Franklin v. Clemett, 382 P.3d 802

Background

On Feb. 14, 2009, Franklin (plaintiff) was intoxicated at a hockey game, yelled at and climbed near defendants; a physical altercation followed in which defendants struck Franklin.
Franklin sued for negligence; defendants asserted provocation, comparative fault, and the statutory intoxication affirmative defense under A.R.S. § 12-711.
§ 12-711 permits (but does not compel) a factfinder to find a defendant not liable if the claimant was under the influence and at least 50% responsible for the event causing harm.
The trial court instructed the jury using language substantially tracking § 12-711; the jury returned a general verdict for defendants.
Franklin appealed, arguing § 12-711 violated Arizona Constitution art. 18 §§ 5 (jury control over contributory negligence) and 6 (anti-abrogation), conflicted with UCATA, was unconstitutionally vague, and lacked evidentiary support at trial.
The Court of Appeals affirmed: § 12-711 is permissive (not mandatory), constitutional, not vague, consistent with UCATA, and supported by evidence presented at trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether A.R.S. § 12-711 violates Art. 18 § 5 (jury control over contributory/assumption-of-risk defenses)	§ 12-711 improperly compels or invites juries to absolve defendants if plaintiff is ≥50% at fault, undermining jury discretion	§ 12-711 is permissive—"may" find defendant not liable—and leaves the fact question to the jury consistent with Art. 18 § 5	Court: No violation; statute is permissive and compatible with Article 18 § 5 (jury discretion intact)
Whether § 12-711 abrogates right to sue under Art. 18 § 6	The 50% threshold effectively deprives plaintiffs of recovery, amounting to abrogation	Statute regulates allocation of fault but does not bar claims or prevent jury determination; does not abrogate right to sue	Court: No abrogation; statute regulates remedy but leaves reasonable alternatives to pursue negligence claims
Whether § 12-711 conflicts with UCATA (A.R.S. § 12-2506(B))	§ 12-711 "triggers" treating all fault as plaintiff’s at 50% and undermines UCATA’s mandate that jury assess each contributor’s percentage	§ 12-711 is permissive and does not prevent the jury from assessing fault among all parties under UCATA	Court: No conflict; § 12-711 does not restrict the jury’s duty to allocate fault under UCATA
Whether § 12-711 is void for vagueness because it fails to define "under the influence"	Term is ambiguous and may mean different things; statute leaves jurors to speculate	"Under the influence" has long, judicially-recognized meaning ("intoxicated in the slightest degree") and gives ordinary people sufficient notice	Court: Not unconstitutionally vague; established common-law/DUI meaning supplies adequate standard

Key Cases Cited

Hall v. A.N.R. Freight Sys., Inc., 149 Ariz. 130, 717 P.2d 434 (Ariz. 1986) (Legislature may modify/abolish contributory negligence; Article 18 § 5 protects jury fact-finding procedure)
Williams v. Thude, 188 Ariz. 257, 934 P.2d 1349 (Ariz. 1997) (permissive jury instructions that call attention to plaintiff's conduct under comparative fault are constitutional)
Salt River Project Agric. Improvement & Power Dist. v. Westinghouse Elec. Corp., 176 Ariz. 383, 861 P.2d 668 (Ariz. Ct. App. 1993) (instructions that compel a verdict for defendant if plaintiff found negligent violate Article 18 § 5)
Romero v. Sw. Ambulance, 211 Ariz. 200, 119 P.3d 467 (App. 2005) (statute regulating negligence claims does not violate Article 18 § 6 if reasonable alternatives to bring claim remain)
Watts v. Medicis Pharm. Corp., 239 Ariz. 19, 365 P.3d 944 (Ariz. 2016) (statute abrogates a cause of action only if it bars the cause before it can be brought)
State ex rel. Montgomery v. Rogers, 237 Ariz. 419, 352 P.3d 451 (App. 2015) (de novo review of jury-instruction legality)
State v. Coulter, 236 Ariz. 270, 339 P.3d 653 (App. 2014) (statutory language with commonly understood meaning is not vague)