Hazine v. Montgomery Elevator Co.

861 P.2d 625, 176 Ariz. 340, 30 A.L.R. 5th 729, 150 Ariz. Adv. Rep. 14, 1993 Ariz. LEXIS 104

• Court: Arizona Supreme Court
• Decided: October 21, 1993
• Docket: CV-92-0295-PR
• Status: Published

Opinions

OPINION

MOELLER, Vice Chief Justice.

FACTS

Plaintiff Marcel Hazine was injured while working on an escalator manufactured and installed by defendant Montgomery Elevator Company (Montgomery). Ha-zine and his wife sued Montgomery in strict liability and in negligence. On the strict liability claim, they argue that the escalator was manufactured and installed in a defective condition that rendered it unreasonably dangerous.

The personal injury action was filed well within the two-year statute of limitations usually applicable to such claims, A.R.S. § 12-542. However, Montgomery moved for summary judgment on the strict liability claim under A.R.S. § 12-551, which provides:

A product liability action as defined in § 12-681 shall be commenced and prosecuted within the period prescribed in § 12-542, except that no product liability action may be commenced and prosecuted if the cause of action accrues more than twelve years after the product was first sold for use or consumption, unless the cause of action is based upon the negligence of the manufacturer or seller or a breach of an express warranty provided by the manufacturer or seller.

(Emphasis added.)

Plaintiffs agreed that the injury occurred more than twelve years after the escalator was first sold for use, but argued that § 12-551 is unconstitutional. Plaintiffs’ principal claim of unconstitutionality was based on art. 18, § 6 of the Arizona Constitution, the so-called anti-abrogation provision. It provides: “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.”

Relying on this court’s decision in Bryant v. Continental Conveyor & Equip. Co., 156 Ariz. 193, 751 P.2d 509 (1988), the trial court held § 12-551 constitutional and dismissed plaintiff’s strict product liability claim. The Hazines appealed, arguing that § 12-551 violated not only the anti-abrogation provisions of art. 18, § 6, but also the equal protection and due process provisions of the Arizona Constitution. The court of appeals, also relying on Bryant, held that § 12-551 did not violate any of the three constitutional provisions and affirmed the trial court’s dismissal of the products claim.

We accepted the Hazines’ petition for review to address recurrent questions of statewide importance arising under Bryant and the related case of Boswell v. Phoenix Newspapers, 152 Ariz. 9, 730 P.2d 186 (1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 527 (1987). We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3). Because we find that A.R.S. § 12-551 violates the anti-abrogation features of art. 18, § 6, we do not address plaintiffs’ equal protection and due process arguments.

ISSUE PRESENTED FOR REVIEW

Whether A.R.S. § 12-551, which bars product liability actions for injuries occurring more than twelve years after a product is first sold, constitutes an unconstitutional abrogation of a right of action to recover damages for injuries under Ariz. Const, art. 18, § 6?

DISCUSSION

1. Regulation Versus Abrogation

We must first consider whether we face a constitutional issue at all. If, as Montgomery argues, A.R.S. § 12-551 merely regulates, rather than abrogates, the Hazines’ right of action to recover damages, no constitutional problem is posed. See Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 106, 692 P.2d 280, 285 (1984). This is so because even if the tort at issue is protected by art. 18, § 6:

The legislature may regulate [a cause of action] so long as it leaves a claimant reasonable alternatives or choices which will enable him or her to bring the action. It 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, 143 Ariz. at 106, 692 P.2d at 285. Consistent with this principle, we have upheld legislation providing worker’s compensation benefits in lieu of a personal injury suit, as long as the claimant has a reasonable election between the two. See Ruth v. Industrial Comm’n, 107 Ariz. 572, 575, 490 P.2d 828, 831 (1971). Applying this principle, however, we declared unconstitutional a statute requiring “a minor injured before reaching the age of seven to sue for such injuries before reaching age ten.” Barrio, 143 Ariz. at 106, 692 P.2d at 285. The rationale of Barrio was that the statute abolished a cause of action before it reasonably could be brought. Barrio, 143 Ariz. at 107, 692 P.2d at 286; see also Kenyon v. Hammer, 142 Ariz. 69, 74-75, 688 P.2d 961, 966-67 (1984) (finding abrogation rather than regulation where a statute “bars a cause of action before it [can] legitimately be brought”).

Section 12-551 goes far beyond merely “regulating” products liability actions that accrue more than twelve years after the product is first sold for use or consumption. Instead, claims such as the one under consideration are simply abolished before any injury occurs. This is an even more extreme form of abrogation than that condemned in Barrio. See 143 Ariz. at 107, 692 P.2d at 286. The fact that the Hazines could still sue on express warranty or negligence theories does not, in our opinion, affect the analysis. See Rubino v. De Fre-tias, 638 F.Supp. 182 (D.Ariz.1986) (holding unconstitutional the abrogation of the right to sue in battery, notwithstanding the plaintiff’s ability to sue in negligence). Strict products liability developed because other theories of recovery proved inadequate to protect injured users and consumers. See, e.g., Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 901 (1963) (discussing the inadequacy of warranty theories in product liability litigation); McLaughlin v. Michelin Tire Corp., 778 P.2d 59, 64 (Wyo.1989) (noting the inadequacy of negligence theories); W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 98 (5th ed. 1984). Thus, a right to sue in negligence or express warranty is not a reasonable alternative to a products liability action. We conclude that § 12-551 abrogates the Hazines’ substantive right to maintain an action for personal injuries. Thus, if a products liability action falls within the protection of art. 18, § 6, a subject to which we now turn, § 12-551 is unconstitutional.

2. Whether A.R.S. § 12-551 Violates Art. 18, § 6

In considering whether A.R.S. § 12-551 is unconstitutional, it has become apparent to us that two decisions of this court conflict and cannot be reconciled. Compare Bryant, 156 Ariz. at 195, 751 P.2d at 511, with Boswell, 152 Ariz. at 12-20, 730 P.2d at 189-97. In Boswell, the earlier case, the defendant argued that damages for emotional injury in a defamation case could be statutorily restricted because such injury was not compensable at common law. Noting that art. 18, § 6 covers strict liability torts, Boswell, 152 Ariz. at 12-17, 730 P.2d at 189-94, we stated that art. 18, § 6 “extends to wrongs recognized at common law, but it is not limited to those elements and concepts of particular actions which were defined in our pre-statehood case law.” Boswell, 152 Ariz. at 17-18, 730 P.2d at 194-95 (emphasis added). Accordingly, a unanimous court declared unconstitutional a statute that purported to limit damages in defamation actions where retractions had been printed. In doing so, the court discussed at length the history and language of art. 18, § 6, the framers’ intent in adopting it, subsequent case law, and the open court provisions in other state constitutions. Boswell, 152 Ariz. at 12-17, 730 P.2d at 189-94.

Just two years later, responding to an argument that art. 18, § 6 did not extend to strict product liability torts, the Bryant opinion held that “A.R.S. § 12-551 is not an abrogation of a substantive right of action protected by art. 18, § 6 because the tort of strict products liability did not exist at the time the constitutional provision was adopted. ” Bryant, 156 Ariz. at 195, 751 P.2d at 511 (emphasis added). Referring to Boswell, the majority merely observed:

Admittedly, we have held that art. 18, § 6 protects actions for negligence and breach of warranty and extends to all actions recognized at common law at the time of the article’s adoption. We have not, however, extended the protection of art. 18, § 6 to strict products liability.

Id. (citation omitted).

The three-judge majority in Bryant was composed of two members of this court and one court of appeals judge sitting by assignment. Two members of this court dissented, arguing that Bryant ran counter to our own case law, including Boswell. The “Boswell v. Bryant ” controversy has raged ever since.

We are unpersuaded by the efforts of the Bryant majority and the defendant here to reconcile Boswell and Bryant. Defendant argues that Boswell does not conflict with Bryant, because Boswell dealt only with an extension of recovery for damages in defamation — a cause of action well recognized at common law. In contrast, defendant argues that strict products liability, which was at issue in Bryant, did not even exist at common law. Bryant, 156 Ariz. at 195, 751 P.2d at 511. Therefore, defendant argues that the Boswell rule should be restricted to extensions of particular causes of action recognized at common law. We disagree.

The text of Arizona’s Constitution is broad, unambiguous, and protects “the right of action to recover damages for injuries.” Art. 18, § 6. We agree with the unanimous Boswell court that this constitutional protection “is not limited to those elements and concepts of particular [causes of action] which were defined in our pre-statehood case law.” Boswell, 152 Ariz. at 18, 730 P.2d at 195.

The right to recover for injuries caused by products was, of course, recognized at common law; therefore, the development of strict liability causes of action to vindicate that right is, under the Boswell analysis, covered by art. 18, § 6. See Boswell, 152 Ariz. at 17-18, 730 P.2d at 194-95. The evolution of common law causes of action — whether in duty, standard of care, or damages — falls within the broad coverage of art. 18, § 6. See id.; see also Humana Hosp. v. Superior Court, 154 Ariz. 396, 399, 742 P.2d 1382, 1385 (App.1987) (holding that art. 18, § 6 applies to negligent supervision claims although this cause of action was not recognized until 1972); Franks v. United States Fidelity & Guar. Co., 149 Ariz. 291, 299-300, 718 P.2d 193, 201-02 (App.1985) (art. 18, § 6 applies to tort of bad faith, although bad faith cause of action not recognized until 1981).

Acceptance, of Montgomery’s argument would inevitably lead to the conclusion that the legislature could constitutionally restrict personal injury claimants to pre-statehood theories of liability and pre-state-hood measures of damages. If such a result is desired today, it must come about through constitutional amendment. Given the history of art. 18, § 6, see Boswell, 152 Ariz. at 12, 730 P.2d at 189, it is inconceivable that the framers of the Arizona Constitution had any such intent. “The law must allow for evolution of common-law actions to reflect today’s needs and knowledge. Any other rule would allow those ‘long dead’ to dictate solutions to problems of which they could not have been aware.” Boswell, 152 Ariz. at 18, 730 P.2d at 195. We agree with this statement from the Bryant dissent:

True, the “doctrine” of strict liability for injuries caused by a product was first recognized by this court in the 1960’s. That historical fact is interesting, but totally irrelevant. Article 18, § 6 was not enacted to protect particular doctrines, theories or “causes of action.” The text of the constitution protects a broader concept — “the right of action to recover damages for injuries.” Depending on privity, the right of action to recover damages for injuries caused by defective products was recognized at common law long before Arizona became a territory. While not universally applied to product liability cases until recent times, theories of strict and even absolute liability were recognized in tort law well before 1912. All that has happened since 1912 is the logical application of Rylands v. Fletcher’s strict liability theory to the right to bring a product liability action.

Bryant, 156 Ariz. at 198-99, 751 P.2d at 514-15 (Feldman, V.C.J., dissenting) (citations omitted).

Although we do not lightly overturn our prior decisions, the fact is that Bryant and Boswell cannot be reconciled. This contradiction has caused uncertainty and confusion in subsequent cases and commentary. See, e.g., Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 345-46, 842 P.2d 1355, 1358-59 (App.1992); Richard E. Gordon, Note, Schwab v. Matley: The Constitutionality of the Legislative Attempt to Limit Dramshop Liability in Arizona, 33 Ariz.L.Rev. 955, 972-76 (1991). Additionally, the conflict between Bryant and Boswell has resulted in the application of the important constitutional principle expressed in art. 18, § 6 becoming unworkable and unpredictable. Because we must overrule one or the other, we overrule the one we find to conflict with the constitution. We believe Boswell correctly expresses and applies the constitutional imperative of art. 18, § 6, and we adopt it. In doing so, we necessarily overrule Bryant.

SUPREME COURT PRACTICE

Bryant was argued while a vacancy on the court was in the process of being filled. A visiting judge was called in, and the case was decided on a 3-2 basis, with the permanent members of the court splitting 2-2. Bryant was therefore suspect authority from the moment it was issued, particularly given the preexisting Boswell opinion. In retrospect, it would have been advisable, when it became known that a split on a court in transition was occurring, to delay argument or to have reargument. In the recent past, this court has, at times, when confronted with a 2-2 split by permanent members of the court, declined to render a decision, see State ex rel. McDou-gall v. Martone, 174 Ariz. 343, 849 P.2d 1373 (1993) (one Justice had recused himself), or has rescheduled oral arguments after a new member of the court has been seated, see State v. Youngblood, CR-90-0053-PR (order dated April 3, 1992). We have done this in an attempt to avoid the confusion in other areas of the law similar to that engendered by Bryant in interpreting art. 18, § 6. See Church, 173 Ariz. at 346, 842 P.2d at 1359 (“Since the composition of the court changed between the time that Humana Hospital and Bryant were decided, and has changed again since Bryant, this question may still be an open one.”). The procedure followed in McDou-gall and Youngblood is the better practice in those rare instances where the court is divided and in transition. On important issues that tend to recur, we will follow such procedures when feasible. We commend it to our successors as well.

CONCLUSION AND DISPOSITION

Whether or not the Hazines are entitled to damages, the Arizona Constitution protects their right to sue in strict liability. A.R.S. § 12-551 abrogated that constitutional right by barring the action even before the injury occurred. Under Boswell, the attempted statutory abrogation of their claim fails. We overrule Bryant, vacate the memorandum decision of the court of appeals, reverse the trial court’s summary judgment, and remand to the trial court for further proceedings consistent with this opinion.

CORCORAN and ZLAKET, JJ., concur.