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City of Tucson v. Fahringer7/21/1988
veyor & Equipment Co., 156 Ariz. at 197, 751 P.2d at 513 (Feldman, VCJ, dissenting). A statute will not be found to violate the abrogation clause
so long as it leaves a claimant reasonable alternatives or choices which will enable him or her to bring the action. [The legislature] may not, under the guise of "regulation," so affect the fundamental right to sue for damages as to effectively deprive the claimant of the ability to bring the action.
Barrio v. San Manuel Division Hospital for Magma Copper Co., 143 Ariz. 101, 106, 692 P.2d 280, 285 (1984). Stated another way, article 18, § 6 guarantees that plaintiffs are entitled to enforce their claims in court "without the necessity of overcoming practically insurmountable defenses" created by statute. Id., quoting Industrial Commission v. Crisman, 22 Ariz. 579, 595,
199 P. 390, 395 (1921) (McCalester, J., concurring).
In the instant case, the respondent judge concluded that A.R.S. § 12-820.03(2) requires a plaintiff to overcome practically insurmountable defenses "given the existence of a substantial number of drunk drivers who are uninsured." The court further stated in its minute entry order:
The statute in question limits an injured plaintiff to attempting to collect compensation from a drunk driver who may not be identifiable, may not be locatable for service, or who may not be insured. This is true even in cases where negligence of the State or City far exceeds that of the drunk driver. For example, if the State were to cause a large boulder to fall onto a highway and a driver who was under the influence of intoxicating liquor and was partially at fault crashed into it, the injured plaintiff would be totally barred from seeking relief from the State or City. It is one thing to limit the City's liability to its percentage of the total fault as contribution statutes do, but it something else again to totally bar a plaintiff from any remedy against the State or City. The statute in question limits an injured plaintiff to alternatives that in many cases would be useless, and the statute violates art. 18, § 6.
Where injuries are partially attributable to a driver under the influence of intoxicating liquor, A.R.S. § 12-820.03(2) bars any claim by the driver or his adult passengers against a public entity. It creates a limited defense and requires that certain questions of fact be litigated and decided by the trier of fact. Specifically, the trier of fact first must determine whether the driver was under the influence of intoxicating liquor and, second, whether the injuries are attributable to the fault of that driver. Thus it is clear that, if the trier of fact finds that injuries resulted in a collision involving a driver under the influence of intoxicating liquor but that those injuries are not at all attributable to the fault of that driver, recovery against the public entity is not prohibited. However, "where an accident is caused by the fault of a drunk driver even where the governmental entity also may be at fault in some causal way in contributing to the accident," there is no liability on the part of the public entity. Majority Report of the Governor's Commission on Governmental Tort Liability, p. 14 (1983).
A.R.S. § 12-820.03(2) does not eliminate or abrogate a negligence claim. A driver and/or his non-minor passengers can sue a public entity and recover under certain circumstances. The plaintiffs may prove the driver was not under the
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