Franklin v. Clemett – 10/25/2016
Division One of the Court of Appeals holds that statutory intoxicating liquor defense does not violate the Arizona Constitution and does not conflict with the Uniform Contribution Among Tortfeasors Act.
Plaintiff and defendants were spectators at a hockey game. During the game, plaintiff and defendants got in a fight during which two of the defendants punched plaintiff in the head. Plaintiff brought a suit against defendants for negligence.
Defendants raised an intoxicating liquor defense under A.R.S. § 12-711, which provides: “the finder of fact may find the defendant not liable if the defendant proves that the claimant . . . was under the influence of an intoxicating liquor or a drug and as a result of that influence the claimant or decedent was at least fifty per cent responsible for the accident or event that caused the claimant’s . . . harm.” The jury returned a general verdict in favor of the defendants. Plaintiff appealed on the basis that § 12-711 violates the Arizona Constitution and conflicts with the Uniform Contribution Among Tortfeasors Act (“UCATA”).
The Court first addressed whether § 12-711 violates Article 18, Section 5 of the Arizona Constitution, under which “[t]he 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.” The Court held that § 12-711 does not violate Article 18, § 5 because § 12-711 is permissive and does not bar a negligent plaintiff from all recovery.
Second, the court addressed whether § 12-711 violates Arizona’s anti-abrogation clause, Article 18, Section 6 of the Arizona Constitution. That section provides that “[t]he right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.” The court held that § 12-711 does not violate Article 18, § 6 because § 12-711 does not directly or indirectly bar a plaintiff from pursuing any claim, remove the question of liability from the jury, or require the jury to take a particular action.
Third, the court addressed whether § 12-711 conflicts with the UCATA’s requirement that the jury shall assess the percentage of fault of each person. The court held that § 12-711 does not conflict with the UCATA because § 12-711 is permissive and does not prevent the jury from considering and assessing the fault of all those who contributed to the alleged injury.
Finally, the court held that the statute is not void for vagueness because the phrase “under the influence” of intoxicating liquor is a phrase that people of ordinary intelligence are able to understand and does not allow for arbitrary or discriminatory enforcement.