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Knoell v. Cerkvenik-Anderson Travel Inc.5/14/1996
alcohol was furnished. We reject each of Cerkvenik's arguments.
First, Cerkvenik has offered no justification for its argument that it can insist upon the protection afforded by an Arizona immunity statute, but then deny the injured party the protection of that same statute. This selective picking and choosing is unsound. Either the statute applies or it does not. If the statute does not apply, Cerkvenik's immunity argument fails. If it does apply, then it is clear that the words "the legal drinking age" in § 4-301 mean "the age of twenty-one years or older" under § 4-101(17). Indeed, Cerkvenik argues that if the legislature had used the words "twenty-one years of age," instead of the defined term of "the legal drinking age," the entire statute would apply. We fail to see how the use of an already defined term produces a different result. Moreover, the words "the legal drinking age" are used throughout our liquor statutes. By using a defined term, Arizona can change the legal drinking age by amending one statute rather than hundreds.
Nor is Cerkvenik's argument that Arizona cannot extend the application of its law beyond its borders helpful. Arizona does not purport to do so. No one suggests that Arizona has the power to make Knoell's conduct in Mexico unlawful. Cerkvenik seeks refuge in an Arizona statute to avoid tort liability in Arizona. Having sought refuge in an Arizona statute, it must take that statute as it finds it.
From what we have said so far, it is plain that there is no choice of law problem here. Both Cerkvenik and Knoell argue that § 4-301 applies to this case. They just disagree over the meaning of the statute. This is thus not a case in which we would apply the laws of different states to different issues. See Bryant v. Silverman, 146 Ariz. 41, 44 n.1, 703 P.2d 1190, 1193 n.1 (1985).
Similarly, having concluded that this case is resolved by reference to § 4-301, we need not reach the constitutional question resolved by the court of appeals. See Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 483, 80 L. Ed. 688 (1936).
4. Conclusion
The legal drinking age under § 4-301 is determined by reference to the definition section of Title 4, § 4-101(17). Because Knoell was under the age of twenty-one, § 4-301 affords no immunity to Cerkvenik. It was therefore error to dismiss the complaint based upon that statute. We vacate the opinion of the court of appeals. We reverse the judgment of the trial court and remand for reinstatement of the liquor counts (Count 2 and part of Count 3). Our resolution renders moot the issues raised in Cerkvenik's cross-petition for review. We therefore dismiss it as having been improvidently granted.
Frederick J. Martone, Justice
Concurring
Stanley G. Feldman, Chief Justice
Thomas A. Zlaket, Vice Chief Justice
James Moeller, Justice
Robert J. Corcoran, Justice (Retired)
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