Torres v. JAI Dining Services Inc., No. 1 CA-CV 19-0544 (App. Div. I, March 29, 2022) (J. Winthrop)https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2022/1%20CA-CV%2019-0544%20-%20Torres%20final%20OP.pdf
Cesar Aguilera Villanueva consumed alcohol at JAI Dining Service, left and ultimately ended up at home where he laid down for a while, got up drove and killed two people. A jury rendered a $2 million verdict in favor of plaintiffs in their wrongful death action based upon common law negligence and dram shop claims but against plaintiffs on their statutory dram shop claim under A.R.S. § 4-312 apportioning 60% fault to Villanueva and 40% to JAI Dining Service. On appeal the Arizona Court of Appeals reversed finding the act of going home and resting constituted an intervening superseding cause to the accident. The Arizona Supreme Court reversed the court of appeals finding the intervening superseding cause question to be one for the jury. The supreme court also remanded the case to the court of appeals to consider the applicability of A.R.S. § 4-312(B) to plaintiffs' claims (an issue first raised on appeal by defendant) whereupon the Arizona Court of Appeals reversed and remanded the trial court, finding A.R.S. § 4-312(B) expressly preempts Plaintiffs' common law dram shop claims.
First, the court of appeals found the defendant did not waive the preemption argument by not raising it in the trial court since existing case law, Young v. DFW Corp., 184 Ariz. 187 (App. 1995), had held A.R.S. § 4-312(B) to be unconstitutional under the anti-abrogation clause. The trial court would have been obliged to follow that precedent.
Since the Young decision, the Arizona Supreme Court issued its opinion in Dickey ex rel. Dickey v. City of Flagstaff, 205 Ariz. 1 (2003) wherein it solidified the rule that the anti-abrogation clause in the Arizona Constitution, Ariz. Const. art. 18, § 6, only protects causes of action that existed or naturally evolved from existing and viable causes of action recognized in the law at the time of the adoption of the Arizona Constitution. Since dram shop liability did not exist at that time, the statutory schemed created by the legislature preempts all common law dram shop claims.
A.R.S.§ 4-311(A) provides,
A liquor licensee is liable for property damages, personal injury, or wrongful death
if (1) the licensee sells alcohol to a person who is “obviously intoxicated” or
under the legal drinking age, (2) the purchaser consumes the alcohol sold
by the licensee, and (3) the consumption of the alcohol is a proximate cause
of the property damage, injury, or death.
Accordingly, a dram shop claim in Arizona must comport with A.R.S.§ 4-311(A), meaning absence proof the licensee sold alcohol to a person “obviously intoxicated” the claim cannot stand.