City of Tucson v. Fahringer7/21/1988
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The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.
Ariz. Const. art. 18, § 6. Our supreme court has described that clause as having been enacted "to elevate the common law action of negligence to constitutional stature to preserve the right inviolate." Ruth v. Industrial Commission, 107 Ariz. 572, 575, 490 P.2d 828, 831 (1971).
A. Action Under the Common Law
When our constitution was adopted in 1912, the doctrine of sovereign immunity cloaked the state with immunity from suit. See Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982). Additionally, municipal liability was not recognized at the time Arizona's constitution was adopted. See Morrell v. City of Phoenix, 16 Ariz. 511, 147 P. 732 (1915); see also Larsen v. County of Yuma, 26 Ariz. 367, 225 P. 1115 (1924). Exceptions to the sovereign immunity doctrine have been created since that time, both through case law and legislation. See A.R.S. §§ 12-820 to -826; Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982); Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963).
The right of action now claimed by Westley and Goodwin did not exist at the time the constitution was adopted. Suit against a public entity was not one of those rights of action for which the framers sought to preserve or create judicial remedies for "wrongs traditionally recognized at common law." Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 17, 730 P.2d 186, 194 (1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 527 (1987). Because a cause of action against the state or a municipal corporation was not recognized at that time, it is not afforded protection by article 18, § 6 of our constitution. Bryant v. Continental Conveyor & Equipment Co., 156 Ariz. 193, 751 P.2d 509 (1988).
B. Abrogation
In determining whether legislation runs afoul of the constitutional protection afforded negligence actions, courts also look to whether the statute in question effectively abrogates such a right of action. In Ruth v. Industrial Commission, supra, our supreme court recognized that article 18, § 6, is implicated when a right of action is "completely abolished." The court quoted with approval the following language:
If [the statute] . . . were to be construed as taking away the right to pursue the constitutional action of negligence without granting a reasonable election to all persons entitled thereto, it would indeed be unconstitutional . . . .
107 Ariz. at 575, 490 P.2d at 831, quoting Moseley v. Lily Ice Cream Company, 38 Ariz. 417, 421, 300 P. 958, 959 (1931) (emphasis added in Ruth). Recently, our supreme court has stated that "any statute which bars a cause of action before it could legitimately be brought abrogates rather than limits the cause of action and offends art. 18, § 6 of the Arizona Constitution." Kenyon v. Hammer, 142 Ariz. 69, 75, 688 P.2d 961, 967 (1984), vacated in part on other grounds, James v. Phoenix General Hospital, Inc., 154 Ariz. 588, 744 P.2d 689 (1986). See also Bryant v. Continental Con
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