from the Superior Court in Maricopa County No. CV2010-033437
The Honorable Dawn M. Bergin, Judge.
& Roberts, P.C., Scottsdale By David L. Abney Co-Counsel
Harris, Powers & Cunningham, P.L.L.C., Phoenix By Joseph
D'Aguanno, Frank I. Powers Co-Counsel for
L. Lugosi, P.C., Phoenix By Karen L. Lugosi Co-Counsel for
Skelton & Hochuli, P.L.C., Phoenix By William D. Holm,
Jonathan P. Barnes, Jr. Co-Counsel for Defendants/Appellees.
Hall & DeCiancio, P.L.C., Phoenix By R. Corey Hill,
Ginette M. Hill, Christopher Robbins Co-Counsel for
Presiding Judge Patricia K. Norris delivered the opinion of
the Court, in which Judge Samuel A. Thumma and Judge Margaret
H. Downie joined.
The controlling issues in this case are whether the
affirmative defense of intoxication established by Arizona
Revised Statutes ("A.R.S.") section 12-711 (2016)
violates the contributory negligence and anti-abrogation
provisions of the Arizona Constitution, conflicts with
Arizona's comparative fault statutes, or is
unconstitutionally vague. We hold A.R.S. § 12-711 is not
unconstitutionally or statutorily infirm and, accordingly,
affirm the superior court's judgment.
AND PROCEDURAL BACKGROUND
On February 14, 2009, Plaintiff/Appellant Mark William
Franklin and Defendants/Appellees, Jason John Clemett,
Jason's wife, and their friend Daniel Blanchard
(collectively, "Defendants") were spectators at a
hockey game. During the game, Franklin began to yell
profanities and insults at the defendants. Franklin, who was
intoxicated, eventually climbed over several rows of seats
and stopped two rows above where the Defendants were seated.
Blanchard felt a "thud" on his head. His head began
to hurt, and he discovered he was bleeding. Blanchard turned
around and saw Franklin making obscene gestures and acting
"out of control." Franklin started to walk back to
his seat, but then returned to where he had been standing
above the Defendants. To try to stop Franklin from moving any
closer to them, Blanchard punched Franklin in the head.
Franklin then spit on the Clemetts, and Jason Clemett
responded by punching Franklin twice in the head.
Franklin sued the Defendants, as relevant here, for
negligence. At trial, the Defendants argued Franklin had
provoked the altercation and was 100% at fault under
comparative fault principles. Over Franklin's objection,
the Defendants also raised the affirmative defense of
intoxication under A.R.S. § 12-711 ("intoxicating
liquor defense"). Section 12-711 reads as follows:
In any civil action, the finder of fact may find the
defendant not liable if the defendant proves that the
claimant or, if the claimant is an heir or the estate of a
deceased person, the decedent was under the influence of an
intoxicating liquor or a drug and as a result of that
influence the claimant or decedent was at least fifty per
cent responsible for the accident or event that caused the
claimant's or decedent's harm.
Substantially tracking the language of A.R.S. § 12-711,
the superior court included the following instruction in its
final instructions to the jury:
If Jason Clemett or Daniel Blanchard proves that Plaintiff
Mark Franklin was under the influence of an intoxicating
liquor, and as a result of that influence, Mark Franklin was
at least fifty percent (50%) responsible for the incident or
event that caused his injuries, you may find Defendant Jason
Clemett and Defendant Daniel Blanchard not liable to Mark
jury subsequently returned a general verdict in the
Section 12-711 and Article 18, Section 5, of the Arizona
Franklin argues the superior court should not have instructed
the jury on the intoxicating liquor defense because A.R.S.
§ 12-711 violates Article 18, § 5 of the
Arizona Constitution. According to Franklin, A.R.S. §
12-711 is unconstitutional because it compels or at least
invites a jury to find a defendant not liable based on proof
that the plaintiff was 50% at fault even though Article 18,
§ 5 grants the jury unlimited discretion to determine
the existence and effect of a plaintiff's contributory
negligence. Exercising de novo review, we hold A.R.S. §
12-711 does not violate Article 18, § 5. See State
ex rel. Montgomery v. Rogers,237 Ariz. 419, 421, ¶
8, 352 P.3d 451, 453 (App. 2015) (appellate court reviews de
novo whether jury ...