Schmidt, Sethi & Akmajian Blog

Torts: Negligence/Comparative Fault/Intoxicating Liquor Defense Constitutional

Posted by Ted A. Schmidt | Nov 02, 2016 | 0 Comments

Franklin v. Clemett, 750 Ariz. Adv. Rep. 13 (App. Div. I, October 25, 2016) (J. Norris)


Plaintiff and defendants got into a fight at a hockey game. Defendants claimed plaintiff was more than 50% at fault in causing the fight and that plaintiff was intoxicated.  As such the jury was instructed that under Arizona Revised Statutes section 12-711 (2016) it was entitled to find for the defendants which it did. The plaintiff appealed the verdict based upon the giving of this instruction arguing that it violated the Arizona Constitution, Anti-Abrogation Clause Article 18, §5. The Arizona Court of Appeals affirmed.

ARS §12-711 provides that a jury “may” find for the defendant if it finds a plaintiff 50% or more at fault and that the plaintiff was under the influence of alcohol or drugs. This does not violate the anti-abrogation clause. It does not bar a plaintiff from pursuing any claim, remove the question of liability from the jury, or require a jury to take a particular action. The Constitution gives the jury absolute discretion in determining the existence and effect of a plaintiff's contributory negligence under the Uniform Contribution Among Joint Tortfeasor's Act (A.R.S. §12-2506 et seq.).

“A statute does not "effectively" abrogate a claim, however, by making it more difficult for the claimant to obtain a recovery or even when, in the claimant's view, it may weaken the claimant's case.”

Further the statute is not unconstitutionally vague due to its failure to define “intoxication.” “[P]eople of ordinary intelligence are able to understand what intoxicated in the slightest degree means, and that a person is intoxicated in the slightest degree when that person ‘is to some degree at least less able, either mentally or physically or both, to exercise. . . clear judgment.”

Finally, there was sufficient evidence to support the verdict. Most notably a security guard trained in recognizing intoxicated patrons testified to a strong odor of alcohol on the plaintiff and behavior putting him in the midrange of intoxicated behavior. A.R.S. §12-711 does not require a blood alcohol reading and the legal presumption of intoxication in the statutes regarding the operation of a car have no application here.

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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