Dickey ex rel. Dickey v. City of Flagstaff

• Decision Date: 07 April 2003
• Docket Number: No. CV-99-0273-PR.,CV-99-0273-PR.
• Citation: 66 P.3d 44,205 Ariz. 1
• Parties: William H. DICKEY, on his own behalf and as Guardian Ad Litem of the minor child William DICKEY; Rebecca Carlson Dickey, wife of William H. Dickey; and Jane Doe, natural mother of minor William Dickey, Plaintiffs-Appellants, v. CITY OF FLAGSTAFF, a municipal corporation, Defendant-Appellee.
• Court: Arizona Supreme Court

66 P.3d 44

205 Ariz. 1

William H. DICKEY, on his own behalf and as Guardian Ad Litem of the minor child William DICKEY; Rebecca Carlson Dickey, wife of William H. Dickey; and Jane Doe, natural mother of minor William Dickey, Plaintiffs-Appellants, v. CITY OF FLAGSTAFF, a municipal corporation, Defendant-Appellee.

No. CV-99-0273-PR.

Supreme Court of Arizona, En Banc.

April 7, 2003.

Dale H. Itschner, and Jerry L. Smith, Flagstaff, Attorneys for Plaintiffs-Appellants.

Mangum Wall Stoops & Warden, P.L.L.C., by Daniel J. Stoops, Flagstaff, Attorneys for Defendant-Appellee.

Arizona Trial Lawyers Association, by Amy G. Langerman, Phoenix, Attorneys for Amicus Curiae, Arizona Trial Lawyers Association.

OPINION

BERCH, Justice.

¶ 1 This case presents a challenge to the constitutionality of Arizona's recreational use statute, Ariz.Rev.Stat. ("A.R.S.") § 33-1551 (2000).¹ We conclude, as did the trial and appellate courts, that the law is constitutional.

FACTS²

¶ 2 On January 7, 1995, William Dickey's step-mother took ten-year-old William and two of his siblings to go sledding. She saw people on Mars Hill in Thorpe Park in Flagstaff, so she dropped the children off and left to park the car. While she was gone, William began sliding down Mars Hill on a rubber tube. About a quarter of the way down the hill on his first run, William crashed into a tree and was severely injured.

¶ 3 Although Mars Hill had been used as a wintertime recreational area since the early days of the City, the City had posted signs warning that Mars Hill was unsafe for sledding. The evidence conflicts on whether the signs were in place on the day of the accident.

¶ 4 William's parents, the Petitioners, sued the City to recover for William's injuries. The City defended on the ground that, because the Park was held open for recreational use, Petitioners could not prevail unless they showed that city employees had been grossly negligent or had wilfully or maliciously caused injury to William. The trial court granted summary judgment for the City, finding that Petitioners failed to present any evidence that the City had acted wilfully, maliciously, or grossly negligently. The trial court further determined that the recreational use statute did not abrogate William's negligence cause of action and therefore did not violate Article 18, Section 6, of the Arizona Constitution.

¶ 5 The court of appeals affirmed. Dickey v. City of Flagstaff, 197 Ariz. 422, 430, ¶¶ 36-37, 4 P.3d 965, 973 (App.1999). We granted review to decide whether the recreational use statute's requirement that a plaintiff show gross negligence or wilful or malicious conduct abrogates a cause of action that William would have otherwise enjoyed, in violation of the anti-abrogation provision of the Arizona Constitution. We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 12-2101 (1994).

DISCUSSION

A. The Recreational Use Statute

¶ 6 Arizona's recreational use statute, A.R.S. § 33-1551, limits a landowner's liability to parties injured while on the land for recreational purposes. It provides that the owner of land held open for public use "is not liable to a recreational or educational user except upon a showing that the owner ... was guilty of wilful, malicious or grossly negligent conduct which was a direct cause of the injury to the recreational or educational user." Id. § 33-1551(A). The statute defines grossly negligent conduct as conduct that demonstrates "a knowing or reckless indifference to the health and safety of others." Id. § 33-1551(C)(2).

¶ 7 The statute, based on a model act proposed by the Council of State Governments, was first enacted here in 1983. See Ward v. State, 181 Ariz. 359, 361-62, 890 P.2d 1144, 1146-47 (1995)

. Its purpose is to encourage landowners to open their lands to the public for recreational use. Id. at 362, 890 P.2d at 1147. It accomplishes this goal by "limiting their liability toward persons entering thereon for such purposes." Id. (quoting Suggested State Legislation on Public Recreation on Private Lands, 24 Council of State Governments 150 (1965)). Since the publication of the model act in 1965, all fifty states have enacted recreational use statutes limiting the liability of landowners who open their land to recreational users. Terrence J. Centner, Tort Liability for Sports and Recreational Activities: Expanding Statutory Immunity for Protected Classes and Activities, 26 J. Legis. 1, 2 (2000) (citing the recreational use statutes of all fifty states).

B. The Constitutionality of the Recreational Use Statute

1. The Anti-Abrogation Provision.

¶ 8 William argues that the recreational use statute is unconstitutional because it deprives him of the right to bring a lawsuit sounding in simple negligence against the City of Flagstaff. Instead, because of the statute, he must prove that the City was grossly negligent, in violation, he maintains, of the anti-abrogation provision of the Arizona Constitution. Ariz. Const. art. 18, § 6.

¶ 9 The anti-abrogation provision states 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." Id. It protects from legislative repeal or revocation those tort actions that "either existed at common law or evolved from rights recognized at common law." Cronin v. Sheldon, 195 Ariz. 531, 539, ¶ 39, 991 P.2d 231, 239 (1999); see also Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 14, 730 P.2d 186, 191 (1986)

(observing that the anti-abrogation provision extends the right to recover damages for injuries to all actions existing under the common law); Morrell v. City of Phoenix, 16 Ariz. 511, 517, 147 P. 732, 735 (1915) (superseded by statute) (finding that the anti-abrogation provision preserves those "rights already cognizable by law, and does not undertake to create new rights of action"). Therefore, to fall within the protection of the anti-abrogation provision of the Arizona Constitution, William's right of action for simple negligence against the City must have existed at common law or have found its basis in the common law at the time the constitution was adopted. See Cronin, 195 Ariz. at 539, ¶ 39, 991 P.2d at 239. We conclude that William has failed to establish that a right of action for simple negligence, against a municipality engaged in a governmental function, existed at common law.³

2. Municipal Liability Under the Common Law.

¶ 10 In 1913, a year after Arizona's statehood and three years after the Arizona Constitution was drafted, a treatise on municipal law reported that cities engaged in governmental functions were not subject to liability for negligence:

The rule is firmly established in our law that where the municipal corporation is performing a duty imposed upon it as the agent of the state in the exercise of strictly governmental functions, there is no liability to private action on account of injuries resulting from the wrongful acts or negligence of its officers or agents thereunder, unless made liable by statute. In other words, unless a right of action is given by statute, municipal corporations may not be held civilly liable to individuals for "neglect to perform or negligence in performing" duties which are governmental in their nature, and including generally all duties existent or imposed upon them by law solely for the public benefit.

6 Eugene McQuillin, MUNICIPAL CORPORATIONS § 2623 (1913) (footnote omitted). Two years later, this court upheld municipal governmental immunity, finding that the City of Phoenix could not be held liable for the mere negligence of its employees. Morrell v. City of Phoenix, 16 Ariz. 511, 517, 147 P. 732, 735 (1915). In doing so, the court observed that it was "quite certain that it was the intention of the legislature of the territory of Arizona ... that Phoenix should be immune from damages for injuries or loss occasioned by or through the malfeasance, misfeasance or neglect of duty of any of its officers or other authorities." Id. at 512, 147 P. at 733.

¶ 11 In Morrell, a city employee sued the City of Phoenix for assigning to him a sprinkling cart pulled by a team of unruly horses, which bolted and dragged him through the city streets, resulting in the serious injuries. Id. The city defended that it was exempted from suit by a clause in its charter that immunized the city from liability for simple negligence, while leaving the city liable for "willful neglect, ... gross negligence or willful misconduct." Id. at 513, 147 P. at 733.

¶ 12 The plaintiff claimed there, as the Petitioners do here, that the immunity provision violated Article 18, Section 6 of the Arizona Constitution. Id. at 517, 147 P. at 735. This court found that the plaintiff's position was "not tenable, for the reason that said section only undertakes to preserve rights already cognizable by law, and does not undertake to create new rights of action." Id. This decision demonstrates that municipalities were immune from civil suits for ordinary negligence at common law.⁴

¶ 13 Ten years later, this court again spoke on the subject of municipal immunity in Jones v. City of Phoenix, 29 Ariz. 181, 239 P. 1030 (1925), overruled in part by Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963)

. In Jones, a city employee sued the City of Phoenix. Id. at 181-82, 239 P. at 1030-31. The court determined that the city's liability turned upon whether the function in which the city was engaged was "proprietary" or "governmental" because when a municipality was "acting in its governmental capacity, it had the exemptions of the sovereignty." Id. at 183, 239 P. at 1031. The court concluded that the rule was "of such almost universal acceptance ... that we accept it as the undoubted law of Arizona." Id.

¶ 14 Almost forty years later, this court abolished the common-law rule of sovereign immunity. See Stone, 93 Ariz. at 387,

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