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Franklin v. Clemett

Court of Appeals of Arizona, First Division

October 25, 2016

MARK WILLIAM FRANKLIN, Plaintiff/Appellant,
JASON JOHN CLEMETT, et al., Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV2010-033437 The Honorable Dawn M. Bergin, Judge.


          Knapp & Roberts, P.C., Scottsdale By David L. Abney Co-Counsel for Plaintiff/Appellant.

          Harris, Powers & Cunningham, P.L.L.C., Phoenix By Joseph D'Aguanno, Frank I. Powers Co-Counsel for Plaintiff/Appellant.

          Karen L. Lugosi, P.C., Phoenix By Karen L. Lugosi Co-Counsel for Plaintiff/Appellant.

          Jones, Skelton & Hochuli, P.L.C., Phoenix By William D. Holm, Jonathan P. Barnes, Jr. Co-Counsel for Defendants/Appellees.

          Hill, Hall & DeCiancio, P.L.C., Phoenix By R. Corey Hill, Ginette M. Hill, Christopher Robbins Co-Counsel for Defendants/Appellees.

          Presiding Judge Patricia K. Norris delivered the opinion of the Court, in which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.


          NORRIS, JUDGE.

         ¶1 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.


         ¶2 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.

         ¶3 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.

         ¶4 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 Franklin.

         The jury subsequently returned a general verdict in the Defendants' favor.


         I. Section 12-711 and Article 18, Section 5, of the Arizona Constitution

         ¶5 Franklin argues the superior court should not have instructed the jury on the intoxicating liquor defense because A.R.S. § 12-711[3] 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 ...

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