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Estate of Ruben A. Hernandez v. Arizona Board of Regents11/29/1991
->) is unconstitutional because it takes from the jury the questions of contributory negligence and assumption of risk. Schwab v. Matley, 164 Ariz. 421, 793 P.2d 1088 (1990). In light of that ruling, therefore, we must determine the constitutionality of subsection (B).
The court's specific ruling in Schwab cannot apply to subsection (B) because no issues of either contributory negligence or assumption of the risk could be involved in suits resulting in injury or damage to third persons. The only question then is whether subsection (B) is severable from subsection (A).
SEVERABILITY
The rule on severability is that the remaining part of a statute will be held valid if it is "'so separate and distinct that it is clear or may be presumed that the legislature would have enacted the former without the latter, if it had known of the invalidity . . . .'" Millett v. Frohmiller, 66 Ariz. 339, 342, 188 P.2d 457, 460 (1948), quoting 59 C.J. Statutes § 206.
Appellant contends that the subsections are not severable because (B) refers to (A), citing Industrial Commission v. C & D Pipeline, 125 Ariz. 64, 607 P.2d 383 (App.1979). The mere fact, however, that (B) refers to (A) does not render (B) a dependent provision of (A). Nor is the language of (B) so inextricably intertwined with the provisions of (A) that it can be said with confidence that the legislature would not have enacted (B) if it had known that (A) was invalid. Benjamin v. Arizona Department of Revenue, 163 Ariz. 182, 786 P.2d 1033 (App.1989).
We conclude, therefore, that subsection (B) is severable from (A) and that the ruling in Schwab had no effect on (B). Our determination that (B) is severable from (A), however, does not settle the issue of whether (B) is constitutional. A determination
of that issue requires further examination.
RELATIONSHIP OF § 4-312(B) AND § 4-301
Section 4-312 is part of title 4, which is entitled "Alcoholic Beverages." Chapter 3 of title 4 is entitled "Civil Liability of Licensees and Other Persons." It is a short chapter consisting of only two articles, each of which contains only two sections.
Article 1 of chapter 3, entitled "Liability Limitation," includes § 4-301, which reads as follows:
Liability limitation; social host
A person other than a licensee or an employee of a licensee acting during the employer's working hours or in connection with such employment is not liable in damages to any person who is injured, or to the survivors of any person killed, or for damage to property, which is alleged to have been caused in whole or in part by reason of the furnishing or serving of spirituous liquor to a person of the legal drinking age.
The second section of article 1 applies only to licensees, as does the first section of article 2. Section 312 is the second section of article 2.
As appellant notes, § 4-301 clearly provides immunity to a social host only if the person furnished or served alcohol is over 21. If that were the only statute before us, we might rule that there is no immunity for persons who furnish or serve alcohol to those under 21 because of the specificity of the statutory language. However, we cannot ignore the fact that the same Thirty-seventh Legislature that enact
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