Petolicchio v. Santa Cruz County Fair and Rodeo Ass'n, Inc.

• Decision Date: 13 January 1994
• Docket Number: No. CV-92-0198-PR,CV-92-0198-PR
• Parties: Genaro PETOLICCHIO and Nellie Petolicchio, husband and wife, and surviving parents of Gerald Petolicchio, Plaintiffs/Appellants, v. SANTA CRUZ COUNTY FAIR AND RODEO ASSOCIATION, INC., an Arizona corporation; William Sinclair and Sharon Sinclair, husband and wife, individually and as employees and agents of liquor licensee Santa Cruz County Fair and Rodeo Association, Inc.; Mitchell T. Mattox, a single man, individually and as an employee of Santa Cruz County Fair and Rodeo Association, Inc., Defendants/Appellees.
• Court: Arizona Supreme Court

Page 1342

866 P.2d 1342

177 Ariz. 256

Genaro PETOLICCHIO and Nellie Petolicchio, husband and wife, and surviving parents of Gerald Petolicchio, Plaintiffs/Appellants, v. SANTA CRUZ COUNTY FAIR AND RODEO ASSOCIATION, INC., an Arizona corporation; William Sinclair and Sharon Sinclair, husband and wife, individually and as employees and agents of liquor licensee Santa Cruz County Fair and Rodeo Association, Inc.; Mitchell T. Mattox, a single man, individually and as an employee of Santa Cruz County Fair and Rodeo Association, Inc., Defendants/Appellees.

No. CV-92-0198-PR.

Supreme Court of Arizona, In Banc.

Jan. 13, 1994.

[177 Ariz. 258] Gonzales & Villarreal, P.C. by Richard J. Gonzales, Joan C. Calcagno, Tucson, for plaintiffs/appellants.

Bury, Moeller, Humphrey & O'Meara by David C. Bury, Tucson, for defendants/appellees.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Scott A. Salmon, Christopher Robbins, Troy B. Froderman, Phoenix, for amicus curiae.

OPINION

FELDMAN, Chief Justice.

We granted review to determine whether the court of appeals correctly concluded that A.R.S. § 4-312(B) is unconstitutional insofar as it grants immunity to liquor licensees who furnish alcohol to minors. ¹ Petolicchio v. Santa Cruz County Fair & Rodeo Ass'n, 172 Ariz. 587, 838 P.2d 1348 (Ct.App.1992). We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24. Because the trial court granted a motion to dismiss the complaint for failure to state a claim, we must take the alleged facts as true. Summerfield v. Superior Court, 144 Ariz. 467, 470, 698 P.2d 712, 715 (1985).

FACTS

On May 31, 1989, Gerald Petolicchio died after the car in which he was a passenger spun out of control at eighty miles per hour and crashed. Investigation revealed that the driver and four passengers, all minors, were under the influence of alcohol when the accident occurred.

Petolicchio's parents, Genaro and Nellie Petolicchio (Plaintiffs), brought a wrongful death action alleging that Mitchell T. Mattox, another passenger, furnished alcohol to the boys before the accident. At the time of the crash, Mattox and his mother, Sharon Sinclair, were employees of a liquor licensee, the Santa Cruz County Fair & Rodeo Association, Inc. (Association), where Sinclair managed liquor inventory and security. Mattox used his mother's keys to steal the Association's liquor. Prior to the fatal accident, the Santa Cruz County Sheriff's Office told Sinclair that her son was using her keys to steal liquor and distribute it to his high school classmates, but she did nothing to stop him. Plaintiffs also alleged that the Association knew, or should have known, about Mattox' thefts but negligently failed to supervise and control its liquor supply, allowing Mattox continuing access and opportunity to steal liquor. It is unclear whether the accident occurred after the first and only theft, or whether Mattox stole alcohol on a number of occasions, thus giving the Association and Sinclair notice. As noted above, on appeal from a grant of a motion to dismiss, we take the facts alleged as true.

PROCEDURAL HISTORY

Plaintiffs joined Mattox, his parents, and the Association (collectively Defendants) in the damages action. Defendants moved to dismiss for failure to state a claim. The trial court granted the motion, holding that A.R.S. § 4-312(B) gave the Association immunity because it provides that a licensee is not liable for any injury caused by "furnishing" alcohol. Implicitly, therefore, it also found that A.R.S. § 4-311, which would have subjected the Association to suit under a dram shop theory for selling alcohol to minors, did not apply because Defendants were not sellers and Mattox was not a purchaser of alcohol, as that statute requires. Finally, the trial court held that Mattox' conduct broke the chain of causation.

On appeal, Defendants noted that Arizona first recognized a cause of action against a seller of alcohol in this court's 1983 decisions in Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, and Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d 213. Therefore, they argued that the immunity granted under § 4-312(B) is not subject to constitutional scrutiny because art. 18, § 6 only prevents the legislature from abrogating causes of action recognized at the time of statehood. See Bryant v. Continental Conveyor & Equip. Co., Inc., 156 Ariz. 193, 751 P.2d 509 (1988).

Plaintiffs claimed that the immunity statute, § 4-312(B), is subject to constitutional scrutiny and does not survive. Citing Boswell v. Phoenix Newspapers, Inc., Plaintiffs asserted that the anti-abrogation clause of Ariz. Const. art. 18, § 6 protects this cause of action, regardless of whether it had been recognized before statehood. 152 Ariz. 9, 730 P.2d 186 (1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 527 (1987).

The court of appeals vacated the order granting the motion to dismiss and held § 4-312(B) unconstitutional as applied to liquor licensees. It reasoned that in Ontiveros, Arizona common law recognized this type of claim and, under Boswell, art. 18, § 6 prohibits its abrogation. We note that after the court of appeals filed its opinion, this court overruled Bryant and approved Boswell, holding that actions for damages are protected by our constitution, even if first recognized or asserted after statehood. Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 861 P.2d 625 (1993).

DISCUSSION

Although we granted review on the statute's constitutionality, after analyzing the facts and relevant statutes, we find the constitutional issue secondary. Arizona's courts do not reach constitutional issues if proper construction of a statute makes it unnecessary in determining the merits of the action. State v. Yslas, 139 Ariz. 60, 63, 676 P.2d 1118, 1121 (1984); School Dist. No. 26 v. Strohm, 106 Ariz. 7, 9, 469 P.2d 826, 828 (1970). Having today construed the relevant statutes in Estate of Hernandez v. Arizona Board of Regents, 177 Ariz. at 248-252, 866 P.2d at 1334-1338 (1993), we believe they are inapplicable to the cause of action asserted in this case and conclude that common-law principles govern this action. This, of course, avoids the necessity for a constitutional analysis.

A. Do the statutes apply?

Arizona's statutes regulate tort liability arising out of certain alcohol-related transactions. It is necessary first to determine if any statute governs this cause. The history and general outline of these statutes are described in Estate of Hernandez and need not be repeated. Suffice it to say that the three statutes passed in 1985 and 1986 outline certain immunities to licensees and non-licensees. In part, they also codify Ontiveros and Brannigan by imposing statutory liability on licensees in certain situations. We turn now to those statutes and consider their application, if any, to this case.

1. The social host statute

Non-licensee liability is encompassed in Article 1 of Chapter 3, entitled Liability Limitation. A.R.S. § 4-301 reads:

Liability limitations; social hosts

A person other than a 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 furnishing or serving of spirituous liquor to a person of the legal drinking age.

(Emphasis added.) This section protects from liability non-licensees who furnish alcohol to adults. As we held in Estate of Hernandez, however, the statute does not protect non-licensees who furnish alcohol to minors. 177 Ariz. at 249, 866 P.2d at 1335. Further, as far as the Association and Sinclair are concerned, the statute obviously does not apply to the transaction described in this case. Mattox was not a guest, and the liquor was stolen, not "furnished" or "served" under any rational definition of those terms. Therefore, we conclude that § 4-301 does not protect Defendants.

2. The licensee statutes

Two statutes regulate alcohol transactions under a liquor license. They are in Article 2 of Chapter 3, and are entitled Illegal Sale of Spirituous Liquor.

a. The dram shop liability statute

Section 4-311, which imposes liability on licensees under certain circumstances, states in pertinent part:

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 if a court or jury finds 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,....

(Emphasis added.)

Defendants argue that the wording of § 4-311 is sufficiently narrow to exclude the present facts. We agree. For dram shop liability to exist under § 4-311, the licensee must sell alcohol to a purchaser who is either intoxicated or under the legal drinking age. Obviously, no such commercial sale occurred here. We do not now address how narrowly or broadly the term "sold" should be interpreted. Suffice it to say again that under any rational meaning of the term, the liquor here was not sold. Defendants were not acting as licensees in this transaction--even unlicensed persons may store alcohol. Moreover, Mattox certainly was no purchaser--he was alleged to be a thief. Thus, we conclude that A.R.S. § 4-311 does not apply.

b. The dram shop immunity statute

The next arguably relevant statute, A.R.S. § 4-312(B), ² provides, in relevant part:

[E]xcept 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.

(Emphasis added.) Defendants...