Bryant v. Continental Conveyor & Equipment Co., Inc., CV-86-0525-CQ

Decision Date24 February 1988
Docket NumberNo. CV-86-0525-CQ,CV-86-0525-CQ
CourtArizona Supreme Court
Parties, 56 USLW 2505, Prod.Liab.Rep. (CCH) P 11,683 Kenneth E. BRYANT, Jr., a single man, Plaintiff, v. CONTINENTAL CONVEYOR & EQUIPMENT CO., INC., a foreign corporation, and Lummus Industries, Inc., a foreign corporation, Defendants.

Haralson, Kinerk & Morey, P.C. by Carter Morey, Denneen L. Peterson, and Timothy J. Cranshaw, Tucson, for plaintiff.

Chandler, Tullar, Udall & Redhair by Keith W. Kroese, Tucson, for defendant, Continental Conveyor and Equipment Co., Inc.

Teilborg, Sanders & Parks, P.C. by David J. Damron and Kevin L. Beckwith, Tucson, for defendant, Lummus Industries, Inc.

Arizona Trial Lawyers Ass'n, Langerman, Begam, Lewis and Marks by Amy G. Langerman, Phoenix, amicus curiae.

Phoenix Ass'n of Defense Counsel, Gallagher & Kennedy by W. Charles Thomson III and Judith A. Morse, Phoenix, amicus curiae.

CAMERON, Justice.


Judge Richard M. Bilby of the United States District Court for the District of Arizona has certified a question of law to this court pursuant to A.R.S. § 12-1861 and Ariz.R.S.Ct. 27, 17A A.R.S.


The question of law certified to this court is:

1. Whether the twelve year Statute of Repose Limitations portion of A.R.S. § 12-551 is unconstitutional under Article 18, § 6 and the due process/equal protection divisions of the Arizona Constitution when the machine involved in the injury was distributed for use more than 12 years prior to the injury?

The facts agreed to by the parties for the purpose of this certification are as follows:

A. The plaintiff was injured while operating a cotton gin that was distributed for ultimate use or consumption more than 12 years before plaintiff's action accrued.

B. Specifically, plaintiff was injured on 11 December 1983, while operating a Hardwick-Etter Hi-Capacity Roller Gin at Strebor Gin, Bowie, Arizona.

C. The gin was sold and distributed to Strebor in the summer of 1971.

Petitioner filed an action against successors defendant manufacturer and others in the U.S. District Court, District of Arizona, alleging negligence, gross negligence and strict products liability. Defendants filed an answer as to the question of strict products liability alleging as an affirmative defense that the Arizona statute of repose, A.R.S. § 12-551, was applicable to products liability actions. Upon motion of the parties, the federal court certified the question to this court to determine the constitutionality of the statute.

In order to answer the certified question, we must determine whether A.R.S. § 12-551 violates:

1. Arizona Constitution Article 18, § 6;

2. Arizona's Equal Protection Clause; or

3. Arizona's Due Process Clause.


The Arizona Constitution provides:

The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.

Ariz. Const. art. 18, § 6. The statute in question provides:

A product liability action as defined in § 12-681 shall be commenced and prosecuted within the period prescribed in § 12-542, except that no product liability action may be commenced and prosecuted if the cause of action accrues more than twelve years after the product was first sold for use or consumption, unless the cause of action is based upon the negligence of the manufacturer or seller or a breach of an express warranty provided by the manufacturer or seller.

A.R.S. § 12-551.

The doctrine of strict products liability in tort did not exist at common law when our constitution and art. 18, § 6 was adopted in 1912.

The first case to apply a tort theory of strict liability generally was Greenman v. Yuba Power Products, Inc., in California in 1963. That decision and the final acceptance of § 402A of the Second Restatement of Torts by the American Law Institute in 1964 were immediately relied upon for the adoption of strict liability in tort throughout the country.

W. PROSSER & R. KEETON, The Law of Torts § 98 at 694 (5th Ed.1984). Strict products liability was not adopted by this court until the cases of O.S. Stapley v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968), and Shannon v. Butler Homes, Inc., 102 Ariz. 312, 428 P.2d 990 (1967), though there had previously been dicta to that effect. See Colvin v. Superior Equipment Co., 96 Ariz. 113, 392 P.2d 778 (1964); Nalbandian v. Byron Jackson Pumps, Inc., 97 Ariz. 280, 399 P.2d 681 (1965). Strict products liability was recognized by statute in 1978. A.R.S. § 12-681 et seq; Kellogg v. Willy's Motors Inc., 140 Ariz. 67, 680 P.2d 203 (App.1984); Salt River Project v. Westinghouse Elec., 143 Ariz. 437, 694 P.2d 267 (App.1983). It thus appears that both the case law and the statute creating a cause of action for strict products liability came into existence well after the adoption of the Arizona Constitution and art. 18, § 6.

Petitioner contends, however, that art. 18, § 6 applies to a cause of action for strict products liability, as well as the right to recover damages for negligence or breach of warranty. Admittedly, we have held that art. 18, § 6 protects actions for negligence and breach of warranty and extends to all actions recognized at common law at the time of the article's adoption. Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 18, 730 P.2d 186, 195 (1986). We have not, however, extended the protection of art. 18, § 6 to strict products liability. The legislature evidently recognized this difference when it did not include negligence and breach of warranty in the statute of repose and applied the statute only to strict products liability.

We hold that the statute of repose, A.R.S. § 12-551, is not an abrogation of a substantive right of action protected by art. 18, § 6 because the tort of strict products liability did not exist at the time the constitutional provision was adopted. We find no violation of art. 18, § 6 of the Arizona Constitution by A.R.S. § 12-551.


Our state constitution provides:

No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall Ariz. Const. art. 2, § 13.

[156 Ariz. 196] not equally belong to all citizens or corporations.

Three tests are available to determine the constitutionality of a statute under an equal protection analysis. Kenyon v. Hammer, 142 Ariz. 69, 78, 688 P.2d 961, 970 (1984).

(1) "Strict Scrutiny"

Under this method a discriminatory statute may be upheld only if there is a "compelling state interest" to be served and the regulation is "necessary" to achieve the legislative objective. See San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Arizona Downs v. Arizona Horsemen's Foundation, 130 Ariz. 550, 555, 637 P.2d 1053, 1058 (1981).

Generally, this analysis is confined to those cases in which the statute imposes a burden upon a "suspect" classification (e.g., race or religion) or impinges upon and limits a "fundamental right." Moreover, the fundamental rights factor only exists when the rights affected are "explicitly or implicitly guaranteed by the Constitution." San Antonio Independent School Dist. supra, 411 U.S. at 33-34, 93 S.Ct. at 1297. If the right is "fundamental," the strict scrutiny analysis must be applied. If the right is not "fundamental," one of the lesser standards is applicable. Kenyon supra, 142 Ariz. at 79, 688 P.2d at 971. The strict scrutiny analysis is not usually applied to social or economic regulation. Id. at 78, 688 P.2d at 970.

We do not quarrel with the assertion that right of access to courts constitutes a "fundamental" right which would, if infringed, demand as justification a compelling state interest. Bowman v. Niagara Machine and Tool Works, 832 F.2d 1052 (7th Cir.1987). In the present situation, however, the plaintiff has not been denied access to the courts in the constitutional sense. The plaintiff cannot claim he has been denied access to the court simply because the Arizona Legislature has restricted a particular cause of action in a way that makes it unavailable to him. Such an approach confuses "access" with "success," and the plaintiff is not entitled to the latter. Id. at 1054. We do not believe the strict scrutiny test applies.

(2) "Means-Scrutiny Analysis"

A second and intermediate test is the "means-scrutiny" test. Kenyon, supra 142 Ariz. at 78, 688 P.2d at 970. This test has not yet been considered under the Arizona Constitution. It has been followed occasionally by the United States Supreme Court, but only in narrow areas involving classifications such as those based upon gender and illegitimacy of birth. See, e.g., Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981). To uphold the statute under this test, the court must find the state's interest to be "important" and the means adopted to serve that interest to be "reasonable, not arbitrary" and "having a fair and substantial relation to the object of the legislation" so that all persons in similar circumstances "shall be treated alike." Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). In applying this intermediate test, courts must examine carefully the factual assumptions that underlie the asserted connection between the means adopted by the legislature and the goals which it seeks to achieve. Kenyon, supra 142 Ariz. at 78, 688 P.2d at 970. We do not believe it applies to this fact situation.

(3) "Rational Basis"

The constitutional requirement of equal protection under the "rational basis" test is only violated if the classification rests on grounds wholly...

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