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City of Tucson v. Fahringer7/21/1988
The sole issue in this special action is the constitutionality of an affirmative defense to claims against public entities created by the legislature in A.R.S. § 12-820.03(2), which precludes liability for certain injuries attributable to the fault of a person driving while under the influence of intoxicating liquor. Because petitioners have no adequate remedy by appeal and the question involves significant issues of law arising from a statute not previously interpreted, we assume jurisdiction. Ariz.R.P.Spec. Action 1, 17A A.R.S.; City of Tucson v. Fleischman, 152 Ariz. 269, 270, 731 P.2d 634, 635 (App.1986).
The real parties in interest, Christopher James Westley and Lyle Goodwin, are the plaintiffs in a superior court action brought against Manuel Lopez, the City of Tucson, and the State of Arizona. The facts giving rise to that lawsuit are as follows. On March 9, 1985, Westley and Goodwin accepted a ride from Lopez, whom they did not know, outside a local nightclub. Lopez drove past the area where Westley and Goodwin had told him that they lived, traveling westbound on Speedway Boulevard. Lopez made an abrupt U-turn on Speedway and began to drive east, passing the Interstate 10 interchange. Lopez' vehicle left the roadway, ran over a curb, and collided with a concrete abutment. The police report indicates that Lopez smelled of intoxicants and, during treatment for his injuries at a local hospital, hospital personnel analyzed a blood sample and determined that Lopez had a blood alcohol content of .25 percent. Westley and Goodwin sustained serious injuries in the collision; as a result, Westley is permanently confined to a wheelchair.
In their complaint against the City of Tucson and the State of Arizona, Westley and Goodwin alleged that West Speedway Boulevard in the vicinity of the accident, the median and the concrete abutment were negligently designed, constructed, maintained, signed, lighted and controlled. In answering the complaint, the city and state both raised A.R.S. § 12-820.03(2) as an affirmative defense. Westley and Goodwin filed a motion to strike that defense, arguing that the statute is unconstitutional. The respondent judge granted the motion to strike, finding that § 12-820.03(2) violates article 18, § 6 of the Arizona Constitution.
I. DOES ARTICLE 18, § 6 OF THE ARIZONA CONSTITUTION PROTECT A RIGHT OF ACTION AGAINST A PUBLIC ENTITY?
In 1984, the legislature passed an act entitled "Actions Against Public Entities or Public Employees." A.R.S. §§ 12-820 to -826. By passing that act, the legislature modified the strict application of the doctrine of sovereign immunity and undertook to define public entities' liability for negligence. See 1984 Ariz.Sess.Laws, ch. 285, § 1, para. A. The act also establishes certain affirmative defenses available to a public entity or public employee . The provision at issue in this case provides as follows:
Neither a public entity nor a public employee is liable for an injury:
2. Which is attributable to the fault of a person, other than a public employee , driving a motor vehicle while the person was under the influence of intoxicating liquor. This paragraph does not apply to persons who are not passengers or to minors who are passengers riding in or upon the motor vehicle.
A.R.S. § 12-820.03(2). The respondent judge determined that § 12-820.03(2) violates the following provision of the Arizona Constitution:
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