Torres v. Jai Dining Services, 536 P.3d 790

Background

After heavy drinking at Jaguars Club (owned by JAI), Cesar Villanueva drove intoxicated and caused a crash killing two people; Plaintiffs sued Villanueva and JAI under common-law dram‑shop (Ontiveros) and statutory dram‑shop (A.R.S. §4‑311).
At trial the jury found Villanueva negligent and found JAI liable under the common‑law dram‑shop doctrine (Ontiveros) but not under §4‑311; damages were apportioned with JAI 40% at fault.
The Arizona Supreme Court (Torres I) reversed a court of appeals proximate‑cause holding and remanded, asking the court of appeals to consider whether §4‑312(B) preempted the Ontiveros common‑law claim.
On remand the court of appeals (Torres II) held §4‑312(B) expressly preempted the common‑law dram‑shop claim and concluded the Arizona Constitution’s anti‑abrogation clause did not protect dram‑shop actions because Ontiveros was recognized after statehood.
The Supreme Court granted review and held the anti‑abrogation clause protects only rights of action that existed at statehood or are based in pre‑statehood common law; because Ontiveros overruled pre‑statehood nonliability, the dram‑shop action recognized in 1983 is not constitutionally protected; the judgment for JAI was directed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether article 18 §6 (anti‑abrogation) protects common‑law causes of action recognized after statehood (e.g., Ontiveros dram‑shop).	The clause secures an evolving “right of action” and protects judicially developed causes like Ontiveros.	The clause protects only rights cognizable at statehood or based in pre‑statehood common law; post‑statehood judicial creations may be limited by the legislature.	The clause protects only rights that existed at statehood or find their basis in pre‑statehood common law; Ontiveros dram‑shop is not protected.
Whether A.R.S. §4‑312(B) preempts or constitutionally abrogates the Ontiveros common‑law dram‑shop claim.	(Plaintiffs) §4‑312(B) cannot abrogate a constitutionally protected right of action; it unduly restricts remedies.	(JAI) §4‑312(B) lawfully limits dram‑shop liability to the statutory standard (§4‑311); the common law claim can be legislatively supplanted.	Because Ontiveros dram‑shop is not protected by article 18 §6, §4‑312(B) may limit/redefine dram‑shop liability; judgment for JAI affirmed and remanded.
Whether prior appellate decision (Young) holding §4‑312(B) unconstitutional remains good law.	(Plaintiffs) Young correctly protected Ontiveros‑type claims.	(JAI) Young was wrongly decided in light of Dickey and later precedent.	Young is overruled to the extent it conflicts with the Court’s reaffirmed rule that the anti‑abrogation clause covers only rights cognizable at statehood.

Key Cases Cited

Ontiveros v. Borak, 136 Ariz. 500 (1983) (recognized a common‑law dram‑shop cause of action by overruling pre‑statehood tavern nonliability)
Cronin v. Sheldon, 195 Ariz. 531 (1999) (held anti‑abrogation does not protect statutory causes that lack common‑law antecedents)
Dickey ex rel. Dickey v. City of Flagstaff, 205 Ariz. 1 (2003) (explained anti‑abrogation protects rights that existed at statehood or find their basis in pre‑statehood common law)
Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9 (1986) (language suggesting common law is not frozen at 1912; treated as dicta by the majority)
Hazine v. Montgomery Elevator Co., 176 Ariz. 340 (1993) (treated as supporting evolution of common‑law protections; majority calls portions dicta)
Morrell v. City of Phoenix, 16 Ariz. 511 (1915) (held anti‑abrogation preserves only rights cognizable at law; cannot create new rights)
Industrial Comm’n v. Frohmiller, 60 Ariz. 464 (1943) (refused anti‑abrogation protection for occupational‑disease claims because no common‑law antecedent at statehood)
Kilpatrick v. Superior Court, 105 Ariz. 413 (1970) (recognized broad protection for common‑law remedies existing at statehood)
Young v. DFW Corp., 184 Ariz. 187 (App. 1995) (Court of Appeals decision that held §4‑312(B) unconstitutional; overruled insofar as inconsistent with the Supreme Court’s rule)
Torres v. JAI Dining Servs. (Torres I), 252 Ariz. 28 (2021) (AZ Supreme Court opinion vacating COA proximate‑cause ruling and remanding to consider preemption)
Torres v. JAI Dining Servs. (Torres II), 253 Ariz. 66 (App. 2022) (court of appeals decision below holding §4‑312(B) preempts Ontiveros common‑law claim)