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Phelps v. Firebird Raceway5/18/2005
ding such waivers from Article 18, Section 5. In the nearly 100 years since adopting our constitution, we have never applied Article 18, Section 5 in the context of an express contractual liability waiver. In fact, for the past several decades, Arizona courts consistently have decided the enforceability of express release agreements as a matter of law, using well-established contract principles.
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 entities of relatively equal bargaining power. Id.
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. See, e.g., Lindsey 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.
For the foregoing reasons, I would affirm the opinion of the court of appeals and the trial court judgment granting summary judgment to Firebird.
Ruth V. McGregor Vice Chief Justice
CONCURRING:
Charles E. Jones, Chief Justice
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