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.
111 P.3d 1003 | 210 Ariz. 403
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.
RYAN, Justice.
¶ 1 This case requires us to determine whether
I
¶ 2 Charles Phelps was a professional race-car driver who had participated in more than 100 races at Firebird Raceway, Inc. Before participating in a Firebird race, drivers must sign a “Releаse 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
¶ 5 Phelps appealed, contending that
¶ 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
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
B
¶ 9
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.”
¶ 11
¶ 12 Despite the clear language of
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
¶ 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 differences exist,” W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser & Keeton on the Law of Torts § 68, at 480 (5th ed. 1984) (hereafter “Prosser & Keeton“), express contractual assumption of risk has always been an important category of assumption of risk. See, e.g., Melville M. Bigelow, The Law of Torts § 14, at 170 (8th ed. 1907) (“When does the servant assume the risk, so as to exempt the master from the duty in question? The answer must be distributed under two heads: first, in regard to risks assumed in the contract of service; second, in regard to risks otherwise assumed.“); 3 Edward F. White, A Supplement to the Commentaries on the Law of Negligence of Seymour Thompson § 4608, at 670 (1914) (“The assumption of these risks rests on a contract between the parties, either express or implied from the circumstances of the employment and relieves the master from liability for the injuries thus sustained.“); 2 Fowling V. Harper & Fleming James, Jr., Torts 1165, 1173 (1956) (including express assumption of risk in three categories of assumption of risk); Robert E. Keeton, Assumption of Risk in Products Liability Cases, 22 La. L. Rev. 122, 124-29 (1961) (including express assumption of risk in six categories of assumption of risk); Restatement (Second) of Torts § 496(B) (1965) (explaining that express assumption of risk is a type of assumption of risk).
¶ 15 Firebird correctly notes that the defense of assumption of risk includes various different notions in addition to express contractual waiver. But the fact that assumption of risk encompasses several different categories, or may take different forms, supports an expansive reading of
B
¶ 16 Agreeing with Firebird‘s argument, the court of appeals used a two-part analysis in
¶ 17 The court of appeals’ suggestion that the “legislative history” of
¶ 18 First, the court of appeals erroneously concluded that
[t]he contention of the defendant that, because the provision is found in the article of the Constitution entitled ‘Labor,’ it must be limited in its scope and application to the relation of master and servant, cannot be sustained. The language is too broad and comprehensive to admit of such a narrow construction.
Davis v. Boggs, 22 Ariz. 497, 507, 199 P. 116, 120 (1921), overruled on other grounds by S. Pac. Co. v. Shults, 37 Ariz. 142, 145, 290 P. 152, 153 (1930).
¶ 19 The Davis opinion was authored by Albert C. Baker, a delegate to the convention. Baker, in fact, seconded the motion to adopt, verbatim, a broadly worded provision of the Oklahoma Constitution, Article 23, Section 6. The Records of the Arizona Constitutional Convention of 1910 881-84 (John S. Goff ed., 1991) (hereinafter “Goff“). The Arizona framers adopted that provision as
¶ 20 Davis has not been questioned in the intervening 84 years. See, e.g., Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 288, ¶ 18, 9 P.3d 314, 319 (2000) (applying
¶ 21 Second, each section in Article 18, other than Sections 5 and 6, explicitly applies only in the labor or employment context. Therefore, the fact that the framers left out any mention of labor or employment from
¶ 22 Given this background, we simply cаnnot agree with the assertion that the history of
¶ 23 Third, the court of appeals erred in its reliance on
C
¶ 24 Firebird, as did the court of appeals, also relies on Oklahoma case law for the assertion that
¶ 25 Second, Arizona courts have interpreted Arizona‘s constitutional provision quite differently than Oklahoma courts have interpreted Oklahoma‘s provision. When Arizona adopted the same provision Oklahoma had adopted, Oklahoma courts had not yet interpreted it. When they did, they agreed with our interpretation for a number of years. See, e.g., Pioneer Hardwood Co. v. Thompson, 49 Okla. 502, 153 P. 137, 138 (1915) (
¶ 26 Not until 1972 did Oklahoma retreat from its longstanding position that its provision required juries, not judges, to decide whether contributory negligence or assumption of risk preсluded recovery. See Smith v. Chicago R.I. & P.R. Co., 498 P.2d 402, 405 (Okla. 1972) (holding that instead of following our requirement in Layton v. Rocha, 90 Ariz. 369, 371, 368 P.2d 444, 445 (1962), that the words “should” or “may” be used in instructing the jury on contributory negligence, Oklahoma juries should be instructed that they “should” or “must” decide in the defendant‘s favor if they find contributory negligence).
¶ 27 After Smith and years of subsequent judicial decisions, Oklahoma‘s provision today stands only as a reiteration of the general rule that judges decide questions of law and juries decide questions of fact. In contrast, this Court has repeatedly refused to impose judicially crafted restrictions on
¶ 28 Third, although generally we will look to the decisions of other states in interpreting a constitutional provision adopted from
D
¶ 29 Firebird‘s and the court of appeals’ conclusion that implied assumption of risk applies in the tort context while express assumption of risk applies only in the contract context, see Phelps, 207 Ariz. at 151, ¶ 7, 83 P.3d at 1092, misstates the law. “After long ago arriving in the torts arena as a refugee from contract law,” Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1130 (La. 1988), assumption of risk, whether express or implied, is a defense to tort claims. See, e.g., Restatement (Second) of Torts § 496(B) (explaining that express assumption of risk is a type of assumption of risk); Prosser & Keeton, supra ¶ 14, § 68, at 480 (“In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.“).
¶ 30 This case provides a clear example of how such a defense works. Phelps brought a tort claim against Firebird, and Firebird raised a contractual affirmative defense. That affirmative defense, however, did not transform Phelps’ tort claim into a contract action. Rather, Phelps’ claim remained, at all times, a tort claim. Thus, this case is not, as the court of appeals suggested, about extending
¶ 31 Instead, we merely reaffirm today that
E
¶ 32 Firebird argues, and the court of appeals concluded, that summary judgment as to the enforcement of contractual waivers of liability is proper because that court has previously affirmed such judgments. See Phelps, 207 Ariz. at 152-53, ¶ 16, 83 P.3d at 1093-94 (citing Benjamin v. Gear Roller Hockey Equip., Inc., 198 Ariz. 462, 464, ¶ 8, 11 P.3d 421, 423 (App. 2000) (affirming summary judgment for defendant and stating that “[a]bsent any public policy to the contrary, Arizona allows parties to agree in advance that one party shall not be liable to the other for negligence“)). But the plaintiff in Benjamin failed to argue the applicability of
IV
¶ 33 We find it necessary to respond at least briefly to the dissent. The dissent first argues that the language of Proposition 88 and Proposition 50 rejected by the framers of Arizona‘s constitution suggests that they intended a nuanced reading of
¶ 34 The rejected language of Proposition 507 likewise does not suggest that the framers drew a distinction between express and implied assumption of risk. It is true that Proposition 50, at one point, would have made all contractual waivers void. See infra ¶ 56. It is also true that if the framers had adopted that language, we would not be having this debate. See infra ¶ 57. But the dissent‘s speculation as to why the framers rejected making all contractual waivers void is unwarranted and unhelpful in resolving thе question now before us. In light of the provisions that the framers actually adopted, the rejected portion of Proposition 50 merely demonstrates that although the framers considered whether to make all contractual waivers void, they decided not to take such drastic measures. Instead, as a textual matter, they concluded that only contractual waivers in the employment context would be void, and the enforceability of all other types of assumption of risk would be decided by a jury.
¶ 35 In any event, in light of the clear language of
¶ 36 The dissent next argues that “[d]elegates to the Arizona constitutional convention were clearly concerned that any attempt to extend too broadly the prohibition against express contraсtual liability waivers would violate Lochner [v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905)].” See infra ¶ 60. Lochner overturned a statute because it “necessarily interfer[ed] with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer.” 198 U.S. at 53, 25 S.Ct. 539. The
¶ 37 The dissent argues that statements made by three delegates during the convention prove that the framers were “clearly concerned” that an overly broad prohibition of express contractual waivers would violate Lochner. As the dissent points out, Delegate Baker said the following about Proposition 50: “I confess on the spur of the moment that I am in doubt as to whether you can limit all contracts or not.” Goff at 152. Delegate Jones, moreover, later raised a similar concern with respect to Proposition 50, questioning whether the provision “would be nullified anyway.” Id. at 548. Delegate Cunningham responded that “[i]f we here intend to write in this constitution that a man who is injured cannot have the right to contract, then we are taking from him one of his constitutional rights that of equal protection of the law.” Id. However, two delegates expressly disagreed with Delegate Cunningham during the debate,8 and Cunningham‘s faction lost the vote on the issue. See id. at 548.9
¶ 38 We disagree that the three statements cited by the dissent prove that the framers were concerned that an overly broad prohibition of express contractual waivers would violate Lochner. First, although the statements do suggest that at least some delegates were concerned with Lochner, the position of those delegates was defeated when the convention voted on the issue. Second, the adoption of
V
¶ 39 In the end we return to where we began—the plain language of
¶ 40 Although in today‘s world
¶ 41 We do not anticipate that this opinion will subject a whole new cadre of cases to jury consideration. Arizona opinions already reflect that there will almost always be factual questions about the scope of an express contractual assumption of risk or whether a plaintiff understood its terms. See, e.g., Salt River Project Agric. Improvement & Power Dist., 143 Ariz. at 384-85, 694 P.2d at 214-15 (finding fact question between sophisticated commercial parties concerning whether the plaintiff bargained for the limitation on liability); Bothell, 192 Ariz. at 317-18, ¶¶ 12-14, 965 P.2d at 51-52 (finding that factual disputes concerning the scope of the release precluded judgment for defendants as a matter of law); Morganteen, 190 Ariz. at 466, 949 P.2d at 555 (holding that factual issues concerning the scope of the release precluded summary judgment for defendant); Maurer, 181 Ariz. at 298, 890 P.2d at 73 (holding that summary judgment for defendant was inappropriate because the release was insufficiently specific to alert plaintiff of the dangers she faced); Sirek, 166 Ariz. at 187-88, 800 P.2d at 1295-96 (precluding summary judgment because release did not explicitly release defendant from its own negligence). Thus, the impact of
¶ 42 Finally, as evidenced by Valley National Bank v. National Ass‘n for Stock Car Auto Racing, Inc. (NASCAR), 153 Ariz. 374, 376, 736 P.2d 1186, 1188 (App. 1987), we are confident that adequately instructed juries will reach appropriate results when confronted with assumption of risk defenses. In that case, the plaintiffs, spectators at a NASCAR event, signed a release of liability similar to the one in this case. Id. at 376, 736 P.2d at 1188. The plaintiffs were subsequently injured and sued NASCAR. The case was submitted to the jury, which found for NASCAR either because it found that NASCAR had not been negligent or because it found that the defense of assumption of risk barred recovery. Id. at 377, 736 P.2d at 1189.11 Thus, as NASCAR suggests, juries will consider express contractual assumptions of risk in a rational manner, as the framers of our constitution clearly contemplated when they approved
VI
¶ 43 For the foregoing reasons, we vacate the opinion of the court of appeals, reverse the trial court‘s grant of summary judgment, and remand this case to the trial court for further proceedings consistent with this opiniоn. We further deny Phelps’ request for an award of attorney fees under the private attorney general doctrine.
CONCURRING: REBECCA WHITE BERCH and ANDREW D. HURWITZ, Justices.
¶ 44 I respectfully dissent. The issue in this case is whether, when the Framers drafted the Arizona Constitution, they intended that the term “assumption of risk,” as used in
I.
¶ 45 My disagreement with the majority opinion begins with its conclusion that the phrase “assumption of risk” is clear and unambiguous. Op. ¶¶ 11, 35, 39. To be sure, the majority correctly characterizes the phrases “in all cases whatsoever” and “аt all times” as clear and broad language. But “assumption of risk” is a legal term of art that describes a legal theory that has evolved over the years.
¶ 46 Assumption of the risk entered the legal lexicon as a term of art describing one of the “unholy trinity” of defenses—along with contributory negligence and the fellow servant rule—developed in the late nineteenth century to protect employers against employee tort claims for injuries incurred on the job. See Hough v. Tex. & Pac. Ry. Co., 100 U.S. 213, 25, 25 L.Ed. 612 (1879). During its nascency, the doctrine of assumption of risk was based on analogies to contract theory and limited solely to the master-servant context. G. Edward White, Tort Law in America: An Intellectual History 42 (2003) (The doctrine of assumption of risk “originated in the ‘status’ context of servants’ relations with their masters.“).
¶ 47 By the time of the drafting of the Arizona Constitution, the defense of assumption of the risk had developed into an amorphous concept defined in a variety of ways by commentators and courts. Some legal scholars argued that the contract analogies that once undergirded the doctrine of assumption of the risk could not adequately support the incrеasingly broad applications of the defense. See, e.g., Francis Wharton, A Treatise on the Law of Negligence, § 200, at 178-80 & n. 1 (Philadelphia, Kay & Brother, 2d ed. 1878) (pointing out that not all servants were competent to contract and that many jurisdictions had found contractual waivers of liability to be invalid as against public policy). These commentators argued that assumption of the risk is more properly grounded in tort principles, rather than in the legal fiction of implied contracts. During this same period, other commentators explored the possibility of expanding the doctrine beyond the employer-employee relationship. See, e.g., Charles Warren, Volenti Non Fit Injuria in Actions of Negligence, 8 Harv. L. Rev. 457, 459 (1895) (asserting the rule that “[o]ne who knows of a danger arising from the act or omission of another, and understands the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure“). These scholars argued that assumption of the risk was a potential defense to any tort claim, whether or not a master-servant relationship existed between the parties.
¶ 48 Courts in various jurisdictions also struggled during this period to determine the contours of the dоctrine of assumption of the risk. See, e.g., Welsh v. Barber Asphalt Paving Co., 167 F. 465, 470-71 (9th Cir. 1909) (recognizing a split in authority regarding whether assumption of the risk sounds in contract or in the tort concept of volenti non fit injuria); Valjago v. Carnegie Steel Co., 226 Pa. 514, 75 A. 728, 729 (1910) (same). The Supreme Court recognized the confusion surrounding the doctrine of assumption of the risk during that period in Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 205 U.S. 1, 27 S.Ct. 407, 51 L.Ed. 681 (1907). There, Justice Holmes, writing for the Court, questioned the “rather shadowy” connection between “the notion of contract” and a broad
¶ 49 Justice Frankfurter captured well the confusion surrounding the phrase:
The phrase “assumption of risk” is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradiсtory ideas.
Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 87 L.Ed. 610 (1943) (Frankfurter, J., concurring).
¶ 50 I simply cannot regard a phrase that carries “different and sometimes contradictory” meanings as unambiguous. The question is not whether
II.
¶ 51 When a phrase is ambiguous, fundamental principles of constitutional construction require us to look to extrinsic evidence to determine its intended effect. Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). Specifically, we consider the “history behind the provision, the purpose sought to be accomplished [by its enactment], and the evil sought to be remedied.” Id.
¶ 52 The proposals and comments of the Framers during Arizona‘s constitutional convention provide the most persuasive evidence of their intent in adopting
¶ 53 Proposition 88 ultimately became Article 18, Seсtion 5. As introduced, Proposition 88 read in pertinent part:12
Section 2. No law shall be enacted and no rule of law shall be recognized in the State of Arizona whereby the defense of “fellow servant” or the defense of “assumption of risk” shall be recognized in actions to recover damages in cases of injury or death covered in the first section of this article;
Section 3. No waiver by contract of right to recover damages under this Article shall be valid.
¶ 54 The first lesson to be learned from this original version devolves from the fact that it clearly distinguishes between the common law doctrine of assumption of risk (eliminated by section 2) and express contractual waivers (prohibited by section 3). If the Framers had considered express contractual waivers to be included in the common law doctrine of “assumption of risk,” they would have had no need to propose section 3; section 2 would have prevented enforcement of such contracts. The fact that section 3 was included in proposition 88 indicates that the Framers viewed express contractual waivers аs distinct from common law assumption of risk.
¶ 55 Proposition 88 did not ultimately pass in its original form. An amendment struck section 2, and replaced it with the language of Article 23, Section 6 of the Oklahoma Constitution, providing that “[t]he defense of contributory negligence or of assumption of the risk shall in all cases whatsoever be a question of fact, and shall at all times be left to the jury.” Goff, supra, at 883-84. This version of section 2 ultimately became engrossed in the constitution as
¶ 56 The original version of Proposition 50, which directly addressed the right of employers to require employees to waive a right to recover damages for employment-related injuries, read in pertinent part:
[N]o law shall be enacted in this State limiting the amount of damages to be recovered for causing the death or injury of any person. Any contract or agreement with any employee waiving any right to recover damages for causing the death or injury of any employee shall be void.
Goff, supra, at 1147. When the Committee of the Whole took up discussion of Proposition 50, some delegates suggested that the specific protection from express contractual waivers of liability should be afforded to everyone, rather than limited to employees. Id. at 152. In fact, Delegate Baker specifically argued that this provision should be broadened to prevent railroad companies from extracting express liability waivers from passengers. Id. The Committee of the Whole agreed and ultimately adopted an amended version of Proposition 50, striking the reference to employees.
¶ 57 Had Proposition 50 in this amended form been engrossed in the Arizona Constitution, we would not currently be deciding whether questions involving express contractual waivers must go to a jury; the waivers would be null and void under the constitution. Curiously, however, this amended version of Proposition 50 did not become part of the text of the Arizona Constitution. Instead, during the final reading of the newly engrossed provisions, a delegate moved to include only the first sentence of Proposition 50 as
¶ 58 The records of the convention do not explain why the second sentence of Proposition 50 was not included in the final version of the constitution. One reason for the ultimate decision to eliminate the language nullifying contractual releases in all cases may well have been the concern by many delegates that such a provision, by proscribing the right to contract, would violate the federal constitution. See id. at 548. The delegates had good cause for concern.
¶ 59 Just five years prior to Arizona‘s constitutional convention, the United States Supreme Court issued its infamous opinion in Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). In Lochner, the Court defined the right to contract as a liberty interest protected by the Fourteenth Amendment. Id. at 53. State statutes that prohibited individuals from entering into certain kinds of contracts could be upheld only if a direct connection existed between the statute and the health, morals, and general welfare of the public. Id. at 64. Thus, the Lochner Court struck down a New York statute that limited the number of hours an employee in a bakery could work. Id. at 64, 25 S.Ct. 539.
¶ 61 Whatever the reason behind the ultimate failure of the convention to include the second sentence of Proposition 50 in the constitution, the debate surrounding this clause provides strong evidence that the delegates were keenly aware of the distinction between express contractual waivers and the common law defenses of assumption of risk and contributory negligence. Moreover, the concerns raised by the delegatiоn over the likelihood that a provision broadly inhibiting the right to contract would violate the federal constitution explains why the Framers chose to deal with express contractual defenses more cautiously than they dealt with implied assumption of risk.13
¶ 62 The treatment given employment contracts in the Arizona Constitution emphasizes the distinction made between implied and express assumption of risk. The Framers specifically addressed express liability waivers in certain employment contracts in
unlawful for any person, company, association, or corporation to require of its servants or employees as a condition of their employment, or otherwise, any contract or agreement whereby such person, company, association, or corporation shall be released or discharged from liability of responsibility on account of personal injuries which may be received by such servants or employees which [sic, while] in the service or employment of such person, company, association, or corporation, by reason of the negligence of such person, company, association, corporation, or the agents or employees thereof; and any such contract or agreement if made, shall be null and void.
¶ 63 The Framers were clearly aware of the existence of express contractual liability waivers in the employment context and viewed these waivers as distinct contractual problems requiring a separate constitutional remedy. This provision, too, supports the conclusion that the Framers distinguished between implied assumption of risk and express contractual waivers of liability.
¶ 64 Although an argument can be made to the contrary, I would hold that the more reasonable conclusion to draw from the history of
III.
¶ 65 Our judicial treatment of express contractual waivers of liability also argues in favor of excluding such waivers from
¶ 66 In 1984, this court held that parties may contractually allocate the risks of tort liability and that courts will enforce such agreements if strict conditions are met. Salt River Project Agric. Improvement & Power Dist. v. Westinghouse Elec. Corp., 143 Ariz. 368, 383, 694 P.2d 198, 213 (1984) (SRP). In SRP, we noted initially that the “law disfavors contractual provisions by which one party seeks to immunize himself against the consequences of his own torts.” Id. Hence, courts will enforce express contractual waivers of tort liability only if: (1) the waiver does not violate public policy; (2) the parties did in fact bargain for the waiver; and (3) the parties were on relatively “equal footing.” Because of those restrictions, courts are more likely to uphold such waivers in the context of a contract between two business еntities of relatively equal bargaining power.14 Id.
¶ 67 Since our decision in SRP, the court of appeals has extended our analysis to uphold summary judgment against plaintiffs in personal injury claims based upon express waivers.15 See, e.g., Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 88 P.3d 557 (App. 2003); Benjamin v. Gear Roller Hockey Equip., Inc., 198 Ariz. 462, 11 P.3d 421 (App. 2000); Valley Nat‘l Bank v. Nat‘l Ass‘n for Stock Car Auto Racing, Inc., 153 Ariz. 374, 736 P.2d 1186 (App. 1987). Other cases have denied summary judgment for defendants only because fact questions remained regarding the express waivers. See, e.g., Morganteen v. Cowboy Adventures, Inc., 190 Ariz. 463, 466-67, 949 P.2d 552, 555-56 (App. 1997) (reversing summary judgment for defendant where question of fact existed as to whether parties actually bargained for the liability waiver); Maurer v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 298, 890 P.2d 69, 73 (App. 1994) (affirming trial court‘s denial of summary judgment for defendant where the express waiver did not “alert Plaintiff‘s decedent to the specific risks that she was supposedly waiving“); Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 188, 800 P.2d 1291, 1296 (App. 1990) (reversing summary judgment for defendant because the liability waiver did not expressly include negligence within its scope). The majority opinion presents no compelling reason to depart from this established jurisprudence.
¶ 68 For the foregoing reasons, I would affirm the opinion of the court of appeals and the trial court judgment granting summary judgment to Firebird.
CONCURRING: CHARLES E. JONES, Chief Justice.
Notes
It shall be unlawful for any person, company, association, or corporation to require of its servants or employees as a condition of their employment, or otherwise, any contract or agreement whereby such person, company, association, or corporation shall be released or discharged from liability of [sic, or] responsibility on account of personal injuries which may be received by such servants or employees which [sic, while] in the service or employment of such person, company, association, or corporation, by reason of the negligence of such person, company, association, corporation, or the agents or employees thereof; and any such contract or agreement if made, shall be null and void.
Other opinions have considered contractual waivers but have expressly declined to consider whether
Upon the question of striking out the last two lines[, which made all contractual waivers void,] as recommended by the majority report, I wish to say there are certainly conditions under which this waiver of the right to recover damages would be manifest, unjust, and should be declared void. Some companies are accustomed to provide an agrеement that is really a prerequisite to employment, and if the employee[s] sign the contract waiving all right and claim to damages in the case of death or injury above a certain amount which they specify and provide for, and all these circumstances with many others seem to me to make it necessary to retain the second part of the proposition. I feel it would be a distinct loss, and I am therefore opposed to the majority report, and trust the proposition will stand adopted without amendment. Goff at 547-48.
Delegate Bolan argued that [Mr. Cunningham] is perfectly right in certain cases, but under certain conditions there has been injustice practiced upon people who have been injured; especially in railroad accidents. I know that many who are injured on railroads receive a small compensation when they should have received larger compensation if they received their just dues. Id. at 548.