City of Tucson v. Fahringer

• Decision Date: 12 July 1990
• Docket Number: No. CV-88-0469-PR,CV-88-0469-PR
• Citation: 795 P.2d 819,164 Ariz. 599
• Parties: CITY OF TUCSON, a municipal corporation, and the State of Arizona, Petitioner, 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.
• Court: Arizona Supreme Court

Page 819

795 P.2d 819

164 Ariz. 599

CITY OF TUCSON, a municipal corporation, and the State of Arizona, Petitioner, 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.

No. CV-88-0469-PR.

Supreme Court of Arizona, In Banc.

July 12, 1990.

Slutes, Sakrison, Even, Grant & Pelander, P.C. by John Pelander, Tucson, for City of Tucson.

Murphy, Goering, Roberts & Holt, P.C. by David L. Berkman, Tucson, for State of Ariz.

Haralson, Kinerk & Morey, P.C. by Dale Haralson, Gregory G. Wasley, Tucson, for real parties in interest.

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

Robert K. Corbin, Atty. Gen. by Judith Elaine Abramsohn, Phoenix, for amicus curiae State of Ariz.

The Langerman Law Offices by Amy G. Langerman, Phoenix, for amicus curiae Ariz. Trial Lawyers Ass'n.

Shelley & Behea by J. LaMar Shelley, Mesa, for amicus curiae League of Ariz. Cities and Towns.

OPINION

FELDMAN, Vice Chief Justice.

Christopher James Westley and Lyle Goodwin (plaintiffs) petition us to review a court of appeals opinion that vacated a trial court order granting plaintiffs' motion to strike the affirmative defense of A.R.S. § 12-820.03(2). See City of Tucson v. Fahringer, 162 Ariz. 159, 781 P.2d 637 (Ct.App.1988). The trial court ruled that A.R.S. § 12-820.03(2) violates article 18, § 6 of the Arizona Constitution. We granted review to determine whether the statute is constitutional. Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, passengers in a vehicle involved in a one-car accident, sued the driver the City of Tucson (City), and the State of Arizona (State). They claimed the City and State negligently designed, constructed, maintained, signed, lighted, and controlled the roadway, sidewalk, median, and concrete headwall in the vicinity of the collision and that such negligence was a cause of the accident.

The City and State alleged that the driver was under the influence of intoxicating liquor at the time of the accident and raised A.R.S. § 12-820.03(2) as an affirmative defense to the passengers' claims. ¹ The statute declares that a "public entity" is not liable to adult passengers who are injured while riding in a vehicle driven by an individual under the influence of alcohol. It also applies to the intoxicated driver. At least the parties have assumed as much. Plaintiffs moved to strike the defense, contending the statute is unconstitutional. The trial court agreed and granted the motion. See Rule 12(g), Ariz.R.Civ.P., 16 A.R.S.

The City and State petitioned the court of appeals for special action relief. ² The court of appeals accepted jurisdiction and vacated the trial court's order, holding that A.R.S. § 12-820.03(2) violates neither article 18, § 6 nor article 18, § 5 of our constitution. Fahringer, 162 Ariz. at 164, 781 P.2d at 642.

Plaintiffs petitioned for review of the opinion that favored the City, ³ raising a number of constitutional challenges to the statute. We granted review and ordered supplemental briefing on article 18, § 5 of the Arizona Constitution.

DISCUSSION

A. Actions Against Public Entities or Public Employees Act

1. Legislative History of Act

In 1982, we reaffirmed our decision in Stone v. Arizona Highway Commission, 93 Ariz. 384, 392, 381 P.2d 107, 112 (1963), which held that when a government entity or employee is a defendant in a tort action, "the rule is liability and immunity is the exception." See Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982). The legislature responded the following year by introducing Senate Bill 1391. S. 1391, 36th Leg., 1st Sess. (1983). When the bill failed to pass house approval, the governor appointed a Commission on Governmental Tort Liability. See Note, A Separation of Powers Analysis of the Absolute Immunity of Public Entities, 28 ARIZ.L.REV. 49, 50 (1986). The Commission drafted a tort claims act and submitted its final report to the legislature on December 16, 1983.

In 1984, relying in part on the report, the legislature enacted the Actions Against Public Entities or Public Employees Act (Act). Act of April 25, 1984, ch. 285, 1984 Ariz. Sess. Laws 1091 (codified at A.R.S. §§ 12-820 to 12-823 (Supp.1985)). The Act codified various common law doctrines that conferred absolute and qualified immunity on various public entities and employees. ⁴ The Act also permitted governmental entities and their employees to raise affirmative defenses in actions sounding in tort. A.R.S. § 12-820.03.

Where applicable, the statute at issue establishes an affirmative defense in favor of government entities that acts as an absolute bar to the action. We turn to examine its provisions.

2. A.R.S. § 12-820.03(2)

The City argues that the statute absolves the City and its employees of any liability for their negligent conduct in any case in which an action is brought by a drunk driver or his adult passenger and when the driver's conduct was in any way a cause for the injuries sustained. ⁵ Plaintiffs first argued that A.R.S. § 12-820.03(2) cannot withstand constitutional scrutiny because it eliminates all remedies and thus violates article 18, § 6 of the Arizona Constitution which prohibits the abrogation of the common law cause of action for damages. ⁶ The City responded that because no established right of action for negligence against a city or the state existed at the time Arizona's constitution was adopted, plaintiffs may not invoke the protection article 18, § 6 provides. ⁷ Assuming, without deciding, that the City's point is relevant, we need not struggle with ascertaining the common law rule regarding municipalities at the time the constitution was adopted because this case is controlled by our recent decision in Schwab v. Matley, 164 Ariz. 421, 793 P.2d 1088 (1990).

B. Constitutional Protections

Plaintiffs argue that the affirmative defense established by A.R.S. § 12-820.03(2) violates article 18, § 5 because it requires the application of the doctrine of contributory negligence to bar an adult passenger's recovery as a matter of law. So characterized, the dispositive issue in this case is nearly identical to the one raised in Schwab: Does a statute violate article 18, § 5 by providing that the antecedent conduct of a person injured is an absolute bar to the recovery of damages from one otherwise liable for the injury under either statutory or common law principles?

Article 18, § 5 of the Arizona Constitution provides:

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.

The City argues that the statutory defense does not depend on any acts or omissions of plaintiffs/passengers but is based on the legislative determination that governmental liability should not exist when an accident is caused in whole or part by a drunk driver. The statute, however, does not purport to restore the doctrine of governmental immunity. Rather, it establishes a defense triggered by the plaintiff's conduct. We note, in fact, that the legislature affirmatively decided to adhere to the common law rule of tort liability announced in Ryan when it specifically rejected proposals that would have deleted reference to common law principles. See note 4, supra. The proposal rejected would have provided that governmental entities "shall be liable ... [only] within the limitations of this act and in accordance with the fair and uniform principles established in this act." See Pritchard v. State of Arizona, 163 Ariz. 427, 431, 788 P.2d 1178, 1182 (1990) (citing S. 1225, 36th Leg., 2d Sess. (1984)).

Analyzed according to common law principles, the statute either effectively finds the passenger at fault for failing to discover the driver's inebriation, imputes knowledge of the driver's inebriation, or is triggered by actual knowledge, and in all events bars the action as a matter of law. As the court of appeals opined, "the defense clearly is intended to discourage drivers from operating a vehicle while intoxicated," and the legislature "inten[ded] to encourage riders to ascertain the sobriety of their drivers and to discourage drunks from driving by putting passengers on notice that they accept rides with drunk drivers at their peril." Fahringer, 162 Ariz. at 163, 781 P.2d at 641. As applied in this case, the statute declares that because the person injured had engaged in certain pre-accident conduct--riding in an automobile driven by a drunk driver--any cause of action he may have against the City is barred, even though the City's negligence might have been a causative factor. Because the statute deals with plaintiff's conduct prior to the accident, it embodies the traditional common law defense of contributory negligence. ⁸ Schwab, 164 Ariz. at 423, 793 P.2d at 1090.

Accordingly, we are not persuaded by the City's argument that the statute does not relate to contributory negligence. "Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered...." See Schwab, 164 Ariz. at 424, 793 P.2d at 1091 (quoting PROSSER AND KEETON ON THE LAW OF TORTS § 65, at 451 (5th ed. 1984)). The inquiry must be directed toward determining whether plaintiff's conduct falls below the standard to which he is required to conform for his own protection. See Gosewisch v. American Honda Motor Co., 153 Ariz. 400, 406, 737 P.2d 376, 382 (1987). In this case, the statute clearly deals with and sets a standard for the antecedent conduct of the person injured. As we stated in Schwab, "[i]f there is a difference between this and contributory negligence, we are unable...