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Phelps v. Firebird Raceway5/18/2005
Opinion of the Court of Appeals, Division One 207 Ariz. 149, 83 P.3d 1090 (2004)
VACATED
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.
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 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:
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.
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.
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.
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. 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
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