Arizona’s Liquor Liability for Clubs, Restaurants and Bars

Chris Enos and Bill Ruben

GOERING, ROBERTS, RUBIN, BROGNA, ENOS & TREADWELL-RUBIN, P.C.

3567 E. Sunrise Drive, Suite 101

Tucson, AZ 85718

Tel: (520) 577-9300

Fax: (520) 577-0848

Chris Enos

[email protected]

Bill Rubin

[email protected]

Dram Shop cases in Arizona are, in part, governed by statute.  However, plaintiffs are not barred from seeking recovery if they cannot meet the statutory requirements set forth by the Arizona State Legislature.  The Arizona Legislature was clearly attempting to make it onerous for plaintiffs to prove a case against liquor licensees when they enacted A.R.S. §4-311 well over 20 years ago.  That statute in pertinent part reads as follows:

A.R.S. 4-311 establishes dram shop liability if:

1. The licensee sold spirituous liquor … to a purchaser who was obviously intoxicated …, and
2. The purchaser consumed the spirituous liquor sold by the licensee, and
3. The consumption of spirituous liquor was a proximate cause of the injury, death or property damage.

Subsection C of A.R.S. 4-311 defines “obviously intoxicated” as “inebriated to such an extent that a person’s physical faculties are substantially impaired and the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction, that would have been obvious to a reasonable person.”

A conscientious bar owner and staff can most often provide a defense attorney with a very solid defense based on their observations of a person who is alleged to have been overserved.  Good quality video surveillance can also help by showing a customer that is not showing signs of inebriation to the extent they cannot physically function.   Testimony from an experienced bartender that he or she continually converses with their customers and observes their customers in order to evaluate the “obvious signs” can be critical in defeating the Arizona statutory claim.

However, inexperienced dram shop attorneys often make the mistake of thinking all they have to worry about is the statutory claim.  In other words if I can defeat the A.R.S. 4-311 “obviously intoxicated” claim I am home free.  Unfortunately, this is not the case.  Although it was the intent of the legislature to make A.R.S. §4-311 the only standard by which a liquor licensee is judged they did not succeed because of a unique clause in the Arizona Constitution.

In the case of Young v DFW Corporation, 184 Ariz. 187, 908 P.2d 1 (App. 1995), the Arizona Court of Appeals held that the statute limits dram shop liability to instances where alcohol was served to an “obviously intoxicated” patron, as statutorily defined, and therefore is unconstitutional. Id., 184 Ariz. at 190.  Arizona’s constitution has a clause, Article 18 §6 which makes it unconstitutional for the Legislature to abrogate a general negligence cause of action.  This clause has been used utilized by the Plaintiff’s bar in Arizona to defeat repeated attempts by the Arizona Legislature to reform tort law in Arizona.

In Young, the Court held that to the extent A.R.S. 4-311 provides the exclusive standard for bringing an action based on the over service  of alcohol by a bar or restaurant, it abrogates a general negligence cause of action, and thereby denies recovery to at least one class of plaintiffs, i.e., those injured by intoxicated drivers who were not obviously intoxicated as statutorily defined, but who consumed sufficient number of alcoholic drinks that licensee knew or should have known that they were intoxicated.  Therefore, as a result of the Young decision plaintiffs can either rely on the statutory claim as set forth in A.R.S. §4-311 or simple negligence or both if they so choose.

In Arizona, negligence is defined “as the failure to act as a reasonably careful person would act under the circumstances.”   This simple definition of negligence is used by plaintiff attorneys when the evidence is weak that the drinker was showing signs of being intoxicated, but the sheer number of drinks served would have caused a reasonable bartender to realize this person is intoxicated based on how Arizona law defines intoxication in DUI cases.  The Revised Arizona Jury Instruction regarding the Presumption of Intoxication provides, in part, as follows:

If a driver has a blood alcohol concentration above .08 at the time of driving, it may be presumed that he or she was under the influence of alcohol.

To meet the less onerous common law standard a plaintiff attorney can use a simple alcohol/BAC chart published by the State of Arizona to at least survive summary judgment.  For example, if there is no evidence of “obvious intoxication” in the case, but the customer was served 4-5 drinks the plaintiff attorney will have the argument that a “reasonable” bartender should have known that the mere service of 4-5 drinks resulted in the patron having a blood alcohol level presumed by the State of Arizona to be impaired or under the influence of alcohol.  Of course there are many factors and defenses that a skilled dram shop attorney can utilize to defend the common law negligence case, but this often requires expert testimony and contested facts which almost always means the plaintiff will survive a dispositive motion.

Arizona is a pure comparative negligence state so defense counsel always has the argument of personal responsibility against the patron (whether that patron is a co-defendant or a nonparty) and the jury will apply the pure comparative fault rule to place a percentage of fault against the patron.  However, the Arizona State Legislature’s intent many years ago of protecting bar owners and restaurants from weak and often frivolous suits by making the standard somewhat onerous was unsuccessful when the Arizona Courts stepped in.  Whether or not a plaintiff can satisfy the statutory requirements they can always fall back on a simple negligence case making winning a case at the summary judgment level very difficult in Arizona.

Written by Chris Enos and Bill Ruben of Goering, Robers, Rubin, Brogna, Enows & Treadwell-Rubin, P.C. for RMS Hospitality Group.