Negligent In Selling Alcohol Resulting Injuries - Dram Shop Liability
Until the supreme court decided Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983), tavern owners or "dram shops" were not subject to liability for off-premises injuries resulting from the acts of an intoxicated patron. Collier v. Stamatis, 63 Ariz. 285, 288, 162 P.2d 125, 126 (1945), provided this rationale for nonliability:
"When damage arises from voluntary intoxication the seller of the intoxicant is, at common law, not liable in tort for the reason that his act is not the efficient cause of the damage.
The proximate cause is the act of him who imbibes the liquor." See also Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147 (1940) (consumption and not sale of intoxicants is proximate cause of injury). Almost forty years after Collier, however, the Ontiveros court re-examined the issue of causation, observing:
The general rule in Arizona is that a defendant may be held liable if his conduct contributed to the result and if that result would not have occurred "but for" defendant's conduct.
There are some dram shop cases where it would be possible to say as a matter of law that the defendant's acts did not contribute to the result, and there are other cases, such as this, where cause-in-fact remains a question for the jury. Ontiveros, 136 Ariz. at 505, 667 P.2d at 205.
The court thus concluded:
Certainly no court can say as a matter of law that there can never be a causal relation between serving liquor to an underaged, incompetent or already intoxicated patron and the subsequent accident in which that patron becomes involved when he or she leaves the premises.
Insofar as Pratt v. Daly or Collier v. Stamatis stand for such a principle, they are wrong. Id.
Accordingly, the court held that "the common law doctrine of tavern owner nonliability is abolished in Arizona." 136 Ariz. 500 at 513, 667 P.2d 200 at 213.
The legislature may, within constitutional limitations, change, supplement, or abrogate the common law, "if the legislature fails to clearly and plainly manifest an intent to alter the common law, the common law remains in effect." Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991).
See also United Bank v. Mesa N. O. Nelson Co., Inc., 121 Ariz. 438, 590 P.2d 1384 (1979); In re Estate of Hoover, 140 Ariz. 464, 682 P.2d 469 (App. 1984).
Section 4-311(A), enacted three years after Ontiveros, makes liquor licensees liable when a court or jury finds:
The licensee sold spirituous liquor either to a purchaser who was obviously intoxicated, or to a purchaser under the legal drinking age . . . .
The purchaser consumed the spirituous liquor sold by the licensee, and
The consumption of spirituous liquor was a proximate cause of the injury, death or property damage.