On October 16, 2023, the Arizona Supreme Court in Torres v. JAI Dining Services (Phoenix), Inc., ruled that the Arizona constitution does not protect common law dram shop actions, and thus, the legislature, by enacting a statutory dram shop claim, eliminated the then-existing common law dram shop cause of action.[1] This means that in order for a victim of an intoxicated individual to successfully pursue a dram shop action against a licensee who serves alcohol to an intoxicated individual, that individual must be “obviously intoxicated” under the terms of the statute.
Arizona’s Dram Shop Act is a statute which provides that a licensee who serves alcohol to an obviously intoxicated patron or a minor can be held liable for resulting damages and injuries.[2] Section 4-311 provides as follows:
- 4-311. Liability for serving intoxicated person or minor; definition
(A) A licensee is liable for property damage and personal injuries or is liable to a person who may bring an action for wrongful death pursuant to § 12-612, or both, if a court or jury finds all of the following:
(1) The licensee sold spirituous liquor either to a purchaser who was obviously intoxicated, or to a purchaser under the legal drinking age without requesting identification containing proof of age or with knowledge that the person was under the legal drinking age.
(2) The purchaser consumed the spirituous liquor sold by the licensee.
(3) The consumption of spirituous liquor was a proximate cause of the injury, death or property damage.
(B) No licensee is chargeable with knowledge of previous acts by which a person becomes intoxicated at other locations unknown to the licensee unless the person was obviously intoxicated. If the licensee operates under a restaurant license, the finder of fact shall not consider any information obtained as a result of a restaurant audit conducted pursuant to § 4-213 unless the court finds the information relevant.
(C) For the purposes of subsection A, paragraph 2 of this section, if it is found that an underage person purchased spirituous liquor from a licensee and such underage person incurs or causes injuries or property damage as a result of the consumption of spirituous liquor within a reasonable period of time following the sale of the spirituous liquor, it shall create a rebuttable presumption that the underage person consumed the spirituous liquor sold to such person by the licensee.
(D) For the purposes of this section, “obviously intoxicated” means 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.[3]
Section 4-312 attempted to limit the liability of liquor licensees to liability only when the patron was “obviously intoxicated” under § 4-311. That statute reads as follows:
- 4-312. Liability limitation
- A licensee is not liable in damages to any consumer or purchaser of spirituous liquor over the legal drinking age who is injured or whose property is damaged, or to survivors of such a person, if the injury or damage is alleged to have been caused in whole or in part by reason of the sale, furnishing or serving of spirituous liquor to that person. A licensee is not liable in damages to any other adult person who is injured or whose property is damaged, or to the survivors of such a person, who was present with the person who consumed the spirituous liquor at the time the spirituous liquor was consumed and who knew of the impaired condition of the person, if the injury or damage is alleged to have been caused in whole or in part by reason of the sale, furnishing or serving of spirituous liquor.
- 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.[4]
However, in 1995, this statute and the limitation it contained were held unconstitutional as an unlawful attempt to codify assumption of the risk and contributory negligence principles.[5] In 2023, the Arizona Supreme Court in Torres v. JAI Dining Services (Phoenix), Inc., held that the legislature, by enacting a statutory dram shop claim, abrogated the then-existing common law dram shop cause of action.[6] This meant that in order to sue a bar or other liquor licensee for injuries caused by a drunk driver, a plaintiff must meet the statutory burden of proof—rather than the common law burden of proof, showing that the drunk driver was served while “obviously intoxicated.”[7]
In Torres, a man named Villanueva drank at the Jaguars Club in Phoenix, and then drove away from the club while intoxicated and later killing two victims in a car accident. The plaintiffs sued the Jaguars Club, under theories of statutory and common law dram-shop liability. After a trial, a jury found the defendant liable under the common law dram shop claim but not liable under the statutory dram-shop cause of action under § 4-311(A), which imposes liability on a liquor licensee that serves alcohol to a patron who is “obviously intoxicated.” In a previous appeal, the Arizona Supreme Court had rejected the defendant’s argument that Villanueva’s decision to go home to bed before getting in the car again had broken the chain of proximate causation and relieved the defendant from liability for Villanueva’s actions. The Supreme Court remanded the case to determine whether the defendant could argue that the statutory dram shop claim preempted the common law dram-shop action.[8] The Court of Appeals held that the defendant could raise this argument, that the statute “expressly preempts” Plaintiff’s common law dram-shop claim, and that such preemption “does not run afoul” of the Arizona constitution’s anti-abrogation clause. That clause prohibits the legislature from enacting a statute that abrogates a common law cause of action recognized at the time the constitution was adopted. The Arizona Supreme Court agreed with the Court of Appeals determination, but on different reasoning.
The Supreme Court noted that the anti-abrogation clause only prohibits the abrogation of claims that existed at common law in 1912 or that are based in rights of action existing at state-hood. After Ontiveros recognized a common law dram shop action in 1983, the Arizona legislature passed §§ 4-311 and -312 in 1986. These statutes limit liability to only those dram-shop actions brought under § 4-311. The Supreme Court said that because the legislature chose to limit dram-shop liability to those dram-shop actions brought under § 4-311, it did not abrogate any common law right because there was no recognized common law claim for dram-shop liability until 1983.
There is currently no social host liability in Arizona, unless it involves serving alcohol to minors.[9] For questions related to subrogating anywhere in North America, contact Ashton Kirsch at akirsch@mwl-law.com.
[1] Torres v. JAI Dining Services (Phoenix), Inc., 2023 WL 6801025 (Ariz. 2023).
[2] A.R.S. §§ 4-311 and 4-312.
[3] A.R.S. § 4-311.
[4] A.R.S. § 4-312.
[5] Young Through Young v. DFW Corp., 908 P.2d 1 (Ariz. App. 1995), overruled by Torres v. JAI Dining Services (Phoenix), Inc., 2023 WL 6801025 (Ariz. 2023).
[6] Torres v. JAI Dining Services (Phoenix), Inc., 2023 WL 6801025 (Ariz. 2023).
[7] Id.
[8] Ontiveros v. Borak, 667 P.2d 200 (Ariz. 1983).
[9] Hernandez v. Arizona Board of Regents, 866 P.2d 1330 (Ariz. 1994).
