Phelps v. Firebird Raceway, Inc.

• Decision Date: 18 May 2005
• Docket Number: No. CV-04-0114-PR.,CV-04-0114-PR.
• Citation: 210 Ariz. 403,111 P.3d 1003
• Parties: Charles PHELPS, an Arizona resident, Plaintiff-Appellant, v. FIREBIRD RACEWAY, INC., an Arizona corporation aka and/or dba Firebird International Raceway, a corporation, Defendant-Appellee.
• Court: Arizona Supreme Court

111 P.3d 1003

210 Ariz. 403

Charles PHELPS, an Arizona resident, Plaintiff-Appellant, v. FIREBIRD RACEWAY, INC., an Arizona corporation aka and/or dba Firebird International Raceway, a corporation, Defendant-Appellee.

No. CV-04-0114-PR.

Supreme Court of Arizona, En Banc.

May 18, 2005.

Skousen, Skousen, Gulbrandsen & Patience, P.C. by David L. Abney, Mesa and Law Offices of Hartley E. Newkirk, by Hartley E. Newkirk, Tucson, Attorneys for Plaintiff-Appellant, Charles Phelps.

Jennings, Strouss & Salmon, P.L.C. by Jay A. Fradkin, John J. Egbert, Phoenix, Attorneys for Defendant-Appellee, Firebird Raceway.

Osborn Maledon, P.A. by Thomas L. Hudson, Taylor C. Young, Phoenix, and Piccarreta & Davis, P.C. by JoJene E. Mills, Tucson, Attorneys for Amicus Curiae, Arizona Trial Lawyers Association.

Law Offices of Charles M. Brewer, Ltd., by Charles M. Brewer, John B. Brewer, Dane L. Wood, Phoenix, Attorneys for Amicus Curiae, The Law Firm of Charles M. Brewer, Ltd.

OPINION

RYAN, Justice.

¶ 1 This case requires us to determine whether Article 18, Section 5 of the Arizona Constitution, which provides that the defense "of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury," applies to an express contractual assumption of risk. We hold that it does.

I

¶ 2 Charles Phelps was a professional racecar driver who had participated in more than 100 races at Firebird Raceway, Inc. Before participating in a Firebird race, drivers must sign a "Release and Covenant Not to Sue" ("Release") and a "Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement" ("Waiver"). Phelps signed both the Release and Waiver before taking part in a race. The Release contained the following provisions:

I HEREBY RELEASE, DISCHARGE AND ACQUIT ... Firebird ... from any and all liability claims, actions, or demands, including but not limited to [a] claim for death, which I may hereafter have because of my injury, death, or damage while on the track, . . . or when participating in any race activities....

I UNDERSTAND that participating in drag racing contains DANGER AND RISK of injury or death, . . . but, nevertheless, I VOLUNTARILY ELECT TO ACCEPT THE RISKS connected with my entry into the restricted area and with racing.

The Waiver's relevant provisions stated:

[T]he Undersigned ... HEREBY RELEASES, WAIVES, DISCHARGES, AND COVENANTS NOT TO SUE [Firebird]... FOR ALL LOSS OR DAMAGE... ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED, WHETHER CAUSED BY THE NEGLIGENCE OF RELEASEES OR OTHERWISE, while the Undersigned is in or upon the RESTRICTED AREA, and/or competing ... or for any purpose participating in such event....

EACH OF THE UNDERSIGNED expressly acknowledges that the ACTIVITIES OF THE EVENT ARE VERY DANGEROUS and involve the risk of serious injury and/or death and/or property damage. EACH OF THE UNDERSIGNED also expressly acknowledges the INJURIES RECEIVED MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES OF THE RELEASEES.

¶ 3 During the race, Phelps lost control of his vehicle and crashed into a wall. Phelps' vehicle erupted into flames and he suffered severe burns. Phelps sued Firebird in superior court, claiming that its employees were negligent in failing to rescue him more quickly from the burning vehicle and in failing to provide adequate emergency medical care. Firebird relied on the Release and Waiver in defending against Phelps' claims.

¶ 4 In response to Firebird's defense, Phelps filed a motion for partial summary judgment, arguing that Article 18, Section 5 of the Arizona Constitution requires that the issue of assumption of risk be decided by the jury. In a cross-motion for summary judgment, Firebird asserted that because the Release and Waiver were express contractual assumptions of risk, Article 18, Section 5 did not apply. The trial court denied Phelps' motion and granted Firebird's motion, and entered a judgment dismissing Phelps' claims.

¶ 5 Phelps appealed, contending that Article 18, Section 5 requires that all release and waiver agreements that purport to require the signer to assume the risk be treated as a question of fact for the jury.¹ The court of appeals concluded that "when the drafters of the Constitution discussed `the defense of assumption of risk,' they were referring to an implied assumption of risk that had developed in the common law of torts and that the courts had consistently used to bar suits by injured laborers." Phelps v. Firebird Raceway, Inc., 207 Ariz. 149, 151-52, ¶ 10, 83 P.3d 1090, 1092-93 (App.2004). The court affirmed the trial court's grant of summary judgment to Firebird because, "absent questions of fact for the jury, this court has applied a standard contract-law analysis when construing exculpatory agreements, and upheld summary judgment when no material factual issue has existed as to the validity of the agreement or its applicability to the claims." Id. at 153, ¶ 16, 83 P.3d at 1094.

¶ 6 Phelps petitioned for review, which we granted because the issue is one of first impression for this court and of statewide importance. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") § 12-120.24 (2003).

II

A

¶ 7 Preliminarily, we note that both parties agree that Firebird raised a defense of assumption of risk. The contract Phelps signed expressly confirmed that he had assumed the risk of any injuries resulting from Firebird's negligence. Indeed, the Waiver was labeled in part "Assumption of Risk," and the Release explicitly stated, "I voluntarily elect to accept the risks connected with my entry into the restricted area and with racing." (Emphasis added.)

¶ 8 Moreover, Arizona case law and legal scholars have long viewed such contracts as a form of assumption of risk. See, e.g., Hildebrand v. Minyard, 16 Ariz.App. 583, 585, 494 P.2d 1328, 1330 (1972)

("Express assumption of risk is covered in Restatement (Second) of Torts s 496(B) (1965) which states: `A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.'") (emphasis added); 1 Dan B. Dobbs, The Law of Torts § 211, at 535 (2001) ("The essential idea [of the assumption of risk defense] was that the plaintiff assumed the risk whenever she expressly agreed to by contract or otherwise, and also when she impliedly did so by words or conduct.") (emphasis added). We thus turn to the question whether Article 18, Section 5 applies to express contractual assumptions of risk.

B

¶ 9 Article 18, Section 5 provides as follows:

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.

¶ 10 When a constitutional provision is unambiguous, it "is to be given its plain meaning and effect." U.S. West Communications, Inc. v. Ariz. Corp. Comm'n, 201 Ariz. 242, 245, ¶ 10, 34 P.3d 351, 354 (2001). "`Nothing is more firmly settled than under ordinary circumstances, where there is involved no ambiguity or absurdity, a statutory or constitutional provision requires no interpretation.'" Id. (quoting Adams v. Bolin, 74 Ariz. 269, 273, 247 P.2d 617, 620 (1952)); see also Pinetop-Lakeside Sanitary Dist. v. Ferguson, 129 Ariz. 300, 302, 630 P.2d 1032, 1034 (1981)

("[W]here a constitutional provision is clear, no judicial construction is required or proper."). The Arizona Constitution, moreover, plainly mandates how unambiguous provisions are to be applied: "The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise." Ariz. Const. art. 2, § 32; see also U.S. West Communications, 201 Ariz. at 245, ¶ 10, 34 P.3d at 354 (construing Article 2, Section 32).

¶ 11 Article 18, Section 5 unambiguously requires that the defense of assumption of risk be a question of fact for the jury "in all cases whatsoever" and "at all times." Under the plain language of the provision, a jury must decide if the affirmative defense of assumption of risk, whether express or implied, precludes a plaintiff from recovering damages resulting from any negligence on the part of a defendant.

C

¶ 12 Despite the clear language of Article 18, Section 5, Firebird contends that the assumption of risk defense in this case need not be submitted to a jury because its memorialization in writing somehow causes it to fall outside the ambit of the constitutional provision. Firebird presents several arguments in support of its contention: the term "assumption of risk" is ambiguous; the framers did not intend Article 18, Section 5 to cover express assumptions of risk; Oklahoma's courts, in interpreting their identical constitutional provision, have permitted their courts to rule as a matter of law that the defense of assumption of risk precludes a plaintiff's recovery; an express assumption of risk is governed by contract principles while implied assumption of risk is governed by tort principles; and prior Arizona cases involving express assumptions of risk assumed that summary judgment could be entered if there were no factual disputes surrounding the signing of the contract assuming the risk. We address each contention in turn.

III

A

¶ 13 Firebird first contends that because the doctrine of assumption of risk encompasses more than one category, the phrase "assumption of risk" as used in Article 18, Section 5 is ambiguous. From this, it reasons that the framers must have intended Article 18, Section 5 to encompass only implied assumption of risk. We disagree.

¶ 14 Although the doctrine of assumption of risk "has been used by the courts in several different senses, which traditionally have been lumped together under the one name, often without realizing that any...