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City of Tucson v. Fahringer7/21/1988
inor passengers may not recover against a public entity if their injuries are attributable to the fault of the drunk driver, is reasonably related to the legislature's purpose in deterring drunk driving and avoiding extensive public expense in situations where injuries are attributable to the fault of a drunk driver. Under this test, we will not find a statute unconstitutional merely because it results in some inequality in practice. Bryant v. Continental Conveyor and Equipment Co., 156 Ariz. at 196-97, 751 P.2d at 512-13. The fact that Lopez may have been intoxicated and that the real parties in interest did not realize it when they accepted a ride from Lopez does not result in a violation of the equal protection clause. This may be a case of "inequality in practice," but that does not render the statute unconstitutional.
III. CONTRIBUTORY NEGLIGENCE
Westley and Goodwin also argue that A.R.S. § 12-820.03(2) violates article 18, § 5 of the Arizona Constitution, which provides:
The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.
The statute at issue here is not based on contributory negligence. The trier of fact is not called upon to determine plaintiffs' contributory fault. Instead, the legislature has decided that public entities should not be held liable for certain injuries attributable to the fault of a drunk driver. The trier of fact is required only to determine the fault of the defendant public entity and the defendant driver.
Even if we treat § 12-820.03(2) as having an impact on the contributory negligence/assumption of risk defenses, there is no constitutional violation. Article 18, § 5 "does not in any way, shape or form guarantee the contributory negligence defense independent constitutional vitality." Hall v. A.N.R. Freight System, Inc., 149 Ariz. 130, 134,
717 P.2d 434, 438 (1986). It prescribes the procedure that must be followed if contributory negligence is asserted as a defense, but it "does not restrict the power of the legislature to modify or abolish the defense of contributory negligence." Id., quoting Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 186, 165 P. 1101, 1109 (1917) (emphasis added in Hall).
The trial court's order granting plaintiffs' motion to strike and finding A.R.S. § 12-820.03(2) unconstitutional is vacated, and the cause is remanded with instructions to reinstate the affirmative defense alleged by the city and state pursuant to that statute.
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