Torres v. Jai Dining Servs. (Phx.), Inc.
| Decision Date | 29 March 2022 |
| Docket Number | 1 CA-CV 19-0544 |
| Citation | 67 Arizona Cases Digest 4,508 P.3d 1148 |
| Parties | Roberto TORRES, et al., Plaintiffs/Appellees, v. JAI DINING SERVICES (PHOENIX), INC., Defendant/Appellant. |
| Court | Arizona Court of Appeals |
Ahwatukee Legal Office, P.C., Phoenix, By David L. Abney, Appellate Counsel for Plaintiffs/Appellees
Clarke Law Offices, Phoenix, By Robert F. Clarke, Counsel for Plaintiffs/Appellees Torres
Koglmeier Law Group, PLC, Mesa, By Matthew D. Koglmeier, Counsel for Plaintiffs/Appellees Rosas and Suarez
Osborn Maledon, P.A., Phoenix, By Eric M. Fraser, Joshua D. Rothenberg Bendor, Hayleigh S. Crawford, Co-Counsel for Defendant/Appellant
Quintairos, Prieto, Wood & Boyer, P.A., Scottsdale, By Dominique T. Barrett, Co-Counsel for Defendant/Appellant
O'Steen & Harrison, PLC, Phoenix, By C. Lincoln Combs, Counsel for Amicus Curiae Arizona Association for Justice
Schelstraete Law Office, Tempe, By Peter H. Schelstraete, Counsel for Amicus Curiae Arizona Licensed Beverage Association
Bowman and Brooke, LLP, Phoenix, By Amanda E. Heitz, Counsel for Amicus Curiae Arizona Association of Defense Counsel
Gammage & Burnham, P.L.C., Phoenix, By Camila Alarcon, Christopher L. Hering, Counsel for Amicus Curiae Arizona Restaurant and Hospitality Association
¶1 In this case, we address a liquor licensee's liability for damages its patron, Cesar Aguilera Villanueva, caused after a night of drinking and irresponsible decisions that resulted in the deaths of two persons. Specifically, we address whether Plaintiffs’2 common law negligence and dram shop liability claims against the licensee, Defendant/Appellant JAI Dining Services (Phoenix), Inc. ("JAI"), were preempted by Arizona's statutory scheme for determining dram shop liability. See A.R.S. §§ 4-311, -312. The question comes to us on remand from the Arizona Supreme Court, which has directed us to consider issues previously raised by JAI on appeal. See Torres v. JAI Dining Servs. (Phoenix) Inc. ("Torres II "), 252 Ariz. 28, 32-33, ¶¶ 19-20, 497 P.3d 481, 485 (2021), vacating and remanding Torres v. JAI Dining Servs. (Phoenix) Inc. ("Torres I "), 250 Ariz. 147, 476 P.3d 327 (App. 2020).
¶2 We answer the question posed in the affirmative, concluding that under Arizona's statutory framework for determining dram shop liability, A.R.S. § 4-312(B) expressly preempts Plaintiffs’ claims. We further conclude that, contrary to this court's opinion in Young v. DFW Corp. , 184 Ariz. 187, 908 P.2d 1 (App. 1995) (review denied Dec. 21, 1995), § 4-312(B) does not run afoul of the Arizona Constitution's anti-abrogation clause, see Ariz. Const. art. 18, § 6, a conclusion compelled by our supreme court's opinion in Dickey ex rel. Dickey v. City of Flagstaff , 205 Ariz. 1, 66 P.3d 44 (2003), because dram shop liability claims did not exist at common law in 1912. Accordingly, we reverse that portion of the superior court's judgment against JAI and remand for that court to enter judgment in favor of JAI and in favor of Plaintiffs only as to Villanueva.
¶3 Plaintiffs sued Villanueva for negligence and JAI under common law theories of negligence and dram shop liability, and pursuant to statutory dram shop negligence under A.R.S. § 4-311. Before trial, JAI unsuccessfully moved for summary judgment regarding proximate causation, arguing that Villanueva's decision to drive again some hours after safely arriving home was, as a matter of law, an intervening and superseding cause of the victims’ deaths, thereby relieving JAI of liability. JAI did not, however, argue either before or at trial that Plaintiffs’ common law negligence and dram shop liability claims against JAI were preempted by Arizona's statutory scheme for determining dram shop liability.
¶4 At the close of Plaintiffs’ case during the ensuing jury trial, JAI moved for judgment as a matter of law under Rule 50(a), Ariz. R. Civ. P., on the claims of negligence and dram shop liability, arguing both the duty and proximate cause elements of negligence could not be met. The superior court denied the motion.
¶5 The jury found in Plaintiffs’ favor on negligence against Villanueva but rendered an unusual split verdict as to JAI, finding in Plaintiffs’ favor on the common law negligence and dram shop claims,4 but in JAI's favor on the legislatively created dram shop claim. The jury awarded Plaintiffs $2,000,000 in compensatory damages, with fault apportioned sixty percent to Villanueva and forty percent to JAI. The superior court subsequently denied JAI's renewed motion for judgment as a matter of law, see Ariz. R. Civ. P. 50(b), again based only on the scope of duty owed and lack of proximate cause.
¶6 JAI appealed the judgment and denial of its renewed motion for judgment as a matter of law, arguing that for three independent reasons it should not be held liable: (1) the claims on which the jury found JAI liable had been preempted by A.R.S. § 4-312(B) (preemption); (2) Villanueva's decision to drive again after arriving home, getting into bed, and going to sleep was an intervening, superseding cause that cut off JAI's liability (proximate cause); and (3) JAI did not breach any duty the law imposed on it and could have done nothing to prevent Villanueva from leaving his house and operating a motor vehicle several hours after he left JAI's club (duty). Plaintiffs argued that JAI waived the preemption issue by raising it for the first time on appeal, but nevertheless addressed the issue on the merits.
¶7 We reversed the judgment against JAI, holding the superior court erred by not directing a verdict in JAI's favor because Villanueva's independent decision to leave his home and drive was an intervening and superseding cause that broke the chain of proximate causation. Torres I , 250 Ariz. at 149, 155, ¶¶ 2, 33-34, 476 P.3d at 329, 335 ; see also Patterson v. Thunder Pass, Inc. , 214 Ariz. 435, 440, ¶ 19, 153 P.3d 1064, 1069 (App. 2007) (review denied Sept. 25, 2007) ("[W]e hold that [the patron's] decision to return that night to retrieve her vehicle while she was still intoxicated was unforeseeable and extraordinary and thus constituted a superseding, intervening event of independent origin that negated any negligence on the part of the tavern or its employees."). Because we reversed on proximate causation, we did not reach the preemption or duty issues. Torres I , 250 Ariz. at 155, ¶ 34 n.10, 476 P.3d at 335.
¶8 The Arizona Supreme Court granted Plaintiffs’ petition for review on one issue: whether Villanueva's decision to drive again after arriving home and going to bed was an intervening and superseding cause that cut off JAI's liability. JAI nevertheless raised the issue of preemption in its opposition to the petition, and again in its post-grant supplemental brief.
¶9 In November 2021, the supreme court vacated our opinion, holding that whether Villanueva's decision to resume driving was an intervening and superseding cause of the victims’ deaths was a question appropriately reserved for the jury. Torres II , 252 Ariz. at 32, ¶ 18, 497 P.3d at 485. The court further noted that JAI and amicus had asked it to decide whether Plaintiffs’ common law negligence and dram shop claims had been preempted by A.R.S. § 4-312(B), but it declined to do so, explaining:
We did not grant review of this issue, and therefore Plaintiffs did not address preemption in their simultaneously filed supplemental brief. Similarly, other parties interested in this significant issue have not been notified of the opportunity to submit amicus briefs. Also, JAI did not raise this issue to the trial court, although it did argue it before the court of appeals. That court should decide in the first instance whether an exception to the waiver doctrine is warranted and, if so, what the proper disposition on the merits should be.
Id. at ¶ 19. Our supreme court then remanded the case to this court "to consider other issues raised by JAI on appeal." Id. at 32-33, ¶ 20, 497 P.3d at 485–86.
¶10 On remand, we ordered additional briefing by the parties, and invited other interested parties to file amicus briefs, setting forth their respective positions on other issues raised by JAI on appeal but not previously addressed, namely: (1) whether an exception to the waiver doctrine is warranted in this case, and, if so, (2) whether Plaintiffs’ common law negligence and dram shop claims have been preempted by § 4-312(B).
¶11 We must first address Plaintiffs’ contention that JAI has waived the issue of preemption by not raising it in the superior court. If we find that waiver applies, our analysis ends.
¶12 Appellate courts generally will not consider issues raised for the first time on appeal.
Dombey v. Phoenix Newspapers, Inc. , 150 Ariz. 476, 482, 724 P.2d 562, 568 (1986) (citing Town of S. Tucson v. Bd. of Supervisors of Pima Cnty. , 52 Ariz. 575, 582, 84 P.2d 581 (1938) ; Van Loan v. Van Loan , 116 Ariz. 272, 274, 569 P.2d 214, 216 (1977) ; Milam v. Milam , 101 Ariz. 323, 325, 419 P.2d 502, 504 (1966) ); see also Trantor v. Fredrikson , 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) . This general waiver rule "serves objectives of fair notice, and promotes both the ability to meet issues and judicial efficiency," Dombey , 150 Ariz. at 482, 724 P.2d at 568, and is intended to prevent unfair surprise, Stokes v. Stokes , 143 Ariz. 590, 592, 694 P.2d 1204, 1206 (App. 1984).
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