Pre-Injury Liability Waivers in Arizona
Likelihood of Enforcement: Weak
Although “[a]bsent any public policy to the contrary, Arizona allows parties to agree in advance that one party shall not be liable to the other for negligence,” Arizona courts “look upon such releases with disfavor out of concern that they may encourage carelessness . . . [and] construe the limiting language of a release strictly against the party relying upon it.” Benjamin v. Gear Roller Hockey Equipment, Inc. Eyeglasses, 11 P.3d 421 (Ariz. Ct. App. 2000). Article 18 Section 5 of the Arizona Constitution requires that “[t]he 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.” In 2005, the Supreme Court of Arizona ruled that Article 18 Section 5 applies to the express assumption of risk in pre-injury liability waivers. Phelps v. Firebird Raceway, Inc., 111 P.3d 1003 (Ariz. 2005). The question of whether a pre-injury liability waiver is valid as an assumption of risk defense is, therefore, always a question of fact left to the jury.
The Court’s ruling in Phelps is moderated by later rulings that distinguish between “assumption of risk” as a bar to any recovery and “liability-limitation provisions generally.” 1800 Ocotillo, LLC v. WLB Group, Inc., 196 P.3d 222 (Ariz 2008). In 2008, the Court held that liability-limitation agreements which “do not effectively relieve a party from a duty to exercise due care, but instead merely place a ceiling on recoverable damages . . . do not operate like the common law defense of assumption of risk,” and thus are not covered by Article 18 Section 5. Id. at 228. Contracts that allocate risk between parties or place a ceiling on recoverable damages are not subject to Article 18 Section 5 and can be decided in summary judgement. Id. In contrast, contracts that disclaim any duty of care—in practice, contracts that disclaim negligence generally—must be submitted to the jury. Id.
A series of statutes governing the validity of releases in Arizona govern exceptions to the jury’s discretion. A.R.S. § 5-706, A.R.S. § 12-556, and A.R.S. § 12-558 concern the validity of pre-injury liability releases for ski area operators, closed-course motor sport facility owners, lessors, and operators, and space flight entities, respectively. A.R.S. § 12-558 leaves the least discretion to the jury, stating that a liability release between a space flight entity and space flight participant “to limit the entity's civil liability for a space flight participant's injury that arises out of space flight activities” is “valid and enforceable.” A.R.S. § 5-706 leaves the most discretion to the jury, stating that a release determines a ski area operator’s liability so long as it is “valid.” Finally, A.R.S. § 12-556 lays out specific requirements for closed-course motor sport facilities that seem to respond directly to Phelps, including the requirement that a “motor sport liability release form shall be in at least eight point type.”
Last updated: 12/2018
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.