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Torts: Arizona Constitution Anti-Abrogation Clause Inapplicable to Legislation Regulating Dram Shop Actions

Posted by Ted A. Schmidt | Oct 23, 2023 | 0 Comments

Torres v. JAI Dining Services, Inc., No. CV-22-0142-PR (October 16, 2023) (C.J. Brutinel)


Cesar Villanueva became extremely intoxicated at the defendant bar, drove home, slept awhile then drove again crashing into plaintiffs' decedents car killing both occupants.  A jury found the defendant bar liable under a common law dram shop claim but not under A.R.S. § 4-311(A), the dram shop statute and awarded plaintiffs $2 million apportioning 40% fault to the bar. On appeal the Arizona Court of Appeals found the act of going home and sleeping constituted a superseding intervening cause. The Arizona Supreme Court disagreed in Torres v. JAI Dining Servs. Inc.), 252 Ariz. 28 (2021) finding a jury “could have reasonably concluded that Villanueva's act in driving while intoxicated, even after he reached home . . . was nevertheless foreseeable by someone in [the bar's] position and not extraordinary in hindsight.”  and remanded the case back to the court of appeals to determine whether the defendant had waived the argument that A.R.S. § 4-312(B) applied.  A.R.S. § 4-312(B) bars dram shop actions not brought under A.R.S. § 4-311. The court of appeals rejected the waiver argument and found Ariz. Const. art. 18, § 6, the anti-abrogation clause, did not render A.R.S. § 4-311 unconstitutional. The court of appeals reversed  the Maricopa County Superior Court judgement against the bar. The supreme court accepted plaintiffs' petition for review and vacated the court of appeals decision while reversing and remanding the case to the trial court.

Common law dram shop actions require proof a liquor licensee served alcohol to an intoxicated patron which it “knows or reasonably should know creates an unreasonable risk of harm to others.” Ontiveros v. Borak, 136 Ariz. 500 (1983). A.R.S. § 4-311(A) modifies this standard to require proof the liquor licensee served alcohol to a patron who is “obviously intoxicated.” The supreme court found here that the statute supersedes the common law cause of action and the anti-abrogation clause does not render the statute unconstitutional. Young v. DFW Corp., 184 Ariz. 187 (App.1995)'s holding to the contrary is overruled.

Our caselaw squarely answers the question at hand. Because

the anti-abrogation clause only applies to rights of action that either

“existed at common law” or find their “basis in the common law at the time

the constitution was adopted,” Dickey, 205 Ariz. at 3 ¶ 9, the clause does not

preserve the dram-shop action first recognized in Ontiveros. Although

contradictory dicta can be found in a few of this Court's cases—namely,

Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 17–18 (1986) and Hazine v.

Montgomery Elevator Co., 176 Ariz. 340, 343–44 (1993)—this Court has never

extended the anti-abrogation clause to rights of action not recognized at

statehood, and we will not do so now.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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