ARIZONA COURT OF APPEALS LOOKS TO AADC FOR AMICUS SUPPORT ON CONSTITUTIONAL QUESTION

In a somewhat unusual move earlier this year, the Arizona Court of Appeals issued an order specifically requesting amicus briefings from the AADC to address an issue of constitutional interpretation. In Torres v. JAI Dining, 1 CA-CV 19–0544. The case revolves around the liability of a liquor licensee for serving a patron who left the establishment, returned to a residence, and hours later drove drunk, causing a fatal collision. After a $2,000,000 plaintiffs’ verdict in 2019, the Court of Appeals reversed, finding that the driver’s return to his home constituted a superseding and intervening event. The Arizona Supreme Court granted review and reversed, remanding to the Court of Appeals to consider other issues raised by the licensee, but not previously addressed by the Court of Appeals, including the validity and applicability of A.R.S. § 4-312, the Arizona Dram Shop Liability statute.

Although at the common law, there was no liability on the part of businesses that serve alcohol for torts committed by their patrons, in Ontiveros v. Borak, 136 Ariz. 500 (1983), the Arizona Supreme Court abolished the doctrine of tavern owner nonliability. Following this decision, the Legislature enacted § 4-312, which defined the scope of liability. In the mid-1990s, however, the Arizona Court of Appeals held in Young ex. rel. Young v. DFW Corp., 184 Ariz. 187 (App. 1995), held that in light of the change in common law as reflected by Onitiveros, the statute violated the Anti-Abrogation Clause of the Arizona Constitution. Since Young, however, the Arizona Supreme Court has further developed the law surrounding the anti-abrogation clause, calling into question Young’s holding.

Faced with this legislative and jurisprudential backdrop, the Court of Appeals called on the AADC, among other stakeholders, to submit amicus briefs. The AADC answered this call. Amanda Heitz of Bowman and Brooke LLP prepared the amicus brief on behalf of the AADC. The AADC’s brief outlined the historical interpretation and application of the anti-abrogation clause, as well as post-Young developments in the law, and addressed separation of powers issues to argue that the legislation did not violate the constitution. In late March, the Court of Appeals issued its opinion, overruling Young, and finding that § 4-312(B) did not violate the Constitution. On May 18, the Court of Appeals denied the plaintiffs’ motion for reconsideration.