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Estes v. Tripson2/25/1997
retain authority to set "outer limits." Rogers, 170 Ariz. at 402, 825 P.2d at 23 (citation omitted). It is appropriate to do so here. There is no evidence that Tripson did anything as a baserunner to increase or exacerbate the inherent risks that Estes faced as a catcher in a softball game. As a baserunner intent on scoring, Tripson simply did not act negligently--did not breach a duty of reasonable care under the circumstances--in failing to perceive or make minute adjustments in his course that might have avoided contact with a catcher attempting to tag him out. To hold otherwise would unreasonably chill participation in recreational sports.
The summary judgment granted by the trial court is affirmed.
OEL FIDEL, Presiding Judge
Concurring
JAMES B. SULT, Judge
LANKFORD, Judge, Concurring
I concur with the majority. I write separately to state that, in my view, our opinion does not indicate that the Arizona Constitution prohibits the judiciary from either declaring whether a duty in tort exists or defining the extent of a duty. The fact that a duty question can be cast in the language of contributory negligence or assumption of risk does not necessarily mean that the constitution prevents the courts from answering the question.
Nor do I believe that Schwab v. Matley should be read so broadly. Schwab rested principally on an interpretation of a statute, holding that the legislation addressed contributory negligence rather than duty. 164 Ariz. at 424. While the court also said that the legislature cannot "abolish the recognized common law duties of care," id. at 425, that proscription is found in another constitutional provision. See Art. 18, ยง 6. When the issue is not whether an historic duty at common law can be erased by legislation, but is instead whether the common law recognizes a duty, the constitution does not bar the courts from performing their basic function of declaring the law.
JEFFERSON L. LANKFORD, Judge
Page 1 2 3 Arizona Personal Injury Attorneys
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