By Sarah LeFevre.
Should a restaurant or bar be held liable for negligently selling or overserving alcohol to a patron who then causes injury, death, or property damage due to their intoxication? On October 16, 2023, in Torres v. JAI Dining Services, the Arizona Supreme Court upheld a state law that significantly limits dram shop liability. The Court ultimately overturned a jury verdict that would have awarded the plaintiffs $800,000 in damages from a bar that overserved a patron who then tragically killed two individuals in a drunk driving accident.
Brief History of Arizona’s Dram Shop Liability
To successfully bring a negligence claim, a plaintiff must prove duty, breach, causation, and damages. Historically, in Arizona, a plaintiff could not recover from a bar or restaurant for injuries caused by an overserved patron due to a lack of causation. In a claim for such negligence, courts found that the actual cause of the resulting tort was the individual drinking the alcohol rather than the bar or restaurant serving the alcohol.
However, in 1983, the Arizona Supreme Court recognized a common law dram shop cause of action in Ontiveros v. Borak, holding that “[t]avern owners . . . may be held liable when they sell liquor to an intoxicated patron or customer under circumstances where the licensee or his employees know or should know that such conduct creates an unreasonable risk of harm to others.” This common law cause of action required a fairly low burden of proof: a dram shop would be held liable for injury or damage caused by an overserved patron if the plaintiff proved the dram shop knew or should have known that serving the patron would create an unreasonable risk of harm.
The Arizona legislature subsequently limited dram shop liability in 1986 by enacting A.R.S. § 4-311, which created an independent statutory cause of action. A.R.S. § 4-311 established a much higher burden of proof compared to the common law cause of action. Under the statute, for an establishment to be held liable for damage or injury caused by an intoxicated patron, the bar or restaurant must have served the patron while the patron was “obviously intoxicated.” To meet the “obviously intoxicated” burden of proof, a plaintiff must show that the patron was “inebriated to such an extent that [their] physical faculties [were] substantially impaired . . . shown by significantly uncoordinated physical action or significant physical dysfunction that would have been obvious to a reasonable person.”
Did the Legislature Violate the Anti-Abrogation Clause?
Otherwise known as the “anti-abrogation clause,” Article 18, Section 6 of the Arizona Constitution states, “[t]he right of action to recover damages for injuries shall never be abrogated.” In other words, the anti-abrogation clause protects access to the courts by ensuring that a plaintiff’s right to bring an action to recover for injuries may not be taken away.
So, by creating a much higher standard of proof for dram shop liability in A.R.S. § 4-311 and effectively overruling the common law dram shop burden of proof, did the Arizona legislature violate the anti-abrogation clause? In October 2023, the Arizona Supreme Court answered this question in the negative and upheld § 4-311.
Torres v. JAI Dining Services: Largely Limiting Dram Shop Liability
After a night of drinking at the Jaguars Club (“JAI”) in Phoenix, Mr. Villanueva drove his truck home while heavily intoxicated. After taking a brief nap at home, Mr. Villanueva got back behind the wheel and tragically crashed into another vehicle stopped at a red light—ultimately taking the lives of the two passengers inside the other car.
The victims’ families sued Mr. Villanueva and JAI for negligence, bringing both common law and statutory dram shop claims. After trial, the jury found JAI liable under the common law claim, which required a “knew or should have known” standard of proof, and did not find JAI liable under the statutory claim, which required an “obviously intoxicated” standard of proof. Ultimately, the Superior Court in Maricopa County awarded the families $2 million, with 40% of the blame (amounting to $800,000) assigned to JAI.
However, the Arizona Court of Appeals reversed and remanded the judgment against JAI, instructing the superior court to enter judgment in favor of JAI. The Court of Appeals held that the statutory dram-shop cause of action, codified in A.R.S. § 4-311, preempted the common law cause of action established in Ontiveros, and such preemption was constitutional. The Arizona Supreme Court affirmed. This means that the common law standard cannot be used anymore; only the statutory “obviously intoxicated” standard applies.
In analyzing the case law concerning the anti-abrogation clause, the Arizona Supreme Court concluded the clause only prohibits abrogation of rights of action that find their “basis in common law at the time the constitution was adopted.” The court’s holding is precise––the anti-abrogation clause only protects claims that a plaintiff in 1912 could have brought against a particular defendant for a particular type of harm. Thus, only the specific claims for which recovery was possible in 1912 are protected from abrogation (e.g., simple negligence, intentional torts, product liability).
The Arizona Supreme Court reasoned that because the dram shop cause of action was recognized for the first time in 1983, decades after Arizona became a state, the anti-abrogation clause does not preserve the common law dram shop action. Ultimately, the ruling in Torres means that the lower “known or should have known” burden of proof has been effectively replaced with a much higher standard of proof, rendering it significantly more difficult for plaintiffs to recover from dram shops.
According to the Arizona Supreme Court’s holding in Torres, the common law dram shop burden of proof, which requires that a bar knew or should have known that serving the patron could create an unreasonable risk of harm to others, is effectively overruled. Now, to hold a bar liable for injuries caused by an intoxicated patron, a plaintiff must meet the much higher statutory burden of proof, which requires the bar to serve the patron while the patron is “obviously intoxicated.”
As the dissent in Torres states, the statutory “obviously intoxicated” burden of proof requires that the patron be “falling-down drunk or displaying exaggerated physical signs of intoxication.” This high standard bars dram shop recovery for drunk driving victims in instances where a patron has been served an excessive number of alcoholic drinks that renders them heavily inebriated, yet the intoxicated patron fails to show “exaggerated physical signs of intoxication” as required by statute.
In addition to barring recovery for various victims, other critics believe that Torres opens the door for the legislature “to create roadblocks for pursuing tort claims of all types.” For example, several other common law claims did not exist in 1912, including legal and medical malpractice, insurance bad-faith, and strict product liability. It is quite possible that following Torres, the legislature will begin to impose higher burdens of proof on all types of tort claims, making it much more difficult for plaintiffs to recover.
All in all, the Arizona Supreme Court decision in Torres is a significant loss for tort victims—especially those of tragic drunk driving accidents.