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PHELPS v. FIREBIRD RACEWAY, INC.

No. CV-04-0114-PR.

111 P.3d 1003 (2005)

210 Ariz. 403

Charles PHELPS, an Arizona resident, Plaintiff-Appellant, v. FIREBIRD RACEWAY, INC., an Arizona corporation aka and/or dba Firebird International Raceway, a corporation, Defendant-Appellee.

Supreme Court of Arizona, En Banc.

May 18, 2005.

Attorney(s) appearing for the Case

Skousen, Skousen, Gulbrandsen & Patience, P.C. by David L. Abney, Mesa and Law Offices of Hartley E. Newkirk, by Hartley E. Newkirk, Tucson, Attorneys for Plaintiff-Appellant, Charles Phelps.

Jennings, Strouss & Salmon, P.L.C. by Jay A. Fradkin, John J. Egbert, Phoenix, Attorneys for Defendant-Appellee, Firebird Raceway.

Osborn Maledon, P.A. by Thomas L. Hudson, Taylor C. Young, Phoenix, and Piccarreta & Davis, P.C. by JoJene E. Mills, Tucson, Attorneys for Amicus Curiae, Arizona Trial Lawyers Association.

Law Offices of Charles M. Brewer, Ltd., by Charles M. Brewer, John B. Brewer, Dane L. Wood, Phoenix, Attorneys for Amicus Curiae, The Law Firm of Charles M. Brewer, Ltd.

OPINION

RYAN, Justice.

¶ 1 This case requires us to determine whether Article 18, Section 5 of the Arizona Constitution, which provides that the defense "of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury," applies to an express contractual assumption of risk. We hold that it does.

I

¶ 2 Charles Phelps was a...

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