Phelps v. Firebird Raceway, Inc.

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.

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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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