Hazine v. Montgomery Elevator Co.
861 P.2d 625
Ariz.
1993
Check Treatment

Mаrcel HAZINE and Margueritte Hazine, Plaintiffs-Appellants, v. MONTGOMERY ELEVATOR COMPANY, a Delaware Company, Defendant-Appellee.

No. CV-92-0295-PR.

Supreme Court of Arizona, En Banc.

Oct. 21, 1993.

861 P.2d 625 | 176 Ariz. 340

ly reflects a principle that generally applies in disciplinary cases, I find that this case is one in which gradual and graded sanctions are both ineffective and inappropriate.

This court has reiterated in many prior disciplinary cases that the objectives of the disciplinary rules are to protect the public from further acts by respondent, to deter others from similar misconduct, and to provide the public with a basis for continued confidence in the Bar and the judicial system. See, e.g.,

. Requiring gradual and graded sanctions effectively allows respondent to benefit from his wholesale disregard for the disciplinary process. Such an approach cannot promote the goal of deterring others from engaging in similar misconduct. Granted, the failure of the disciplinary process to put a prompt end to respondent‘s misconduct is an unfortunate fact in this case. And, although the majority reasonably could treat this delay as a mitigating circumstance, I do not think that prior case law compels the lock-step approach to imposing sanctions that is adopted in this case. See, e.g.,
;
;
.

For too many years, respondent has been an irresponsible, unguided missile. As a result, he has injured at least 10 different clients, all of whom are members of the public. Considering the number and variety of ethical violations committed by respondent, along with the Disciplinary Commission‘s determination that his “level of carelessness is so great as to make him a hazard to the profession,” I find that the only appropriate sanction in this case is disbarment. By affording respondent the opportunity to practice law in the future, this court does a disservice both to the public and to the legal profession.

FELDMAN, C.J., and ZLAKET, J., recused themselves and did not participate in the determination of this matter.

Steven M. Friedman & Associates, P.C. by Steven M. Friedman and Goldman & Kaplan, Ltd. by David D. White, Phoenix, for plaintiffs-appellants.

O‘Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Ralph E. Hunsaker, Lisa M. Sommer, Christopher Robbins, Phoenix, for defendant-appellee.

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

The Langerman Law Offices by Amy G. Langerman, Phoenix, and Haralson, Kinerk & Morey, P.C. by Dale Haralson, Carter Morey, Tucson, for amicus curiae Arizona Trial Lawyers Ass‘n.

OPINION

MOELLER, Vice Chief Justice.

FACTS

Plaintiff Marcel Hazine was injured while working on an escalator manufactured and installed by defendant Montgomery Elevator Company (Montgomery). Hazine and his wife sued Montgomery in strict liability and in negligence. On the strict liability claim, they argue that the escalator was manufactured and installed in a defeсtive condition that rendered it unreasonably dangerous.

The personal injury action was filed well within the two-year statute of limitations usually applicable to such claims, A.R.S. § 12-542. However, Montgomery moved for summary judgment on the strict liability claim under A.R.S. § 12-551, which provides:

A product liability action as defined in § 12-681 shall be commenced and prosecuted within the period prescribed in § 12-542, except that no product liability action may be commenced and prosecuted if the cause of action accrues more than twelve years after the product was first sold for use or consumption, unless the cause of action is based upon the negligence of the manufacturer or seller or a breach of an express warranty provided by the manufacturer or seller.

(Emphasis added.)

Plaintiffs agreed that the injury occurred more than twelve years after the escalator was first sold for use, but argued that § 12-551 is unconstitutional. Plaintiffs’ principal claim of unconstitutionality was based on art. 18, § 6 of the Arizona Consti-tution, the so-called anti-abrogation provision. It provides: “The right of action to recover damages for injuries shall never bе abrogated, and the amount recovered shall not be subject to any statutory limitation.”

Relying on this court‘s decision in

, the trial court held § 12-551 constitutional and dismissed plaintiff‘s strict product liability claim. The Hazines appealed, arguing that § 12-551 violated not only the anti-abrogation provisions of art. 18, § 6, but also the equal protection and due process provisions of the Arizona Constitution. The court of appeals, also relying on
, held that § 12-551 did not violate any of the three constitutional provisions and affirmed the trial court‘s dismissal of the products claim.

We accepted the Hazines’ petition for review to address recurrent questions of statewide importance arising under

and the related case of
, cert. denied,
. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3). Because we find that A.R.S. § 12-551 violates the anti-abrogation features of art. 18, § 6, we do not address plaintiffs’ equal protection and due process arguments.

ISSUE PRESENTED FOR REVIEW

Whether A.R.S. § 12-551, which bars product liability actions for injuries occurring more than twelve years after a product is first sold, constitutes an unconstitutional abrogation of a right of action to recover damages for injuries under Ariz. Const. art. 18, § 6?

DISCUSSION

1. Regulation Versus Abrogation

We must first consider whether we face a constitutional issue at all. If, as Montgomery argues, A.R.S. § 12-551 merely regulates, rather than abrogates, the Hazines’ right of action to recover damages, no constitutional problem is posed. See

. This is so because even if the ‍‌​​​​‌​‌​​‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​​​​​‌​​​‌‌‌​​‌‌‌​‌​‍tort at issue is protected by art. 18, § 6:

The legislature may regulate [a cause of action] so long as it leaves a claimant reasonable alternatives or choices which will enable him or her to bring the action. It 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.

. Consistent with this principle, we have upheld legislation рroviding worker‘s compensation benefits in lieu of a personal injury suit, as long as the claimant has a reasonable election between the two. See
. Applying this principle, however, we declared unconstitutional a statute requiring “a minor injured before reaching the age of seven to sue for such injuries before reaching age ten.”
. The rationale of
was that the statute abolished a cause of action before it reasonably could be brought.
; see also
(finding abrogation rather than regulation where a statute “bars a cause of action before it [can] legitimately be brought“).

Section 12-551 goes far beyond merely “regulating” products liability actions that accrue more than twelve years after the product is first sold for use or consumption. Instead, claims such as the one under consideration are simply abolished before any injury occurs. This is an even more extreme form of abrogation than that condemned in

. See
. The fact that the Hazines could still sue on express warranty or negligence theories does not, in our opinion, affect the analysis. See
(holding unconstitutional the abrogation of the right to sue in battery, notwithstanding the plaintiff‘s ability to sue in negligence).

Strict products liability developed because other theories of recovery proved inadequate to protect injured users and consumers. See, e.g.,

(discussing the inadequacy of warranty theories in product liability litigation);
(noting the inadequacy of negligence theories); W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 98 (5th ed. 1984). Thus, a right to sue in negligence or express wаrranty is not a reasonable alternative to a products liability action. We conclude that § 12-551 abrogates the Hazines’ substantive right to maintain an action for personal injuries. Thus, if a products liability action falls within the protection of art. 18, § 6, a subject to which we now turn, § 12-551 is unconstitutional.

2. Whether A.R.S. § 12-551 Violates Art. 18, § 6

In considering whether A.R.S. § 12-551 is unconstitutional, it has become apparent to us that two decisions of this court conflict and cannot be reconciled. Compare

, with
. In
, the earlier case, the defendant argued that damages for emotional injury in a defamation case could be statutorily rеstricted because such injury was not compensable at common law. Noting that art. 18, § 6 covers strict liability torts,
, we stated that art. 18, § 6 “extends to wrongs recognized at common law, but it is not limited to those elements and concepts of particular actions which were defined in our pre-statehood case law.”
(emphasis added). Accordingly, a unanimous court declared unconstitutional a statute that purported to limit damages in defamation actions where retractions had been printed. In doing so, the court discussed at length the history and language of art. 18, § 6, thе framers’ intent in adopting it, subsequent case law, and the open court provisions in other state constitutions.
.

Just two years later, responding to an argument that art. 18, § 6 did not extend to strict product liability torts, the

opinion held that “A.R.S. § 12-551 is not an abrogation of a substantive right of action protected by art. 18, § 6 because the tort of strict products liability did not exist at the time the constitutional provision was adopted.”
(emphasis added). Referring to
, the majority merely observed:

Admittedly, we have held that art. 18, § 6 protects actions for negligence and breach of warranty and extends to all actions recognized at common law at the time of the article‘s adoption. We have not, however, extended the protection of art. 18, § 6 to strict products liability.

(citation omitted).

The three-judge majority in

was composed of two members of this court and one court of appeals judge sitting by assignment. Two members of this court dissented, arguing that
ran counter to our own case law, including
. The ”
” controversy has raged ever since.

We are unpersuaded by the efforts of the

majority and the defendant here to reconcile
and
. Defendant argues that
does not conflict with
, because
dealt only with an extension of recovery for damages in defamation—a cause of action well recognized at common law. In contrast, defendant argues that strict products liability, which was at issue in
, did not even exist at common law.
. Therefore, defendant argues that the
rule should be restricted to extensions of particular causes of action recognized at common law. We disagree.

The text of Arizona‘s Cоnstitution is broad, unambiguous, and protects “the right of action to recover damages for injuries.” Art. 18, § 6. We agree with the unanimous

court that this constitu-tional protection “is not limited to those elements and concepts of particular [causes of action] which were defined in our pre-statehood case law.”
.

The right to recover for injuries caused by products was, of course, recognized at common law; therefore, the development of strict liability causes of action to vindicate that right is, under the

analysis, covered by art. 18, § 6. See
. The evolution of common law causеs of action—whether in duty, standard of care, or damages—falls within the broad coverage of art. 18, § 6. See id.; see also
(holding that art. 18, § 6 applies to negligent supervision claims although this ‍‌​​​​‌​‌​​‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​​​​​‌​​​‌‌‌​​‌‌‌​‌​‍cause of action was not recognized until 1972);
(art. 18, § 6 applies to tort of bad faith, although bad faith cause of action not recognized until 1981).

Acceptance of Montgomery‘s argument would inevitably lead to the conclusion that the legislature could constitutionally restrict personal injury claimants to pre-statehood theories of liability and pre-statehoоd measures of damages. If such a result is desired today, it must come about through constitutional amendment. Given the history of art. 18, § 6, see

, it is inconceivable that the framers of the Arizona Constitution had any such intent. “The law must allow for evolution of common-law actions to reflect today‘s needs and knowledge. Any other rule would allow those ‘long dead’ to dictate solutions to problems of which they could not have been aware.”
. We agree with this statement from the
dissent:

True, the “doctrine” of strict liability for injuries caused by a product was first recognized by this court in the 1960‘s. That historical fact is interesting, but totally irrelevant. Article 18, § 6 was not enacted to protect particular doctrines, theories or “causes of action.” The text of the constitution protects a broader concept—“the right of action to recover damages for injuries.” Depending on privity, the right of action to recover damages for injuries caused by defective products was recognized at common law long before Arizona became a territory. While not universally applied to product liability сases until recent times, theories of strict and even absolute liability were recognized in tort law well before 1912. All that has happened since 1912 is the logical application of Rylands v. Fletcher‘s strict liability theory to the right to bring a product liability action.

(Feldman, V.C.J., dissenting) (citations omitted).

Although we do not lightly overturn our prior decisions, the fact is that

and
cannot be reconciled. This contradiction has caused uncertainty and confusion in subsequent cases and commentary. See, e.g.,
; Richard E. Gordon, Note, Schwab v. Matley: The Constitutionality of the Legislative Attempt to Limit Dramshop Liability in Arizonа, 33 Ariz.L.Rev. 955, 972-76 (1991). Additionally, the conflict between
and
has resulted in the application of the important constitutional principle expressed in art. 18, § 6 becoming unworkable and unpredictable. Because we must overrule one or the other, we overrule the one we find to conflict with the constitution. We believe
correctly expresses and applies the constitutional imperative of art. 18, § 6, and we adopt it. In doing so, we necessarily overrule
.

SUPREME COURT PRACTICE

was argued while a vacancy on the court was in the process of being filled. A visiting judge was called in, and the case was decided on a 3-2 basis, with the permanent members of the court splitting 2-2.
was therefore suspect authority from the moment it was issued, particularly given the preexisting
opinion. In retrospect, it would have been advisable, when it became known that a split on a court in transition was occurring, to delay argument or to have reargument. In the recent past, this court has, at times, when confronted with a 2-2 split by permanent members of the court, declined to render a decision, see
(one Justice had recused himself), or has rescheduled oral arguments after а new member of the court has been seated, see
. We have done this in an attempt to avoid the confusion in other areas of the law similar to that engendered by
in interpreting art. 18, § 6. See
(“Since the composition of the court changed between the time that Humana Hospital and Bryant were decided, and has changed again since Bryant, this question may still be an open one.“). The procedure followed in
and
is the better practice in those rare instances where the court is divided and in transition. On important issues that tend to recur, we will follow such procedures when feasible. We commend it to our succеssors as well.

CONCLUSION AND DISPOSITION

Whether or not the Hazines are entitled to damages, the Arizona Constitution protects their right to sue in strict liability. A.R.S. § 12-551 abrogated that constitutional right by barring the action even before the injury occurred. Under

, the attempted statutory abrogation of their claim fails. We overrule
, vacate the memorandum decision of the court of appeals, reverse the trial court‘s summary judgment, and remand to the trial court for further proceedings consistent with this opinion.

CORCORAN and ZLAKET, JJ., concur.

FELDMAN, Chief Justice, specially concurring.

I join in and fully agree with the majority opinion‘s anаlysis and result, including the substantive discussion of why

was decided incorrectly. The dissent, however, compels response. Contrary to the dissent, the court has not “[f]or the first time in Arizona legal history . . . constitutionalize[d] the law of torts.”1 The 1910 Arizona Constitution, not today‘s opinion, constitutionalized ‍‌​​​​‌​‌​​‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​​​​​‌​​​‌‌‌​​‌‌‌​‌​‍the law of torts. This “exceptional proposition”2 was advanced over a half-century ago by members of this court, who had been delegates to the 1910 Constitutional Convention.

From earliest days of statehood, this court held that Ariz. Const. art. 18, § 6 “perpetuates the common-law action to recover damages.”

(Cunningham, J., concurring).3 See also
.4

Any doubt about the breadth or meaning of these statements was put to rest in

, in which the defendant argued that the action for damages was not constitutionally protected. This court rejected that argument in a unanimous opinion, stating that the damage action “was taken from its status as one subject to the will of the legislature and imbedded in the Constitution.”
.

Some have argued that this broad language about constitutionalizing tort law was meant to apply only to actions between employee and employer. See Roger C. Henderson, Tort Reform, Separation of Powers, and the Arizona Constitutional Convention of 1910, 35 ARIZ.L.REV. 535 (1993).5 That argument was dismissed decades ago. Arizona cases have long held that the constitutional protection given tort law by art. 18, § 6 goes beyond employee-employer situations and applies to all actions. See, e.g.,

;
(applying art. 18, § 6 to bodily injury and property damage claims arising out of a motor vehicle collision);
;
(applying art. 18, § 6 to a medical malpractice action). See also
,6 and
(both dealing with art. 18, § 5).

In short, today‘s opinion breaks no new ground but merely follows the path taken from the earliest days of statehood. It is simply incorrect to conclude, as does the dissent, that today‘s opinion advances the “remarkable proposition” that Arizona has “constitutionalized the law of torts.”7

Nor is it correct to suggest that we hold the “legislature is without power to tinker” with tort law.8 It is abrogation, not “tinkering,” to erect a statute of limitations barring a damage action before the accident occurs and suit can be brought.

. This court has long recognized, however, that the legislature has a constitutional role and may regulate, so long as it does not abrogate. See
;
(describing distinction between “abrogation” and permissible legislative “regulation“) (citing
and
and comparing
).

Believing that today‘s majority opinion fully accords with the text of the Arizona Constitution, the vision of its drafters, and this court‘s precedents from the beginning of statehood, I concur in that opinion.

MARTONE, Justice, dissenting.

For the first time in Arizona legal history the court constitutionalizes the law of torts. Because art. 18, § 6 of the constitution is no authority for such an exceptional proposition, I dissent.

This case presents issues of extraordinary conceptual complexity. This is not a case of whether the protection afforded by art. 18, § 6 is governed by evolving standards. Instead, this is a case about whether this court‘s own post-constitution common law development of the law of torts is entitled to constitutional protection under art. 18, § 6. All agree that the law of torts must evolve to meet contemporary conditions. Thus it was that this court adopted strict products liability in tort. The ques-

tion is whether, once this court creates a new tort, unknown at common law, the constitution operates to immunize it from later legislative or judicial abrogation. The court concludes that it does.

The court decides this case as though it need only choose between

and
. But
and
are not irreconcilable.
did not present the issue presented in this case. The tort in
was defamation, one clearly recognized at common law at the time our constitution was adopted. The real issue in
was whether art. 18, § 6 extended to causes of action other than negligence.
held that it also protected “the right to recover damages for injury to reputation.”
. The issue in
was quite different. Unlike defamation, a cause of action for strict products liability in tort did not exist at common law but instead was created by this court 50 years later, after оur constitution was adopted and after the American Law Institute developed § 402A of the Restatement (Second) of Torts (1965). A cause of action for a defective product under § 402A is quite different from the absolute liability imposed by the common law for ultrahazardous activities, Rylands v. Fletcher, or for causes of action based upon negligence or contract, all causes of action which existed at the time our constitution was adopted. But strict products liability is a new and separate cause of action. It is not negligence. It is not warranty. It is not contract. It is not absolute liability.

was correct when it concluded that art. 18, § 6 does not apply to this court‘s post-constitution development of the law of torts.
. This court reached that conclusion 50 years ago in
. It was argued in that case that the Arizona Occupational Disease ‍‌​​​​‌​‌​​‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​​​​​‌​​​‌‌‌​​‌‌‌​‌​‍Disability Law abrogated the right of action under art. 18, § 6 of the constitution. We said:

If the right to recover damages or compensation under the common law for injury caused by occupational disease existed at the time these constitutional provisions were adopted, this contention of defendant would have some force. But it is our view that no right of action solely for occupational disease existed at common law, though perhaps it was incidental to some other acts of negligence, and that no constitutional or statutory provision allowed recovery for such a disability, and hence that the option given by section 60 merely preserves the right of action, provided one exists.

.

Today the court reaches a contrary conclusion by relying upon that part of

that related to emotional injury as a new element of damages, not a new cause of action.
. By applying that language to a new cause of action, the court goes well beyond
and ignores 50 years of Arizona constitutional law. In short, today the court prefers
‘s dicta to the holdings in
and
.

If it were just a matter of common law preference, it would not matter much. But today‘s holding creates the most extraordinary constitutional puzzles. Suppose, for example, that the legislature rather than this court adopted strict products liability in tort in 1965. Certainly, the legislaturе could repeal such a statute and not run afoul of art. 18, § 6.

. (“The right to recover damages for wrongful death being statutory is not placed beyond the power of the legislature to abrogate by § 6 of Article 18 of the Arizona Constitution.“) Why then should this court‘s common law development of the law of torts be protected by art. 18, § 6 when legislative developments in the law of torts are not? Does the anti-abrogation clause restrict abrogation by the legislature, but not this court?

On the other hand, if the legislature could not repeal its оwn expansion of products liability law because of art. 18, § 6, could we? Evolving conditions require changes in the common law. Thus, this court must always reserve to itself the power to ensure that contemporary law is

always consistent with contemporary fact. See Lawrence M. Friedman, A History of American Law 201 (2d ed. 1985). How could we develop the common law of torts if we thought that every time we did something it became constitutional law? Under today‘s decision, can we overrule our cases which first acknowledged strict liаbility in tort? The answer, of course, is that we can. Article 18, § 6 is no straitjacket. Article 18, § 6 prevents the legislature from abrogating a cause of action to recover damages for injuries that existed at common law. It is quite another thing to say, as the court says here, that the legislature is without power to tinker with our subsequent expansion of tort doctrine. Under today‘s decision, art. 18, § 6 is transformed from a shield to a sword. Article 18, § 6 was designed to prevent the legislature from abrogating a cause of action at common law, not to elevate our evolving tort law to the status of state constitutional law.

The court says, and I agree, that the law must allow for evolution of common law actions to reflect today‘s needs and knowledge. It says that any other rule would allow those “long dead” to dictate solutions to the problems of which they could not have been aware. Ante, at 344, 861 P.2d at 629. But I fear this is exactly what we have done today. Just as our court had to have the power to adopt strict products liability to meet the standards of 30 years ago, the legislature must have that same power to adapt our common law development to today‘s standards. We each have a role in the development of the law. That art. 18, § 6 does not protect new developments in the law does not mean that there would be no need for new developments in the law. It just means that both this court and the legislature have flexibility beyond the threshold that existed at the time of the adoption of our constitution. By locking our newly developed tort law into the concrete of constitutional protection, we now lose the very flexibility the court seeks to preserve.

The special concurrеnce does not address the issue that troubles me, and the only one presented by this case—causes of action created by the court after the constitution was adopted. Instead, it responds to an argument that I do not make about limiting the scope of art. 18, § 6 to employer-employee cases. This diverts attention from the fact that everyone agrees art. 18, § 6 protects rights of action for injury claims that existed at the time the constitution was adopted. But, until today, that protection did not also constitutiоnalize subsequent judicial developments in the law of torts. For example, the Contract Clause of the United States Constitution prohibits a state from passing a law “impairing the Obligation of Contracts.” U.S. Const. art. I, § 10. But the law of contracts has not been constitutionalized by this provision. The Contract Clause protects against the abrogation of a contract (a concept which existed at the time of the adoption of the Contract Clause), but it does not prevent a state from subsequently expanding contract rights, and then later аbandoning that expansion.

Arizona is unique in a lot of ways. Today it is unique because we have constitutionalized the law of torts. There is nothing about the history or the language of art. 18, § 6 that would suggest such a remarkable proposition. See Roger C. Henderson, Tort Reform, Separation of Powers, and The Arizona Constitutional Convention of 1910, 35 Ariz.L.Rev. 535 (1993).

and
are not in conflict. In assuming that they are, we miss the chance to articulate more clearly the contours of the protection afforded by art. 18, § 6. We also needlessly advance the day when some will say that if this is what art. 18, § 6 means, its time has come and gone.

Notes

1
Dissent at 346, 861 P.2d at 631.
2
Id.
3
Judge Donnell LaFayette Cunningham (Democrat-Cochise County) was Chair of the 1910 Arizona Constitutional Convention‘s Judiciary Committee. He had an invaluable perspective on the meaning of the Arizona Constitution‘s anti-abrogation clauses [art. 18, § 6 and art. 2, § 31] because he chaired the committee that considered and proposed them, and engaged in debates on their meaning and scope. See, e.g., THE ‍‌​​​​‌​‌​​‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​​​​​‌​​​‌‌‌​​‌‌‌​‌​‍RECORDS OF THE ARIZONA CONSTITUTIONAL CONVENTION OF 1910, 152, 542, 548 (John S. Goff, ed. 1991) (hereinafter CONVENTION RECORDS).
4
Chief Justice Alfred Morrison Franklin (Democrat-Maricopa County), anothеr member of the 1910 Constitutional Convention‘s Judiciary Committee, joined in Judge Cunningham‘s majority opinion in Mendez. In the 1910 convention debates, Franklin disapproved of the initial labor emphasis of the original version of the anti-abrogation clauses, proposing that “this measure should be made not only to include employees but other persons.” CONVENTION RECORDS at 152. The Judiciary Committee‘s first version of the anti-abrogation clauses apparently only concerned employee lawsuits. Id. at 150–52. After the convention deleted any reference to employees, Judiciary Committee Chair Cunningham acknowledged that “we are going into an entirely different field.” Id. at 152.
5
Cited by dissent at 348, 861 P.2d at 633.
6
Unanimous opinion authored by Judge Albert Cornelius Baker (Democrat-Maricopa County), who also served on the 1910 Constitutional Convention‘s Judiciary Committee. As did delegate Franklin, at the 1910 convention Baker “not only favor[ed] the measure [the first version of the anti-abrogation clauses] as a protection to employees but [he] would make it to cover all persons . . . where such persons were subjected to accident, death or injury.” CONVENTION RECORDS at 152.
7
Dissent at 348, 861 P.2d 633.
8
Dissent at 348, 861 P.2d 633.