Are Liability Waivers Enforceable in Arizona?

Every other state in this series answers the enforceability question with a rule about documents. Arizona answers it with a rule about who decides. Twenty-three words in the state constitution take the question away from judges entirely, and in 2005 the Supreme Court of Arizona confirmed that those words cover a signed release exactly as they cover any other assumption of risk. An Arizona waiver does not end a lawsuit. It becomes evidence in one, and a jury is free to apply it or not. If you guide in this state, that single fact should change what you expect the paperwork to do for you. Neighbouring pieces on this subject are gathered here. None of this is legal advice, and an Arizona lawyer is the only person who can tell you how it lands on your facts.

What do the twenty-three words say?

That this defence is always a fact question.

Article 18, section 5 of the Arizona Constitution reads in full: 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.

You can read the section as published by the Arizona State Legislature, and it has not been reworded around the edges by amendment the way statutes are.

Two phrases in it do the heavy lifting, in all cases whatsoever and at all times, and the state's Supreme Court has treated both as meaning precisely what they appear to mean.

Arizona's constitution also instructs that its provisions are mandatory unless expressly declared otherwise, which removes the usual room for reading a provision down.

Nothing in the wording distinguishes a defence written on a form from one argued from conduct, and that absence is the whole case.

For an operator the practical translation is short: your release is a defence, and defences of this kind belong to the jury here.

The waiver basics piece covers what the document is doing before any state constitution gets near it.

Crisfield, MD

How did a racetrack settle the point?

By winning below and losing at the top.

In Phelps v. Firebird Raceway, Inc., 111 P.3d 1003, decided 18 May 2005, a professional drag racer who had run more than a hundred races at the same track crashed into a wall, his car caught fire and he suffered severe burns.

His claim was not that racing had hurt him. It was that the track's employees were negligent in failing to rescue him quickly enough from the burning car and in failing to provide adequate emergency medical care.

He had signed two documents before the race, one headed as a release and covenant not to sue and one headed as a release and waiver of liability, assumption of risk and indemnity agreement.

The second of those covered loss or damage on account of injury to the person or resulting in death, whether caused by the negligence of the releasees or otherwise, and it even acknowledged that injuries received may be compounded or increased by negligent rescue operations or procedures.

The trial court gave the track summary judgment and the court of appeals affirmed, reasoning that the framers had been aiming at the implied assumption of risk that had been used to bar suits by injured labourers.

The Supreme Court took the case as one of first impression and reversed that reasoning outright, holding that section 5 applies to an express contractual assumption of risk.

Read the facts twice, because a rescue-response claim after an incident is the shape of case a guiding operation is most likely to face.

Why did a written release count as assumption of risk?

Because that is what it has always been.

The court noted both parties agreed the track had raised an assumption of risk defence, that one document was labelled in part assumption of risk, and that the other said the signer voluntarily elected to accept the risks connected with entry to the restricted area and with racing.

It then anchored the point in older authority, quoting the Restatement rule that a plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct cannot recover for that harm unless the agreement is invalid as contrary to public policy.

It also quoted a torts treatise describing the essential idea as the plaintiff assuming the risk whenever she expressly agreed by contract or otherwise, and also when she impliedly did so by words or conduct.

The track's argument was that the doctrine has several branches, so the constitutional phrase must have meant only the implied one.

The court turned that around: the fact that assumption of risk encompasses several categories supports an expansive reading of the provision rather than a restrictive one, since framers meaning only part of a doctrine would not have written in all cases whatsoever.

So the label on your form is irrelevant. A document that has a customer accept the risks is an assumption of risk defence whatever it is called.

Sloppier drafting problems that bite in other states are pulled apart in the piece on what voids a waiver.

Can a jury simply refuse to apply it?

Yes, and Arizona has said so for decades.

This is the part operators find hardest to believe, so it is worth quoting the court's own citations rather than paraphrasing them.

The purpose of the provision, one earlier decision held, was to modify the common law by making the jury rather than the court the sole arbiter of the existence or nonexistence of contributory negligence, and that includes not alone the right to determine the facts but to apply or not, as the jury sees fit, the law of that defence.

Another decision quoted in the same passage puts it as a jury being free to find in favour of the plaintiff even though the court ordinarily would find as a matter of law that the plaintiff has assumed the risk.

A third holds that under section 5 the jury, and only the jury, is given the duty and privilege to determine whether the facts establish the defence and whether, if they do, the defence should be applied.

The Supreme Court in the racetrack case closed by reaffirming that the section means what it says: the validity of an express contractual assumption of risk is a question of fact for a jury, not a judge.

It added that the track was still entitled to have the jury instructed on the enforceability of contracts and on the relevant statute, as long as it was clear the ultimate decision belonged to the jury.

That is the whole practical rule. You get to make the argument. You do not get to end the case with it.

So what is a release actually worth here?

Quite a lot, in a different currency.

A document that fails elsewhere is worthless. A document that succeeds in Arizona buys you a defence a jury has to be walked through, plus the evidence that the client knew what they were signing.

It also buys you the risk disclosure, which is the part of the form that does work outside any courtroom, because writing it forces the operator to name the hazards of their own trips.

What it does not buy is an early exit, which changes the economics of a claim: cases that would settle cheaply on a summary judgment motion in another state have to be defended further here.

That in turn moves the centre of gravity onto insurance, since the cover is what pays for the defence and the outcome.

Guides in Arizona should be having a specific conversation with their broker about defence costs rather than only about policy limits.

The captain's insurance piece lays out what a policy covers, and the claims piece follows what happens once something goes wrong.

Does the recreational user statute rescue you?

Usually not, because you take money.

Arizona Revised Statutes section 33-1551 says an owner, easement holder, lessee, tenant, manager or occupant of premises is not liable to a recreational user except on a showing of wilful, malicious or grossly negligent conduct that was a direct cause of the injury.

Grossly negligent is defined in the section itself as a knowing or reckless indifference to the health and safety of others, and the section adds that a recreational user accepts the risks created by the user's activities.

Fishing is named in the definition of recreational user, which sounds promising until you read the qualifier around it.

A recreational user is a person to whom permission has been granted or implied without the payment of an admission fee or any other consideration, and the statute goes out of its way to say that buying a state hunting, trapping or fishing licence is not such a payment.

A paid guided trip is consideration by any ordinary reading, so an operator charging for the day should not assume this section is standing behind them.

The section also provides that installing a sign or other warning of a dangerous condition, or making a modification to improve safety, does not by itself create liability, which is a useful thing to know before you decide against putting up a sign.

The section is published in the Arizona Revised Statutes, statutes get amended, and the boundary between a fee and no fee is exactly the kind of question to verify with a lawyer before you rely on it.

What about employees who sign something?

Different provision, harder rule.

The court in the racetrack case drew a line between two neighbouring parts of the same article of the constitution.

Section 3 makes all express contractual assumptions of risk between employers and employees invalid from the outset, while section 5 refers all other assumption of risk defences, express or implied, to the jury.

For a guiding operation with staff, that is a real distinction: a form handed to a deckhand or an assistant guide is in a different constitutional category from a form handed to a client.

Whether the person signing is an employee at all is its own question, and it is one operators get wrong constantly when they treat everyone as a contractor.

That classification problem is worked through in the piece on subguides and employment status.

Ask your lawyer about both documents at once, because the answer for the client form does not carry over to the crew form.

Alaska Saltwater Adventures, AK

How should an Arizona form be written?

For a jury, not for a judge.

Since twelve people will read it, write in sentences a person can follow without a lawyer beside them.

Name the hazards of your actual water: current, wading on slick rock, sun exposure and heat, boat traffic, remote access, the drive in.

Say what the client is accepting in words they used themselves when they booked, and avoid the block-capital paragraph that reads as though it were designed to be skimmed past.

Cover the rescue and first aid side explicitly, since the racetrack case was fought over the response to an accident rather than the accident.

Keep any promise about your own standards out of the document, because a jury reading a safety promise next to a disclaimer will draw the obvious conclusion.

Send it in advance, get it back before the day, and store it where you can produce it years later.

The digital waiver workflow piece handles the collection and storage side properly.

Does this make Arizona a bad state to guide in?

No, it makes it a state where practice beats paperwork.

The constitutional rule cuts both ways. A jury that can decline to apply your release can also apply it, and a well-run operation with a clear form and a client who understood it is a defendant a jury tends to believe.

Arizona also has a genuine guiding economy on its tailwaters and reservoirs, and none of this stops anybody operating.

What it does is reward the operator whose day looks careful in front of strangers: a briefing that happened, gear that fits, a plan when the wind came up, notes made afterwards.

Those are the exhibits that matter when the document alone cannot finish the argument.

The setup and filing questions that come first are covered in the Arizona guide business piece.

State-specific material for this jurisdiction sits on the Arizona guide hub.

How do the neighbouring states differ?

Almost all of them let a judge decide.

Cross into any adjoining state and the summary judgment route that Arizona closes is open again, which means the same form can produce a completely different procedural life.

Guides who run seasons on both sides of a state line therefore have two questions to ask, not one: is the form good, and who gets to rule on it.

The comparisons are traced in the Nevada piece, the New Mexico piece and the Utah piece.

None of those answers travels back across the line, and a form built for one of them was not built for this constitution.

If your season crosses a border, tell your lawyer that before they draft, not after.

What should you ask an Arizona lawyer?

Four questions that follow from the rule.

Ask how the form should be drafted given that a jury rather than a judge will read it, since persuasion and technical validity are not the same target.

Ask what evidence they would want from the day itself, and build your post-trip routine to produce it.

Ask whether the recreational user statute could ever apply to any part of what you do, including unguided access you allow on land you control.

Ask how the crew paperwork should differ from the client paperwork given the separate constitutional provision covering employees.

Then ask what a realistic defence costs here, and take that number to your broker.

The Arizona answer, in order

Valid, admissible, and never final.

A signed release is an express assumption of risk, and the constitution sends that defence to the jury in all cases whatsoever.

The jury may apply it or decline to apply it, even where the facts are not in dispute.

The document therefore shapes a trial rather than preventing one, which makes clarity and honesty in the drafting worth more than legal armour-plating.

The recreational user statute sits alongside all of this and generally will not cover a trip somebody paid for.

Crew agreements live under a different provision again and are void from the start in the employment context.

And the practical defence in Arizona is the same one that has always worked: run the day so it reads well to twelve strangers.