# Kenyon v. Hammer

> Arizona Supreme Court · September 19, 1984 · 142 Ariz. 69

URL: https://www.frixlaw.com/law-library/cases/9535036

## Case

- **Full name:** William A. KENYON, Jr., the Surviving Father of Baby Girl Kenyon, on His Own Behalf, and for and on Behalf of Sharon D. Kenyon, the Surviving Mother of Baby Girl Kenyon; Sharon D. Kenyon and William A. Kenyon, Jr., Wife and Husband, Plaintiffs-Appellants, v. Raymond E. HAMMER, M.D., and Jane Doe Hammer, Husband and Wife, Defendants-Appellees
- **Court:** Arizona Supreme Court
- **Decided:** September 19, 1984
- **Citations:** 142 Ariz. 69; 688 P.2d 961; 1984 Ariz. LEXIS 269
- **Precedential status:** Published
- **Opinion:** Concurrence by Hays
- **Judges:** Feldman, Hays, Holohan, Cameron
- **Cited by:** 168 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9535036

## How later opinions describe it (automated extraction)

- concluding that the clause “[c]learly and unequivocally . . . directs that the courts of this state shall be open to the injured and oppressed” (quoting Daugaard v. Baltic Coop. Bldg. & Supply Ass’n, 349 N.W.2d 419, 425 (S.D. 1984))
- holding the rational basis test applies only to those portions of a statute not affecting plain tiffs fundamental right to bring the action
- holding that right of access to recover damages for bodily injury was fundamental, but noting that numerous other states have held otherwise
- applying the two-year statute of limitations under § 12-542 to a claim for abuse of process
- noting that a discriminatory statute will withstand strict scrutiny “only if there is a ‘compelling state interest’ to be served and the regulation is ‘necessary’ to achieve the legislative objective”

## Opinion text

HAYS, Justice,
specially concurring:
I concur in the result reached by the majority but my reasoning is less convoluted and perhaps more simplistic than that in the majority opinion. In essence, it is my *88 opinion that the right to bring an action in Arizona is, under our constitution, a fundamental right. Ariz. Const, art. 18, § 6. A statute of limitations or repose which abrogates an action for damages even before the action arises or can reasonably be discovered is unconstitutional.
This court, in Eastin v. Broomfield, 116 Ariz. 576 , 570 P.2d 744 (1977), found a portion of the Medical Malpractice Act requiring a bond, A.R.S. § 12-567(K), to be unconstitutional because it placed a heavy burden on access to the courts and violated the privilege and immunities clause of the Arizona Constitution. Although the article of the constitution cited applies to equal privileges and immunities (art. 2, § 13), the parallel is apparent.
I concur with the majority’s holding that the three-year statute of limitations of A.R.S. § 12-564 will remain in effect except that the courts of this state shall follow the discovery rule as set out in Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248 , 482 P.2d 497 (1971).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9535036. Public record. Not legal advice.