Estate of Ruben A. Hernandez v. Arizona Board of Regents11/29/1991
uided by its absolute duty to protect constitutional rights. Marquez v. Rapid Harvest Co., 1 Ariz. App. 562, 565, 405 P.2d 814, 817, vacated on other grounds, 99 Ariz. 363, 409 P.2d 285 (1965), citing Bristor v. Cheatham, 75 Ariz. 227, 234, 255 P.2d 173, 177 (1953). The constitutional mandate of § 6 is to preserve common law rights and correlative duties in tort. Marquez, supra, 1 Ariz. App. at 565, 405 P.2d 814. To carry out this mandate, we should apply § 6 broadly to protect the general right to recover damages and to include all actions recognized at common law. Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 730 P.2d 186 (1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 527 (1987).
Appellees would have us undercut the mandate of § 6 by finding that it does not protect a civil suit against a social host for damages caused by furnishing alcohol to a minor because such a suit just now comes before the court. Appellees admit that in Boswell, the court clearly did not limit the protection of § 6 to actions in existence in 1910 when the Arizona Constitution was adopted, but argue that in Bryant v. Continental Conveyor & Equip. Co., Inc., 156 Ariz. 193, 751 P.2d 509 (1988), the court did so limit § 6. A careful reading of Bryant, however, shows that court specifically left Boswell as good law, reiterating that Boswell held § 6 protects actions for negligence. Bryant, supra, 156 Ariz. at 195, 751 P.2d 509. Further, § 6 has been construed so that the phrase "right of action" is equivalent to the common law action for negligence. Landgraff v. Wagner, 26 Ariz. App. 49, 546 P.2d 26, appeal dismissed, 429 U.S. 806, 97 S.Ct. 40, 50 L.Ed.2d 67 (1976). Because the cause of action at issue here is a species of negligence action, it is protected by § 6 regardless of when it first appears in the Arizona courts. To rule otherwise is to violate the broad guarantee of § 6.
III.
Appellants argue correctly that once A.R.S. § 4-312(B) is invalidated, A.R.S. § 4-301 becomes dispositive of the issue in this case. On its face, § 4-301 immunizes social hosts from liability for death or injury caused by their adult guests. This section also operates to exclude that immunity where the acts of minor guests are involved. I reach this interpretation by following the rule of statutory construction which holds that the expression of one or more items of class in a statute indicates intent to exclude all items of the same class
which are not expressed. Pima County v. Heinfeld, 134 Ariz. 133, 654 P.2d 281 (1982); Wells Fargo Credit Corp. v. Arizona Property and Cas. Ins. Guar. Fund, 165 Ariz. 567, 799 P.2d 908 (App.1990). Therefore, I read A.R.S. § 4-301 to permit the imposition of liability where the social host serves alcohol to a minor, i.e., a person not of the legal drinking age.
It is well accepted that the court has a general obligation to construe a statutory provision in the context of related provisions and in light of its place in the statutory scheme. Wells Fargo, supra. Construing A.R.S. § 4-301 to allow liability with regard to minors is consistent with the sanctions found in A.R.S. §
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