By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — State lawmakers are free to shield bar owners and bartenders from liability when customers they serve get intoxicated then go out, get in their car and kill someone else, the Arizona Supreme Court has ruled.

In a divided decision, the majority acknowledged the Arizona Constitution bars lawmakers from limiting someone’s right to sue. Yet a 1986 law limiting the ability of victims of drunk drivers to sue the bartenders who overserved them does precisely that.

Chief Justice Robert Brutinel, however, said that prohibition applies only to legal claims that existed in 1912 when the state constitution was adopted. And he said the concept of suing those who serve liquor for the accidents they cause — known as dram shop liability — was only created in 1983 by a decision of the high court.

But Justice Ann Scott Timmer said her colleagues are ignoring the fact it has always been possible in Arizona to sue people for negligence when their actions cause damage, even in territorial days. And she said it should be no different in dram shop cases.

“Despite its unique name, the action is just one for simple negligence,” she wrote in her lone dissent. “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.”

Timmer said if someone can prove the elements — including that the owner of the tavern knew or should have known the person was drunk — there is no reason to shield them from the duty they owe to everyone else on the road.

She also predicted fallout, saying in the ruling that having no constitutional right to sue in these cases “eliminates 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.”

The case involves JAI Dining Services, the owners of Jaguars Club in Phoenix.

Cesar Villanueva, kicked out after being drunk, went home, fell asleep for a short time before getting up to take a friend home. It was during that second trip he ran his truck into a vehicle stopped at a red light and killed two people.
He was subsequently convicted of two counts of manslaughter and was sentenced to prison.

The survivors sued JAI under the theory, first announced by the Supreme Court in a landmark 1983 ruling, that establishments that serve alcohol to someone who is intoxicated can be held liable for the damages that person causes.

Lawmakers did agree to preserve liability — but only when a liquor licensee serve someone who is “obviously intoxicated.” That is defined in statute as being drunk to such an extent that the person’s physical abilities are substantially impaired as shown by significantly uncoordinated physical action or dysfunction “that would have been obvious to a reasonable person.”

More to the point, though, they immunized the actions of bartenders and others who serve alcoholic beverages to patrons if there was not this “obvious” intoxication.

David Abney, representing the survivors, argued to the Supreme Court that provision of the 1986 law is unconstitutional.

It all comes down to the section of the Arizona Constitution, adopted at statehood, that says “the right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.” Put simply, what is known as the “anti-abrogation clause” bars lawmakers from eliminating someone’s right to sue for financial recompense.

In the new ruling, however, Brutinel said that constitutional protection applies only to the kinds of lawsuits that could be filed in 1912. And at that time, the premise was that the negligent act — the cause of the accident — was drinking, not the selling of it by someone else.

What that means, said Brutinel, is there was no right in 1912 to sue someone for serving a customer they knew or should have known was intoxicated. And that right did not exist until the Supreme Court created that right in 1983.

What that also means, said the chief justice, is lawmakers were free to decide three years later to partly overturn that ruling and declare that bartender liability is limited solely to cases where there is evidence of obvious intoxication.

That means no liability when the claim of a survivor is only that the bartender or server knew or should have known the person was drunk.

Timmer chided the other justices for limiting the scope of the amendment, saying the new ruling undermines exactly why it was inserted into 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,” she wrote.

Timmer also pointed out that foes of the anti-abrogation clause tried three times — in 1986, 1990 and 1994 — to get voters to alter or repeal it. Each time it failed.