Plaintiff was severely injured
when he struck a tree while sledding in a municipal park.
The city defended the lawsuit with the Arizona recreational use statute,
asserting plaintiff had not shown the city’s gross negligence as required by
that statute. The plaintiff
contended that the statute violated the anti-abrogation provision in the Arizona
Constitution, which provides that legal claims cannot be extinguished by the
legislature. In this opinion, the
Arizona Supreme Court says that since at the time the Constitution was written a
city could not be held liable except for gross negligence in this circumstance,
there was no change in the law made by the recreational use statute.
This case presents a challenge to
the constitutionality of Arizona's recreational use statute, Ariz.Rev.Stat.
("A.R.S.") § 33‑1551 (2000). We conclude, as did the trial and
appellate courts, that the law is constitutional.
On January 7, 1995, William
Dickey's step‑mother took ten‑year‑old William and two of his
siblings to go sledding. She saw people on Mars Hill in Thorpe Park in
Flagstaff, so she dropped the children off and left to park the car. While she
was gone, William began sliding down Mars Hill on a rubber tube. About a quarter
of the way down the hill on his first run, William crashed into a tree and was
Although Mars Hill had been used
as a wintertime recreational area since the early days of the City, the City had
posted signs warning that Mars Hill was unsafe for sledding. The evidence
conflicts on whether the signs were in place on the day of the accident.
William's parents, the
Petitioners, sued the City to recover for William's injuries. The City defended
on the ground that, because the Park was held open for recreational use,
Petitioners could not prevail unless they showed that city employees had been
grossly negligent or had wilfully or maliciously caused injury to William. The
trial court granted summary judgment for the City, finding that Petitioners
failed to present any evidence that the City had acted wilfully, maliciously, or
grossly negligently. The trial court further determined that the recreational
use statute did not abrogate William's negligence cause of action and therefore
did not violate Article 18, Section 6, of the Arizona Constitution.
The court of appeals affirmed.
Dickey v. City of Flagstaff, 197 Ariz. 422, 430, ¶¶ 36‑37, 4 P.3d
965, 973 (App.1999). We granted review to decide whether the recreational use
statute's requirement that a plaintiff show gross negligence or wilful or
malicious conduct abrogates a cause of action that William would have otherwise
enjoyed, in violation of the anti‑abrogation provision of the Arizona
Constitution. We have jurisdiction pursuant to Article 6, Section 5(3), of the
Arizona Constitution and A.R.S. § 12‑ 2101 (1994).
The Recreational Use Statute
Arizona's recreational use
statute, A.R.S. § 33‑1551, limits a landowner's liability to parties
injured while on the land for recreational purposes. It provides that the owner
of land held open for public use "is not liable to a recreational or
educational user except upon a showing that the owner ... was guilty of wilful,
malicious or grossly negligent conduct which was a direct cause of the injury to
the recreational or educational user."
Id. § 33‑1551(A). The statute defines grossly negligent conduct as
conduct that demonstrates "a knowing or reckless indifference to the health
and safety of others." Id. §
The statute, based on a model act
proposed by the Council of State Governments, was first enacted here in 1983.
See Ward v. State, 181 Ariz. 359, 361‑62, 890 P.2d 1144, 1146‑47
(1995). Its purpose is to encourage landowners to open their lands to the public
for recreational use. Id. at 362, 890 P.2d at 1147. It accomplishes this goal by
"limiting their liability toward persons entering thereon for such
purposes." Id. (quoting
Suggested State Legislation on Public Recreation on Private Lands, 24
Council of State Governments 150 (1965)). Since the publication of the model act
in 1965, all fifty states have enacted recreational use statutes limiting the
liability of landowners who open their land to recreational users. Terrence J.
Centner, Tort Liability for Sports and Recreational Activities: Expanding
Statutory Immunity for Protected Classes and Activities, 26 J. Legis. 1, 2
(2000) (citing the recreational use statutes of all fifty states).
The Constitutionality of the Recreational Use Statute
1. The Anti‑Abrogation Provision.
William argues that the
recreational use statute is unconstitutional because it deprives him of the
right to bring a lawsuit sounding in simple negligence against the City of
Flagstaff. Instead, because of the statute, he must prove that the City was
grossly negligent, in violation, he maintains, of the anti‑abrogation
provision of the Arizona Constitution. Ariz. Const. art. 18, § 6.
provision states that "[t]he right of action to recover damages for
injuries shall never be abrogated, and the amount recovered shall not be subject
to any statutory limitation." Id.
It protects from legislative repeal or revocation those tort actions that
"either existed at common law or evolved from rights recognized at common
law." Cronin v. Sheldon, 195
Ariz. 531, 539, ¶ 39, 991 P.2d 231, 239 (1999); see also Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 14, 730
P.2d 186, 191 (1986) (observing that the anti‑abrogation provision extends
the right to recover damages for injuries to all actions existing under the
common law); Morrell v. City of Phoenix,
16 Ariz. 511, 517, 147 P. 732, 735 (1915) (superseded by statute) (finding that
the anti‑abrogation provision preserves those "rights already
cognizable by law, and does not undertake to create new rights of action").
Therefore, to fall within the protection of the anti‑abrogation provision
of the Arizona Constitution, William's right of action for simple negligence
against the City must have existed at common law or have found its basis in the
common law at the time the constitution was adopted. See Cronin, 195 Ariz. at 539, ¶ 39, 991 P.2d at 239. We conclude
that William has failed to establish that a right of action for simple
negligence, against a municipality engaged in a governmental function, existed
at common law.
2. Municipal Liability Under the Common Law.
In 1913, a year after Arizona's
statehood and three years after the Arizona Constitution was drafted, a treatise
on municipal law reported that cities engaged in governmental functions were not
subject to liability for negligence:
rule is firmly established in our law that
where the municipal corporation is performing a duty imposed upon it as the
agent of the state in the exercise of strictly governmental functions, there is
no liability to private action on account of injuries resulting from the
wrongful acts or negligence of its officers or agents thereunder, unless made
liable by statute. In other words, unless a right of action is given by statute,
municipal corporations may not be held civilly liable to individuals for
"neglect to perform or negligence in performing" duties which are
governmental in their nature, and including generally all duties existent or
imposed upon them by law solely for the public benefit.
6 Eugene McQuillin, MUNICIPAL
CORPORATIONS § 2623 (1913) (footnote omitted). Two years later, this court
upheld municipal governmental immunity, finding that the City of Phoenix could
not be held liable for the mere negligence of its employees.
Morrell v. City of Phoenix, 16 Ariz. 511, 517, 147 P. 732, 735 (1915). In
doing so, the court observed that it was "quite certain that it was the
intention of the legislature of the territory of Arizona ... that Phoenix should
be immune from damages for injuries or loss occasioned by or through the
malfeasance, misfeasance or neglect of duty of any of its officers or other
authorities." Id. at 512, 147 P.
In Morrell, a city employee sued the City of Phoenix for assigning to
him a sprinkling cart pulled by a team of unruly horses, which bolted and
dragged him through the city streets, resulting in the serious injuries.
Id. The city defended that it was exempted from suit by a clause in its
charter that immunized the city from liability for simple negligence, while
leaving the city liable for "willful neglect, ... gross negligence or
willful misconduct." Id. at 513,
147 P. at 733.
The plaintiff claimed there, as
the Petitioners do here, that the immunity provision violated Article 18,
Section 6 of the Arizona Constitution. Id.
at 517, 147 P. at 735. This court found that the plaintiff's position was
"not tenable, for the reason that said section only undertakes to preserve
rights already cognizable by law, and does not undertake to create new rights of
action." Id. This decision
demonstrates that municipalities were immune from civil suits for ordinary
negligence at common law.
Ten years later, this court again
spoke on the subject of municipal immunity in Jones v. City of Phoenix, 29 Ariz. 181, 239 P. 1030 (1925),
overruled in part by Stone v. Arizona Highway Commission, 93 Ariz. 384, 381
P.2d 107 (1963). In Jones, a city
employee sued the City of Phoenix. Id.
at 181‑82, 239 P. at 1030‑31. The court determined that the city's
liability turned upon whether the function in which the city was engaged was
"proprietary" or "governmental" because when a municipality
was "acting in its governmental capacity, it had the exemptions of the
sovereignty." Id. at 183, 239 P.
at 1031. The court concluded that the rule was "of such almost universal
acceptance ... that we accept it as the undoubted law of Arizona." Id.
Almost forty years later, this
court abolished the common‑law rule of sovereign immunity. See Stone, 93 Ariz. at 387, 381 P.2d at 109. In doing so, however,
we acknowledged that municipalities acting in a governmental capacity had
historically been immune from negligence actions. Id. at 388‑ 89, 381 P.2d at 109‑10. Moreover, we
invited the legislature to enact laws to protect the public and those it deemed
"necessary to avoid a severe hampering of a governmental function or
thwarting of established public policy." Ryan v. State, 134 Ariz. 308, 310‑11, 656 P.2d 597,
599‑600 (1982) (modified by statute as stated in
Tucson Unified Sch. Dist. v. Owens Corning Fiberglas Corp., 174 Ariz. 336,
339, 849 P.2d 790, 793 (1993)). The legislature accepted the court's invitation
and, among other acts, passed the recreational use statute.
Arizona is not the only state
with a constitutional anti‑abrogation provision to find that the provision
protects only those rights of action in existence when it was adopted.
See, e.g., N.Y. Const. art. 1, § 16; Okla. Const. art. 23, § 7; Utah
Const. art. 16, § 5; see also Wilson v. Gipson, 753 P.2d 1349, 1353‑55 (Okla.1988)
(holding that a tort reform act limiting recovery for wrongful death did not
violate the anti‑abrogation provision because the right to recover for
wrongful death did not exist at common law);
Tiede v. State, 915 P.2d 500, 504 (Utah 1996) (holding that "the scope
of protection afforded by the [anti‑abrogation] provision is limited to
rights of action that existed at the time the provision was adopted").
This court has stated that if the
provisions of another state's constitution are similar in nature and meaning to
provisions in Arizona's Constitution, then the decisions of the judiciary in
those states should be considered "very persuasive" in interpreting
Arizona's similar provision. Faires v.
Frohmiller, 49 Ariz. 366, 371‑72, 67 P.2d 470, 472 (1937) (superseded
by statute as stated in Ward v. Stevens,
86 Ariz. 222, 230, 344 P.2d 491, 496 (1959)). Arizona's anti‑abrogation
provision is based on a similar provision in the Oklahoma Constitution.
See Bryant v. Cont'l Conveyor & Equip. Co., 156 Ariz. 193, 199, 751 P.2d
509, 515 (1988) (Feldman, V.C.J., dissenting) (criticizing the majority for
ignoring a case on point from Oklahoma "constru[ing] the parent
constitutional clause" of our own anti‑ abrogation provision),
overruled by Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 344, 861 P.2d
625, 629 (1993). We therefore review Oklahoma's assessment of its
anti‑abrogation provision's application to municipal liability.
In Wilson v. Gipson, the Oklahoma Supreme Court upheld that state's
Political Subdivision Tort Claims Act's protection of a school district against
a claim that the Act violated Oklahoma's anti‑abrogation provision. 753
P.2d at 1355. The case arose when five school children and a teacher were killed
in a boiler explosion at an elementary school.
Id. at 1350. The Political Subdivision Tort Claims Act limited the parents'
damages to approximately $18,000 per family.
Id. The parents argued that the limitation violated the
anti‑abrogation provision of the Oklahoma Constitution which states, much
as Arizona's provision does, that "[t]he right of action to recover damages
for injuries resulting in death shall
never be abrogated, and the amount
recoverable shall not be subject to any statutory limitation."
Id. at 1354 (citing Okla. Const. art. 23, § 7) (emphasis in original). The
Oklahoma Supreme Court held that while the anti‑abrogation provision was
designed "to embody into the fundamental law, the constitution, the
statutory right of action for wrongful death," it nonetheless did not apply
to public entities because "as a part of the sovereignty of Oklahoma,
[school districts] were entitled to sovereign immunity when Art. 23, § 7 was
adopted." Id. (citations
omitted). The court therefore concluded that the anti‑abrogation provision
did not protect a right to sue for damages that did not exist when the Oklahoma
Constitution was adopted. Id. at 1355.
anti‑abrogation provision was designed to protect rights of action in
existence at the time it was adopted, but not necessarily those later created. See Morrell, 16 Ariz. at 517, 147 P. at 735. Accordingly, because a
suit against a city for simple negligence could not have been maintained at the
time the anti‑abrogation provision was instituted, it is not protected by
that provision, if the city was acting in its governmental capacity. We
therefore turn to the latter question.
3. Was the Maintenance of Thorpe Park a Governmental Function?
At the time Arizona's
Constitution was written, the common‑ law rule was that "there is no
municipal liability for negligence in connection with public buildings or other
property used exclusively for public
purposes and from which no income is received." McQuillin, supra ¶ 10, § 2672.
The cases cited in McQuillin
suggest that in determining whether the maintenance of a public park is a
governmental function, courts should examine whether the government charges an
admission fee or otherwise derives revenue from the use of the park and whether
the park is held open to all. See id.
§ 2678 (citing, among other cases,
Russell v. City of Tacoma, 8 Wash. 156, 35 P. 605, 606‑07 (1894)). In
those cases in which maintenance of parks has been found to be a proprietary
function, the government usually leased the park or otherwise generated revenue
from its use, a typically proprietary action. See Russell, 35 P. at 606.
Although the case is more than
100 years old, the Russell court's
analysis reflects the analysis courts applied in that era and still apply to
distinguish park operations that are governmental from those that are not.
See id. at 606‑07. When the city receives no revenue and the park is
available to all citizens, the operation and maintenance has been held to be a
governmental function, while limiting access to the park or generating revenue
from it has led courts to conclude that the government was operating the park in
a proprietary manner. Id.; see also Board
of Park Comm'rs of City of Louisville v. Prinz, 127 Ky. 460, 105 S.W. 948
(Ct.App.1907) (holding that a municipality was not liable for injury in a city
park that was held open to the general public and from which the city received
no revenue, but noting that the city might be liable if the city restricted
access or gained revenue from use of the park);
Bisbing v. City of Asbury Park, 80 N.J.L. 416, 78 A. 196 (Err. &
App.1910) (same); cf. City of Denver v.
Spencer, 34 Colo. 270, 82 P. 590 (1905) (holding city liable for an injury
suffered on park bleachers when the city received revenue from licensing the
sale of beverages at the park).
In this case, the City of
Flagstaff did not charge an admission fee or otherwise derive revenue from the
public's use of Thorpe Park. As did the City of Tacoma in the
Russell case, Flagstaff obtained the land that is now Thorpe Park from the
federal government on the stipulation that it be used as a public park. The Park
is so used and is open to all who come there, not just to the residents of
Flagstaff. Indeed, the Petitioners themselves were residents of Prescott, not
Flagstaff. These factors lead us to conclude that the operation and maintenance
of Thorpe Park at the time William was injured were governmental in nature.
In sum, we conclude that the City
holds Thorpe Park open to the public for recreational use. Its maintenance of
the Park is a governmental function; as such, the Government's acts are shielded
by the recreational use statute. Because the City's stewardship of the Park was
governmental in nature, the City would have been immune at common law from tort
liability for acts of ordinary negligence arising from its maintenance of the
Park. Therefore, we hold that because Petitioners would have had no action when
the anti‑abrogation provision was adopted, the limited immunity afforded
to the City of Flagstaff by the recreational use statute did not wrongfully
abrogate Petitioners' right to sue the City for negligence.
Based on the foregoing, we vacate
the opinion of the court of appeals and reinstate the judgment of the trial
FELDMAN, Justice (retired),
The court today concludes that
because of the doctrine of sovereign immunity, the "right of action for
simple negligence, against a municipality engaged in a governmental function
[did not exist] at common law." Opinion at ¶ 9; see also ¶ 17. The court goes on to adopt a rule of municipal
sovereign immunity for simple negligence when performing governmental functions.
Thus, the court holds the recreational use statute, A.R.S. § 33‑1551,
does not violate the anti‑abrogation clause contained in Article 18,
Section 6 of the Arizona Constitution when applied to such municipalities. I
dissent from these conclusions for several reasons.
First, I do not agree that the
anti‑abrogation clause is inapplicable to actions for negligence against
governmental entities. This issue was addressed in my dissent in
Clouse ex rel. Clouse v. State, 199 Ariz. 196, 204‑15 ¶¶
30‑79, 16 P.3d 757, 765‑76 ¶¶ 30‑79 (2001) (Feldman, J.,
dissenting). The reasons given there need not be repeated here.
Next, the majority holds that the
protection of Article 18, Section 6 does not apply because at common law there
was no right of action in Arizona "for simple negligence[ ] against a
municipality engaged in a governmental function." Opinion at ¶ 9, relying
primarily on Morrell v. City of Phoenix,
16 Ariz. 511, 147 P. 732 (1915). But
Morrell does not support that conclusion. The doctrine of sovereign immunity
is not mentioned in Morrell; the basis
for the holding that Morrell had no cause of action against the City of Phoenix
was that prior to adoption of our constitution and its anti‑ abrogation
clause, the Phoenix city charter contained an immunity provision that had been
approved by the legislature in the 1881 grant of the charter. Thus, no right of
action against the City of Phoenix existed at common law prior to or at the time
our constitution went into effect. Id. at 512‑13, 147 P. at 733. Thus, I disagree with the
majority's conclusion that Morrell
"demonstrates that municipalities were immune from civil suits for ordinary
negligence at common law." Opinion at ¶ 12. [FN5]
Morrell demonstrates only that the City of Phoenix was immune by charter
provision, so that no action could have been maintained against it when Article
18, Section 6 was adopted. Article 18 protects only those "rights already
cognizable by law" at the time our constitution was adopted.
Morrell, 16 Ariz. at 517, 147 P. at 735.
No case in Arizona has ever
explicitly addressed the question of whether the anti‑abrogation clause
was applicable to actions against a municipality. It is notable that in
Clouse the majority did not adopt the state's argument that actions against
governmental entities were outside the protection of Article 18, Section 6 but
instead based the state's immunity on the specific provisions of the claims
clause of Article 4 of the constitution. The court held that Article 4 provided
independent and particularized grounds for the conclusion that the legislative
branch might reinstate sovereign immunity as to claims against the
state should it desire to do so.
Clouse, 199 Ariz. at 207 ¶ 24, 16 P.3d at 768 ¶ 24. But Article 4 is
inapplicable to municipalities because it provides only that the legislature may
regulate suits against the state. Ariz. Const. art. IV, pt. 2, § 18. The suit
that is the subject of the present case is not against the state but against the
City of Flagstaff. Municipalities have always been considered entities separate
from the state.
Finally, I disagree with the
court's decision that running an admission‑free park is a governmental
function. Opinion at ¶¶ 22‑23. Arizona's law on the question of
governmental/proprietary functions is, to put it tactfully, a morass.
See Clouse, 199 Ariz. at 213‑14 ¶¶ 74‑77, 16 P.3d at
774‑75 ¶¶ 74‑77 (Feldman, J., dissenting). There was, in fact,
"utmost confusion" about what was governmental and what was
proprietary. Jones v. City of Phoenix,
29 Ariz. 181, 183, 239 P. 1030, 1031 (1925). Today's opinion will do little to
cure that problem.
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