Torres v. JAI Dining Servs. (Phoenix), Inc. – 10/16/2023
Arizona Supreme Court holds that the anti-abrogation clause of the state’s Constitution does not protect common-law dram-shop liability because the anti-abrogation clause applies only 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, and Arizona did not adopt common-law dram-shop liability until 1983.
Following a night of drinking at a club, a patron drove home, rested briefly, then resumed driving, colliding with a truck and killing its occupants. Plaintiffs sued both the patron and the club under common-law and statutory dram shop theories.
The jury found for Plaintiffs on the common-law claims, but for the club on the statutory dram-shop claim. The court of appeals reversed the judgment against the club, holding that the patron’s stop to rest at home was an intervening cause that precluded the club’s liability. The Arizona Supreme Court vacated the court of appeals’ decision, holding that a reasonable jury could have found that the patron driving while intoxicated, even after reaching home, was foreseeable. The Court remanded for the court of appeals to decide whether Plaintiffs’ negligence and common law dram shop claims were preempted by the dram-shop liability statutes, A.R.S. §§ 4-311 and 4-312.
The court of appeals concluded that the dram-shop statutes preempted common-law dram shop claims. It also held that the dram-shop statutes did not violate the Arizona Constitution’s anti-abrogation clause, reading Cronin v. Sheldon, 195 Ariz. 531 (1999) and Dickey ex rel. Dickey v. City of Flagstaff, 205 Ariz. 1 (2003), to hold that the anti-abrogation clause does not protect a right of action not in existence at the time of statehood. The court of appeals acknowledged that its holding conflicted with its earlier decision in Young Through Young v. DFW Corp., 184 Ariz. 187 (App. 1995), which had concluded that the dram-shop statute unconstitutionally abrogated the common-law action. But the court reasoned that Young was no longer good law after Dickey. The Supreme Court granted review on the scope of the anti-abrogation clause to settle the conflict between Young and Dickey.
The Arizona Supreme Court ruled that the statutory displacement of common-law dram-shop liability actions did not violate the anti-abrogation clause because the common law right of action was recognized only in 1983, see Ontiveros v. Borak, 136 Ariz. 500 (1983), and did not exist at statehood. The Court surveyed precedent analyzing the anti-abrogation clause, noting that it had never extended the anti-abrogation clause to rights of action not recognized at statehood, and affirming its holding in Dickey that the anti-abrogation only protects rights of action that existed at common law or find their basis in the common law at the time the constitution was adopted. Accordingly, it instructed courts to consider whether a plaintiff alleging the same harm could have recovered damages against the same type of defendant at statehood. The Court acknowledged that it had previously made statements that contradicted its holding but dismissed them as dicta. See Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9 (1986); Hazine v. Montgomery Elevator Co., 176 Ariz. 340 (1993).
The dissent argued that dram-shop liability actions were, at base, simple negligence actions, and are protected by the anti-abrogation clause because negligence was a common-law claim recognized at statehood. But the majority reasoned that dram-shop actions are unique, and that Ontiveros was explicit that the common law at statehood was the doctrine of nonliabilty for tavern owners. Moreover, a focus on simple negligence casts too wide a net, and the narrower question of whether a specific harm allowed damages against a specific type of defendant in 1912 is more consistent with caselaw.
Chief Justice Brutinel authored the opinion of the Court in which Justices Bolick, Lopez, and Beene joined. Justice Bolick issued a concurring opinion. Justice Timmer dissented.
Disclosure: Osborn Maledon attorneys were involved with this case.
Posted by: Michael Price