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Estes v. Tripson2/25/1997
FIDEL, Presiding Judge
This personal injury suit arises from an accidental injury in a company softball game. Plaintiff Terrilyn Estes was catching for one team; Defendant Ronald Tripson was running the bases for the other; as Tripson ran toward home plate, Estes awaited a throw to tag him out. Crossing the plate, Tripson stepped on Estes's outstretched leg, fracturing her tibia and fibula. Tripson did not slide or deliberately collide with Estes. Nor did he recklessly or intentionally step on her leg. Estes claims, however, that Tripson had the time and opportunity to avoid her leg and was negligent because he failed to do so.
The trial court awarded summary judgment to Tripson, finding that, even if Tripson was negligent, simple negligence is not actionable among participants in recreational sports. We affirm summary judgment for a different reason.
Some authorities have held, as the trial court held, that only reckless or intentional torts are actionable among participants in sports. This approach, however, is constitutionally problematic in Arizona, as it is grounded, explicitly or implicitly, in a judicial application of assumption of risk as a dispositive negligence defense. See Mazzeo v. City of Sebastian, 550 So. 2d 1113, 1116 (Fla. 1989) (a voluntary participant in sports assumes certain risks inherent to that sport and relieves a co-participant of liability for injurious contact within those risks); Novak v. Lamar Ins. Co., 488 So. 2d 739, 740 (La. Ct. App. 1986) ("A participant in a game or sport assumes all of the risks incidental to that particular activity which are obvious and foreseeable."); Marchetti v. Kalish, 53 Ohio St. 3d 95, 559 N.E.2d 699, 703-04 (Ohio 1990) (participants in sports activities assume the ordinary risks of such activities including the negligence of co-participants).
To judicially apply assumption of risk as a dispositive defense in Arizona would violate article 18, section 5 of the Arizona Constitution, which provides:
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.
Under article 18, section 5, the jury is "sole arbiter of the existence or non-existence" of contributory negligence and assumption of risk, and alone decides whether to apply those doctrines or not as it sees fit. Heimke v. Munoz, 106 Ariz. 26, 28, 470 P.2d 107, 109 (1970); see Brannigan v. Raybuck, 136 Ariz. 513, 518, 667 P.2d 213, 218 (1983). It is constitutionally forbidden for Arizona courts to enter summary judgment for a defendant on the ground of assumption of risk. Brannigan, 136 Ariz. at 518, 667 P.2d at 218.
Some courts have attempted, after adopting comparative negligence, to retain assumption of risk as a complete sports injury defense by recasting it as a no-duty rule. See Knight v. Jewett, 3 Cal. 4th 296, 834 P.2d 696, 706 (Cal. 1992) (assumption of risk frames the duty of care owed by a participant in a sporting event); Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 968, 510 N.Y.S.2d 49 (N.Y. 1986) (assumption of risk is a measure of a fellow participant's duty of care).
Such a reformulation, however, would not escape the constitutional constraints of article 18, section 5. In Schwab v. Matley, 164 Ariz. 421, 793 P.2d 1088 (1990), our supreme court struck down a statute that attempted to relieve tavernkeepers of dram shop liability to persons who knowingly remain in the danger zone of an intoxicated tavern patron. The statute violated article 18, section 5 in attempting to establish contributory negligence or assumption of risk as a complete defense as a matter of law. Id. at
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