Schwab v. Matley
In Schwab v. Matley, 164 Ariz. 421, 425, 793 P.2d 1088, 1092 (1990) the Arizona Supreme Court invalidated A.R.S. 4-312(A), which had relieved a liquor licensee from liability for injuries sustained by either a customer or anyone accompanying the customer "who knew of his or her impaired condition." 164 Ariz. at 422, 793 P.2d at 1089.
The court held this statute was a "legislative codification of the doctrine of contributory negligence and assumption of the risk" that violated article XVIII, 5 because it barred recovery of damages for negligence based on "the conduct of a particular category of persons injured." Id. at 425, 423, 793 P.2d at 1092, 1090.
The supreme court in Schwab rejected the defendant's contention that the statute did not remove consideration of contributory negligence or assumption of risk from the jury but instead limited the duty of tavernkeepers, stating:
First, the statute clearly deals with the antecedent conduct of the person injured, providing that the one who causes the injury "shall not be liable." If there is a difference between this and contributory negligence, we are unable to perceive it, nor can Matley articulate it. The reason is apparent: "Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered. . . ." PROSSER AND KEETON ON THE LAW OF TORTS 65, at 451 (5th ed. 1984). . . .
Matley's argument fares no better if we analyze the common law defense of assumption of the risk, which also barred recovery. . . . Assumption of the risk as a defense . . . always "rested upon the idea that the defendant was relieved of any duty toward the plaintiff." Id. at 451. The very basis of the doctrine was that the plaintiff had expressly or impliedly consented to the defendant's negligent conduct, "the legal result being that the defendant is simply relieved of the duty which would otherwise exist." Id. 68, at 481.
. . . If the legislature could abolish the recognized common law duties of care, the provisions of article 18, 5 would have no meaning at all. Id. at 424-25, 793 P.2d at 1091-92.
According to the supreme court, the statute relieving defendants of liability was "simply a shorthand method of describing the traditional common law defenses of contributory negligence and assumption of the risk" because, prior to the statutory defense, any defendant arguing that the claim was barred because a plaintiff had drunk too much or had associated with those who had "would plead the defense under the rubric of contributory negligence or assumption of the risk." Id. at 424, 793 P.2d at 1091.