Torres v. Jai Dining Services

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
ROBERTO TORRES, ET AL.,
Plaintiffs/Appellees,

v.

JAI DINING SERVICES (PHOENIX), INC.,
Defendant/Appellant,

No. CV-22-0142-PR
Filed October 16, 2023

Appeal from the Superior Court in Maricopa County
The Honorable Sherry K. Stephens, Judge (Retired)
No.CV2016-016688
REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One
253 Ariz. 66 (App. 2022)
VACATED

COUNSEL:

David L. Abney (argued), Ahwatukee Legal Office P.C., Phoenix; Robert F.
Clarke, Clarke Law Offices, Phoenix; and Matthew D. Koglmeier,
Koglmeier Law Group PLC, Mesa, Attorneys for Roberto Torres, Orlenda
Guillen, Hernan Gastelum Rosas, and Maria Suarez

Eric M. Fraser (argued), Andrew G. Pappas, Osborn Maledon P.A.,
Phoenix; and Dominique Barrett, Quintairos, Prieto, Wood & Boyer P.A.,
Scottsdale, Attorneys for JAI Dining Services (Phoenix), Inc.

Daniel Rubinov, Rafat H. Abdeljaber, RAJ Law PLLC, Phoenix, Attorneys
for Amici Curiae Arizona Association for Justice/Arizona Trial Lawyers
Association

Amanda Heitz, Lauren Walter, Bowman and Brooke LLP, Phoenix,
Attorneys for Amicus Curiae Arizona Association of Defense Counsel
 TORRES, ET AL V. JAI DINING
Opinion of the Court

Camila Alarcon, Alarcon Law & Policy, P.L.L.C., Phoenix, Attorney for
Amicus Curiae Arizona Restaurant and Hospitality Association

Peter H. Schelstraete, Schelstraete Law Office, Tempe, Attorney for Amicus
Curiae Arizona Licensed Beverage Association

Richard P. Traulsen, Begam Marks & Traulsen P.A., Phoenix, Attorney for
Amicus Curiae Mothers Against Drunk Driving (MADD Arizona Chapter)

Mick Levin, Alexandra Van Duffelen, Mick Levin P.L.C., Phoenix; and
Noah J. Van Amburg, Van Amburg Law Firm, P.L.L.C., Tucson, Attorneys
for Amicus Curiae Homicide Survivors, Inc.

Michael G. Bailey, Arizona Chamber of Commerce, Phoenix, Attorney for
Amicus Curiae Arizona Chamber of Commerce

CHIEF JUSTICE BRUTINEL authored the Opinion of the Court, in which
JUSTICES BOLICK, LOPEZ, and BEENE joined. JUSTICE BOLICK issued
a concurring opinion. VICE CHIEF JUSTICE TIMMER dissented. *

CHIEF JUSTICE BRUTINEL, Opinion of the Court:

¶1 The Arizona Constitution guarantees that “[t]he right of
action to recover damages for injuries shall never be abrogated.” Ariz.
Const. art. 18, § 6. This case requires us to consider whether that “anti-
abrogation clause” extends to rights of action created after our constitution
was ratified, and more specifically, whether the anti-abrogation clause
prevents the legislature from limiting the common law dram-shop action
recognized in Ontiveros v. Borak, 136 Ariz. 500 (1983), which imposed tort
liability upon liquor licensees that cause harm by overserving their patrons.
We hold the anti-abrogation clause does not extend to dram-shop actions
because they were recognized after statehood.

* Justice William G. Montgomery and Justice Kathryn H. King have recused

themselves from this case.
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Opinion of the Court

I. BACKGROUND

¶2 After a night of heavy drinking at the Jaguars Club in
Phoenix, Cesar Aguilera Villanueva drove away heavily intoxicated. Torres
v. JAI Dining Servs. (Phx.) Inc. (Torres I), 252 Ariz. 28, 29 ¶¶ 1–2 (2021). After
going to a friend’s house to “sober up” and sleeping for a short time at his
own house, Villanueva again drove and crashed into a car stopped at a red
light, killing its two occupants, Guadalupe Gastelum Suarez and Jesus O.
Torres Guillen. Id. ¶¶ 3–4.

¶3 The victims’ families, Roberto Torres et al. (“Plaintiffs”), sued
Villanueva for negligence and sued JAI Dining Services (“JAI”), the owner
of Jaguars Club, under theories of statutory and common law dram-shop
liability. 1 Id. at 30 ¶ 5. At trial, the jury found Villanueva liable for
negligence but rendered a split verdict on the dram-shop claims against JAI.
Id. ¶ 6. The jury found JAI was liable under the common law dram-shop
action recognized by this Court in Ontiveros, which imposes liability on a
liquor licensee that serves alcohol to an intoxicated patron if it “know[s] or
should know that such conduct creates an unreasonable risk of harm to
others.” Id.; Ontiveros, 136 Ariz. at 513. However, the jury found JAI was
not liable under the dram-shop cause of action codified at A.R.S. § 4-311(A),
which imposes liability on a liquor licensee that serves alcohol to a patron
who is “obviously intoxicated.” Torres I, 252 Ariz. at 30 ¶ 6; § 4-311(A)(1).
The jury awarded Plaintiffs $2 million in damages, apportioning 40% of the
fault to JAI. Torres I, 252 Ariz. at 30 ¶ 6.

¶4 When this case was previously before us, we vacated the court
of appeals’ decision, which had found that an intervening and superseding
cause—Villanueva’s “decision to resume driving after reaching home”—
had broken the chain of proximate causation and relieved JAI from liability
for Villanueva’s actions. Id. ¶¶ 1, 20. We disagreed and found the jury
“could have reasonably concluded that Villanueva’s act in driving while
intoxicated, even after he reached home . . . was nevertheless foreseeable by
someone in [JAI’s] position and not extraordinary in hindsight.” Id. at 32
¶ 18. We remanded and instructed the court of appeals to consider whether
JAI had waived its separate argument that § 4-312(B), which bars dram-
shop claims not raised under § 4-311, preempted the common law dram-

1 A dram shop is “[a] place where alcoholic beverages are sold; a bar or
saloon.” Dram Shop, Black’s Law Dictionary (11th ed. 2019).
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Opinion of the Court

shop action recognized in Ontiveros. Torres I, 252 Ariz. at 32–33 ¶¶ 19–20.
If not waived, we instructed the court to decide the preemption question.
Id.

¶5 On remand, the court of appeals found that, although JAI did
not make its preemption argument to the trial court, both parties “had
ample notice and multiple opportunities” to argue this issue, and an
exception to the waiver doctrine was warranted because the case was an
“appropriate vehicle” to consider this recurring issue. Torres v. JAI Dining
Servs. (Phx.), Inc. (Torres II), 253 Ariz. 66, 71–72 ¶¶ 15–16 (App. 2022).

¶6 On the merits, the court of appeals found that § 4-312(B)
“expressly preempts” Plaintiffs’ common law dram-shop claim and that
such preemption “does not run afoul” of the anti-abrogation clause. Id.
at 69 ¶ 2. To arrive at this conclusion, the court read our most recent
decisions interpreting the clause, Cronin v. Sheldon, 195 Ariz. 531 (1999) and
Dickey ex rel. Dickey v. City of Flagstaff, 205 Ariz. 1 (2003), to hold “that if a
plaintiff could not have asserted a claim for a particular type of harm
against a particular defendant in 1912, then the anti-abrogation clause
provides that claim no protection.” Id. at 75 ¶ 31. And based on our
holding in Ontiveros, which “abolished the common law doctrine of tavern
owner nonliability in Arizona,” id. at 72 ¶ 19, the court concluded dram-
shop actions “could not have been maintained at the time the anti-
abrogation provision was instituted” and are subject to abrogation. Id. at 76
¶ 32 (quoting Dickey, 205 Ariz. at 5 ¶ 18). The court therefore held that the
anti-abrogation clause did not preclude the legislature from “expressly
preempt[ing] the common law liability created by Ontiveros . . . and
replac[ing] it with a more clearly defined statutory liability scheme.” Id.
at 77 ¶ 38. The court acknowledged that its holding conflicted with an
earlier decision that had found § 4-312(B) unconstitutionally abrogated the
dram-shop action recognized in Ontiveros, id. ¶ 37 (discussing Young v.
DFW Corp., 184 Ariz. 187 (App.1995)), but found that Young’s analysis “was
error” and “cannot be good law after Dickey.” Id. The court therefore
reversed the “portion of the superior court’s judgment against JAI and
remand[ed] for that court to enter judgment in favor of JAI and in favor of
Plaintiffs only as to Villanueva.” Id. ¶ 39.

¶7 Plaintiffs timely petitioned for review. JAI also asked us to
review the issue and settle the conflict between Young and Torres II. We
granted review, asking the parties to address whether the anti-abrogation

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Opinion of the Court

clause only extends to common law rights of action that could have been
brought at the time of statehood, or if it instead covers all common law
rights of action regardless of when they were recognized. We have
jurisdiction under article 6, section 5(3) of the Arizona Constitution and
review this constitutional issue de novo. State v. Mixton, 250 Ariz. 282,
285–86 ¶ 11 (2021).
II. DISCUSSION

¶8 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. Below, we first discuss our caselaw
interpreting the clause and the standard guiding an anti-abrogation
analysis, and then analyze whether dram-shop actions are protected by the
anti-abrogation clause.

A. The Anti-Abrogation Clause.
¶9 Throughout over a century of jurisprudence, this Court has
never extended the anti-abrogation clause’s protections to rights of action
incognizable at statehood. Rather, we have consistently rejected arguments
asking us to do so. For instance, in Morrell v. City of Phoenix, 16 Ariz. 511
(1915), we found that a city charter immunizing the City of Phoenix from
certain tort liability did not violate the anti-abrogation clause, stating the
clause “only undertakes to preserve rights already cognizable by law, and does
not undertake to create new rights of action.” Id. at 517 (emphasis added).
We held that the required election of remedies under Arizona’s worker’s
compensation law, whereby an injured employee can either sue an
employer for negligence or relinquish the ability to sue for negligence by
accepting compensation for injuries under the statutory scheme, does not
offend the anti-abrogation clause. E.g., Moseley v. Lily Ice Cream Co., 38 Ariz.
417, 421 (1931). And we have held that the clause does not extend to new
“actions created by the legislature.” Boswell, 152 Ariz. at 14 (discussing this
holding from Alabam’s Freight Co. v. Hunt, 29 Ariz. 419, 443–44 (1926)).

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Opinion of the Court

¶10 One particularly instructive case is Industrial Commission v.
Frohmiller, 60 Ariz. 464 (1943), where this Court held that a statutory
limitation on the damages recoverable for injuries caused by occupational
diseases was not prohibited by the anti-abrogation clause because “there
was no common law right of action for occupational disease” at statehood.
Id. at 471. The Court acknowledged that, “[i]f the right to recover damages
or compensation under the common law for injury caused by occupational
disease existed at the time [the anti-abrogation clause was] adopted,” the
defendant’s argument that the challenged law violated the anti-abrogation
clause “would have some force.” Id. at 468. But based upon the Court’s
review of pre-statehood common law decisions and the fact that “no case
[had] ever come to this [Court] asking for damages solely upon the ground
of occupational disease,” we concluded the anti-abrogation clause did not
extend to the right of action to sue for injuries caused by occupational
disease. Id. at 470–71.

¶11 Our older caselaw accords with our most recent cases on this
topic, Cronin and Dickey, in which we emphasized that the anti-abrogation
clause does not “extend constitutional protection to all tort causes of action,
whenever or however they may have arisen.” Cronin, 195 Ariz. at 539 ¶ 36.
In Cronin, we found that an action for wrongful discharge in violation of
public policy—a right of action created by statute in 1965, id. at 533
¶ 1—was unprotected by the anti-abrogation clause because it “originate[d]
exclusively within the statute, would not otherwise exist, and cannot trace
its antecedents to a common law right of action.” Id. at 539 ¶ 39.

¶12 Similarly, in Dickey, we found that “to fall within the
protection of the anti-abrogation provision of the Arizona Constitution,” a
right of action “must have existed at common law or have found its basis in
the common law at the time the constitution was adopted.” 205 Ariz. at 3
¶ 9. The Dickey Court examined whether a recreational-use statute (which
limited tort liability for cities that allowed the public to use land for
recreational purposes) violated the anti-abrogation clause. Id. at 2 ¶ 5. The
Court found that, at statehood, “cities engaged in governmental functions
were not subject to liability for negligence,” id. at 3 ¶ 10, and that the
defendant city was performing a governmental function by holding the
land “open to the public for recreational use.” Id. at 6 ¶ 23. Thus, because
the city “would have been immune at common law [in 1912] from tort
liability for acts of ordinary negligence” pertaining to public uses of

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recreational land, the recreational-use statute’s limitation on tort liability
did not violate the anti-abrogation clause. Id.

¶13 As such, consistent with our duty to faithfully apply
precedent unless “the reasons for it” no longer exist or it is “clearly
erroneous or manifestly wrong,” State v. Agueda, 253 Ariz. 388, 392 ¶ 20
(2022) (quoting Lowing v. Allstate Ins., 176 Ariz. 101, 107 (1993)), we reaffirm
the rule stated in Dickey: The anti-abrogation clause only prohibits
abrogation of rights of action that existed at statehood or that are based in
rights of action existing at statehood. See Dickey, 205 Ariz. at 3 ¶ 9. This
rule does not render the anti-abrogation clause toothless: “[w]ithout
limitation it confers the right to recover damages for injuries as existing
under the common law.” Kilpatrick v. Superior Court, 105 Ariz. 413, 419
(1970). The clause generally protects from abrogation a wide swath of
actions for which recovery was possible in 1912, such as negligence actions,
intentional torts, and product liability claims. However, this Court has
never held that the clause insulates from legislative action rights of action
that were barred at common law at the time the constitution was enacted.

¶14 We acknowledge that two of our cases, Boswell and Hazine,
contain dicta implying that the anti-abrogation clause extends to all rights
of action regardless of when those rights were recognized. The Court first
employed this language in Boswell, stating that “[a]lthough [the anti-
abrogation clause] preserves common law rights, our common law is not
frozen as of 1912.” 152 Ariz. at 17. The Boswell Court thus opined that the
anti-abrogation clause could cover newly created common law rights of
action and “eliminate the legislature’s power to control the existence of tort
law.” Id. at 18. Hazine contained similar language, claiming the “evolution
of common law causes of action—whether in duty, standard of care, or
damages—falls within the broad coverage of [the anti-abrogation clause].”
176 Ariz. at 344. But this language is dicta because, despite their expansive
language, Boswell and Hazine only applied the anti-abrogation clause to
rights of action recognized by pre-statehood common law, rather than to
rights that would not have been recognized at common law in 1912. See
Boswell, 152 Ariz. at 11 (“The common law imposed strict liability on the
publisher of defamatory statements.”); id. at 17 n.20 (finding “[r]ecovery for
emotional distress in a defamation action” was cognizable at common law
pre-statehood); Hazine, 176 Ariz. at 344 (“[T]he right of action to recover
damages for injuries caused by defective products was recognized at
common law long before Arizona became a territory.” (quoting Bryant v.

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Cont’l Conveyor & Equip. Co., 156 Ariz. 193, 198–99 (1988) (Feldman, V.C.J.,
dissenting))). Although the dissent argues that disapproval of this dicta
offends “principles of stare decisis,” infra ¶ 69, both cases were correctly
decided under the rule we reiterate today, which recognizes that the clause
protects rights of action cognizable at statehood. We do not overrule either
case—stare decisis is not implicated.

¶15 We reject the dicta from Boswell and Hazine because it
undermines the legislature’s role in developing and restricting tort causes
of action that are unprotected by the anti-abrogation clause. The Arizona
Constitution does not vest the power to develop tort law solely in the
judiciary. See generally Ariz. Const. art. 6. The constitution gives the
legislature plenary authority to develop the laws of this state, including tort
law, subject only to constitutional constraints. Ariz. Const. art. 4, pt. 1, § 1
(“The legislative authority of the state shall be vested in the legislature.”).
Indeed, pursuant to this power, the legislature limited Arizona common
law to the extent it conflicts with our constitution or statutes. A.R.S. § 1-201
(“The common law only so far as it is . . . not repugnant to . . . the
constitution or laws of this state . . . is adopted and shall be the rule of
decision in all courts of this state.” (emphasis added)); see also Hageman v.
Vanderdoes, 15 Ariz. 312, 319–21 (1914) (relying on a precursor to § 1-201 as
its basis for a common law decision). Although the dissent posits that “the
framers [of the Arizona Constitution] fully expected the Court to develop
then-existing common law,” infra ¶ 64, the constitution nowhere vests in
this Court the power to develop common law. And notably, the dissent
cites no sources indicating that the framers understood the anti-abrogation
clause to insulate from legislative control any new form of tort liability that
this Court decides to recognize. As such, interpreting the anti-abrogation
clause to prevent the limitation or abrogation of rights of action created
post-statehood would wrest control over emerging tort law from the
legislature by casting in constitutional concrete newly created causes of
action, contrary to over a century of this Court’s jurisprudence, see Part A
¶¶ 9–12. Therefore, we disapprove any dicta in Boswell or Hazine indicating
that the anti-abrogation clause applies to all rights of action. It extends only
to rights of action that existed at statehood or that are based in pre-
statehood rights.

¶16 When deciding whether a specific right of action is “based in”
a right cognizable at the time of statehood, courts should consider whether
a plaintiff alleging the same harm could have recovered damages against the

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same type of defendant at statehood. This inquiry is consistent with the anti-
abrogation clause’s language, which does not limit itself to protecting
specific “causes of action” but rather protects “the right of action.” Because
a right of action is “merely the right to pursue a remedy,” see Morgan v.
Hays, 102 Ariz. 150, 159 (1967) (Struckmeyer, J., dissenting) (quoting United
States v. Standard Oil Co., 21 F. Supp. 645, 660 (S.D. Cal. 1937)), the anti-
abrogation clause extends to all injuries remediable at the time of statehood.
Unlike the wide net of “simple negligence” that the dissent casts, this
narrow inquiry into whether a specific harm allowed damages against a
specific type of defendant in 1912 is also consistent with our caselaw.

¶17 For example, in Boswell we determined that a plaintiff could
have alleged a specific harm (defamation) against a specific tortfeasor (a
newspaper) at the time of statehood, and therefore defamation actions were
encompassed by the anti-abrogation clause. See 152 Ariz. at 11. And in
Hazine the outcome was correct because the specific harm (an injury caused
by a defective product) was cognizable at the time of statehood, as was the
theory of strict liability. Hazine, 176 Ariz. at 344; Cronin, 195 Ariz. at 539
¶ 36 (stating the Hazine Court found strict-products-liability actions were
protected by the anti-abrogation clause “because a right of action for
injuries caused by defective products was recognized at common law, long
before Arizona’s constitution was established”). Conversely, in Cronin we
found the clause did not apply because the specific harm (wrongful
termination of employment in violation of public policy) was incognizable
at statehood. 195 Ariz. at 539 ¶ 39. In Dickey, we found the clause did not
apply to a negligence action that could not have been raised against a
specific type of defendant (a city allowing the public to use land for
recreational purposes) at the time of statehood. 205 Ariz. at 6 ¶ 23.

¶18 Having reaffirmed that the anti-abrogation clause only
applies to rights of action that existed at common law in 1912 or that are
based in such rights, we turn to whether the clause insulates dram-shop
actions from legislative control.

B. Dram-Shop Liability.

¶19 In 1983, this Court held in Ontiveros “that the common law
doctrine of tavern owner nonliability is abolished in Arizona” and
recognized a common law dram-shop action. 136 Ariz. at 513. In so doing,
the Court examined “[t]he seminal cases in Arizona” on dram-shop liability

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and concluded that “the rule of nonliability for tavern owners has been the
common law in Arizona.” Id. at 504; see also Pratt v. Daly, 55 Ariz. 535,
537–44, 546 (1940) (surveying pre-statehood caselaw on the subject and
creating a narrow exception to dram-shop nonliability), overruled by
Ontiveros, 136 Ariz. at 507–08; Collier v. Stamatis, 63 Ariz. 285, 290 (1945)
(“[I]t has been held by all the courts and by every commentator that the
proximate cause . . . of . . . voluntary intoxication is the act of the drinker,
and not the act of the seller of the beverage. The principle is epitomized in
the truism that there may be sales without intoxication, but no intoxication
without drinking.”), overruled by Ontiveros, 136 Ariz. at 507–08. The Court
then overruled caselaw standing “for the proposition that the negligence of
a tavern owner in continuing to serve liquor to a patron who is or has
become intoxicated can never be the legal cause of a subsequent accident.”
Ontiveros, 136 Ariz. at 507–08 (overruling, among others, Pratt and Collier).

¶20 After overruling Arizona’s common law doctrine of
dram-shop nonliability, the Ontiveros Court recognized a common law
dram-shop action: “Tavern owners . . . may be held liable when they sell
liquor to an intoxicated patron or customer under circumstances where the
licensee or his employees know or should know that such conduct creates
an unreasonable risk of harm to others.” Id. at 513. The Court then invited
the legislature to weigh in, stating “[i]f we are mistaken in [creating a dram-
shop action], it is possibly within the legislative power to confer upon the
liquor industry some special benefit exempting it from liability.” Id. 2

¶21 The legislature responded by enacting A.R.S. §§ 4-311 and
-312 in 1986. Section 4-311(A) imposes liability upon a liquor licensee that
serves alcohol to a patron who is “obviously intoxicated,” § 4-311(A)(1),
which is defined as being “inebriated to such an extent that a person's
physical faculties are substantially impaired and the impairment is shown
by significantly uncoordinated physical action or significant physical
dysfunction that would have been obvious to a reasonable person,”

2 This invitation is hard to square with the dissent’s conclusion that the
common law dram-shop action recognized in Ontiveros is protected by the
anti-abrogation clause. Infra ¶¶ 65, 78. Especially because the Ontiveros
Court, through its author, Justice Feldman, who also authored Boswell and
Hazine, presumably would not have invited the legislature to pass statutes
“exempting [liquor licensees] from liability” if such statutes would be
unconstitutional. See 136 Ariz. at 513.
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§ 4-311(D). Section 4-312(B) then limits liquor licensees’ tort liability to
dram-shop actions brought under § 4-311.

¶22 In 1995, the court of appeals considered whether § 4-311(A)’s
“obviously intoxicated” standard violated the anti-abrogation clause by
instituting a more stringent standard than the one recognized in Ontiveros.
Young, 184 Ariz. at 189. The court found that § 4-312(B)’s limitation of
“dram shop liability to that found in [§] 4-311” did not provide “a
reasonable alternative to the general negligence action recognized in
Ontiveros when [claimants] are injured by a driver that the
licensee . . . should know is intoxicated, but the driver is not ‘obviously
intoxicated.’” Id. at 189–90. The court thus held that § 4-312(B)
“unconstitutionally abrogates the general negligence cause of action
recognized in Ontiveros.” Id. at 190.

¶23 By contrast, the court of appeals in this case disagreed with
the Young court and held that the anti-abrogation clause does not extend to
dram-shop actions. Torres II, 253 Ariz. at 77 ¶ 39. It decided that “[e]ven if
Young was correct in determining § 4-312(B) abrogates” dram-shop actions,
“the common law cause of action . . . recognized in 1983 did not exist in
1912.” Id. at 76–77 ¶ 37. As such, the court found that because a dram-shop
action “could not have been maintained at the time the anti-abrogation
clause was instituted, the claim is not protected by that clause.” Id.
at 77 ¶ 37.

¶24 We agree with the court below and overrule Young’s contrary
holding. Ontiveros explicitly found that dram-shop liability was rejected by
pre-statehood common law and overruled Arizona precedents recognizing
the common law rule of dram-shop nonliability. 136 Ariz. at 507–08.
Plaintiffs here do not argue that Ontiveros’s analysis was incorrect, and we
see no reason to depart from it. An injured person at statehood could not
sue this specific type of defendant—a liquor licensee—for damages caused by
an overserved patron. 3

3 Admittedly, the Ontiveros Court stated its adoption of a standard of duty
allowing for dram-shop liability was not a “new concept previously
unrecognized at common law.” 136 Ariz. at 511 n.3. This statement,
however, was pertinent only to the Court’s analysis of legal duty and does
not contradict (1) that Court’s earlier conclusion that “the rule of

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¶25 Dram-shop actions are sui generis. Despite common elements
of proof, they are not, as the dissent argues, simple negligence actions. The
right of action hinges on the nature of the injury and the defendant—a
nuance that this Court has discerned in other contexts. See, e.g., Frohmiller,
60 Ariz. at 468–69 (“[S]ome of the states have held that an occupational
disease falls within the common law liability of an employer who is guilty
of negligence, but when the constitution of this state was adopted
occupational diseases had neither a common law history nor statutory
origin.”); Dickey, 205 Ariz. at 3 ¶ 9 (noting that plaintiff “failed to establish
that a right of action for simple negligence, against a municipality engaged
in a governmental function, existed at common law”). Accordingly, dram-
shop actions are analogous to the negligence actions at issue in Dickey and
Morrell, which were not constitutionally protected because the respective
defendants could not have been liable for negligence at the time of
statehood. Dickey, 205 Ariz. at 6 ¶ 23; Morrell, 16 Ariz. at 517. The dissent
attempts to distinguish Dickey and Morrell by arguing they turned “on the
sovereign immunity enjoyed by the city-defendants at statehood rather
than the nature of the particular negligence actions,” and thus “there was
no right of action available to people injured by a city’s negligence.” Infra
¶ 72. This is a distinction without a difference.

¶26 The doctrine of sovereign immunity is not sacrosanct: just as
dram-shop nonliability was a judicially created common law rule, “the
doctrine of sovereign immunity was originally judicially created” and
“having been engrafted upon Arizona law by judicial enunciation may
properly be changed or abrogated by the same process.” Stone v. Ariz.
Highway Comm’n, 93 Ariz. 384, 393 (1963). In overturning the doctrine, the
Court in Stone noted that State v. Sharp, 21 Ariz. 424 (1920), was “[t]he first
case in Arizona” to hold a sovereign immune from tort liability and did so
“[w]ithout examining any real basis or reason for sustaining the doctrine”
beyond its historical use. Stone, 93 Ariz. at 389. Subsequent decisions in the
period between Sharp and Stone “followed the rule without arriving at any
basis other than that of stare decisis.” Id. The dissent references a
comparison to Washington state constitutional law, but this Court has
acknowledged that “[i]n other states, including Arizona, the court, rather

nonliability for tavern owners [was] the common law in Arizona,” id. at 504,
and (2) that Court’s decision, in light of evolving standards of causation, to
overrule numerous cases establishing the common law rule of dram-shop
nonliability, id. at 507–08.
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than the legislature, abolished the judicially-created doctrine of sovereign
immunity.” Clouse ex rel. Clouse v. State, 199 Ariz. 196, 201 ¶ 18 (2001).

¶27 A plaintiff could sue a city-defendant for negligence in 1912,
but governmental immunity would ultimately bar the plaintiff’s recovery
as a matter of law. See, e.g., Morrell, 16 Ariz. at 512 (involving this scenario).
Similarly, a 1912 plaintiff could sue a dram shop for injuries caused by a
patron who was overserved—however, the doctrine of dram-shop
nonliability would ultimately bar the plaintiff’s recovery as a matter of law.
If the anti-abrogation clause does not extend to the city-defendants in
Morrell and Dickey because they would have been immune from tort
liability at the time of statehood, see Morrell, 16 Ariz. at 517; Dickey, 205 Ariz.
at 6 ¶ 23, it makes little sense to extend it to liquor licensees who also would
have not been liable in 1912 for injuries caused by overserved patrons.

¶28 In sum, dram-shop actions are not based in a right of action
recognized by our pre-statehood common law and are outside the scope of
the anti-abrogation clause. Consequently, the legislature’s limitation of
dram-shop liability to actions brought under § 4-311, see § 4-312(B), does not
run afoul of the anti-abrogation clause by abrogating the common law
dram-shop action recognized in Ontiveros.

III. CONCLUSION

¶29 We vacate the court of appeals’ decision but affirm its ruling
and remand to the trial court for entry of judgment in favor of JAI.

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JUSTICE BOLICK, Concurring

BOLICK, J., concurring:

¶30 I concur fully in the Court’s well-reasoned decision. I write
separately to further address the dissent, which urges us to assert expansive
policymaking powers that are reserved by the Arizona Constitution to the
people and their elected representatives. See Cave Creek Unified Sch. Dist. v.
Ducey, 233 Ariz. 1, 4 ¶ 8 (2013) (“The legislature and electorate ‘share
lawmaking power under Arizona’s system of government.’” (quoting Ariz.
Early Childhood Dev. & Health Bd. v. Brewer, 221 Ariz. 467, 469 ¶ 7 (2009))).

¶31 The dissent relies heavily on stare decisis, thus implying
excess on the part of the majority in upholding a statute grounded in the
state’s police power. But even to the extent it finds support in precedent,
the dissent greatly aggrandizes judicial policymaking power. It proceeds
from the premise that the judiciary’s power to “evolve” common law is
“plenary.” Infra ¶ 63. See Plenary, Random House Webster’s College
Dictionary (2nd ed. 1997) (“full; complete; entire; absolute; unqualified”).
Thus, in the dissent’s view, so long as the resulting rule derives from a
generic tort recognized at statehood (here, negligence), the judiciary
possesses unbounded power to create new duties, liabilities, and damages;
not only those that did not exist when our state was established, but even
those that were actually prohibited. Even beyond that, through an overly
expansive application of article 18, section 6, the dissent takes this vision of
living common-lawism a giant step further than its cousin, living
constitutionalism: once the judiciary has ratcheted up tort exposure, it can
never be ratcheted down—not by the legislature, the people acting in their
legislative capacity, or even the judiciary itself.

¶32 The dissent is correct that proper development of the common
law is inherent in the judicial power. For hundreds of years, the English
common law developed gradually, based on discovery of rules necessary
to govern human affairs. See Gamble v. United States, 139 S. Ct. 1960, 1983–84
(2019) (Thomas, J., concurring) (“Common law doctrines, as articulated by
judges, were seen as principles that had been discovered rather than new
laws that were being made. It was the application of the dictates of natural
justice, and of cultivated reason, to particular cases.” (cleaned up)). But the
unfettered judicial development of common law, as the late Justice Antonin
Scalia observed, was eventually constrained by “a trend in government that
has developed in recent centuries, called democracy.” Antonin Scalia, A
Matter of Interpretation 7 (1997) (hereinafter Matter of Interpretation). In a

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JUSTICE BOLICK, Concurring

democracy, judges no longer enjoyed unalloyed power to develop common
law, because “judges are no longer agents of the king, for there are no
kings.” Id.

¶33 Along with American republican democracy came a
constitutional separation of powers. In Arizona, that separation is explicit,
and so central to our system of government that an entire constitutional
article is dedicated to the clear one-sentence command: “The powers of the
government of the state of Arizona shall be divided into three separate
departments, the legislative, the executive, and the judicial; and, except as
provided in this constitution, . . . no one of such departments shall exercise
the powers properly belonging to either of the others.” Ariz. Const. art. 3;
see also Roberts v. State, 253 Ariz. 259, 268 ¶ 32 (2022) (“What the United
States Constitution structurally implies, the Arizona Constitution makes
explicit.”). Indeed, the separation of powers command precedes the
constitutional articles setting forth the powers and duties of the three
governmental branches, so that it serves as a baseline principle by which
those powers should be construed. With regard to judicial powers, the
strict separation of powers reflects the concern expressed in The Federalist
No. 78, that “liberty can have nothing to fear from the judiciary alone, but
would have everything to fear from its union with either of the other
departments.” The Federalist No. 78, at 298 (Alexander Hamilton) (The Legal
Classics Library ed., 1983).

¶34 In both the federal and state constitutional settings, the
primary policymaking power resides, unquestionably, in the legislature
(although in Arizona, the people are also empowered to exercise legislative
power). See State v. Hansen, 215 Ariz. 287, 289 ¶ 9 (2007) (“Under the
Arizona Constitution, the legislature possesses those powers ‘not expressly
prohibited or granted to another branch of government.’” (quoting Adams
v. Bolin, 74 Ariz. 269, 283 (1952))); State v. Ariz. Mines Supply Co., 107 Ariz.
199, 204 (1971) (observing that the legislature exercises the state’s police
power).

¶35 Our Constitution does not expressly invest the judiciary with
the power to create common law. Rather, as the dissent recognizes, infra
¶ 64, such power is implied. Hence, the legislative power to create public
policy should be considered the default rule to which the judicial power,
absent express constitutional limitation, should submit. Indeed, that rule is
reflected in one of our foundational statutes, which adopts “[t]he common

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JUSTICE BOLICK, Concurring

law only so far as it is . . . not repugnant to or inconsistent with . . . the
constitution or laws of this state.” A.R.S. § 1-201 (emphasis added). We have
expressly recognized the essential relationship between this statute and our
constitutional separation of powers, holding that “judge-made substantive
law is subordinated to contrary legislative acts validly adopted under
Article 4. Section 1-201 recognizes this basic constitutional principle,
adopting the common law only insofar as it is ‘not repugnant to or
inconsistent with . . . the laws of this state.’ Thus, when a substantive
statute conflicts with the common law, the statute prevails under a
separation of powers analysis.” Seisinger v. Siebel, 220 Ariz. 85, 92 ¶ 28
(2009).

¶36 In an opinion joined by the dissenting justice, we recently
applied this appropriately modest approach to judicial policymaking in the
common law context. In Quiroz v. ALCOA Inc., 243 Ariz. 560 (2018), we
observed that “[i]n Arizona, our primary source for identifying a duty
based on public policy is our state statutes.” Id. at 566 ¶ 18. We cited
approvingly the following principle demarcating the respective
policymaking roles of the legislature and judiciary:

The declaration of “public policy” is primarily a legislative
function. The courts unquestionably have authority to declare
a public policy which already exists and to base its decisions
upon that ground. But in the absence of a legislative
declaration of what that public policy is, before courts are
justified in declaring its existence such public policy should
be so thoroughly established as a state of public mind, so
united and so definite and fixed that its existence is not subject
to any substantial doubt.

Id. at 566 ¶ 19 (quoting Ray v. Tucson Med. Ctr., 72 Ariz. 22, 35–36 (1951)).
By contrast, the decisions cited by the dissent that purportedly invoke open-
ended judicial power to “evolve” common law do not even pause to
consider the separation of powers ramifications of usurping, displacing, or
subjugating the legislature’s policymaking role. Although we should
always accord due deference to past decisions, our oath as judges is to the
Constitution, not to the stare decisis doctrine. Thus, as an opinion by my
dissenting colleague observes, we should overturn prior cases if they are
clearly erroneous or manifestly wrong. Laurence v. Salt River Project Agric.
Improvement & Power Dist., 255 Ariz. 95, ___ ¶¶ 17–20 (2023) (overturning

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JUSTICE BOLICK, Concurring

multiple past opinions in the tort law context). Indeed, I cannot think of a
more “compelling reason” for doing so, id. ¶ 20, than when the prior
decisions transgress the constitutional boundaries of our own power.

¶37 The dissent, relying on past opinions to that effect, asserts that
what up-ends legislative hegemony in favor of vast and immutable judicial
policymaking power is article 18, section 6, which states in relevant part
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.” Ariz. Const. art. 18, § 6. This provision does not by its terms
confer any policymaking authority upon the judiciary, though of course as
with all constitutional provisions, the judiciary has the power and duty to
enforce it.

¶38 But this provision, while important, does not carry the freight
the dissent or prior opinions load upon it. If the Constitution’s framers
wanted to divest the legislature of significant authority, locate it instead in
the judiciary, and render it largely unchangeable, they chose a curious place
and odd verbiage to do so.

¶39 The dissent asserts this provision was so important that the
framers “repeated it when declaring individual rights.” Infra ¶ 55. Not so.
Article 2, section 31 of the Arizona Constitution, which is part of our
Declaration of Rights, states in relevant part: “No law shall be enacted in
this state limiting the amount of damages to be recovered for causing the
death or injury of any person.” I take this, by its plain terms, to prohibit
any caps on damages as that term was understood by its drafters.

¶40 Similar language appears in article 18, section 6, but it refers
to “[t]he right of action to recover damages” that “shall never be
abrogated.” Ariz. Const. art. 18, § 6. That language does not exist in article
2, section 31. “A word or phrase is presumed to bear the same meaning
throughout a text; a material variation in terms suggests a variation in
meaning.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 170 (2012). So, we are left to determine what is
meant by the language that is particular to article 18, section 6; and, to the
issue before us here, whether it extends forward to a “right of action”
judicially created after the Constitution was adopted.

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JUSTICE BOLICK, Concurring

¶41 “When construing a constitutional provision, we seek to give
terms the original public meaning understood by those who used and
approved them,” read in their overall context. Matthews v. Indus. Comm’n,
254 Ariz. 157, 174 ¶ 29 (2022). One would think that a companion to article
2, section 31 that applied to all circumstances and all causes of action
recognized in the past or future would likewise appear in the Declaration
of Rights. But it does not. Instead, it appears in article 18, which deals with
“Labor.” If article 18, section 6 speaks to all circumstances and all causes of
action, both past and future, it is a strange coupling with sections in the
same article dealing with an eight-hour workday (section 1), child labor
(section 2), contractual immunity of employer from liability for negligence
(section 3), employer’s liability (section 7), and workmen’s compensation
(section 8).

¶42 The positioning of section 6 within article 18 likely explains
the choice of the term “[t]he right of action.” “The” is singular, whereas “a”
may be singular or plural. “Unlike the indefinite article ‘a,’ ‘the’ is a definite
article used in reference to a particular thing . . . .” Smith v. Melson, Inc., 135
Ariz. 119, 121 (1983). Had the framers intended a plural meaning, they
could have used the term “rights” or “causes,” but they did not. Thus, both
the words used and their surrounding context indicate that “[t]he right of
action” referred to a specific, existing labor-related right of action.

¶43 It turns out that was exactly what the framers intended. In a
definitive law review article addressing this precise topic, University of
Arizona law professor Roger C. Henderson accomplished what this Court
has never even attempted: a deep historical analysis of the aims and
sequence of events that led to the adoption of article 2, section 31 and article
18, section 6; of whether the two provisions are in fact largely redundant,
as the dissent and some prior opinions posit; and whether the latter
provision was designed to apply to a narrow set of circumstances or rather
to “benefit all.” Roger C. Henderson, Tort Reform, Separation of Powers, and
the Arizona Constitutional Convention of 1910, 35 Ariz. L. Rev. 535 (1993).

¶44 Professor Henderson recounts that the “main concern” at the
time of constitutional ratification “was the plight of the worker who, when
injured on the job, was faced with a formidable trilogy of defenses—fellow-
servant doctrine, assumption of risk, and contributory negligence—when a
tort action was brought against the employer.” Id. at 608; see also Ariz.
Const. art. 18, § 4 (forever abrogating the “common law doctrine of fellow

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JUSTICE BOLICK, Concurring

servant, so far as it affects the liability of a master for injuries to his servant
resulting from the acts or omissions of any other servant or servants”).
What became article 2, section 31 initially included language limiting it to
employee damages, but that language was removed and the provision
made more universal by adding it to the Declaration of Rights. Henderson,
supra, at 583, 602. By contrast, article 18, section 6 remained in the labor
article, and as constitutional delegate Michael Glen Cunniff explained, the
aim of the labor article was “merely to insure the using of every possible
safety appliance and devise [sic], and to make the employers hold life less
cheaply.” John S. Goff, The Records of the Arizona Constitutional Convention
of 1910, at 882 (1991).

¶45 Scouring the convention history, Professor Henderson
reports that “[t]here was no mention or even a suggestion” that any of the
Article 18 provisions “would apply outside the employer-employee
context.” Henderson, supra, at 613. Thus, “there does not appear on the
basis of the evidence available today to be any real justification for holding
that the guarantees under Section 6 of Article XVIII were ever intended for
the ‘benefit of all.’” Id. at 617. Beyond the labor context to which the
provision was specifically directed, Henderson suggests that personal
injury plaintiffs should look to equal protection or due process principles
to protect their rights. Id. at 617–18. “[T]his more traditional allocation of
powers between the courts and the legislature,” he concludes, “is far more
salutary than a position that ostensibly permits the courts to make-up all
the law they want without the elected representatives in the legislature
having any say about it.” Id. at 618.

¶46 Stare decisis may support a broader scope for article 18,
section 6 recognized by prior cases. But to the extent that past decisions
have rendered it so broad that it insulates judicially invented causes of
action against legislative modification or repeal and subverts separation of
powers by asserting “plenary” common law policymaking authority, we
should correct our past errors. See Hazine v. Montgomery Elevator Co., 176
Ariz. 340, 346 (Martone, J., dissenting) (stating that the Court has
“constitutionalize[d] the law of torts” and that article 18, section 6 provides
“no authority for such an exceptional proposition”). Indeed, elsewhere we
have done so by overturning Little v. All Phoenix South Community Mental
Health Center, 186 Ariz. 97 (App. 1996), which applied article 18, section 6 to
freeze a judicially created common law doctrine against legislative
modification. Avitia v. Crisis Preparation and Recovery Inc., CV-22-0288-PR,

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JUSTICE BOLICK, Concurring

slip op. at 20–21 ¶ 39 (Ariz. Oct. 16, 2023). By allowing such rulings to
stand, we would continue to license ourselves to exercise legislative powers
that we do not possess.

¶47 In addition to preventing any branch of government from
accreting too much power, separating legislative and judicial powers
reflects the lesson that each branch is manifestly unsuited to exercise the
powers of the other except in narrowly specified instances (such as
legislative impeachment powers or judicial rulemaking powers). In
particular, the judicial forum is especially inappropriate for rendering
major policy decisions. In a typical case, we have before us only two parties,
who seek their own ends and cannot possibly represent the vast range of
interests implicated by most major policy decisions. We are unequipped to
weigh such competing interests, and in fact should insulate ourselves from
considerations outside the dispute before us and the governing law. Our
decisions are typically fact-bound, they cannot and do not anticipate all
possible applications.

¶48 By contrast, the legislative process is designed to take all
interests into account, to weigh them and make necessary trade-offs, and to
produce rules to govern a wide range of situations. See Ariz. Minority Coal.
for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n, 220 Ariz. 587, 595
¶ 20 (2009) (stating that we exercise legislative deference “not only because
legislative enactments originate with a coequal branch of government, but
also because that institution is far better equipped than the judiciary to
amass and evaluate the vast amounts of data bearing upon legislative
questions” (internal quotation marks omitted) (quoting Turner Broad. Sys.,
Inc. v. FCC, 520 U.S. 180, 195–96 (1997))). And those rules are apt to be
altered based on subsequent experience, whereas correcting flawed
jurisprudence requires costly and time-consuming litigation and is bound
by stare decisis.

¶49 Thus, when my dissenting colleague laments the possible
ramifications of our decision, infra ¶ 82, she may be entirely right; but those
concerns are properly directed to the legislature, not to us. Far worse than
judicial restraint in these circumstances is a judiciary that makes sweeping
public-policy pronouncements that, by the dissent’s reckoning, cannot be
changed short of constitutional amendment.

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JUSTICE BOLICK, Concurring

¶50 How then do we appropriately reconcile the judiciary’s
residual common law powers and duty to enforce constitutional provisions
with the legislature’s policymaking authority? In the first instance, as the
dissent suggests, we must apply article 18, section 6 to prevent any
abrogation of the right of action specified in that section. But as the opinion
of the Court aptly reasons, that limitation on legislative authority refers
only to rights of action that existed at common law in 1912 or are based in
such rights. Supra ¶ 18. It cannot apply to actions like the one here which,
as the dissent acknowledges, would have been dismissed at statehood as a
matter of law.

¶51 Beyond that, the courts have authority to apply the common
law to new circumstances and to adopt new rules, but in so doing we are
subject to legislative authority to modify our handiwork. § 1-201. When
developing the common law, we should always be mindful of our
separation of powers boundaries. We recently addressed this issue in the
context of an incursion by an executive agency into legislative prerogatives
involving a “major policy question that the legislature alone may
determine.” Roberts, 253 Ariz. at 270 ¶ 40. That same line of demarcation
should guide the judicial development of public policy in the common law
context, whereby judicial application of existing common law doctrines is
permissible but creation of sweeping new duties and liability is not. See,
e.g., Quiroz, 243 Ariz. at 579 ¶ 89 (rejecting “a limitless duty framework”
that is “impractical, unmanageable, and has never been the law in this
state”).

¶52 Justice Scalia reminded that “once we have taken this realistic
view of what common-law courts do, the uncomfortable relationship of
common-law lawmaking to democracy (if not to the technical doctrine of
separation of powers) becomes apparent.” Matter of Interpretation, supra,
at 10. The dissent would subordinate our express separation of powers to
an overly expansive view of the judiciary’s implied powers. With great
respect to my dissenting colleague, I think the Court today strikes the right
and necessary balance.

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VICE CHIEF JUSTICE TIMMER, Dissenting

TIMMER, V.C.J., dissenting:

¶53 The majority errs, in my view, by equating nonliability for
tavern owners under a pre-statehood negligence cause of action with the
absence of a “right of action” protected by article 18, section 6, the
anti-abrogation clause. By failing to acknowledge constitutional protection
for actions as evolved since statehood, the majority effectively returns us to
1912, thereby weakening the anti-abrogation clause’s open court access
guarantee. In doing so, my colleagues ignore several cases from this Court
that interpreted the anti-abrogation clause more expansively. I conclude
the majority’s holding is both incorrect and contrary to stare decisis
principles. For these reasons, and because I also conclude that A.R.S.
§ 4-312(B) violates the anti-abrogation clause, I respectfully dissent.

A. A Common Law Dram-Shop Action Is Protected By The
Anti-Abrogation Clause.

¶54 The anti-abrogation clause provides that “[t]he right of action
to recover damages for injuries shall never be abrogated,” thereby
guaranteeing that people will have unhindered access to courts to
adjudicate injury claims. Ariz. Const. art. 18, § 6. By its plain language, the
clause does not confine its application to particular theories or causes of
action that permitted claimants in 1912 to recover compensation for
injuries. It means what it says: the right to file an action in a court to recover
compensation for injuries cannot be taken away. See Kenyon v. Hammer, 142
Ariz. 69, 74 (1984) (concluding that the clause “[c]learly and
unequivocally . . . directs that the courts of this state shall be open to the
injured and oppressed” (quoting Daugaard v. Baltic Coop. Bldg. & Supply
Ass’n, 349 N.W.2d 419, 425 (S.D. 1984))); Kilpatrick v. Superior Court, 105
Ariz. 413, 419 (1970) (stating that “[without] room for quibbling” and
“[w]ithout limitation” the anti-abrogation clause “confers the right to
recover damages for injuries as existing under the common law”).

¶55 The anti-abrogation clause was not a mere afterthought in the
Arizona Constitution. The progressive-minded framers, who made up the
majority of the constitutional convention, included it as part of a platform
aimed, in part, at recognizing individual freedoms and protecting them
from interference by a government heavily influenced by powerful private
interests. See John D. Leshy, The Arizona State Constitution 8–9, 20 (2nd ed.
2013) (hereinafter, “Leshy”). As such, our anti-abrogation clause

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VICE CHIEF JUSTICE TIMMER, Dissenting

guarantees court access to seek redress for injuries, making it unique among
other states’ “open court” provisions. See Boswell v. Phx. Newspapers, Inc.,
152 Ariz. 9, 12–13 (1986) (describing the clause as a “more specific and
stronger” version of other states’ “open court” provisions) (citation
omitted); Kenyon, 142 Ariz. at 83 (holding that the clause confers a
“fundamental right”). The framers felt so strongly about this right they
repeated it when declaring individual rights.4 See Ariz. Const. art. 2, § 31
(“No law shall be enacted in this state limiting the amount of damages to
be recovered for causing the death or injury of any person.”); Kenyon, 142
Ariz. at 80 n.9 (describing the “hard-fought battles waged on the floor of
the constitutional convention of 1910” that culminated in adopting article
18, section 6 and article 2, section 31, and concluding that “the two
provisions were intended to guarantee the same basic right”).

¶56 In short, the anti-abrogation clause “constitutionalize[d] the
right to obtain access to the courts and a remedy for damages sustained.”
Boswell, 152 Ariz. at 13; see also Ruth v. Indus. Comm’n, 107 Ariz. 572, 575
(1971) (“The case law is replete with the history of the [anti-abrogation
clause]” and reveals that the clause “was enacted to elevate the common
law action of negligence to constitutional stature to preserve the right

4 In his concurrence, Justice Bolick disagrees that article 18, section 6 and
article 2, section 31 guarantee the same fundamental right. See supra
¶¶ 39–45. But this Court resolved any uncertainty decades ago by
providing a detailed account of events at the constitutional convention. See
Kenyon, 142 Ariz. at 80 n.9. Both provisions emanate from the same
proposition, which originally applied only to employer-employee
situations. See id. After inquiry from delegates about why the anti-
abrogation guarantee should not protect all people involved in an accident,
death, or injury, delegate Cunniff successfully moved to expand the
proposition to become article 18, section 6. Id. Thereafter, Cunniff
successfully moved for the provision to be included under the declaration
of rights as article 2, section 31 simply as “a matter of compilation” of
individual rights. Id. (citing Journal, December 5, 1910, p. 2). Although the
first sentence in article 18, section 6 was not repeated in article 2, section 31,
“[i]t is fair to suppose that by curtailing the legislature’s power to limit the
amount of damages recovered” the framers “intended to proscribe
legislation which would abolish or abrogate causes of action, since
abrogation not only limits the amount recoverable but allows no recovery
at all.” Id.
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VICE CHIEF JUSTICE TIMMER, Dissenting

inviolate.”); Moseley v. Lily Ice Cream Co., 38 Ariz. 417, 420 (1931) (finding
“no question” that the common law action for negligence is a constitutional
action that “cannot be abrogated by the Legislature”); Alabam’s Freight Co.
v. Hunt, 29 Ariz. 419, 443 (1926) (recognizing that “the common-law action
of negligence” is “imbedded in the Constitution”). Arizonans have
jealously guarded the anti-abrogation clause and its article 2 companion
clause, defeating proposals in 1986, 1990, and 1994 to amend the
constitution to give the legislature authority to curb the clauses’ effects,
including “limit[ing] damage awards and causes of action in ordinary
negligence cases (the 1986 amendment).” 5 Leshy at 387.

¶57 The pivotal issue here involves determining which rights of
action are “constitutionalized” under the anti-abrogation clause. We do not
write on a blank slate, because we have confronted the topic many times.
See, e.g., Cronin v. Sheldon, 195 Ariz. 531, 538–39 ¶¶ 33–39 (1999); Hazine v.
Montgomery Elevator Co., 176 Ariz. 340, 343–44 (1993); Bryant v. Cont’l
Conveyor & Equip. Co., 156 Ariz. 193, 195 (1988), overruled by Hazine, 176 Ariz.
at 344; Boswell, 152 Ariz. at 13.

¶58 This Court interprets the anti-abrogation clause “broadly and
unrestrictively,” Cronin, 195 Ariz. at 538 ¶ 35, and we have repeatedly
recognized that the “right of action” protected by the anti-abrogation clause
“is not limited to those elements and concepts of particular actions which
were defined in our pre-statehood case law.” Boswell, 152 Ariz. at 17–18
(extending anti-abrogation clause protection to emotional distress
damages, although such damages were first recognized post-statehood); see
also Hazine, 176 Ariz. at 344–45 (recognizing that although a strict products
liability action did not exist at statehood, the anti-abrogation clause
protected the right to bring it); Humana Hosp. Desert Valley v. Superior Court,
154 Ariz. 396, 399 (App. 1987) (concluding that a negligent supervision
cause of action is protected by the anti-abrogation clause even though the
action was first recognized in 1972); Franks v. U.S. Fid. & Guar. Co., 149 Ariz.
291, 299–300 (App. 1985) (extending anti-abrogation clause protection to the
tort of bad faith, although this cause of action was not recognized until
1981). Thus, the majority overstates matters, in my view, by asserting that
for “over a century of jurisprudence, this Court has never extended the

5 In 2012, however, the voters amended both clauses to protect felony crime

victims by abrogating damage claims against them filed by their
perpetrators. See Leshy at 387.
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VICE CHIEF JUSTICE TIMMER, Dissenting

anti-abrogation clause’s protections to rights of action incognizable at
statehood.” See supra ¶ 9.

¶59 Importantly, however, the protected “right of action” does
not envelop all tort causes of action existing today. See Cronin, 195 Ariz.
at 538–39 ¶¶ 35–36. Instead, it includes only “tort actions that ‘either
existed at common law or evolved from rights recognized at common law.’”
Dickey ex rel. Dickey v. City of Flagstaff, 205 Ariz. 1, 3 ¶ 9 (2003) (quoting
Cronin, 195 Ariz. at 539 ¶ 39).

¶60 I disagree with my colleagues that the common law
dram-shop cause of action this Court recognized in Ontiveros v. Borak, 136
Ariz. 500, 513 (1983), is not a “right of action” protected by the
anti-abrogation clause. Despite its unique name, the action is just one for
simple negligence. It seeks compensation from a liquor licensee who
creates a dangerous situation by overserving an already intoxicated patron
who then drives and injures or kills someone. See id. Success depends on
proving negligence elements memorized by all first-year law school
students: duty, breach, causation, damages. See id. A simple negligence
action to recover compensation for physical injuries indisputably existed at
statehood. See, e.g., S. Pac. Co. v. Hogan, 13 Ariz. 34 (1910); see also Bryan v.
S. Pac. Co., 79 Ariz. 253, 256 (1955) (describing simple negligence as
“involv[ing] the creation of an unreasonable risk of bodily harm to
another”); cf. Indus. Comm’n v. Frohmiller, 60 Ariz. 464, 468–69 (1943)
(disallowing constitutional protection for recovering damages due solely to
an occupational disease rather than physical injury because no such right
of action existed at statehood). Consequently, a claim that a liquor licensee
owed a duty to the traveling public and breached that duty by overserving
alcohol to a customer who, as a result, drove while impaired and struck and
injured or killed another person is a right of action protected by the
anti-abrogation clause. See Dickey, 205 Ariz. at 3 ¶ 9.

¶61 The majority concludes that a common law dram-shop cause
of action is not a protected right of action because it was newly created in
1983 when Ontiveros recognized its viability, and, therefore it cannot be
based on a pre-1912 cause of action. See supra ¶ 24. As support, the majority
points to the Ontiveros Court’s acknowledgment that at common law a
tavern owner could not be found liable for injuries caused by an intoxicated
patron. See id.; Ontiveros, 136 Ariz. at 504. The majority finds that a
common law dram-shop cause of action falls outside the anti-abrogation

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clause’s guarantee because “[a]n injured person at statehood could not sue
this specific type of defendant—a liquor licensee—for damages caused by an
overserved patron.” See supra ¶ 24.

¶62 Respectfully, I believe the majority is mistaken for several
reasons. First, nonliability is not the same as the absence of a right of action.
The negligence cause of action existed before 1912. But as the Ontiveros
Court explained, “concepts of causation” insulated tavern owners from
liability because “the drinking of the liquor, and not the selling of it” was
considered the cause of injury. 136 Ariz. at 505. In short, an injured party
before 1912 had the right to sue a tavern owner for bodily injuries inflicted
by an impaired patron, but the owner would have prevailed due to the
inability of the plaintiff to prove an element of that claim—causation.

¶63 Second, the majority’s view fails to credit the Court’s ability
to develop elements underlying a common law negligence action “when
changed conditions and circumstances establish that it is unjust or has
become bad public policy.” See id. at 504. As we stated in Cronin, a case the
majority cites repeatedly: “The common law is and has been a product of
the courts for hundreds of years. To adopt the common law is, by
definition, to adopt the plenary role of the judiciary in its continuing
development. Courts also participate in the development of public policy.”
195 Ariz. at 537 ¶¶ 26–27; see also Boswell, 152 Ariz. at 17 (“Although [the
anti-abrogation clause] preserves common law rights, our common law is
not frozen as of 1912.”).

¶64 Thus, at statehood, the framers fully expected the Court to
develop then-existing common law causes of action, molding them to fit
modern situations unimagined in 1912. Boswell, 152 Ariz. at 17. There was
no need for the framers to explicitly “vest[] in this Court the power to
develop common law,” as the majority suggests, see supra ¶ 15, just as there
was no need to explicitly vest this Court with the power to declare acts of
other branches unconstitutional (judicial review). See Leshy at 18 (stating
that the “power of judicial review . . . was assumed by the framers to exist,
although it was not expressly provided for in the constitution itself”). It
was a given. Significantly, the anti-abrogation clause contains no language
limiting its application to rights of action only as evolved in 1912. See
Boswell, 152 Ariz. at 13 (“The constitutional text being unrestricted, it would
be inappropriate for this court to restrict the guarantee by adding words of

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VICE CHIEF JUSTICE TIMMER, Dissenting

limitation ‘contrary to the plain language used.’” (quoting Kilpatrick, 105
Ariz. at 419–20)).

¶65 Ontiveros found that causation concepts had evolved to a rule
allowing a liquor licensee to be held liable in appropriate circumstances for
overserving a patron who later injures someone due to impairment. 6 136
Ariz. at 506. Applying this evolved understanding of causation to overturn
the rule of nonliability neither created a new cause of action nor removed
negligence claims against tavern owners from the anti-abrogation clause’s
protection. See Hazine, 176 Ariz. at 343–44 (“The evolution of common law
causes of action—whether in duty, standard of care, or damages—falls
within the broad coverage of [article 18, section 6].”); see also Cronin, 195
Ariz. at 539 ¶ 39 (“[T]he anti-abrogation clause applies only to tort causes
of action that either existed at common law or evolved from rights
recognized at common law.”).

¶66 The majority dismisses Boswell’s and Hazine’s conclusions that
the anti-abrogation clause applies to pre-statehood causes of action as
evolved after 1912 as incorrect dicta. See supra ¶ 14. I disagree. Despite the
majority’s characterization, neither case held that the anti-abrogation clause
extends to protect all tort causes of action, whatever their origins. See
Cronin, 195 Ariz. at 539 ¶ 36 (“What we did not do in Hazine, however, is
extend constitutional protection to all tort causes of action, whenever or
however they may have arisen.”). Boswell recognized that the
anti-abrogation clause “preserv[ed] the ability to invoke judicial remedies
for those wrongs traditionally recognized at common law.” 152 Ariz. at 17

6 Ontiveros acknowledged that sometimes “the public interest,
constitutional considerations, or both, require special rules to protect
certain businesses, professions or occupations from the ordinary theories of
tort liability.” 136 Ariz. at 512. Although it “[did] not find such
considerations applicable to the liquor industry,” the Court stated that if it
was mistaken, the legislature could “possibly” exempt the liquor industry
from liability. Id. at 513. The majority interprets this statement as an
“invitation” to the legislature to exempt the liquor industry from liability
and implies it reflects the Ontiveros Court’s belief that a dram-shop action
is not protected by the anti-abrogation clause. See supra ¶ 20 n.2. This was
an aside, not an invitation. Regardless, the impact of the anti-abrogation
clause on dram-shop actions was not before the Court or even mentioned.
Thus, the statement lacks any bearing on the issue before us.
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(emphasis added). It then concluded that although plaintiffs in defamation
actions could not recover for emotional distress at statehood, because the
right of action for defamation had evolved to include such damages, the
anti-abrogation clause protected the right to recover those damages. Id.
at 17–18. Similarly, Hazine recognized that the anti-abrogation clause
protects only causes of action that existed at statehood or have a basis in a
pre-statehood cause of action. 176 Ariz. at 343–44. Thus, it concluded that
because “[t]he right to recover for injuries caused by products was, of
course, recognized at common law . . . the development of strict liability
causes of action to vindicate that right” is protected by the anti-abrogation
clause. Id. at 344.

¶67 My colleagues’ snub of Boswell and Hazine also confuses me,
as the majority relies on Dickey to conclude that the anti-abrogation clause
protects rights of action that “find their ‘basis in the common law at the time
the constitution was adopted.’” See supra ¶ 8 (quoting Dickey, 205 Ariz. at 3
¶ 9). But Dickey equated actions based in the common law at statehood with
those that “evolved from rights recognized at common law.” Dickey, 205
Ariz. at 3 ¶ 9 (quoting Cronin, 195 Ariz. at 539 ¶ 39). Notably, Dickey also
relied on Boswell for this principle. See id. Despite the majority’s professed
adherence to Dickey, its rejection of Boswell and Hazine, and its conclusion
that an action is only based on a pre-statehood right of action if “a plaintiff
alleging the same harm could have recovered damages against the same type
of defendant at statehood,” see supra ¶ 16, leaves me skeptical whether any
causes of action that are based in pre-1912 causes of action are
constitutionally protected as the framers intended.

¶68 I also disagree with the majority that Boswell’s and Hazine’s
conclusions that the anti-abrogation clause applies to causes of action
evolved from pre-statehood actions is dicta. See supra ¶ 14. “Statements
and comments in an opinion concerning some rule of law or legal
proposition not necessarily involved nor essential to [the] determination of
the case in hand are obiter dicta, and lack the force of an adjudication.”
Barrows v. Garvey, 67 Ariz. 202, 206 (1948) (quoting Obiter Dicta, Black’s Law
Dictionary (3d ed. 1933)). The statements in Boswell and Hazine concerning
evolution formed the basis for their holdings that the anti-abrogation clause
protected the plaintiffs’ rights of action in those cases. Thus, in Hazine, the
Court concluded that the anti-abrogation clause protected a strict liability
products liability action, even though that cause of action did not exist at
statehood. See Hazine, 176 Ariz. at 344–45. And in Boswell, the Court found

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VICE CHIEF JUSTICE TIMMER, Dissenting

that the plaintiff’s action to recover for emotional distress in a defamation
case was protected, even though Arizona courts did not permit this
damages remedy until 1922. See Boswell, 152 Ariz. at 17–18.

¶69 Importantly, even if I disagreed with Hazine and Boswell,
because they were not “clearly erroneous or manifestly wrong,” I would
adhere to the reasoning in these cases under principles of stare decisis. See
Laurence v. Salt River Project Agric. Improvement & Power Dist., 255 Ariz. 95,
___ ¶ 17 (2023) (quoting State v. Agueda, 253 Ariz. 388, 391–92 ¶ 20 (2022)).
This is particularly so as many cases over several decades have relied on
these cases for the contested principle. See, e.g., Dickey, 205 Ariz. at 3 ¶ 9;
Cronin, 195 Ariz. at 538–39 ¶ 35; Goodman v. Samaritan Health Sys., 195 Ariz.
502, 506 ¶ 17 (1999); Humana Hosp. Desert Valley, 154 Ariz. at 399.

¶70 The majority contends that stare decisis is not implicated
because it agrees with the ultimate outcomes in Hazine and Boswell and
therefore does not overrule either case. See supra ¶ 14. With respect, it is
difficult to comprehend how the majority can refrain from overruling these
cases, at least in part, as they concerned a cause of action (Hazine) and a
damages remedy (Boswell) that did not exist at statehood but evolved from
pre-statehood rights. See Hazine, 176 Ariz. at 344–45; Boswell, 152 Ariz.
at 17–18. Regardless, the majority’s decision not to overrule Hazine and
Boswell does not alter the fact it now rejects the essential reasoning
underlying those decisions that other courts and parties have long relied
on. I would not readily abandon that reasoning.

¶71 Third, the majority unpersuasively analogizes common law
dram-shop actions to the negligence actions at issue in Dickey and Morrell
v. City of Phoenix, 16 Ariz. 511 (1915), superseded by statute as stated in City of
Phoenix v. Williams, 89 Ariz. 299, 33 (1961), which this Court determined fell
outside the anti-abrogation clause’s guarantee. See supra ¶ 25. Both Dickey
and Morrell concerned tort actions filed against cities, not a private entity
like JAI. See Dickey, 205 Ariz. at 2 ¶ 4; Morrell, 16 Ariz. at 512. The Court in
both cases found that the negligence actions were not protected by the
anti-abrogation clause because people did not have a right of action against
cities at statehood under any tort cause of action. See Dickey, 205 Ariz. at 3
¶ 9; Morrell, 16 Ariz. at 517. In short, the cities were immune from suit. See
Dickey, 205 Ariz. at 3 ¶ 9 n.3 (“Although negligence suits certainly have
their basis in common law, governments generally enjoyed sovereign
immunity from suits sounding in tort, a tradition that carried over to this

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VICE CHIEF JUSTICE TIMMER, Dissenting

country.”); see also Ashton-Blair v. Merrill, 187 Ariz. 315, 318 (App. 1996)
(“Common law immunities . . . do not abrogate a cause of action but are
longstanding public policy determinations that causes of action do not exist
in certain privileged situations.”).

¶72 Dickey and Morrell are distinguishable from our case as they
turn on the sovereign immunity enjoyed by the city-defendants at
statehood rather than the nature of the particular negligence actions.
Because in 1912 there was no right of action available to people injured by
a city’s negligence, there was no cause of action in those cases that could
evolve and find refuge in the anti-abrogation clause. See Dickey, 205 Ariz.
at 5 ¶ 18; Morrell, 16 Ariz. at 513. But the common law rule of nonliability
for tavern owners at statehood “was not a rule of immunity.” Ontiveros,
136 Ariz. at 505. A right of action for negligence against non-governmental
defendants existed at statehood, so that action, along with its evolved
causation element, is constitutionally protected. Dickey and Morrell do not
support a contrary conclusion.

¶73 The majority states that this distinction is one “without a
difference” because “the doctrine of sovereign immunity was originally
judicially created,” so no reason exists why Dickey and Morrell could not
have abrogated sovereign immunity so the negligence actions in those cases
could be included within the anti-abrogation clause’s protection. See supra
¶¶ 25–26 (quoting Stone v. Ariz. Highway Comm’n, 93 Ariz. 384, 393 (1963)).
I disagree. In Morrell, the source of the City of Phoenix’s immunity in
territorial days was a legislative directive, not a judicial creation that courts
could alter. See Morrell, 16 Ariz. at 512–13, 517 (stating that when the
constitution was adopted, the city charter in effect served as a territorial law
exempting the city from negligence liability). Dickey did not identify a
specific legislative source for the City of Flagstaff’s pre-statehood immunity
but instead relied on Morrell and a treatise recognizing that a city cannot be
civilly liable for negligent performance of duties “unless a right of action is
given by statute.” Dickey, 205 Ariz. at 3–4 ¶¶ 10–12 (quoting 6 Eugene
McQuillin, A Treatise on the Law of Municipal Corporations § 2623 (1913)).

¶74 Also, the Morrell and Dickey Courts could not have abrogated
sovereign immunity contrary to the statutory immunities at issue in those
cases, as the majority suggests. The constitution’s “immunity clause”
empowers the legislature to “direct by law in what manner and in what
courts suits may be brought against the state.” Ariz. Const. art. 4, pt. 2, § 18.

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This clause “confers upon the legislature a power to control actions against
the state that it does not possess with regard to actions against or between
private parties.” Clouse ex rel. Clouse v. State, 199 Ariz. 196, 203 ¶ 24 (2001).
Because the immunity clause is more specific than the anti-abrogation
clause, legislatively granted immunity does not violate the latter clause, and
courts have no power to change that outcome. See id. at 199 ¶ 11, 203 ¶ 24;
see also Andrews v. State, 829 P.2d 250, 251–52 (Wash. Ct. App. 1992) (“We
start with the proposition that the abolition of sovereign immunity is [a]
matter within the legislature’s determination. This is not because the court
says so, but because the constitution so states.” (quoted with approval in
Clouse, 199 Ariz. at 201 ¶ 17)).

¶75 My colleagues fear constitutionalizing the evolution of tort
common law by appellate courts, contending it would “wrest control” from
the legislature and violate our separation of powers. See supra ¶¶ 15, 36.
Justice Bolick, in particular, contends I seek to “aggrandize[] judicial
policymaking” and “subordinate our express separation of powers” all
while giving too much deference to stare decisis. See supra ¶¶ 31, 52. Not
so. I simply seek to fulfill the framers’ intent in defining and limiting the
powers given to each branch.

¶76 I have not crafted some expansive new principle out of whole
cloth. All of us acknowledge that this Court has held many times that the
anti-abrogation clause protects rights of action either existing at statehood
or that have evolved from such rights of action. The majority and I disagree
with the application of this principle here. Justice Bolick goes further by
stating we should disregard the cases I rely on to decide that a dram-shop
action is protected by the anti-abrogation clause. See supra ¶ 36. He
recognizes that “[s]tare decisis may support a broader scope for article 18,
section 6 recognized by prior cases,” see supra ¶ 46, yet he chides me for
following that important doctrine. But this Court should not readily
disregard long-adhered-to cases. As we said earlier this year, “[t]he [stare
decisis] doctrine is rooted in the public policy that people should be able to
rely on judicial precedent to know their rights and order their conduct
accordingly.” See Laurence, 255 Ariz. at ___ ¶ 17. Our prior cases
interpreting the anti-abrogation clause should stand unless they are clearly
erroneous or manifestly wrong. In my view, my colleagues have not
demonstrated this circumstance. See id.

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¶77 Justice Bolick also generally describes the judiciary’s place in
our democracy, and then concludes that my interpretation of the
anti-abrogation clause violates our constitutional separation of powers. See
supra ¶¶ 32, 52. But the Arizona Constitution, unlike the federal
constitution, contains a uniquely strong anti-abrogation clause, which
limits the powers exercised by all branches, including the judicial branch.
Although I agree with Justice Bolick that the common law must generally
yield to legislative directives, that is not so for common law tort actions
based on pre-statehood rights of action. Our progressive-minded
constitutional framers so feared governmental interference with people’s
ability to recover compensation for injuries under common law actions, that
they unrestrictedly guaranteed open access to our courts to redress injuries
not once but twice. If that was a poor idea, we should leave it to the people
to change the constitution.

¶78 In sum, I conclude that the common law dram-shop action is
a right of action protected by the anti-abrogation clause. I therefore address
whether A.R.S. § 4-312(B) unconstitutionally abrogates that action.

B. A.R.S. § 4-312(B) Violates The Anti-Abrogation Clause.

¶79 The legislature may regulate a tort cause of action protected
by the anti-abrogation clause if a claimant is left with “reasonable
alternatives or choices” to bring the action. See Barrio v. San Manuel Div.
Hosp., 143 Ariz. 101, 106 (1984). But the legislature cannot, “under the guise
of ‘regulation,’ so affect the fundamental right to sue for damages as to
effectively deprive the claimant of the ability to bring the action.” Id. This
Court said it best in Barrio: “The intent of our unique constitutional
provisions was to enact a ‘different and more advanced’ policy . . . ‘which
made it possible to enforce in court a claim for personal injury or death
without the necessity of overcoming practically insurmountable defenses.’”
Id. (quoting Indus. Comm’n v. Crisman, 22 Ariz. 579, 595 (1921) (McAlister,
J., concurring)).

¶80 I conclude that § 4-312(B) abrogates the common law
dram-shop claim rather than regulates it, and is, therefore, unconstitutional.
Section 4-312(B) disallows claims against liquor licensees for injuries caused
by impaired patrons who were not “obviously intoxicated” when
overserved by the licensee. The legislature defines a person who is
“obviously intoxicated,” essentially, as someone who is falling-down drunk

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or displaying exaggerated physical signs of intoxication. See A.R.S.
§ 4-311(D) (defining a patron as “obviously intoxicated” who is “inebriated
to such an extent that a person’s physical faculties are substantially
impaired and the impairment is shown by significantly uncoordinated
physical action or significant physical dysfunction that would have been
obvious to a reasonable person”). With this restriction, a person injured by
a drunk driver who was not, for example, staggering about or slurring
speech when overserved “mega buckets” of beer, as occurred in this case,
or an excessive number of alcoholic drinks, as occurred in Young v. DFW,
184 Ariz. 187, 189 (App. 1995), cannot recover for the liquor licensee’s
negligence. Section 4-312(B) bars the injured claimant from access to the
court to seek compensation for injuries, despite the fact the licensee knew
or should have known that the patron was impaired when served. See
Young, 184 Ariz. at 189 (involving a 125-pound woman who showed no
obvious signs of intoxication although she consumed nine to ten drinks in
four hours and had a post-accident blood alcohol concentration of .20). That
is abolishment, not regulation. See Barrio, 143 Ariz. at 106.

¶81 In sum, because § 4-312(B) abolishes a dram-shop claim for
persons like the plaintiffs in this case, whose family members were killed
by a drunk driver who was overserved but not “obviously intoxicated” as
defined by § 4-311(D), I conclude that the anti-abrogation clause renders
§ 4-312(B) unconstitutional.

CONCLUSION

¶82 Today’s decision has significant and regrettable judicial and
real-world consequences, not only for the plaintiffs here but for future
drunk driving victims and other tort claimants who cannot trace their
recovery rights to 1912 under the majority’s restrictive view of the
anti-abrogation clause. As amicus MADD suggests, abrogating the
common law dram-shop action “[e]liminat[es] an important, powerful, and
longstanding deterrent to businesses pushing last-call pre-closing alcoholic
drinks on patrons who have yet to appear intoxicated and are about to leave
and get behind the wheel.” And a future legislature may now abolish even
the statutory dram-shop action while simultaneously prohibiting renewal
of a common law action. The courthouse doors would be closed and locked
to the injured seeking compensation. To me, this seems precisely what the
framers intended to prevent.

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VICE CHIEF JUSTICE TIMMER, Dissenting

¶83 For all these reasons, and with great respect to my colleagues,
I would vacate the court of appeals’ opinion and affirm the superior court’s
judgment in favor of the accident victims’ families.

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