Hall v. A.N.R. Freight System, Inc., 18082-CQ

• Decision Date: 12 March 1986
• Docket Number: No. 18082-CQ,18082-CQ
• Citation: 149 Ariz. 130,717 P.2d 434
• Parties: Dallas HALL, Plaintiff, v. A.N.R. FREIGHT SYSTEM, INC., Defendant.
• Court: Arizona Supreme Court

Page 434

717 P.2d 434

149 Ariz. 130

Dallas HALL, Plaintiff, v. A.N.R. FREIGHT SYSTEM, INC., Defendant.

No. 18082-CQ.

Supreme Court of Arizona, In Banc.

March 12, 1986.

Robert Q. Hoyt, Tucson, G. David Gage, Phoenix, for plaintiff.

Chandler, Tullar, Udall & Redhair by D.B. Udall, Tucson, for defendant.

GORDON, Vice Chief 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. § 12-1862. The question concerns the constitutionality of Arizona's Uniform Contribution Among Tortfeasors Act, A.R.S. §§ 12-2501--12-2509 (1984) (the "Act"). We have jurisdiction pursuant to A.R.S. § 12-1861.

The question of law certified to this Court is:

"Whether the Uniform Contribution Among Tortfeasors Act, A.R.S. §§ 12-2501 through 12-2509, is constitutional when, by its terms, it applies retroactively to accidents occurring before the effective date of the statute?"

The facts as agreed to by the parties are not complex. This is an action for personal injuries in which the plaintiff, Dallas Hall, alleges that he was injured by the negligence of defendant, A.N.R. Freight System, Inc., and the defendant denies negligence and alleges contributory negligence. Plaintiff was an employee of the J.H. Kelley Construction Company, engaged in employment as a laborer. On February 21, 1984, the defendant delivered PVC pipe to Kelley Construction's place of business. This pipe was involved in plaintiff's subsequent accident.

The District Court has certified that there is a rational basis for the court to instruct the jury on the issue of comparative negligence. Plaintiff's lawsuit was filed in United States District Court on September 7, 1984. The Uniform Contribution Among Tortfeasors Act, A.R.S. §§ 12-2501 et seq., became effective August 30, 1984. A.R.S. § 12-2505, for the first time in Arizona, provides for comparative negligence. ¹ In short:

1) Plaintiff was injured February 21, 1984.

2) The Act became effective August 30, 1984.

3) The personal injury action was filed September 7, 1984.

Thus the present case, filed approximately one week after the statute's effective date, plainly falls within the purview of the Act. However, the facts establishing plaintiff's cause of action occurred prior to the statute's effective date. Therein lies the controversy.

This Court has twice in the last year had the opportunity to interpret the Act. In Cheney v. Arizona Superior Court For Maricopa County, 144 Ariz. 446, 698 P.2d 691 (1985), we held that the trial court did not abuse its discretion by refusing to allow a plaintiff to voluntarily dismiss his pre-Act complaint without prejudice after an answer had been filed, in order to re-file the complaint after the Act became effective. In Kriz v. Buckeye Petroleum Company, Inc., 145 Ariz. 374, 701 P.2d 1182 (1985), which was a certified question of law, we were called upon to interpret several provisions of the Act's contribution provisions. In both cases we reserved the question of whether the Act can constitutionally apply to facts which antecede its effective date. ² That question is now squarely before us.

I

Arizona's Uniform Contribution Among Tortfeasors Act is unusual because it combines comparative negligence and contribution provisions within the same Act. See Kriz v. Buckeye Petroleum Co., Inc., 145 Ariz. at 377 n. 4, 701 P.2d at 1185 n. 4, and citations therein. Indeed, A.R.S. § 12-2505(A), which provides for comparative negligence, closely resembles the Uniform Comparative Fault Act. See Unif. Comparative Fault Act, 12 U.L.A. 39 (Supp.1985); Kriz v. Buckeye Petroleum Co., Inc., 145 Ariz. at 377 n. 4, 701 P.2d at 377 n. 4.

Prior to the Act the plaintiff's contributory negligence, even if slight, could operate as an absolute bar to the plaintiff's right of recovery in a negligence action. Cheney v. Arizona Superior Court For Maricopa County, 144 Ariz. at 448, 698 P.2d at 693. "After the Act, however, slight negligence by plaintiff will not bar his damage action, but rather plaintiff's damages are reduced in proportion to relative degree of plaintiff's fault...." Id.

The defendant's attack on the Act is twofold. First, it claims that A.R.S. § 12-2505, which provides for comparative negligence, violates Article 18, § 5 of the Arizona Constitution. ³ Second, defendant urges that even if the Act itself is constitutional, it cannot constitutionally be applied to events which preceded its effective date. Although the certified question concentrates on the second issue, we must first address the constitutionality of the Act since its application to antecedent events is moot if the Act's provision for comparative negligence is unconstitutional. In addition, the importance of the constitutional issue raised by the defendant warrants resolution by this Court. Thus, as a preliminary matter we must analyze the Act and its relationship to art. 18, § 5.

II

We begin, as we must, with the presumption that all legislative enactments are constitutional. State v. Cook, 139 Ariz. 406, 678 P.2d 987 (App.1984). "We will not declare an act of the legislature unconstitutional unless we are satisfied beyond a reasonable doubt that the act is in conflict with the federal or state constitutions." Chevron Chemical Co. v. Superior Court, 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982). "All statutes are presumed to be constitutional and any doubts will be resolved in favor of constitutionality." Arizona Downs v. Arizona Horsemen's Foundation, 130 Ariz. 550, 554, 637 P.2d 1053, 1057 (1981). The burden of establishing that a statute is unconstitutional rests on the party challenging its validity. State v. Arnett, 119 Ariz. 38, 48, 579 P.2d 542, 552 (1978). The defendant has failed to establish that the Act is unconstitutional; indeed, we are convinced that the Act fully comports with art. 18, § 5 of the constitution.

Article 18, § 5 of the state constitution provides:

" § 5. Contributory negligence and assumption of risk

Section 5. 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."

Article 18, § 5 was designed to ameliorate the draconian consequences of contributory negligence by leaving to the jury the question of its existence. ⁴ See generally Note, "Comparative Negligence in Arizona", 1979 Arizona St. L.J. 581 (1979); Note, "Torts: Oklahoma's Uncharted Land of Comparative Negligence", 24 Okla. L. Rev. 122 (1974).

The power reserved to the jury is great indeed: "[t]he language of the provision is plain and unambiguous and ... indicates that the power or duty to finally and conclusively settle the question of contributory negligence or assumption of risk is, by its terms, transferred from the court to the jury." Inspiration Consolidated Copper Co. v. Conwell, 21 Ariz. 480, 486, 190 P. 88, 94 (1920). Since this Court first interpreted art. 18, § 5 in Conwell, we have not deviated from our belief that the jury is the sole arbiter of the existence or nonexistence of contributory negligence.

It is argued that the Act conflicts with art. 18, § 5 in two ways: by eliminating a constitutionally guaranteed defense, and by diminishing the constitutionally guaranteed role of the jury in determinations of contributory negligence. Turning to the first argument, we must determine whether art. 18, § 5 embodies, and thus protects, the common law rule of contributory negligence; or whether, in contrast, it is merely a procedural guarantee.

After reviewing the relevant decisions of the past interpreting art. 18, § 5, as well as the language of the section itself, we conclude that the provision is a procedural guarantee.

Article 18, § 5 prescribes the procedure that must be followed if contributory negligence is asserted as a defense; it does not in any way, shape or form guarantee the contributory negligence defense independent constitutional vitality. The constitutional provision has never been so interpreted, and we decline to do so today. Indeed, our decisions imply just the opposite.

Only five years after the adoption of our state constitution this Court had the opportunity to pass upon the constitutionality of the Employer's Liability Act, which provides in part for an apportionment of damages where the injured employee was guilty of contributory negligence. ⁵ At that time, art. 18, § 5 was raised as a challenge to the limited regime of comparative negligence provided for in the Employer's Liability Act. In Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 165 P. 1101 (1917), we responded that art. 18, § 5 "does not restrict the power of the legislature to modify or abolish the defense of contributory negligence." 19 Ariz. at 186, 165 P. at 1109. (emphasis added) "The restriction contained in the section is clear that no law shall be enacted which attempts to make the defenses of contributory negligence or assumption of risk, when interposed, determinable by the courts as a matter of law...." Id. (emphasis added) Tomich makes it crystal clear that art. 18, § 5 does not guarantee the right to interpose the defense of contributory negligence; it merely provides that when contributory negligence is raised as a defense the jury must always be the final judge of the facts and law pertaining thereto. See also Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962). ⁶ Our later decisions affirm the conclusion that art. 18, § 5 did not elevate the defense of contributory negligence into the pantheon of constitutional rights. In Alabam Freight Lines v. Phoenix Bakery, Inc., 64 Ariz. 101, 166 P.2d 816 (1946), we observed that "this constitutional provision has always been given effect where the legal defense of contributory negligence existed." Id. at 110, 166 P.2d at 821 (emphasis added). The procedural nature of art. 18, § 5 was emphasized later in the same decision when we noted that "[t]he...