SUPREME COURT OF ARIZONA
En Banc
CHARLES PHELPS, an Arizona ) Arizona Supreme Court
resident, ) No. CV-04-0114-PR
)
Plaintiff-Appellant, ) Court of Appeals
) Division One
v. ) No. 1 CA-CV 03-0404
)
FIREBIRD RACEWAY, INC., an ) Maricopa County
Arizona corporation aka and/or ) Superior Court
dba FIREBIRD INTERNATIONAL ) No. CV 2002-092570
RACEWAY, a corporation, )
) O P I N I O N
Defendant-Appellee. )
)
__________________________________)
Appeal from the Maricopa County Superior Court
No. CV 2002-092570
The Honorable Bethany G. Hicks
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division One
207 Ariz. 149, 83 P.3d 1090 (2004)
VACATED
________________________________________________________________
Skousen, Skousen, Gulbrandsen & Patience, P.C. Mesa
By: David L. Abney
And:
Law Offices of Hartley E. Newkirk Tucson
By: Hartley E. Newkirk
Attorneys for Plaintiff-Appellant
Charles Phelps
Jennings, Strouss & Salmon, P.L.C. Phoenix
By: Jay A. Fradkin
John J. Egbert
Attorneys for Defendant-Appellee
Firebird Raceway
Osborn Maledon, P.A. Phoenix
By: Thomas L. Hudson
Taylor C. Young
And:
Piccarreta & Davis, P.C. Tucson
By: JoJene E. Mills
Attorneys for Amicus Curiae
Arizona Trial Lawyers Association
Law Offices of Charles M. Brewer, Ltd. Phoenix
By: Charles M. Brewer
John B. Brewer
Dane L. Wood
Attorneys for Amicus Curiae
The Law Firm of Charles M. Brewer, Ltd.
________________________________________________________________
R Y A N, Justice
¶1 This case requires us to determine whether Article 18,
Section 5 of the Arizona Constitution, which provides that the
defense “of assumption of risk shall, in all cases whatsoever,
be a question of fact and shall, at all times, be left to the
jury,” applies to an express contractual assumption of risk. We
hold that it does.
I
¶2 Charles Phelps was a professional racecar driver who
had participated in more than 100 races at Firebird Raceway,
Inc. Before participating in a Firebird race, drivers must sign
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a “Release and Covenant Not to Sue” (“Release”) and a “Release
and Waiver of Liability, Assumption of Risk and Indemnity
Agreement” (“Waiver”). Phelps signed both the Release and
Waiver before taking part in a race. The Release contained the
following provisions:
I HEREBY RELEASE, DISCHARGE AND ACQUIT . . . Firebird
. . . from any and all liability claims, actions, or
demands, including but not limited to [a] claim for
death, which I may hereafter have because of my
injury, death, or damage while on the track, . . . or
when participating in any race activities. . . .
I UNDERSTAND that participating in drag racing
contains DANGER AND RISK of injury or death, . . .
but, nevertheless, I VOLUNTARILY ELECT TO ACCEPT THE
RISKS connected with my entry into the restricted area
and with racing.
The Waiver’s relevant provisions stated:
[T]he Undersigned . . . HEREBY RELEASES, WAIVES,
DISCHARGES, AND COVENANTS NOT TO SUE [Firebird] . . .
FOR ALL LOSS OR DAMAGE . . . ON ACCOUNT OF INJURY TO
THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE
UNDERSIGNED, WHETHER CAUSED BY THE NEGLIGENCE OF
RELEASEES OR OTHERWISE, while the Undersigned is in or
upon the RESTRICTED AREA, and/or competing . . . or
for any purpose participating in such event. . . .
EACH OF THE UNDERSIGNED expressly acknowledges that
the ACTIVITIES OF THE EVENT ARE VERY DANGEROUS and
involve the risk of serious injury and/or death and/or
property damage. EACH OF THE UNDERSIGNED also
expressly acknowledges the INJURIES RECEIVED MAY BE
COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS
OR PROCEDURES OF THE RELEASEES.
¶3 During the race, Phelps lost control of his vehicle
and crashed into a wall. Phelps’ vehicle erupted into flames
and he suffered severe burns. Phelps sued Firebird in superior
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court, claiming that its employees were negligent in failing to
rescue him more quickly from the burning vehicle and in failing
to provide adequate emergency medical care. Firebird relied on
the Release and Waiver in defending against Phelps’ claims.
¶4 In response to Firebird’s defense, Phelps filed a
motion for partial summary judgment, arguing that Article 18,
Section 5 of the Arizona Constitution requires that the issue of
assumption of risk be decided by the jury. In a cross-motion
for summary judgment, Firebird asserted that because the Release
and Waiver were express contractual assumptions of risk, Article
18, Section 5 did not apply. The trial court denied Phelps’
motion and granted Firebird’s motion, and entered a judgment
dismissing Phelps’ claims.
¶5 Phelps appealed, contending that Article 18, Section 5
requires that all release and waiver agreements that purport to
require the signer to assume the risk be treated as a question
of fact for the jury.1 The court of appeals concluded that “when
the drafters of the Constitution discussed ‘the defense of
assumption of risk,’ they were referring to an implied
assumption of risk that had developed in the common law of torts
1
Phelps did not raise any factual issues regarding the scope
or his understanding of the Release and Waiver until he filed
his reply brief. The court of appeals appropriately declined to
consider this issue, which was raised for the first time in a
reply brief. Phelps v. Firebird Raceway, Inc., 207 Ariz. 149,
154 n.6, ¶ 16, 83 P.3d 1090, 1094 n.6 (App. 2004).
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and that the courts had consistently used to bar suits by
injured laborers.” Phelps v. Firebird Raceway, Inc., 207 Ariz.
149, 151-52, ¶ 10, 83 P.3d 1090, 1092-93 (App. 2004). The court
affirmed the trial court’s grant of summary judgment to Firebird
because, “absent questions of fact for the jury, this court has
applied a standard contract-law analysis when construing
exculpatory agreements, and upheld summary judgment when no
material factual issue has existed as to the validity of the
agreement or its applicability to the claims.” Id. at 153, ¶
16, 83 P.3d at 1094.
¶6 Phelps petitioned for review, which we granted because
the issue is one of first impression for this court and of
statewide importance. We have jurisdiction under Article 6,
Section 5(3) of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) § 12-120.24 (2003).
II
A
¶7 Preliminarily, we note that both parties agree that
Firebird raised a defense of assumption of risk. The contract
Phelps signed expressly confirmed that he had assumed the risk
of any injuries resulting from Firebird’s negligence. Indeed,
the Waiver was labeled in part “Assumption of Risk,” and the
Release explicitly stated, “I voluntarily elect to accept the
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risks connected with my entry into the restricted area and with
racing.” (Emphasis added.)
¶8 Moreover, Arizona case law and legal scholars have
long viewed such contracts as a form of assumption of risk.
See, e.g., Hildebrand v. Minyard, 16 Ariz. App. 583, 585, 494
P.2d 1328, 1330 (1972) (“Express assumption of risk is covered
in Restatement (Second) of Torts s 496(B) (1965) which states:
‘A plaintiff who by contract or otherwise expressly agrees to
accept a risk of harm arising from the defendant’s negligent or
reckless conduct cannot recover for such harm, unless the
agreement is invalid as contrary to public policy.’”) (emphasis
added)); 1 Dan B. Dobbs, The Law of Torts § 211, at 535 (2001)
(“The essential idea [of the assumption of risk defense] was
that the plaintiff assumed the risk whenever she expressly
agreed to by contract or otherwise, and also when she impliedly
did so by words or conduct.”) (emphasis added). We thus turn to
the question whether Article 18, Section 5 applies to express
contractual assumptions of risk.
B
¶9 Article 18, Section 5 provides as follows:
The defense of contributory negligence or of
assumption of risk shall, in all cases whatsoever, be
a question of fact and shall, at all times, be left to
the jury.
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¶10 When a constitutional provision is unambiguous, it “is
to be given its plain meaning and effect.” U.S. West
Communications, Inc. v. Ariz. Corp. Comm’n, 201 Ariz. 242, 245,
¶ 10, 34 P.3d 351, 354 (2001). “‘Nothing is more firmly settled
than under ordinary circumstances, where there is involved no
ambiguity or absurdity, a statutory or constitutional provision
requires no interpretation.’” Id. (quoting Adams v. Bolin, 74
Ariz. 269, 273, 247 P.2d 617, 620 (1952)); see also Pinetop-
Lakeside Sanitary Dist. v. Ferguson, 129 Ariz. 300, 302, 630
P.2d 1032, 1034 (1981) (“[W]here a constitutional provision is
clear, no judicial construction is required or proper.”). The
Arizona Constitution, moreover, plainly mandates how unambiguous
provisions are to be applied: “The provisions of this
Constitution are mandatory, unless by express words they are
declared to be otherwise.” Ariz. Const. art. 2, § 32; see also
U.S. West Communications, 201 Ariz. at 245, ¶ 10, 34 P.3d at 354
(construing Article 2, Section 32).
¶11 Article 18, Section 5 unambiguously requires that the
defense of assumption of risk be a question of fact for the jury
“in all cases whatsoever” and “at all times.” Under the plain
language of the provision, a jury must decide if the affirmative
defense of assumption of risk, whether express or implied,
precludes a plaintiff from recovering damages resulting from any
negligence on the part of a defendant.
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C
¶12 Despite the clear language of Article 18, Section 5,
Firebird contends that the assumption of risk defense in this
case need not be submitted to a jury because its memorialization
in writing somehow causes it to fall outside the ambit of the
constitutional provision. Firebird presents several arguments
in support of its contention: the term “assumption of risk” is
ambiguous; the framers did not intend Article 18, Section 5 to
cover express assumptions of risk; Oklahoma’s courts, in
interpreting their identical constitutional provision, have
permitted their courts to rule as a matter of law that the
defense of assumption of risk precludes a plaintiff’s recovery;
an express assumption of risk is governed by contract principles
while implied assumption of risk is governed by tort principles;
and prior Arizona cases involving express assumptions of risk
assumed that summary judgment could be entered if there were no
factual disputes surrounding the signing of the contract
assuming the risk. We address each contention in turn.
III
A
¶13 Firebird first contends that because the doctrine of
assumption of risk encompasses more than one category, the
phrase “assumption of risk” as used in Article 18, Section 5 is
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ambiguous. From this, it reasons that the framers must have
intended Article 18, Section 5 to encompass only implied
assumption of risk. We disagree.
¶14 Although the doctrine of assumption of risk “has been
used by the courts in several different senses, which
traditionally have been lumped together under the one name,
often without realizing that any differences exist,” W. Page
Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser
& Keeton on the Law of Torts § 68, at 480 (5th ed. 1984)
(hereafter “Prosser & Keeton”), express contractual assumption
of risk has always been an important category of assumption of
risk. See, e.g., Melville M. Bigelow, The Law of Torts § 14, at
170 (8th ed. 1907) (“When does the servant assume the risk, so as
to exempt the master from the duty in question? The answer must
be distributed under two heads: first, in regard to risks
assumed in the contract of service; second, in regard to risks
otherwise assumed.”); 3 Edward F. White, A Supplement to the
Commentaries on the Law of Negligence of Seymour Thompson §
4608, at 670 (1914) (“The assumption of these risks rests on a
contract between the parties, either express or implied from the
circumstances of the employment and relieves the master from
liability for the injuries thus sustained.”); 2 Fowling V.
Harper & Fleming James, Jr., Torts 1165, 1173 (1956) (including
express assumption of risk in three categories of assumption of
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risk); Robert E. Keeton, Assumption of Risk in Products
Liability Cases, 22 La. L. Rev. 122, 124-29 (1961) (including
express assumption of risk in six categories of assumption of
risk); Restatement (Second) of Torts § 496(B) (1965) (explaining
that express assumption of risk is a type of assumption of
risk).
¶15 Firebird correctly notes that the defense of
assumption of risk includes various different notions in
addition to express contractual waiver. But the fact that
assumption of risk encompasses several different categories, or
may take different forms, supports an expansive reading of
Article 18, Section 5, not a restrictive one. The framers’
choice of the language in Article 18, Section 5, requiring that
the defense shall be a fact question for the jury “in all cases
whatsoever” and “at all times,” confirms that they did not
intend this section to apply only to some of the categories of
the defense. If the framers had intended in Article 18, Section
5 that “assumption of risk” did not include express contractual
assumption of risk - a well-recognized form of assumption of
risk – they would not have used such expansive language. The
framers’ use of the broad language in Article 18, Section 5
demonstrates that they did not intend to distinguish implied
assumption of risk from express assumption of risk in requiring
juries to decide the enforceability of such a defense.
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B
¶16 Agreeing with Firebird’s argument, the court of
appeals used a two-part analysis in interpreting Article 18,
Section 5. First, the court concluded that the framers
generally intended Article 18, Section 5 to protect laborers
from the defense of assumption of risk in lawsuits arising from
workplace injuries and death. Phelps, 207 Ariz. at 151, ¶ 9, 83
P.3d at 1092. The court reasoned that because Article 18
generally focused on labor issues, “when the drafters of the
Constitution discussed ‘the defense of assumption of risk’ [in
Article 18, Section 5], they were referring to an implied
assumption of risk that had developed in the common law of torts
and that the courts had consistently used to bar suits by
injured laborers.” Id. at 151-52, ¶ 10, 83 P.3d at 1092-93.
Second, the court noted that the drafters addressed “express
contractual assumption of risk” in Article 18, Section 3,2 which
2
Article 18, Section 3 provides as follows:
It shall be unlawful for any person, company,
association, or corporation to require of its servants
or employees as a condition of their employment, or
otherwise, any contract or agreement whereby such
person, company, association, or corporation shall be
released or discharged from liability of [sic, or]
responsibility on account of personal injuries which
may be received by such servants or employees which
[sic, while] in the service or employment of such
person, company, association, or corporation, by
reason of the negligence of such person, company,
association, corporation, or the agents or employees
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declares “null and void” prospective contractual waivers of
employer liability for personal injuries suffered by employees
in the course of employment. Id. at 152, ¶ 10, 83 P.3d at 1093.
The court thus concluded that “assumption of risk,” as that term
is used in Article 18, Section 5, does not encompass “express
contractual assumption of risk,” notwithstanding the
accompanying language “in all cases whatsoever” and “at all
times.” See id.
¶17 The court of appeals’ suggestion that the “legislative
history” of Article 18, Section 5 supports its conclusion that
the provision does not apply to “express contractual assumption
of risk” is not appropriate because the constitutional provision
is facially clear and unambiguous. See Boswell v. Phoenix
Newspapers, Inc., 152 Ariz. 9, 12, 730 P.2d 186, 189 (1986) (“We
interpret constitutional provisions by examining the text and,
where necessary, history in an attempt to determine the framers’
intent.”) (emphasis added). But even if this “legislative
history” is considered, the opinion below is flawed in its
analysis in several respects.
¶18 First, the court of appeals erroneously concluded that
Article 18, Section 5 must be interpreted in light of the
master-servant relationship as it existed at the time of the
thereof; and any such contract or agreement if made,
shall be null and void.
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constitutional convention because Article 18 predominantly deals
with labor. It is true that Article 18 generally was “designed
to protect the rights of the laboring class . . . .” Kilpatrick
v. Superior Court, 105 Ariz. 413, 416, 466 P.2d 18, 21 (1970).
However, we have long held that Article 18, Section 5 is not
restricted to employment cases. For example, just eleven years
after the constitutional convention, in addressing whether
Article 18, Section 5 applied outside of the employment context,
this Court held that
[t]he contention of the defendant that,
because the provision is found in the
article of the Constitution entitled
‘Labor,’ it must be limited in its scope and
application to the relation of master and
servant, cannot be sustained. The language
is too broad and comprehensive to admit of
such a narrow construction.
Davis v. Boggs, 22 Ariz. 497, 507, 199 P. 116, 120 (1921),
overruled on other grounds by S. Pac. Co. v. Shults, 37 Ariz.
142, 145, 290 P. 152, 153 (1930).
¶19 The Davis opinion was authored by Albert C. Baker, a
delegate to the convention. Baker, in fact, seconded the motion
to adopt, verbatim, a broadly worded provision of the Oklahoma
Constitution, Article 23, Section 6. The Records of the Arizona
Constitutional Convention of 1910 881-84 (John S. Goff ed.,
1991) (hereinafter “Goff”). The Arizona framers adopted that
provision as Article 18, Section 5. Id. at 884. By
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successfully persuading a majority of the delegates to adopt the
language of Oklahoma’s provision, which was not limited in
scope, Baker and the other proponents of the provision “surely
knew what they were doing” with respect to Article 18, Section
5: the provision would not be limited to the context of
employment. Noel Fidel, Preeminently a Political Institution:
The Right of Arizona Juries to Nullify the Law of Contributory
Negligence, 23 Ariz. St. L.J. 1, 14-18 (1991). Thus, one of the
more influential delegates to the Constitutional Convention
reaffirmed in Davis what he surely knew: that the majority of
delegates intended that Article 18, Section 5 was not limited to
employment circumstances.
¶20 Davis has not been questioned in the intervening 84
years. See, e.g., Estate of Reinen v. N. Ariz. Orthopedics,
Ltd., 198 Ariz. 283, 288, ¶ 18, 9 P.3d 314, 319 (2000) (applying
Article 18, Section 5 to a medical malpractice case); Schwab v.
Matley, 164 Ariz. 421, 423-24, 793 P.2d 1088, 1090-91 (1990)
(applying Article 18, Section 5 in suit for defendant’s
negligent furnishing of alcohol to man who subsequently shot
plaintiff in defendant’s parking lot); Brannigan v. Raybuck, 136
Ariz. 513, 518, 667 P.2d 213, 218 (1983) (applying Article 18,
Section 5 to a case in which the parents of three underage boys
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who died in a one-car accident filed wrongful death actions
against the establishment that provided the boys with alcohol).3
¶21 Second, each section in Article 18, other than
Sections 5 and 6, explicitly applies only in the labor or
employment context. Therefore, the fact that the framers left
out any mention of labor or employment from Article 18, Sections
5 and 6, indicates that they did not similarly intend to
restrict those sections to those contexts.
¶22 Given this background, we simply cannot agree with the
assertion that the history of Article 18, Section 5 suggests
that the framers intended to limit the application of the
section to the employer-employee context and that the provision
must be interpreted within that context.
¶23 Third, the court of appeals erred in its reliance on
Article 18, Section 3. The court reasoned that because Article
3
We have likewise repeatedly refused to limit to employment
cases Article 18, Section 6, which provides 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.” See Duncan v. Scottsdale Med. Imaging Ltd., 205
Ariz. 306, 308, ¶ 1, 70 P.3d 435, 437 (2003) (holding that
Article 18, Section 6 invalidated section 12-562(B) of Arizona’s
Medical Malpractice Act, A.R.S. §§ 12-561 to -594 (2003));
Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 342-44, 861
P.2d 625, 627-29 (1993) (applying Article 18, Section 6 to
product liability claim); Boswell, 152 Ariz. at 12-20, 730 P.2d
at 189-97 (1986) (applying Article 18, Section 6 to invalidate a
statute limiting damages for certain defamation claims); Barrio
v. San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101,
104-07, 692 P.2d 280, 283-86 (1984) (applying Article 18,
Section 6 to a medical malpractice claim); Kenyon v. Hammer,
142 Ariz. 69, 81-83, 688 P.2d 961, 973-75 (1984) (same).
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18, Section 3 proscribed express contractual assumptions of risk
in the employment context, “assumption of risk” in Article 18,
Section 5 could not encompass express assumptions of risk. See
Phelps, 207 Ariz. at 151-52, ¶¶ 9-10, 83 P.3d at 1092-93.
However, in light of the settled law establishing that the
framers did not restrict Article 18, Section 5 to the employment
context, the two provisions are not, as the court of appeals
suggests, reconcilable only by concluding that express
contractual assumptions of risk are necessarily precluded from
“assumption of risk” in Article 18, Section 5. Rather, as a
textual matter, Article 18, Section 3 merely makes all express
contractual assumptions of risk between employers and employees
invalid ab initio, whereas Article 18, Section 5 refers all
other assumption of risk defenses, whether express or implied,
to the jury. Thus, Section 5 provides that assumption of risk
is a question of fact for a jury to decide. Section 3, in
contrast, provides that, in the employment context, the defense
of an express contractual assumption of risk is unavailable.
Because this case does not involve the Section 3 exception –
contractual waiver in an employment contract – it falls within
the general rule of Section 5.
C
¶24 Firebird, as did the court of appeals, also relies on
Oklahoma case law for the assertion that Article 18, Section 5
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permits a court to grant summary judgment in instances of
express assumption of risk. That reliance, however, fails for
three reasons. First, the Oklahoma Supreme Court has not held
that Oklahoma’s identical provision applies only to implied
assumption of risk. Instead, it held that the provision covers
both express and implied assumption of risk. See Schmidt v.
United States, 912 P.2d 871, 875 n.24 (Okla. 1996) (“Promise-
based obligations of the type dealt with here are treated as the
promisor’s risk assumption.”). The Oklahoma Supreme Court
merely held that assumption of risk, whether express or implied,
will entitle a defendant to summary judgment or a directed
verdict when there are no material fact issues or when a
plaintiff’s assumption of risk abolishes the defendant’s duty to
the plaintiff. See id. (distinguishing between disputed
questions of law and disputed questions of fact for purposes of
Article 23, Section 6 of the Oklahoma Constitution); see also
Reddell v. Johnson, 942 P.2d 200, 204-05, ¶ 20 (Okla. 1997)
(affirming summary judgment for defendant, notwithstanding
Article 23, Section 6, on basis of assumption of risk; defendant
owed plaintiff no duty because plaintiff voluntarily
participated in a BB gun “war” and knew of the inherent risks
involved).
¶25 Second, Arizona courts have interpreted Arizona’s
constitutional provision quite differently than Oklahoma courts
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have interpreted Oklahoma’s provision. When Arizona adopted the
same provision Oklahoma had adopted, Oklahoma courts had not yet
interpreted it. When they did, they agreed with our
interpretation for a number of years. See, e.g., Pioneer
Hardwood Co. v. Thompson, 153 P. 137, 138 (Okla. 1915) (Article
23, Section 6 provides “that in this jurisdiction contributory
negligence is no longer to be drawn by the court as a conclusion
of law from the facts found, but is in all cases a conclusion of
fact to be drawn by the jury. . . . [I]t is the duty of the
court to . . . leave to the jury the right to draw the ultimate
conclusion from the facts if found whether or not contributory
negligence exists as a matter of fact.”); Dickinson v. Cole, 177
P. 570, 570 (Okla. 1918) (“Were it not for article 23, § 6, of
the state Constitution . . . it would be necessary to hold as a
matter of law that the negligence of plaintiff precludes a
recovery.”), aff’d sub nom. Chicago, R.I. & P.R. Co. v. Cole,
251 U.S. 54 (1919).
¶26 Not until 1972 did Oklahoma retreat from its
longstanding position that its provision required juries, not
judges, to decide whether contributory negligence or assumption
of risk precluded recovery. See Smith v. Chicago R.I. & P.R.
Co., 498 P.2d 402, 405 (Okla. 1972) (holding that instead of
following our requirement in Layton v. Rocha, 90 Ariz. 369, 371,
368 P.2d 444, 445 (1962), that the words “should” or “may” be
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used in instructing the jury on contributory negligence,
Oklahoma juries should be instructed that they “should” or
“must” decide in the defendant’s favor if they find contributory
negligence).
¶27 After Smith and years of subsequent judicial
decisions, Oklahoma’s provision today stands only as a
reiteration of the general rule that judges decide questions of
law and juries decide questions of fact. In contrast, this
Court has repeatedly refused to impose judicially crafted
restrictions on Article 18, Section 5. See Heimke v. Munoz, 106
Ariz. 26, 28, 470 P.2d 107, 109 (1970) (“This Court by a long
line of decisions under a variety of circumstances has held that
the purpose of Article 18, § 5 was to modify the common law by
making the jury rather than the court the sole arbiter of the
existence or non-existence of contributory negligence. This
includes not alone the right to determine the facts, but to
apply or not, as the jury sees fit, the law of contributory
negligence as a defense.”) (citations omitted) (emphasis added),
overruled on other grounds by Jurek v. Jurek, 124 Ariz. 596, 606
P.2d 812 (1980); see also Estate of Reinen, 198 Ariz. at 288, ¶
18, 9 P.3d at 319 (“A jury ‘is free to find in favor of the
plaintiff even though the court ordinarily would find as a
matter of law that the plaintiff . . . has assumed the risk.’”)
(2000) (quoting Brannigan, 136 Ariz. at 518, 667 P.2d at 218);
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Schwab, 164 Ariz. at 424, 793 P.2d at 1091 (holding that under
Article 18, Section 5, “the jury, and only the jury, is given
the duty and privilege to determine whether the facts establish
contributory negligence and whether, if they do, the defense
should be applied”).
¶28 Third, although generally we will look to the
decisions of other states in interpreting a constitutional
provision adopted from another state’s constitution, those
decisions are only persuasive authority. See Kotterman v.
Killian, 193 Ariz. 273, 291, ¶ 68, 972 P.2d 606, 624 (1999).
Such decisions, moreover, are considerably less persuasive when
they are issued after Arizona adopted the provision and
particularly when, as here, the two states have taken divergent
paths in interpreting their constitutional provisions. Given
these vast differences in Arizona’s and Oklahoma’s
interpretations, we do not consider Oklahoma’s case law
persuasive in interpreting Article 18, Section 5.
D
¶29 Firebird’s and the court of appeals’ conclusion that
implied assumption of risk applies in the tort context while
express assumption of risk applies only in the contract context,
see Phelps, 207 Ariz. at 151, ¶ 7, 83 P.3d at 1092, misstates
the law. “After long ago arriving in the torts arena as a
refugee from contract law,” Murray v. Ramada Inns, Inc., 521 So.
- 20 -
2d 1123, 1130 (La. 1988), assumption of risk, whether express or
implied, is a defense to tort claims. See, e.g., Restatement
(Second) of Torts § 496(B) (explaining that express assumption
of risk is a type of assumption of risk); Prosser & Keeton,
supra ¶ 14, § 68, at 480 (“In its most basic sense, assumption
of risk means that the plaintiff, in advance, has given his
express consent to relieve the defendant of an obligation of
conduct toward him, and to take his chances of injury from a
known risk arising from what the defendant is to do or leave
undone.”).
¶30 This case provides a clear example of how such a
defense works. Phelps brought a tort claim against Firebird,
and Firebird raised a contractual affirmative defense. That
affirmative defense, however, did not transform Phelps’ tort
claim into a contract action. Rather, Phelps’ claim remained,
at all times, a tort claim. Thus, this case is not, as the
court of appeals suggested, about extending Article 18, Section
5 to contract actions.
¶31 Instead, we merely reaffirm today that Article 18,
Section 5 means what it says: the validity of an express
contractual assumption of risk is a question of fact for a jury,
not a judge. At trial, Firebird is entitled to have the jury
instructed both as to the enforceability of contracts and as to
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the substance of the statute governing race track liability,4 as
long as it is clear that the ultimate decision as to the
enforceability of the Release and Waiver signed by Phelps is for
the jury.
E
¶32 Firebird argues, and the court of appeals concluded,
that summary judgment as to the enforcement of contractual
waivers of liability is proper because that court has previously
affirmed such judgments. See Phelps, 207 Ariz. at 152-53, ¶ 16,
83 P.3d at 1093-94 (citing Benjamin v. Gear Roller Hockey
Equip., Inc., 198 Ariz. 462, 464, ¶ 8, 11 P.3d 421, 423 (App.
2000) (affirming summary judgment for defendant and stating that
“[a]bsent any public policy to the contrary, Arizona allows
parties to agree in advance that one party shall not be liable
to the other for negligence”)). But the plaintiff in Benjamin
failed to argue the applicability of Article 18, Section 5.5
4
Owners of a “closed-course motor sport facility” are
afforded limited liability under A.R.S. § 12-556 (1999) if “a
motor sport liability release” is required to be signed by any
participant or attendee who seeks admission into any nongeneral
spectator area of the facility.
5
Other appellate cases have also suggested that courts may
grant summary judgment to defendants when they assert an
assumption of risk defense. See Maurer v. Cerkvenik-Anderson
Travel, Inc., 181 Ariz. 294, 298, 890 P.2d 69, 73 (App. 1994);
Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 185, 800 P.2d
1291, 1293 (App. 1990); see also Salt River Project Agric.
Improvement & Power Dist. v. Westinghouse Elec. Corp., 143 Ariz.
368, 384, 694 P.2d 198, 214 (1985) (suggesting that summary
- 22 -
Phelps’ constitutional argument cannot fail simply because prior
litigants did not assert their constitutional rights or because
our courts did not address them.
IV
¶33 We find it necessary to respond at least briefly to
the dissent. The dissent first argues that the language of
Proposition 88 and Proposition 50 rejected by the framers of
Arizona’s constitution suggests that they intended a nuanced
reading of Article 18, Section 5. See infra ¶¶ 52-56. We
disagree. We note initially that the framers did not adopt
Propositions 50 and 88. Moreover, the “legislative history”
does not indicate that the framers considered express assumption
of risk to be outside the ambit of assumption of risk. Sections
judgment was inappropriate because there was a genuine fact
question concerning whether the limitation of liability was
actually bargained for). None of those cases, however,
addressed the applicability of Article 18, Section 5.
Other opinions have considered contractual waivers but have
expressly declined to consider whether Article 18, Section 5
applied. See Bothell v. Two Point Acres, Inc., 192 Ariz. 313,
316-17, ¶ 9 & n.4, 965 P.2d 47, 50-51 & n.4 (App. 1998)
(declining to address the applicability of Article 18, Section 5
because of a factual dispute that already precluded judgment for
defendants as a matter of law); Morganteen v. Cowboy Adventures,
Inc., 190 Ariz. 463, 466 & n.5, 949 P.2d 552, 555 & n.5 (App.
1997) (holding that factual issues precluded summary judgment
for defendant but expressly stating that it would not consider
whether Article 18, Section 5 applied because the plaintiffs had
not argued it).
- 23 -
2 and 3 of Proposition 886 did seem to make that distinction, but
Proposition 88 was defeated in a 26 to 21 vote by those who
supported what became Article 18, Section 5. See Goff at 881-
84. In fact, Delegate Baker opposed Proposition 88 and
supported Article 18, Section 5, calling Proposition 88
“absolutely contradictory in its own terms and unfair.” Id. at
882. Consequently, we are not persuaded by the dissent’s
argument that the faction that opposed Proposition 88 and
eventually adopted entirely different language nonetheless
intended to adopt Proposition 88’s proposed distinction between
express and implied assumption of risk.
¶34 The rejected language of Proposition 507 likewise does
not suggest that the framers drew a distinction between express
and implied assumption of risk. It is true that Proposition 50,
at one point, would have made all contractual waivers void. See
infra ¶ 56. It is also true that if the framers had adopted
that language, we would not be having this debate. See infra ¶
57. But the dissent’s speculation as to why the framers
6
Section 2 of Proposition 88 would have abolished the
defense of assumption of risk, and section 3 would have
invalidated any contractual waiver of a right to recover
damages. Goff at 1228.
7
Proposition 50 proposed two things: it precluded the
enactment of any law that would limit the amount of damages an
injured person could recover, and it declared that “[a]ny
contract or agreement with any employee waiving any right to
recover damages for causing the death or injury of any employee
shall be void.” Goff at 1147.
- 24 -
rejected making all contractual waivers void is unwarranted and
unhelpful in resolving the question now before us. In light of
the provisions that the framers actually adopted, the rejected
portion of Proposition 50 merely demonstrates that although the
framers considered whether to make all contractual waivers void,
they decided not to take such drastic measures. Instead, as a
textual matter, they concluded that only contractual waivers in
the employment context would be void, and the enforceability of
all other types of assumption of risk would be decided by a
jury.
¶35 In any event, in light of the clear language of
Article 18, Section 5 – that assumption of risk shall be a
question of fact for the jury “in all cases whatsoever” and “at
all times” – we should not look to what, at best, can be
characterized as ambiguous “legislative history” to limit an
otherwise unambiguous constitutional provision. See Adams, 74
Ariz. at 273, 247 P.2d at 620; cf. United States v. Taylor, 487
U.S. 326, 345 (1988) (Scalia, J., concurring in part)
(criticizing “the view that legislative history can alter the
meaning of even a clear statutory provision”).
¶36 The dissent next argues that “[d]elegates to the
Arizona constitutional convention were clearly concerned that
any attempt to extend too broadly the prohibition against
express contractual liability waivers would violate Lochner [v.
- 25 -
New York, 198 U.S. 45 (1905)].” See infra ¶ 60. Lochner
overturned a statute because it “necessarily interfer[ed] with
the right of contract between the employer and employees,
concerning the number of hours in which the latter may labor in
the bakery of the employer.” 198 U.S. at 53. The Court
concluded that the general right to contract in relation to a
person’s business was “part of the liberty of the individual
protected by the 14th Amendment of the Federal Constitution.”
Id.
¶37 The dissent argues that statements made by three
delegates during the convention prove that the framers were
“clearly concerned” that an overly broad prohibition of express
contractual waivers would violate Lochner. As the dissent
points out, Delegate Baker said the following about Proposition
50: “I confess on the spur of the moment that I am in doubt as
to whether you can limit all contracts or not.” Goff at 152.
Delegate Jones, moreover, later raised a similar concern with
respect to Proposition 50, questioning whether the provision
“would be nullified anyway.” Id. at 548. Delegate Cunningham
responded that “[i]f we here intend to write in this
constitution that a man who is injured cannot have the right to
contract, then we are taking from him one of his constitutional
rights – that of equal protection of the law.” Id. However,
two delegates expressly disagreed with Delegate Cunningham
- 26 -
during the debate,8 and Cunningham’s faction lost the vote on the
issue. See id. at 548.9
¶38 We disagree that the three statements cited by the
dissent prove that the framers were concerned that an overly
broad prohibition of express contractual waivers would violate
8
Delegate Crutchfield said the following:
Upon the question of striking out the last two lines[,
which made all contractual waivers void,] as
recommended by the majority report, I wish to say
there are certainly conditions under which this waiver
of the right to recover damages would be manifest,
unjust, and should be declared void. Some companies
are accustomed to provide an agreement that is really
a prerequisite to employment, and if the employee[s]
sign the contract waiving all right and claim to
damages in the case of death or injury above a certain
amount which they specify and provide for, and all
these circumstances with many others seem to me to
make it necessary to retain the second part of the
proposition. I feel it would be a distinct loss, and
I am therefore opposed to the majority report, and
trust the proposition will stand adopted without
amendment.
Goff at 547-48.
Delegate Bolan argued that
[Mr. Cunningham] is perfectly right in certain cases,
but under certain conditions there has been injustice
practiced upon people who have been injured;
especially in railroad accidents. I know that many
who are injured on railroads receive a small
compensation when they should have received larger
compensation if they received their just dues.
Id. at 548.
9
As we discuss below, however, the final version of
Proposition 50 did not include the disputed sentence. See infra
n.10, ¶ 38.
- 27 -
Lochner. First, although the statements do suggest that at
least some delegates were concerned with Lochner, the position
of those delegates was defeated when the convention voted on the
issue. Second, the adoption of Article 18, Section 3 makes it
difficult to conclude that the majority of framers were
concerned about violating Lochner. Lochner, after all,
protected the freedom of contract with respect to employment.
And Article 18, Section 3 makes all contractual waivers in the
employment context void.10 We cannot conclude from the
“legislative history,” therefore, that the framers of the
Arizona Constitution were concerned that a prohibition of
express contractual waivers would violate Lochner.
10
As discussed above, the final version of Proposition 50
omitted the disputed sentence that would have made all
contractual waivers void. As the dissent concedes, however, it
is unclear why the framers did not include that sentence in
Proposition 50. See infra ¶ 61. However, the fact that Article
18, Section 3 made all contractual waivers void in the
employment context may provide some insight. Delegate
Crutchfield clearly opposed omitting the disputed sentence of
Proposition 50 because he wanted to remove from employers the
ability to use contractual waivers to escape liability. See
Goff at 547-48. It is possible that the framers shared Delegate
Crutchfield’s concerns and, therefore, did not believe it
necessary to make all contractual waivers void when Article 18,
Section 3 made all contractual waivers in the employment context
void. The truth is, however, that the “legislative history”
does not provide conclusive proof, one way or another, why the
framers did what they did. Rather, the best proof of
“legislative intent” here is the text of the constitution
itself.
- 28 -
V
¶39 In the end we return to where we began – the plain
language of Article 18, Section 5. The clear, broad language of
that provision compels the result we reach. The Arizona
Constitution provides that assumption of risk is a question of
fact for the jury “in all cases whatsoever” and “at all times.”
The decision below effectively amended the constitution to
provide that assumption of risk is a question of fact for the
jury only “in some cases” and “at some times.” As judges, we
are not free to rewrite our fundamental document in this
fashion. See Nixon v. Mo. Mun. League, 541 U.S. 125, 141 (2004)
(Scalia, J., concurring in judgment) (“avoidance of unhappy
consequences” is an inadequate basis for interpreting a text).
¶40 Although in today’s world Article 18, Section 5 may
seem impractical or a questionable policy choice, the framers of
our constitution thought otherwise. It is not our role to
determine public policy. The framers of our constitution and
the Arizona voters who ratified it mandated that the defense of
assumption of risk shall, at all times, be left to the jury. We
are bound to follow that mandate.
¶41 We do not anticipate that this opinion will subject a
whole new cadre of cases to jury consideration. Arizona
opinions already reflect that there will almost always be
factual questions about the scope of an express contractual
- 29 -
assumption of risk or whether a plaintiff understood its terms.
See, e.g., Salt River Project Agric. Improvement & Power Dist.,
143 Ariz. at 384-85, 694 P.2d at 214-15 (finding fact question
between sophisticated commercial parties concerning whether the
plaintiff bargained for the limitation on liability); Bothell,
192 Ariz. at 317-18, ¶ 12-14, 965 P.2d at 51-52 (finding that
factual disputes concerning the scope of the release precluded
judgment for defendants as a matter of law); Morganteen, 190
Ariz. at 466, 949 P.2d at 555 (holding that factual issues
concerning the scope of the release precluded summary judgment
for defendant); Maurer, 181 Ariz. at 298, 890 P.2d at 73
(holding that summary judgment for defendant was inappropriate
because the release was insufficiently specific to alert
plaintiff of the dangers she faced); Sirek, 166 Ariz. at 187-88,
800 P.2d at 1295-96 (precluding summary judgment because release
did not explicitly release defendant from its own negligence).
Thus, the impact of Article 18, Section 5’s requirement that
juries decide the enforceability of all forms of assumption of
risk may be largely academic because, as the above cases
demonstrate, in many if not most cases, factual issues
surrounding the signer’s understanding of an express contractual
assumption of risk already require determination by a jury.
¶42 Finally, as evidenced by Valley National Bank v.
National Ass’n for Stock Car Auto Racing, Inc. (NASCAR), 153
- 30 -
Ariz. 374, 736 P.2d 1186 (App. 1987), we are confident that
adequately instructed juries will reach appropriate results when
confronted with assumption of risk defenses. In that case, the
plaintiffs, spectators at a NASCAR event, signed a release of
liability similar to the one in this case. Id. at 376, 736 P.2d
at 1188. The plaintiffs were subsequently injured and sued
NASCAR. The case was submitted to the jury, which found for
NASCAR either because it found that NASCAR had not been
negligent or because it found that the defense of assumption of
risk barred recovery. Id. at 377, 736 P.2d at 1189.11 Thus, as
NASCAR suggests, juries will consider express contractual
assumptions of risk in a rational manner, as the framers of our
constitution clearly contemplated when they approved Article 18,
Section 5.
VI
¶43 For the foregoing reasons, we vacate the opinion of
the court of appeals, reverse the trial court’s grant of
summary judgment, and remand this case to the trial court for
further proceedings consistent with this opinion. We further
11
The court acknowledged that the general verdict made it
difficult to know the basis for the jury’s decision. NASCAR,
153 Ariz. at 377, 736 P.2d at 1189. Nevertheless, the case does
demonstrate that submitting the issue of the enforceability of
an express contractual assumption of the risk to the jury will
not automatically result in plaintiffs’ verdicts.
- 31 -
deny Phelps’ request for an award of attorney fees under the
private attorney general doctrine.
__________________________________
Michael D. Ryan, Justice
CONCURRING:
_________________________________________
Rebecca White Berch, Justice
_________________________________________
Andrew D. Hurwitz, Justice
M c G R E G O R, Vice Chief Justice, dissenting:
¶44 I respectfully dissent. The issue in this case is
whether, when the Framers drafted the Arizona Constitution, they
intended that the term “assumption of risk,” as used in Article
18, Section 5, would encompass express contractual waivers of
liability. Unlike the majority, I do not regard the language of
Article 18, Section 5 as clear and unambiguous. Moreover, after
considering both the language of and the history surrounding the
adoption of this constitutional provision, I would hold that the
better-reasoned conclusion is that “assumption of risk,” as used
in the constitution, refers only to implied assumption of risk
and not to express contractual waivers of liability. Hence,
unlike the majority, I would conclude that a court can consider
- 32 -
whether, as a matter of law, an express contractual waiver can
be enforced.
I.
¶45 My disagreement with the majority opinion begins with
its conclusion that the phrase “assumption of risk” is clear and
unambiguous. Op. ¶¶ 11, 35, 39. To be sure, the majority
correctly characterizes the phrases “in all cases whatsoever”
and “at all times” as clear and broad language. But “assumption
of risk” is a legal term of art that describes a legal theory
that has evolved over the years.
¶46 Assumption of the risk entered the legal lexicon as a
term of art describing one of the “unholy trinity” of defenses—
along with contributory negligence and the fellow servant rule—
developed in the late nineteenth century to protect employers
against employee tort claims for injuries incurred on the job.
See Hough v. Tex. & Pac. Ry. Co., 100 U.S. 213 (1879). During
its nascency, the doctrine of assumption of risk was based on
analogies to contract theory and limited solely to the master-
servant context. G. Edward White, Tort Law in America: An
Intellectual History 42 (2003) (The doctrine of assumption of
risk “originated in the ‘status’ context of servants’ relations
with their masters.”).
¶47 By the time of the drafting of the Arizona
Constitution, the defense of assumption of the risk had
- 33 -
developed into an amorphous concept defined in a variety of ways
by commentators and courts. Some legal scholars argued that the
contract analogies that once undergirded the doctrine of
assumption of the risk could not adequately support the
increasingly broad applications of the defense. See, e.g.,
Francis Wharton, A Treatise on the Law of Negligence, § 200, at
178-80 & n.1 (Philadelphia, Kay & Brother, 2d ed. 1878)
(pointing out that not all servants were competent to contract
and that many jurisdictions had found contractual waivers of
liability to be invalid as against public policy). These
commentators argued that assumption of the risk is more properly
grounded in tort principles, rather than in the legal fiction of
implied contracts. During this same period, other commentators
explored the possibility of expanding the doctrine beyond the
employer-employee relationship. See, e.g., Charles Warren,
Volenti Non Fit Injuria in Actions of Negligence, 8 Harv. L.
Rev. 457, 459 (1895) (asserting the rule that “[o]ne who knows
of a danger arising from the act or omission of another, and
understands the risk therefrom, and voluntarily exposes himself
to it, is precluded from recovering for an injury which results
from the exposure”). These scholars argued that assumption of
the risk was a potential defense to any tort claim, whether or
not a master-servant relationship existed between the parties.
- 34 -
¶48 Courts in various jurisdictions also struggled during
this period to determine the contours of the doctrine of
assumption of the risk. See, e.g., Welsh v. Barber Asphalt
Paving Co., 167 F. 465, 470-71 (9th Cir. 1909) (recognizing a
split in authority regarding whether assumption of the risk
sounds in contract or in the tort concept of volenti non fit
injuria); Valjago v. Carnegie Steel Co., 75 A. 728, 729 (Pa.
1910) (same). The Supreme Court recognized the confusion
surrounding the doctrine of assumption of the risk during that
period in Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co.,
205 U.S. 1 (1907). There, Justice Holmes, writing for the
Court, questioned the “rather shadowy” connection between “the
notion of contract” and a broad concept of assumption of risk
and noted that assumption of risk “shades into negligence as
commonly understood.” Id. at 12. In fact, the similarities
between assumption of risk and contributory negligence were so
great that some courts “treated assumption of risk and
negligence as convertible terms.” Id. at 13 (citing Patterson
v. Pittsburg & Connellsville R.R. Co., 76 Pa. 389 (1874)).
¶49 Justice Frankfurter captured well the confusion
surrounding the phrase:
The phrase “assumption of risk” is an excellent
illustration of the extent to which uncritical use of
words bedevils the law. A phrase begins life as a
literary expression; its felicity leads to its lazy
repetition; and repetition soon establishes it as a
- 35 -
legal formula, undiscriminatingly used to express
different and sometimes contradictory ideas.
Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54, 68 (1943)
(Frankfurter, J., concurring).
¶50 I simply cannot regard a phrase that carries
“different and sometimes contradictory” meanings as unambiguous.
The question is not whether Article 18, Section 5 can be
interpreted as applying to both implied assumption of the risk
and express contractual waiver of liability; one can, of course,
adopt that interpretation. The question is whether the Framers
intended that Article 18, Section 5 extend to express
contractual waivers. I find quite compelling the evidence that
the drafters of the constitution intended to limit the phrase to
implied assumptions of risk.
II.
¶51 When a phrase is ambiguous, fundamental principles of
constitutional construction require us to look to extrinsic
evidence to determine its intended effect. Jett v. City of
Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994).
Specifically, we consider the “history behind the provision, the
purpose sought to be accomplished [by its enactment], and the
evil sought to be remedied.” Id.
¶52 The proposals and comments of the Framers during
Arizona’s constitutional convention provide the most persuasive
- 36 -
evidence of their intent in adopting Article 18, Section 5. The
majority of these progressive, labor-friendly individuals found
the doctrine of assumption of the risk highly objectionable.
See generally, Roger C. Henderson, Tort Reform, Separation of
Powers, and the Arizona Constitutional Convention of 1910, 35
Ariz. L. Rev. 535 (1993) (detailing the party platforms and
political makeup of Arizona’s constitutional convention); Noel
Fidel, Preeminently a Political Institution: The Right of
Arizona Juries to Nullify the Law of Contributory Negligence, 23
Ariz. St. L.J. 1, 9-12 (1991). By the time Arizona convened its
constitutional convention, courts across the nation had
liberally applied the doctrine of assumption of the risk in ways
that thwarted efforts by injured employees to recover on tort
claims against employers. In an effort to protect Arizona
laborers, the Framers included a number of tort-related sections
in the Arizona Constitution. In fact, “of the 153 propositions
introduced at the constitutional convention, there were nine
that in some measure would affect the law of torts.” Henderson
supra, at 576. The progression of two of these propositions
from introduction to engrossment is particularly helpful in
determining the Framers’ understanding of “assumption of risk.”
- 37 -
¶53 Proposition 88 ultimately became Article 18, Section
5. As introduced, Proposition 88 read in pertinent part:12
Section 2. No law shall be enacted and no rule of law
shall be recognized in the State of Arizona whereby
the defense of “fellow servant” or the defense of
“assumption of risk” shall be recognized in actions to
recover damages in cases of injury or death covered in
the first section of this article;
. . .
Section 3. No waiver by contract of right to recover
damages under this Article shall be valid.
The Records of the Arizona Constitutional Convention of 1910 at
1228 (John S. Goff ed.) (hereinafter Goff).
¶54 The first lesson to be learned from this original
version devolves from the fact that it clearly distinguishes
between the common law doctrine of assumption of risk
(eliminated by section 2) and express contractual waivers
(prohibited by section 3). If the Framers had considered
express contractual waivers to be included in the common law
doctrine of “assumption of risk,” they would have had no need to
propose section 3; section 2 would have prevented enforcement
of such contracts. The fact that section 3 was included in
proposition 88 indicates that the Framers viewed express
12
Proposition 88 also included a provision requiring the
establishment of an employer’s liability law and a provision
prohibiting the legislature from limiting damages for tort
claims. The Records of the Arizona Constitutional Convention of
1910 at 1227-28 (John S. Goff ed.). These provisions ultimately
became Sections 6 and 7 of Article 18. Id. at 1373.
- 38 -
contractual waivers as distinct from common law assumption of
risk.
¶55 Proposition 88 did not ultimately pass in its original
form. An amendment struck section 2, and replaced it with the
language of Article 23, Section 6 of the Oklahoma Constitution,
providing that “[t]he defense of contributory negligence or of
assumption of the risk shall in all cases whatsoever be a
question of fact, and shall at all times be left to the jury.”
Goff, supra, at 883-84. This version of section 2 ultimately
became engrossed in the constitution as Article 18, Section 5.
The Framers dropped section 3 because it appeared redundant of
the language found in two other Propositions, 47 and 50. Id. at
542, 548.
¶56 The original version of Proposition 50, which directly
addressed the right of employers to require employees to waive a
right to recover damages for employment-related injuries, read
in pertinent part:
[N]o law shall be enacted in this State limiting the
amount of damages to be recovered for causing the
death or injury of any person. Any contract or
agreement with any employee waiving any right to
recover damages for causing the death or injury of any
employee shall be void.
Goff, supra, at 1147. When the Committee of the Whole took up
discussion of Proposition 50, some delegates suggested that the
specific protection from express contractual waivers of
- 39 -
liability should be afforded to everyone, rather than limited to
employees. Id. at 152. In fact, Delegate Baker specifically
argued that this provision should be broadened to prevent
railroad companies from extracting express liability waivers
from passengers. Id. The Committee of the Whole agreed and
ultimately adopted an amended version of Proposition 50,
striking the reference to employees.
¶57 Had Proposition 50 in this amended form been engrossed
in the Arizona Constitution, we would not currently be deciding
whether questions involving express contractual waivers must go
to a jury; the waivers would be null and void under the
constitution. Curiously, however, this amended version of
Proposition 50 did not become part of the text of the Arizona
Constitution. Instead, during the final reading of the newly
engrossed provisions, a delegate moved to include only the first
sentence of Proposition 50 as Article 2, Section 31, and the
provision relating to contractual releases was entirely deleted
from the constitution. Id. at 897.
¶58 The records of the convention do not explain why the
second sentence of Proposition 50 was not included in the final
version of the constitution. One reason for the ultimate
decision to eliminate the language nullifying contractual
releases in all cases may well have been the concern by many
delegates that such a provision, by proscribing the right to
- 40 -
contract, would violate the federal constitution. See id. at
548. The delegates had good cause for concern.
¶59 Just five years prior to Arizona’s constitutional
convention, the United States Supreme Court issued its infamous
opinion in Lochner v. New York, 198 U.S. 45 (1905). In Lochner,
the Court defined the right to contract as a liberty interest
protected by the Fourteenth Amendment. Id. at 53. State
statutes that prohibited individuals from entering into certain
kinds of contracts could be upheld only if a direct connection
existed between the statute and the health, morals, and general
welfare of the public. Id. Thus, the Lochner Court struck down
a New York statute that limited the number of hours an employee
in a bakery could work. Id. at 64.
¶60 Delegates to the Arizona constitutional convention
were clearly concerned that any attempt to extend too broadly
the prohibition against express contractual liability waivers
would violate Lochner. Delegate Baker first sounded this alarm,
confessing that “[he was] in doubt as to whether you can limit
all contracts or not.” Goff, supra, at 152. Delegate Jones
revisited this concern later in the convention, questioning
whether Proposition 50 as amended “would be nullified anyway.”
Id. at 548. Delegate Cunningham responded adamantly that this
would indeed be the case and that inclusion of such a broad
- 41 -
limitation on the right to contract would be “absolutely absurd
and wrong.” Id.
¶61 Whatever the reason behind the ultimate failure of the
convention to include the second sentence of Proposition 50 in
the constitution, the debate surrounding this clause provides
strong evidence that the delegates were keenly aware of the
distinction between express contractual waivers and the common
law defenses of assumption of risk and contributory negligence.
Moreover, the concerns raised by the delegation over the
likelihood that a provision broadly inhibiting the right to
contract would violate the federal constitution explains why the
Framers chose to deal with express contractual defenses more
cautiously than they dealt with implied assumption of risk.13
¶62 The treatment given employment contracts in the
Arizona Constitution emphasizes the distinction made between
13
If the Framers looked to Arizona case law to guide their
conclusion as to the meaning of “assumption of risk,” they would
have found little assistance. To the extent case law provided
any guidance, it would have confirmed the conclusion that
constitutional history suggests: Express contractual waivers
did not fall within the meaning the Framers attached to
“assumption of risk.” No published Arizona decision pre-dating
our constitution applied the assumption of the risk doctrine to
an express contractual waiver of liability. Indeed, those few
reported cases on point dealt only with assumption of the risk
as an implied element of the employment contract. See S. Pac.
Co. v. McGill, 5 Ariz. 36, 44 P. 302 (1896) (recognizing that an
employee upon entering into his contract of service is presumed
to assume all the risk naturally incident to his employment);
Ariz. Lumber & Timber Co. v. Mooney, 4 Ariz. 96, 33 P. 590
(1893) (same).
- 42 -
implied and express assumption of risk. The Framers
specifically addressed express liability waivers in certain
employment contracts in Article 18, Section 3. That provision
makes it
unlawful for any person, company, association, or
corporation to require of its servants or employees as
a condition of their employment, or otherwise, any
contract or agreement whereby such person, company,
association, or corporation shall be released or
discharged from liability of responsibility on account
of personal injuries which may be received by such
servants or employees which in the service or
employment of such person, company, association, or
corporation, by reason of the negligence of such
person, company, association, corporation, or the
agents or employees thereof; and any such contract or
agreement if made, shall be null and void.
Ariz. Const. art. 18, § 3.
¶63 The Framers were clearly aware of the existence of
express contractual liability waivers in the employment context
and viewed these waivers as distinct contractual problems
requiring a separate constitutional remedy. This provision,
too, supports the conclusion that the Framers distinguished
between implied assumption of risk and express contractual
waivers of liability.
¶64 Although an argument can be made to the contrary, I
would hold that the more reasonable conclusion to draw from the
history of Article 18, Section 5 is that the Framers viewed
assumption of risk and express contractual liability waivers as
distinct concepts. Article 18, Section 5, therefore, confers
- 43 -
broad powers upon the jury in those cases in which the common
law defense of implied assumption of risk arises but does not
extend to express waivers of liability.
III.
¶65 Our judicial treatment of express contractual waivers
of liability also argues in favor of excluding such waivers from
Article 18, Section 5. In the nearly 100 years since adopting
our constitution, we have never applied Article 18, Section 5 in
the context of an express contractual liability waiver. In
fact, for the past several decades, Arizona courts consistently
have decided the enforceability of express release agreements as
a matter of law, using well-established contract principles.
¶66 In 1984, this court held that parties may
contractually allocate the risks of tort liability and that
courts will enforce such agreements if strict conditions are
met. Salt River Project Agric. Improvement & Power Dist. v.
Westinghouse Elec. Corp., 143 Ariz. 368, 383, 694 P.2d 198, 213
(1984) (SRP). In SRP, we noted initially that the “law
disfavors contractual provisions by which one party seeks to
immunize himself against the consequences of his own torts.”
Id. Hence, courts will enforce express contractual waivers of
tort liability only if: (1) the waiver does not violate public
policy; (2) the parties did in fact bargain for the waiver; and
(3) the parties were on relatively “equal footing.” Because of
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those restrictions, courts are more likely to uphold such
waivers in the context of a contract between two business
entities of relatively equal bargaining power.14 Id.
¶67 Since our decision in SRP, the court of appeals has
extended our analysis to uphold summary judgment against
plaintiffs in personal injury claims based upon express
waivers.15 See, e.g., Lindsey v. Cave Creek Outfitters, L.L.C.,
207 Ariz. 487, 88 P.3d 557 (App. 2003); Benjamin v. Gear Roller
Hockey Equip., Inc., 198 Ariz. 462, 11 P.3d 421 (App. 2000);
Valley Nat’l Bank v. Nat’l Ass’n for Stock Car Auto Racing,
Inc., 153 Ariz. 374, 736 P.2d 1186 (App. 1987). Other cases
have denied summary judgment for defendants only because fact
14
The holding in SRP recognizes the unique need in commercial
settings for broad and flexible contract rules that permit
parties to bargain for a more rational distribution of risks and
benefits. 143 Ariz. at 383, 694 P.2d at 213. The majority
opinion ignores that consideration. Although equally positioned
parties may still enter into express liability waivers, such
waivers must now be submitted to a jury for a determination of
enforceability. This change in law can substantially affect
contracting parties. Parties to a contract negotiate contract
conditions not only in the hope that, should a lawsuit ever
arise, they will prevail at trial before a jury, but also to
avoid the costs of extended litigation altogether.
15
The legislature has codified similar extensions by enacting
statutes that immunize certain businesses with substantial
inherent risks from tort liability if these businesses obtain a
signed, valid release from customers. See, e.g., A.R.S. § 12-
553 (2003) (immunizing equine owners). In fact, the release
signed by Phelps in this case most likely resulted from
Firebird’s attempt to comply with A.R.S. § 12-556, which
provides limited liability for owners of closed-course motor
sport facilities.
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questions remained regarding the express waivers. See, e.g.,
Morganteen v. Cowboy Adventures, Inc., 190 Ariz. 463, 466-67,
949 P.2d 552, 555-56 (App. 1997) (reversing summary judgment for
defendant where question of fact existed as to whether parties
actually bargained for the liability waiver); Maurer v.
Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 298, 890 P.2d
69, 73 (App. 1994) (affirming trial court’s denial of summary
judgment for defendant where the express waiver did not “alert
Plaintiff’s decedent to the specific risks that she was
supposedly waiving”); Sirek v. Fairfield Snowbowl, Inc., 166
Ariz. 183, 188, 800 P.2d 1291, 1296 (App. 1990) (reversing
summary judgment for defendant because the liability waiver did
not expressly include negligence within its scope). The
majority opinion presents no compelling reason to depart from
this established jurisprudence.
¶68 For the foregoing reasons, I would affirm the opinion
of the court of appeals and the trial court judgment granting
summary judgment to Firebird.
__________________________________
Ruth V. McGregor
Vice Chief Justice
CONCURRING:
_________________________________
Charles E. Jones, Chief Justice
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Phelps v. Firebird Raceway, Inc.
Court: Arizona Supreme Court
Date filed: 2005-05-18
Citations: 111 P.3d 1003, 210 Ariz. 403
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