City of Tucson v. Fahringer
| Decision Date | 21 July 1988 |
| Docket Number | No. 2,CA-SA,2 |
| Citation | 781 P.2d 637,162 Ariz. 159 |
| Parties | CITY OF TUCSON, a municipal corporation, and the State of Arizona, Petitioners, v. Honorable Philip FAHRINGER, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Christopher James WESTLEY, a single individual, and Lyle Goodwin, a single individual, Real Parties in Interest. 88-0072. |
| Court | Arizona Court of Appeals |
The sole issue in this special action is the constitutionality of an affirmative defense to claims against public entities created by the legislature in A.R.S. § 12-820.03(2), which precludes liability for certain injuries attributable to the fault of a person driving while under the influence of intoxicating liquor. Because petitioners have no adequate remedy by appeal and the question involves significant issues of law arising from a statute not previously interpreted, we assume jurisdiction. Ariz.R.P.Spec. Action 1, 17A A.R.S.; City of Tucson v. Fleischman, 152 Ariz. 269, 270, 731 P.2d 634, 635 (App.1986).
The real parties in interest, Christopher James Westley and Lyle Goodwin, are the plaintiffs in a superior court action brought against Manuel Lopez, the City of Tucson, and the State of Arizona. The facts giving rise to that lawsuit are as follows. On March 9, 1985, Westley and Goodwin accepted a ride from Lopez, whom they did not know, outside a local nightclub. Lopez drove past the area where Westley and Goodwin had told him that they lived, traveling westbound on Speedway Boulevard. Lopez made an abrupt U-turn on Speedway and began to drive east, passing the Interstate 10 interchange. Lopez' vehicle left the roadway, ran over a curb, and collided with a concrete abutment. The police report indicates that Lopez smelled of intoxicants and, during treatment for his injuries at a local hospital, hospital personnel analyzed a blood sample and determined that Lopez had a blood alcohol content of .25 percent. Westley and Goodwin sustained serious injuries in the collision; as a result, Westley is permanently confined to a wheelchair.
In their complaint against the City of Tucson and the State of Arizona, Westley and Goodwin alleged that West Speedway Boulevard in the vicinity of the accident, the median and the concrete abutment were negligently designed, constructed, maintained, signed, lighted and controlled. In answering the complaint, the city and state both raised A.R.S. § 12-820.03(2) as an affirmative defense. Westley and Goodwin filed a motion to strike that defense, arguing that the statute is unconstitutional. The respondent judge granted the motion to strike, finding that § 12-820.03(2) violates article 18, § 6 of the Arizona Constitution.
In 1984, the legislature passed an act entitled "Actions Against Public Entities or Public Employees." A.R.S. §§ 12-820 to -826. By passing that act, the legislature modified the strict application of the doctrine of sovereign immunity and undertook to define public entities' liability for negligence. See 1984 Ariz.Sess.Laws, ch. 285, § 1, para. A. The act also establishes certain affirmative defenses available to a public entity or public employee. The provision at issue in this case provides as follows:
Neither a public entity nor a public employee is liable for an injury:
* * * * * *
2. Which is attributable to the fault of a person, other than a public employee, driving a motor vehicle while the person was under the influence of intoxicating liquor. This paragraph does not apply to persons who are not passengers or to minors who are passengers riding in or upon the motor vehicle.
A.R.S. § 12-820.03(2). The respondent judge determined that § 12-820.03(2) violates the following provision of the Arizona Constitution:
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. Our supreme court has described that clause as having been enacted "to elevate the common law action of negligence to constitutional stature to preserve the right inviolate." Ruth v. Industrial Commission, 107 Ariz. 572, 575, 490 P.2d 828, 831 (1971).
When our constitution was adopted in 1912, the doctrine of sovereign immunity cloaked the state with immunity from suit. See Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982). Additionally, municipal liability was not recognized at the time Arizona's constitution was adopted. See Morrell v. City of Phoenix, 16 Ariz. 511, 147 P. 732 (1915); see also Larsen v. County of Yuma, 26 Ariz. 367, 225 P. 1115 (1924). Exceptions to the sovereign immunity doctrine have been created since that time, both through case law and legislation. See A.R.S. §§ 12-820 to -826; Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982); Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963).
The right of action now claimed by Westley and Goodwin did not exist at the time the constitution was adopted. Suit against a public entity was not one of those rights of action for which the framers sought to preserve or create judicial remedies for "wrongs traditionally recognized at common law." Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 17, 730 P.2d 186, 194 (1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 527 (1987). Because a cause of action against the state or a municipal corporation was not recognized at that time, it is not afforded protection by article 18, § 6 of our constitution. Bryant v. Continental Conveyor & Equipment Co., 156 Ariz. 193, 751 P.2d 509 (1988).
In determining whether legislation runs afoul of the constitutional protection afforded negligence actions, courts also look to whether the statute in question effectively abrogates such a right of action. In Ruth v. Industrial Commission, supra, our supreme court recognized that article 18, § 6, is implicated when a right of action is "completely abolished." The court quoted with approval the following language:
If [the statute] ... were to be construed as taking away the right to pursue the constitutional action of negligence without granting a reasonable election to all persons entitled thereto, it would indeed be unconstitutional....
107 Ariz. at 575, 490 P.2d at 831, quoting Moseley v. Lily Ice Cream Company, 38 Ariz. 417, 421, 300 P. 958, 959 (1931) (emphasis added in Ruth ). Recently, our supreme court has stated that "any statute which bars a cause of action before it could legitimately be brought abrogates rather than limits the cause of action and offends art. 18, § 6 of the Arizona Constitution." Kenyon v. Hammer, 142 Ariz. 69, 75, 688 P.2d 961, 967 (1984), vacated in part on other grounds, James v. Phoenix General Hospital, Inc., 154 Ariz. 588, 744 P.2d 689 (1986). See also Bryant v. Continental Conveyor & Equipment Co., 156 Ariz. at 197, 751 P.2d at 513 (Feldman, VCJ, dissenting). A statute will not be found to violate the abrogation clause
so long as it leaves a claimant reasonable alternatives or choices which will enable him or her to bring the action. [The legislature] may not, under the guise of "regulation," so affect the fundamental right to sue for damages as to effectively deprive the claimant of the ability to bring the action.
Barrio v. San Manuel Division Hospital for Magma Copper Co., 143 Ariz. 101, 106, 692 P.2d 280, 285 (1984). Stated another way, article 18, § 6 guarantees that plaintiffs are entitled to enforce their claims in court "without the necessity of overcoming practically insurmountable defenses" created by statute. Id., quoting Industrial Commission v. Crisman, 22 Ariz. 579, 595 199 P. 390, 395 (1921) (McCalester, J., concurring).
In the instant case, the respondent judge concluded that A.R.S. § 12-820.03(2) requires a plaintiff to overcome practically insurmountable defenses "given the existence of a substantial number of drunk drivers who are uninsured." The court further stated in its minute entry order:
The statute in question limits an injured plaintiff to attempting to collect compensation from a drunk driver who may not be identifiable, may not be locatable for service, or who may not be insured. This is true even in cases where negligence of the State or City far exceeds that of the drunk driver. For example, if the State were to cause a large boulder to fall onto a highway and a driver who was under the influence of intoxicating liquor and was partially at fault crashed into it, the injured plaintiff would be totally barred from seeking relief from the State or City. It is one thing to limit the City's liability to its percentage of the total fault as contribution statutes do, but it [is] something else again to totally bar a plaintiff from any remedy against the State or City. The statute in question limits an injured plaintiff to alternatives that in many cases would be useless, and the statute violates art. 18, § 6.
Where injuries are partially attributable to a driver under the influence of intoxicating liquor, A.R.S. § 12-820.03(2) bars any claim by the driver or his adult passengers against a public entity. It creates a limited defense and requires that certain questions of fact be litigated and decided by the trier of fact. Specifically, the trier of fact first must determine whether the driver was under the influence of intoxicating liquor...
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City of Tucson v. Fahringer
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