation.” Billy, 51 N.Y.2d at 160, 412 N.E.2d at 939, 432 N.Y.S.2d at 884. The function of the dual capacity doctrine, if carefully applied, is to define the limits of immunity, not subvert them.
The courts are constitutionally obliged to perform this definitional task. By accepting workers’ compensation coverage in Arizona, a worker surrenders the constitutional right to pursue tort remedies against the employer. Anderson v. Industrial Comm’n of Ariz., 147 Ariz. 456, 711 P.2d 595 (1985).4 This surrender, however, occurs only within limits that the dual capacity doctrine serves to define. Courts must be careful not to apply the doctrine so uncritically as to dilute the exclusivity benefit of the employer’s bargain. But we must not so shrink from critical application *90that we ignore the limits to what Arizona workers have bargained away.
. The majority stresses that the plaintiff came to the worksite in the capacity of employee. However, in every purported dual capacity case, the plaintiff will have taken an employment pathway to exposure; otherwise, the dual capacity issue will not arise. To distinguish those cases in which the doctrine applies from those in which it does not, inquiry must focus not on the capacity of the worker at the time of injury but on the capacity of the employer at the time the liability-generating conduct occurs.
. Ariz. Const, art. 18, § 6, provides: "The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation."
Ariz. Const, art. 18, § 8, provides: “The Legislature shall enact a Workmen's Compensation Law ... by which compensation shall be required to be paid ...; provided that it shall be optional with any employee ... to settle for such compensation, or to retain the right to sue said employer ... as provided by this Constitution.”