Schwab v. Matley

• Decision Date: 05 April 1990
• Docket Number: No. CV-88-0337-PR,CV-88-0337-PR
• Citation: 793 P.2d 1088,164 Ariz. 421
• Parties: Lloyd SCHWAB and Cindy Schwab, husband and wife, Plaintiffs/Appellants, v. Therese MATLEY, an unmarried woman, Defendant/Appellee.
• Court: Arizona Supreme Court

Page 1088

793 P.2d 1088

164 Ariz. 421

Lloyd SCHWAB and Cindy Schwab, husband and wife, Plaintiffs/Appellants, v. Therese MATLEY, an unmarried woman, Defendant/Appellee.

No. CV-88-0337-PR.

Supreme Court of Arizona, In Banc.

April 5, 1990.

The Langerman Law Offices by Amy G. Langerman, Richard W. Langerman, Phoenix, and Law Offices of Douglas C. Fitzpatrick by Douglas C. Fitzpatrick, Sedona, for plaintiffs, appellants.

Jones, Skelton & Hochuli by Don C. Stevens, II, Phillip H. Stanfield, Larry J. Cohen, Gary H. Burger, Phoenix, for defendant, appellee.

O'Dowd, Burke & Lundquist by Robert E. Lundquist, Tucson, for amicus curiae.

OPINION

FELDMAN, Vice Chief Justice.

This case comes to us for review of a court of appeals opinion reversing a trial court's order dismissing a personal injury action. The trial court dismissed pursuant to A.R.S. § 4-312(A), which modifies the common law liability of tavernkeepers. The issues presented illustrate the tension between legislative attempts to suppress or control the assertion of damage claims and Arizona's constitutional provisions protecting such claims.

We have jurisdiction under Ariz.Const. art. 6, § 5(3) and A.R.S. § 12-120.24. We granted review to determine the constitutionality of the statute in question. See Rule 23, Ariz.R.Civ.App.P., 17B A.R.S.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff Lloyd Schwab (Schwab) and Earl Barnaby (Barnaby) entered a tavern owned by defendant, Therese Matley (Matley),) in Yavapai County on September 23, 1985. Schwab alleges that Matley was negligent in serving the two men and in allowing them to remain on the premises. He claims because he and Barnaby became intoxicated, they argued, and, while standing in the parking lot, Barnaby shot and injured Schwab, who was standing near the front door of the tavern.

The shooting occurred on September 23, 1985, and Schwab sued Matley almost one year later. In the interim, the legislature enacted A.R.S. § 4-312(A), which, in pertinent part, provides that a liquor licensee who negligently furnished liquor to a customer "is not liable" for injuries sustained by either the customer or anyone accompanying the customer "who knew of the impaired condition of the person [served]." ¹

The statute became effective August 13, 1986, approximately eleven months after Schwab was injured and almost thirty days before he filed the negligence action. Matley moved to dismiss Schwab's claim, asserting the protection of the statute. Schwab argued that the law prohibited such a retroactive application of the statute. See A.R.S. § 1-244. Disagreeing, the trial court granted Matley's motion to dismiss. Schwab appealed. After first rejecting Schwab's arguments, the court of appeals concluded that because a referendum petition had been filed to challenge A.R.S. § 4-312, the effective date of the statute had been delayed until September 12, 1986, the day on which the referendum petition was invalidated by the secretary of state. Schwab v. Matley, 162 Ariz. 46, 47, 780 P.2d 1387, 1388 (1988) (opinion on motion for reconsideration). The court of appeals thus reversed the trial court's judgment, concluding that the statute declaring Matley "not liable" was not in effect when the tort action was filed, even though the referendum petition was subsequently found void for lack of sufficient valid signatures. Id.

Matley petitioned this court to review the court of appeals' opinion, and Schwab timely filed a cross-petition challenging the statute under Ariz.Const. art. 18, § 6 and art. 2, § 31. See Rule 23(a), Ariz.R.Civ.App.P., 17B A.R.S. We granted review; believing that the statute in question also implicated the protections guaranteed under article 18, § 5, we ordered supplemental briefing and heard oral argument. Because of our disposition of this case, we need not address the other challenges. ²

DISCUSSION

A. Dram Shop Liability

Prior to 1983, an Arizona seller of alcoholic beverages who negligently furnished alcohol to a customer was not liable for resulting "dram shop" type injury. See, e.g., Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125 (1945); Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147 (1940).

The rule of tavernkeepers' nonliability was based on concepts of foreseeability and proximate cause. In first holding tavernkeepers not liable for injuries that resulted from their negligence in serving impaired or underage patrons, we stated:

[I]t has been held by all the courts and by every commentator that the proximate cause, as the expression is understood in the law of torts, of the resultant effects arising from voluntary intoxication is the act of the drinker, and not the seller of the beverage.

Collier, 63 Ariz. at 290, 162 P.2d at 127 (emphasis added).

In 1983, we disapproved of Collier and Pratt, holding that the "common law doctrine of tavern owner non-liability is abolished in Arizona." Ontiveros v. Borak, 136 Ariz. 500, 513, 521, 667 P.2d 200, 213, 221 (1983); Brannigan v. Raybuck, 136 Ariz. 513, 521, 667 P.2d 213, 221 (1983). We held that the rule in Arizona was that

[t]avern owners and other licensed sellers in Arizona will be under a duty of care and may be held liable when they sell liquor to an intoxicated patron ... under circumstances where the licensee ... know[s] or should know that such conduct creates an unreasonable risk of harm to others who may be injured either on or off the premises. [Footnote omitted.] If the duty of care is breached, the seller will be liable for the damage caused by his negligence.

Ontiveros, 136 Ariz. at 513, 667 P.2d at 213.

Our holdings in Ontiveros and Brannigan simply abolished the judicially created doctrine that as a matter of law principles of causation prohibited imposing liability on a negligent seller of alcoholic beverages. Indeed, the former rule had never been uniformly applied. Even before Ontiveros and Brannigan, it had been the common law rule in Arizona that a tavernkeeper could be liable if his negligence in operating his establishment led to one of his patrons injuring another. See, e.g., McFarlin v. Hall, 127 Ariz. 220, 619 P.2d 729 (1980).

Section 4-312 partially overturns both Ontiveros and McFarlin by declaring that the licensee cannot be held liable for his or her negligence in furnishing alcohol to any customer who was served or to any person who was present when the customer was served and who knew of the customer's impaired condition. The statute, in effect, declares that because the person injured had engaged in certain conduct--drinking or being present with one who drank--the person injured may not recover.

Thus, the challenge to the statute raises an issue not considered in either Ontiveros or Brannigan, nor, for that matter, in McFarlin or any previous case. May the legislature enact a statute declaring that the conduct of a particular category of persons injured by the negligence of another shall be a bar to recovery of damages?

Schwab claims the statute violates article 18, § 5 of the Arizona Constitution, which provides as follows:

The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.

This court has previously considered the purpose and intent of the framers in enacting article 18, § 5. We have stated that:

Prior to the Constitutional Convention, the status of contributory negligence under the common law was, in Arizona as elsewhere, that if it affirmatively appeared in the case, irrespective of the degree of negligence of the plaintiff and of the magnitude of the risk to which defendant exposed him, the court directed the verdict of the jury against the plaintiff. Only if the evidence of the plaintiff's concurrent negligence was substantially conflicting would the contributory negligence fact be left for resolution to the jury, and then with an instruction that if the jury found contributory negligence it was its duty--it must--return a verdict for the defendant. [Citations omitted.]

Under the language of Article 18, § 5, that the defense of contributory negligence shall at all times be left to the jury, the trial court cannot direct a verdict even though the plaintiff's negligence is undisputed, and the trial court must not, directly or indirectly, tell the jury that it shall return a verdict compatible with the law of contributory negligence as declared by the court. While the jury should be instructed as to the law of contributory negligence, so that it may apply the defense if it sees fit, the court cannot peremptorily require the jury to follow such instructions in arriving at a verdict in the case.

Heimke v. Munoz, 106 Ariz. 26, 29-30, 470 P.2d 107, 110-11 (1970); see also Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962).

Thus, we have held that an instruction telling the jury that the defendant is not liable if the facts establish contributory negligence contravenes the state constitution. Gosewisch v. American Honda Motor Co., Inc., 153 Ariz. 400, 406, 737 P.2d 376, 382 (1987). If A.R.S. § 4-312(A) deals with contributory negligence or assumption of the risk, it has an even more serious effect on constitutional rights than a judge's peremptory instruction to the jury. The statute is in effect a peremptory instruction to the judge that the case must be dismissed if the facts establish the defense of contributory negligence--that the plaintiff was drinking or knowingly accompanied one who had been drinking.

We note, of course, that article 18, § 5 is not addressed just to trial judges. The framers' language is, instead, quite broad and phrased in mandatory terms. The "defense ... shall in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury." As we have previously held, this means that the jury, and only the jury, is given the duty and privilege to determine whether the facts establish contributory negligence and whether, if they do, the defense should be...