Torres v. Jai Dining

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ROBERTO TORRES, et al., Plaintiffs/Appellees,

v.

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

No. 1 CA-CV 19-0544
FILED 3-29-2022

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

REVERSED AND REMANDED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Appellate Counsel for Plaintiffs/Appellees

Clarke Law Offices, Phoenix
By Robert F. Clarke
Counsel for Plaintiffs/Appellees Torres

Koglmeier Law Group, PLC, Mesa
By Matthew D. Koglmeier
Counsel for Plaintiffs/Appellees Rosas and Suarez
Osborn Maledon, P.A., Phoenix
By Eric M. Fraser, Joshua D. Rothenberg Bendor, Hayleigh S. Crawford
Co-Counsel for Defendant/Appellant

Quintairos, Prieto, Wood & Boyer, P.A., Scottsdale
By Dominique T. Barrett
Co-Counsel for Defendant/Appellant

O’Steen & Harrison, PLC, Phoenix
By C. Lincoln Combs
Counsel for Amicus Curiae Arizona Association for Justice

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

Bowman and Brooke, LLP, Phoenix
By Amanda E. Heitz
Counsel for Amicus Curiae Arizona Association of Defense Counsel

Gammage & Burnham, P.L.C., Phoenix
By Camila Alarcon, Christopher L. Hering
Counsel for Amicus Curiae
Arizona Restaurant and Hospitality Association

OPINION

Presiding Judge Lawrence F. Winthrop1 delivered the opinion of the Court,
in which Judge Maria Elena Cruz and Judge David B. Gass joined.

1 Judge Lawrence F. Winthrop was a sitting member of this court
when the matter was assigned to this panel of the court. He retired effective
June 30, 2021. In accordance with the authority granted by Article 6, Section
3, of the Arizona Constitution and pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-145, the Chief Justice of the Arizona Supreme Court
has designated Judge Winthrop as a judge pro tempore in the Court of
Appeals, Division One, for the purpose of participating in the resolution of
cases assigned to this panel during his term in office.

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W I N T H R O P, Judge:

¶1 In this case, we address a liquor licensee’s liability for
damages its patron, Cesar Aguilera Villanueva, caused after a night of
drinking and irresponsible decisions that resulted in the deaths of two
persons. Specifically, we address whether Plaintiffs’2 common law
negligence and dram shop liability claims against the licensee,
Defendant/Appellant JAI Dining Services (Phoenix), Inc. (“JAI”), were
preempted by Arizona’s statutory scheme for determining dram shop
liability. See A.R.S. §§ 4-311, -312. The question comes to us on remand
from the Arizona Supreme Court, which has directed us to consider issues
previously raised by JAI on appeal. See Torres v. JAI Dining Servs. (Phoenix)
Inc. (“Torres II”), 252 Ariz. 28, 32-33, ¶¶ 19-20 (2021), vacating and remanding
Torres v. JAI Dining Servs. (Phoenix) Inc. (“Torres I”), 250 Ariz. 147 (App.
2020).

¶2 We answer the question posed in the affirmative, concluding
that under Arizona’s statutory framework for determining dram shop
liability, A.R.S. § 4-312(B) expressly preempts Plaintiffs’ claims. We further
conclude that, contrary to this court’s opinion in Young v. DFW Corp., 184
Ariz. 187 (App. 1995) (review denied Dec. 21, 1995), § 4-312(B) does not run
afoul of the Arizona Constitution’s anti-abrogation clause, see Ariz. Const.
art. 18, § 6, a conclusion compelled by our supreme court’s opinion in Dickey
ex rel. Dickey v. City of Flagstaff, 205 Ariz. 1 (2003), because dram shop
liability claims did not exist at common law in 1912. Accordingly, we
reverse that portion of the superior court’s judgment against JAI and
remand for that court to enter judgment in favor of JAI and in favor of
Plaintiffs only as to Villanueva.

FACTS AND PROCEDURAL HISTORY3

¶3 Plaintiffs sued Villanueva for negligence and JAI under
common law theories of negligence and dram shop liability, and pursuant
to statutory dram shop negligence under A.R.S. § 4-311. Before trial, JAI
unsuccessfully moved for summary judgment regarding proximate

2 We refer to Plaintiffs/Appellees Roberto Torres, Orlenda Guillen,
Hernan Gastelum Rosas, and Maria Suarez collectively as “Plaintiffs.”

3 As it is unnecessary to our analysis, we do not recount all the
underlying facts in this opinion. A more complete recitation of the facts
may be found in the previous related opinions. See Torres I, 250 Ariz. at 149-
51, ¶¶ 3-16; Torres II, 252 Ariz. at 29-30, ¶¶ 2-8.

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causation, arguing that Villanueva’s decision to drive again some hours
after safely arriving home was, as a matter of law, an intervening and
superseding cause of the victims’ deaths, thereby relieving JAI of liability.
JAI did not, however, argue either before or at trial that Plaintiffs’ common
law negligence and dram shop liability claims against JAI were preempted
by Arizona’s statutory scheme for determining dram shop liability.

¶4 At the close of Plaintiffs’ case during the ensuing jury trial,
JAI moved for judgment as a matter of law under Rule 50(a), Ariz. R. Civ.
P., on the claims of negligence and dram shop liability, arguing both the
duty and proximate cause elements of negligence could not be met. The
superior court denied the motion.

¶5 The jury found in Plaintiffs’ favor on negligence against
Villanueva but rendered an unusual split verdict as to JAI, finding in
Plaintiffs’ favor on the common law negligence and dram shop claims,4 but
in JAI’s favor on the legislatively created dram shop claim. The jury
awarded Plaintiffs $2,000,000 in compensatory damages, with fault
apportioned sixty percent to Villanueva and forty percent to JAI. The
superior court subsequently denied JAI’s renewed motion for judgment as
a matter of law, see Ariz. R. Civ. P. 50(b), again based only on the scope of
duty owed and lack of proximate cause.

¶6 JAI appealed the judgment and denial of its renewed motion
for judgment as a matter of law, arguing that for three independent reasons
it should not be held liable: (1) the claims on which the jury found JAI liable
had been preempted by A.R.S. § 4-312(B) (preemption); (2) Villanueva’s
decision to drive again after arriving home, getting into bed, and going to
sleep was an intervening, superseding cause that cut off JAI’s liability
(proximate cause); and (3) JAI did not breach any duty the law imposed on
it and could have done nothing to prevent Villanueva from leaving his
house and operating a motor vehicle several hours after he left JAI’s club
(duty). Plaintiffs argued that JAI waived the preemption issue by raising it
for the first time on appeal, but nevertheless addressed the issue on the
merits.

¶7 We reversed the judgment against JAI, holding the superior
court erred by not directing a verdict in JAI’s favor because Villanueva’s

4 Although the verdict forms identified three counts (negligence,
dram shop liability, and negligence per se), the dram shop liability verdict
form was based on an additional instruction regarding JAI’s liability for
common law negligence rather than a separate claim.

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independent decision to leave his home and drive was an intervening and
superseding cause that broke the chain of proximate causation. Torres I, 250
Ariz. at 149, 155, ¶¶ 2, 33-34; see also Patterson v. Thunder Pass, Inc., 214 Ariz.
435, 440, ¶ 19 (App. 2007) (review denied Sept. 25, 2007) (“[W]e hold that
[the patron’s] decision to return that night to retrieve her vehicle while she
was still intoxicated was unforeseeable and extraordinary and thus
constituted a superseding, intervening event of independent origin that
negated any negligence on the part of the tavern or its employees.”).
Because we reversed on proximate causation, we did not reach the
preemption or duty issues. Torres I, 250 Ariz. at 155, ¶ 34 n.10.

¶8 The Arizona Supreme Court granted Plaintiffs’ petition for
review on one issue: whether Villanueva’s decision to drive again after
arriving home and going to bed was an intervening and superseding cause
that cut off JAI’s liability. JAI nevertheless raised the issue of preemption
in its opposition to the petition, and again in its post-grant supplemental
brief.

¶9 In November 2021, the supreme court vacated our opinion,
holding that whether Villanueva’s decision to resume driving was an
intervening and superseding cause of the victims’ deaths was a question
appropriately reserved for the jury. Torres II, 252 Ariz. at 32, ¶ 18. The court
further noted that JAI and amicus had asked it to decide whether Plaintiffs’
common law negligence and dram shop claims had been preempted by
A.R.S. § 4-312(B), but it declined to do so, explaining:

We did not grant review of this issue, and therefore Plaintiffs
did not address preemption in their simultaneously filed
supplemental brief. Similarly, other parties interested in this
significant issue have not been notified of the opportunity to
submit amicus briefs. Also, JAI did not raise this issue to the
trial court, although it did argue it before the court of appeals.
That court should decide in the first instance whether an
exception to the waiver doctrine is warranted and, if so, what
the proper disposition on the merits should be.

Id. at ¶ 19. Our supreme court then remanded the case to this court “to
consider other issues raised by JAI on appeal.” Id. at 32-33, ¶ 20.

¶10 On remand, we ordered additional briefing by the parties,
and invited other interested parties to file amicus briefs, setting forth their
respective positions on other issues raised by JAI on appeal but not
previously addressed, namely: (1) whether an exception to the waiver

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doctrine is warranted in this case, and, if so, (2) whether Plaintiffs’ common
law negligence and dram shop claims have been preempted by § 4-312(B).

ANALYSIS

I. Waiver

¶11 We must first address Plaintiffs’ contention that JAI has
waived the issue of preemption by not raising it in the superior court. If we
find that waiver applies, our analysis ends.

¶12 Appellate courts generally will not consider issues raised for
the first time on appeal. Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476,
482 (1986) (citing Town of S. Tucson v. Bd. of Supervisors of Pima Cnty., 52 Ariz.
575, 582 (1938); Van Loan v. Van Loan, 116 Ariz. 272, 274 (1977); Milam v.
Milam, 101 Ariz. 323, 325 (1966)); see also Trantor v. Fredrikson, 179 Ariz. 299,
300 (1994) (“Because a trial court and opposing counsel should be afforded
the opportunity to correct any asserted defects before error may be raised
on appeal, absent extraordinary circumstances, errors not raised in the trial
court cannot be raised on appeal.” (citing Van Dever v. Sears, Roebuck & Co.,
129 Ariz. 150, 151-52 (App. 1981); United States v. Globe Corp., 113 Ariz. 44,
51 (1976))). This general waiver rule “serves objectives of fair notice, and
promotes both the ability to meet issues and judicial efficiency,” Dombey,
150 Ariz. at 482, and is intended to prevent unfair surprise, Stokes v. Stokes,
143 Ariz. 590, 592 (App. 1984).

¶13 The rule is procedural, not substantive, however, and may be
suspended at an appellate court’s discretion. Dombey, 150 Ariz. at 482
(citing Town of S. Tucson, 52 Ariz. at 582). We may exercise this discretion
when an issue is of statewide importance, of constitutional dimension, or
when the public interest is better served by having the issue considered
rather than deferred. Id. (citing Barrio v. San Manuel Div. Hosp. for Magma
Copper Co., 143 Ariz. 101, 104 (1984); Ruth v. Indus. Comm’n, 107 Ariz. 572,
573-74 (1971)). See also Town of S. Tucson, 52 Ariz. at 583 (recognizing that
an exception to the general waiver rule includes “questions of a general
public nature, affecting the interests of the state at large,” and particularly
“when the question raised for the first time is one of substantive law which
is not affected by any dispute as to the facts of the case”).

¶14 To prevent unfair surprise, the court should afford the parties
a full opportunity to brief and argue the issue, and when appropriate, allow
participation by amicus curiae as well. Jimenez v. Sears, Roebuck & Co., 183
Ariz. 399, 406 n.9 (1995); see also Liristis v. Am. Fam. Mut. Ins. Co., 204 Ariz.
140, 143, ¶ 11 (App. 2002) (“It is also significant that both parties have

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briefed and argued the issue extensively and there is no claim of surprise.”
(citing Stokes, 143 Ariz. at 592)).

¶15 Here, requiring JAI to have raised preemption in the superior
court makes little sense because doing so would have proved futile. The
superior court had to follow this court’s prior ruling in Young. See Sell v.
Gama, 231 Ariz. 323, 330, ¶ 31 (2013) (“Trial courts are required to follow
the decisions of a higher court . . . .”). Moreover, the fundamental rationale
for applying the waiver doctrine does not apply because there is no unfair
surprise, as both parties have had ample notice and multiple opportunities
to brief and argue the preemption issue, and the court has received briefing
from amici representing both civil plaintiffs’ and defense bars. See Jimenez,
183 Ariz. at 406; City of Tucson v. Tanno, 245 Ariz. 488, 494, ¶ 23 (App. 2018)
(considering an issue first raised on appeal when the opposing party was
“afforded the opportunity to, and did in fact, respond to [the waived issue]
in its answering brief”); Evenstad v. State, 178 Ariz. 578, 582 n.2 (App. 1993)
(addressing a new issue after affording both sides an opportunity to file
supplemental briefs on the issue).

¶16 Furthermore, well-settled exceptions to the waiver doctrine
apply, as the preemption issue raised by JAI turns on whether this court
correctly determined in Young that A.R.S. § 4-312(B) runs afoul of the
Arizona Constitution’s anti-abrogation clause, see Ariz. Const. art. 18, § 6,
and therefore cannot preempt common law negligence and dram shop
liability claims. The question whether § 4-312(B) constitutionally preempts
common law liability is an outcome-determinative question of law that is
an important state-wide issue to both civil plaintiffs’ counsel and the civil
defense bar, whose clients’ interests will likely be materially affected by the
outcome. See Barrio, 143 Ariz. at 104 (“We believe that the constitutional
[anti-abrogation] issue in the case at bench is sufficiently important that it
should be considered even though not raised in the trial court.”); Evenstad,
178 Ariz. at 582 (“If application of a legal principle, even if not raised below,
would dispose of an action on appeal and correctly explain the law, it is
appropriate for us to consider the issue.” (citing Rubens v. Costello, 75 Ariz.
5, 9 (1952))). Also, because of the unusual split-jury verdict that occurred—
in which the jury found that JAI violated a common law obligation but not
a statutory obligation imposed on liquor licensees—this case presents an
appropriate vehicle for addressing the issue. Doing so requires a case with
this type of mixed verdict, which is also appealed, something that might
not occur again for years. See Dombey, 150 Ariz. at 482 (“[T]he public
interest is better served by having the issue considered rather than
deferred.”). Accordingly, we exercise our discretion to address JAI’s
preemption argument.

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II. Preemption

¶17 JAI argues that, in light of recent supreme court case law,
including Dickey, Young and cases relying on Young’s holding are no longer
good law. Accordingly, JAI maintains that A.R.S. § 4-312(B) validly
preempts Plaintiffs’ common law claims and the judgment against JAI must
be reversed. Determining whether JAI’s argument is correct requires us to
examine the history of dram shop liability in Arizona and cases affecting
that law.

1. Dram Shop Liability in Arizona

¶18 “At common law, . . . a tavern owner [wa]s not liable for
injuries sustained off-premises by third persons as the result of the acts of
an intoxicated patron, even though the tavern owner’s negligence in
serving that patron was a contributing cause of the accident.” Ontiveros v.
Borak, 136 Ariz. 500, 504 (1983) (citing Cruse v. Aden, 20 N.E. 73, 74 (Ill. 1889);
Waller’s Adm’r v. Collingsworth, 137 S.W. 766, 767 (Ky. 1911); 45 Am. Jur. 2d,
Intoxicating Liquors § 553 (1969)). Similarly, “the rule of nonliability for
tavern owners [was] the common law in Arizona” from this state’s
inception. Id. (citing numerous Arizona cases dating from 1940 forward
that approved, adopted, and applied the common law rule of nonliability).

¶19 That rule of nonliability changed in July 1983, however, when
the Arizona Supreme Court decided both Ontiveros and a companion case,
Brannigan v. Raybuck, 136 Ariz. 513 (1983), in which the court abolished the
common law doctrine of tavern owner nonliability in Arizona and for the
first time recognized a common law cause of action for dram shop liability.
See Ontiveros, 136 Ariz. at 513; Brannigan, 136 Ariz. at 515.5 Also, in each
case, the court invited the legislature to enact statutes addressing (and
arguably supplanting or preempting) the change in the common law if it so
desired. See Ontiveros, 136 Ariz. at 513 (“We do not find [exemptions from

5 In each case, the court premised tavern owner duty and liability on
statutory authority as well. See Ontiveros, 136 Ariz. at 509-11 (relying on
A.R.S. § 4-244(14), which makes it unlawful for a licensee to furnish alcohol
to an intoxicated person, and “recogniz[ing] the duty described in that
statute as a duty imposed by statute and adopted by the common law”
(citations omitted)); Brannigan, 136 Ariz. at 516-17 (relying on A.R.S. § 4-
244(9), which prohibits furnishing “spirituous liquor” to those under the
legal drinking age, and A.R.S. § 4-241(A), which requires a licensee to
demand certain types of identification from those requesting service, as
providing “a duty recognized both by common law and statute”).

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ordinary tort liability] applicable to the liquor industry. If we are mistaken
in this, it is possibly within the legislative power to confer upon the liquor
industry some special benefit exempting it from liability.”); Brannigan, 136
Ariz. at 519 (“This is . . . merely the response of the common law to changed
social conditions. If the legislature considers it to be unwise, it has the
means of so informing us.”).

¶20 Three years after our supreme court decided Ontiveros and
Brannigan, the legislature accepted our supreme court’s invitation when it
enacted A.R.S. §§ 4-311 and 4-312. Section 4-311 codified a dram shop cause
of action against sellers of liquor to the public, but it did not mirror the
common law claims from Ontiveros and Brannigan. See 1986 Ariz. Sess.
Laws, ch. 329, § 1 (2nd Reg. Sess.). Instead under § 4-311(A), 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. Section 4-311(D) further defines
“obviously intoxicated” as “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.”

¶21 At the same time, the legislature went a step further under
§ 4-312(B). Subsection B addressed when a liquor licensee would not be
liable, saying a liquor licensee is “not liable” for property damage, personal
injury, or death allegedly caused by selling, furnishing, or serving liquor,
“except as provided in § 4-311.” The full text of A.R.S. § 4-312(B) is as
follows:

Subject to the provisions of subsection A of this section and
except as provided in § 4-311, a person, firm, corporation or
licensee is not liable in damages to any person who is injured,
or to the survivors of any person killed, or for damage to
property which is alleged to have been caused in whole or in
part by reason of the sale, furnishing or serving of spirituous
liquor.

¶22 Since the legislature’s enactment of A.R.S. §§ 4-311 and 4-312,
liquor licensees, including JAI here, have contended the plain language of
these statutes makes explicit the legislature passed the statutes to preempt
the common law liability created by Ontiveros and Brannigan and replace it
with a defined statutory liability scheme “based on objective, observable,

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and workable standards.” Opinions written by both our supreme court and
this court after the passage of §§ 4-311 and 4-312, however, cast doubt on
this contention because the opinions raised the question whether the anti-
abrogation clause protects causes of action—including the common law
cause of action for dram shop liability recognized in Ontiveros and
Brannigan—that came into being after the adoption of our constitution. See
Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 345-46 (App. 1992).

¶23 In Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 17-18 (1986),
our supreme court held that the anti-abrogation clause “extends to wrongs
recognized at common law, but it is not limited to those elements and
concepts of particular actions which were defined in our pre-statehood case
law.” Two years later, however, in Bryant v. Continental Conveyor &
Equipment Co., 156 Ariz. 193, 195 (1988), a split supreme court held that
A.R.S. § 12-551, which limits product liability for manufacturers and sellers,
“is not an abrogation of a substantive right of action protected by art. 18, § 6
because the tort of strict products liability did not exist at the time the
constitutional provision was adopted.” Five years later, the supreme court
overruled Bryant and found § 12-551 unconstitutional, reasoning that “[t]he
right to recover for injuries caused by products was, of course, recognized
at common law; therefore, the development of strict liability causes of
action to vindicate that right is . . . covered by art. 18, § 6.” Hazine v.
Montgomery Elevator Co., 176 Ariz. 340, 344 (1993) (citing Boswell, 152 Ariz.
at 17-18). Justice Martone’s vigorous dissent argued that “Bryant was
correct when it concluded that art. 18, § 6 does not apply to this court’s post-
constitution development of the law of torts,” and that the majority in
Hazine had apparently “constitutionalized” all of tort law in Arizona, in
contravention of our supreme court’s prior case law, including Industrial
Commission v. Frohmiller, 60 Ariz. 464, 468 (1943). Hazine, 176 Ariz. at 347
(Martone, J., dissenting).

¶24 In 1995, this court decided Young, which addressed the
constitutionality of A.R.S. § 4-312(B) under the Arizona Constitution’s anti-
abrogation clause. In Young, a plaintiff sued a bar owner for injuries caused
after an intoxicated patron left the bar and drove head-on into the plaintiff’s
vehicle. 184 Ariz. at 187. The defendant bar relied on § 4-312(B) when—
before trial—it asked the superior court to limit the plaintiff to proving
dram shop liability through § 4-311. Id. at 188. The court agreed that, based
on the limiting language of § 4-312(B), § 4-311 provided the exclusive
remedy for dram shop liability in Arizona. Id. The court, therefore, refused
the plaintiff’s requested general negligence instruction and instructed the
jury only under § 4-311. Id. After a defense verdict, the plaintiff appealed,
challenging the constitutionality of § 4-312(B) and arguing that the statue

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violated the Arizona Constitution’s anti-abrogation clause because it
abrogated the general negligence cause of action enunciated as common
law in Ontiveros. See id. at 187.

¶25 A panel of this court agreed, concluding that the statutory
scheme unconstitutionally abrogated the common law action for those
plaintiffs who could not establish that the purchaser was “obviously
intoxicated,” as defined by § 4-311, but who could show, based on common
law negligence, that the licensee knew or should have known the purchaser
was intoxicated. Id. at 189. Accordingly, the court found A.R.S. § 4-312(B)
unconstitutional for violating the Arizona Constitution’s anti-abrogation
clause. Id. at 190. Given the previous Boswell/Bryant/Hazine line of cases,
the panel did not analyze whether the right to recover against dram shops
for negligence existed at common law; instead, the court simply assumed
that the clause applied. See id. at 188-90. Our supreme court denied
review.6

¶26 More recently, however, our supreme court has clarified the
scope of the anti-abrogation clause, explaining that it does not
constitutionalize the right to recover in tort for any injury cognizable at
common law. See, e.g., Cronin v. Sheldon, 195 Ariz. 531 (1999). In Cronin,
petitioners who had brought claims for wrongful termination in violation
of public policy argued their claims were protected by the Arizona
Constitution’s anti-abrogation clause. Id. at 538, ¶ 33. Our supreme court
disagreed, explaining that although “article 18, § 6 prevents abrogation of
all common law actions for negligence, intentional torts, strict liability,
defamation, and other actions in tort which trace origins to the common
law,” it does not “extend constitutional protection to all tort causes of
action, whenever or however they may have arisen.” Id. at 538-39, ¶¶ 35-
36. Instead, “the anti-abrogation clause applies only to tort causes of action
that either existed at common law or evolved from” a recognized common
law right to recover for the injury. Id. at 539, ¶ 39.

6 Later, in Andrews ex rel. Woodard v. Eddie’s Place, Inc., 199 Ariz. 240
(App. 2000), the appellate court, relying largely on the fact that it had
previously declared A.R.S. § 4-312(B) unconstitutional, stated that it found
“nothing” in A.R.S. § 4-311’s “language clearly indicating that the
legislature intended, by its enactment of § 4-311, to annul or abrogate
Ontiveros’s holding.” Id. at 242, ¶ 6 & n.1. The court concluded that, in its
opinion, “the legislature did not create a new liability for liquor licensees
but simply attempted to codify the common law established by Ontiveros.”
Id.

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¶27 In applying the new test, the Cronin court held that the
legislature could abrogate a claim for employment discrimination because
“[s]uch a claim neither existed in 1912 when statehood was achieved, nor
did it evolve from common law antecedents.” Id. at ¶ 37. Although the
petitioners argued that because claims for “wrongful termination” had
been recognized at English common law as early as 1562, the common law
adopted by Arizona at the time of statehood must include this cause of
action, the court disagreed, saying the petitioners’ reasoning was “flawed”
because “it assumes the English cause of action was the pre-statehood
genesis of the present tort action for wrongful discharge.” Id. at ¶ 38. In its
analysis, the court distinguished Hazine by explaining that “because a right
of action for injuries caused by defective products was recognized at
common law,” the legislature could not abrogate the right to recover for
defective products. Id. at ¶ 36.

¶28 Next, in 2003, our supreme court decided Dickey, in which it
extended Cronin’s reasoning to a common law negligence action against a
municipality and further clarified that the Arizona Constitution’s “anti-
abrogation provision was designed to protect rights of action in existence
at the time it was adopted, but not necessarily those later created.” 205 Ariz.
at 5, ¶ 18 (addressing Arizona’s recreational use statute in A.R.S. § 33-1551
and citing Morrell v. City of Phoenix, 16 Ariz. 511, 517 (1915), superseded by
statute as stated in City of Phoenix v. Williams, 89 Ariz. 299, 303 (1961)).

¶29 In Dickey, the plaintiffs sued the City of Flagstaff for injuries a
child incurred while sledding in a City park. Id. at 2, ¶¶ 2-4. Relying on
the language of A.R.S. § 33–1551, the City defended on the ground that,
because the park was held open for recreational use, the plaintiffs could not
prevail unless they showed that City employees had been grossly negligent
or had wilfully or maliciously caused injury to the child. Id. at ¶ 4. The
superior court granted summary judgment for the City, finding the
plaintiffs failed to present evidence the City’s actions had been wilful,
malicious, or grossly negligent. Id. The court further determined that the
recreational use statute did not abrogate the plaintiffs’ negligence cause of
action and therefore did not violate the Arizona Constitution’s anti-
abrogation clause. Id.

¶30 Our supreme court granted review to decide whether the
recreational use statute’s requirement that a plaintiff show gross negligence
or wilful or malicious conduct was unconstitutional because it abrogated
the right to bring a lawsuit sounding in simple negligence against the City.
Id. at 2-3, ¶¶ 5, 8. The Dickey court applied Cronin’s clarified standard and
reasoned that, “to fall within the protection of the anti-abrogation provision

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of the Arizona Constitution, [the] right of action for simple negligence
against the City must have existed at common law or have found its basis
in the common law at the time the constitution was adopted,” and because
the plaintiffs had “failed to establish that a right of action for simple
negligence, against a municipality engaged in a governmental function,
existed at common law,” their argument failed. Id. at 3, ¶ 9 (citing Cronin,
195 Ariz. at 539, ¶ 39). Under this standard, a general negligence claim
against a municipality is not protected by the Arizona Constitution’s anti-
abrogation clause “because a suit against a city for simple negligence could
not have been maintained at the time the anti-abrogation provision was
instituted.” Id. at 5, ¶ 18.

2. Cronin and Dickey’s Effect

¶31 Read together, Cronin and Dickey confirm 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. The history of dramshop negligence actions in Arizona
follows much the same pattern as municipal negligence actions in Dickey,
in that both types of actions were (1) rejected at common law, then (2)
judicially recognized by abolishing the common law rule, and then (3)
legislatively addressed. Under Cronin and Dickey, therefore, the anti-
abrogation clause does not prohibit the legislature from delineating the
scope of liability for the common law dram shop claim first created in 1983
by Ontiveros and Brannigan.

¶32 Cronin and Dickey further confirm that the anti-abrogation
clause does not protect types of liability that had already been considered
and rejected by 1912. In Cronin, our supreme court specifically
“emphasize[d]” that pre-statehood, American courts had specifically
considered and rejected the type of wrongful termination liability at issue.
195 Ariz. at 539, ¶ 38. Likewise, in Dickey, our supreme court said American
courts had considered and rejected municipal liability for negligence. 205
Ariz. at 3, ¶ 10. Similarly, Arizona courts had uniformly rejected lawsuits
for dram shop liability by 1912. See Collier v. Stamatis, 63 Ariz. 285, 290
(1945) (stating that “it has been held by all the courts and by every
commentator” that dramshops are not liable), overruled on other grounds by
Ontiveros, 136 Ariz. at 505-06; Ontiveros, 136 Ariz. at 504 (citing pre-1912
cases). Because this type of claim against this type of defendant had already
been considered and rejected at common law, § 4-312(B) fits within Cronin’s
and Dickey’s holdings rather than Hazine’s concept of the “evolution” of
common law causes of action. See 176 Ariz. at 344. Under Dickey, this type
of claim “could not have been maintained at the time the anti-abrogation

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Opinion of the Court

provision was instituted, [and therefore] is not protected by that provision.”
205 Ariz. at 5, ¶ 18.

¶33 Also, the fact that the common law recognized general
negligence actions does not bring dram shop liability claims within the anti-
abrogation clause’s scope. Dickey itself involved “a lawsuit sounding in
simple negligence.” Id. at 3, ¶ 8. But even though “negligence suits
certainly have their basis in common law,” that does not protect rights of
recovery unavailable at common law. Id. at ¶ 9 n.3; see also Lerner v. DMB
Realty, LLC, 234 Ariz. 397, 407, ¶ 41 (App. 2014) (“We therefore hold that,
like the wrongful termination claim in Cronin, the Lerners’ claim for
negligent failure to disclose is not protected by the anti-abrogation
clause.”); Goodman v. Samaritan Health Sys., 195 Ariz. 502, 506-07, ¶ 18 (App.
1999) (“It is not enough, as Goodman attempts here, to append to the
asserted claim a name derived from the catalogue of common law actions.
Rather, the context out of which the claim arises must be examined to
determine whether it supports a conclusion that it implicates a right of
action recognized by the common law.”). If, for a particular kind of wrong
and against a particular type of defendant, “negligence could not have been
maintained at the time the anti-abrogation provision was instituted, it is not
protected by that provision.” Dickey, 205 Ariz. at 5, ¶ 18; see also 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.”).

¶34 Finally, the principles set forth in Cronin and Dickey serve to
preserve and respect the separation of powers between the courts and the
legislature. As JAI recognizes, the legislature could have passed the
statutory scheme for dram shop liability any time between 1912 and 1983
without implicating the anti-abrogation clause, and “[i]t cannot be the case
that legislation that would have been constitutional if enacted in 1982 is
unconstitutional if enacted in 1986, merely because the Supreme Court
created brand new liability in 1983.”

¶35 Social host immunity follows a similar track. In 1985, the
legislature immunized social hosts from liability for serving alcohol. See
A.R.S. § 4-301. Because social hosts “were not liable at common law[,]
A.R.S. § 4-301 is constitutional” under the anti-abrogation clause. Bruce v.
Chas Roberts Air Conditioning, Inc., 166 Ariz. 221, 225 (App. 1990). It cannot
be the case that social host immunity would have been unconstitutional if
a court had created social host liability in 1984.

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Opinion of the Court

¶36 In other words, as both Ontiveros and Brannigan recognized,
although the judiciary remains free to change the common law, the
legislature retains the constitutional power to recraft the parameters or
scope of a court-pronounced common law cause of action. See Ontiveros,
136 Ariz. at 513; Brannigan, 136 Ariz. at 519; see also Ariz. Const. art. 4, pt. 1,
§ 1(1) (providing that “[t]he legislative authority of the state shall be vested
in the legislature”).

3. Consideration of the Preemption Question on Remand

¶37 Plaintiffs’ main argument against preemption is that, under
Young, A.R.S. § 4-312(B) unconstitutionally abrogates the common law
dram shop cause of action. Even if Young was correct in determining § 4-
312(B) abrogates that cause of action,7 the common law cause of action
Ontiveros and Brannigan recognized in 1983 did not exist in 1912, and Cronin
and Dickey make clear that, if such a cause of action could not have been
maintained at the time the anti-abrogation clause was instituted, the claim
is not protected by that clause. Accordingly, Young‘s unstated assumption
that the anti-abrogation clause applies to § 4-312(B) was error, and Young
cannot be good law after Dickey. Consequently, § 4-312(B) cannot run afoul
of the anti-abrogation clause and therefore remains good law.

7 Young concluded that, in enacting § 4-312(B) in conjunction with § 4-
311, the legislature did not merely regulate the general negligence cause of
action recognized in Ontiveros, but unconstitutionally abrogated it. 184
Ariz. at 189-90. Young’s conclusion appears to be an overstatement of what
the legislature did in 1986 because it did not eliminate an existing civil cause
of action, but instead modified the proof elements necessary to prevail on
liability, and in our opinion, acted to permissibly regulate the cause of
action. See Barrio, 143 Ariz. at 106 (acknowledging the line between
permissible regulation and abrogation is when the right of action is
“completely abolished” (quoting Ruth v. Indus. Comm’n, 107 Ariz. 572, 575
(1971))). Under Barrio, “[t]he legislature may regulate the cause of action
for negligence so long as it leaves a claimant reasonable alternatives or
choices which will enable him or her to bring the action. It may not, 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.
Thus, the legislature in 1986 simply corrected what it saw as an unclear
common law pronouncement that when read expansively had the potential
to unfairly harm the business community, and instead applied a standard
requiring licensees to avoid selling alcohol to “obviously intoxicated”
patrons.

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Opinion of the Court

¶38 Further, the plain language of § 4-312(B), when read in
conjunction with § 4-311, makes clear the legislature expressly preempted
the common law liability created by Ontiveros and Brannigan and replaced
it with a more clearly defined statutory liability scheme. Thus, Plaintiffs’
common law negligence and dram shop liability claim against JAI is
preempted, and §§ 4-311 and 4-312 define the scope of liability for ordinary
commercial sales of alcohol by licensees.8

CONCLUSION

¶39 Contrary to this court’s assumption in Young, A.R.S. § 4-
312(B) does not run afoul of the Arizona Constitution’s anti-abrogation
clause because dram shop liability claims did not exist at common law in
1912. Further, A.R.S. § 4-312(B) expressly preempts Plaintiffs’ claim for
common law negligence and dram shop liability, the only claim on which
Plaintiffs prevailed. Accordingly, we reverse that portion of the superior
court’s judgment against JAI and remand for that court to enter judgment
in favor of JAI and in favor of Plaintiffs only as to Villanueva.

AMY M. WOOD • Clerk of the Court
FILED: JT

8 Because our opinion renders moot JAI’s “duty” argument, we do not
address it.

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