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Estate of Ruben A. Hernandez v. Arizona Board of Regents11/29/1991
5 L.Ed.2d 527 (1987); Humana
Hospital Desert Valley v. Superior Court, 154 Ariz. 396, 742 P.2d 1382 (App.1987), the most recent supreme court pronouncement is that the provisions apply only to actions recognized at common law at the time the constitution was adopted. Bryant v. Continental Conveyor & Equipment Co., 156 Ariz. 193, 751 P.2d 509 (1988); see also Sandbak v. Sandbak, 166 Ariz. 21, 800 P.2d 8 (App.), review denied (1990). Appellant does not dispute the fact that no case in Arizona has ever held that a social host is liable for injuries suffered because of the furnishing or serving of alcohol to a guest, whether the guest is under the age of 21 or not.
We note, in any event, that one of the tenets used in determining the application of the constitutional provisions is that "the constitution prohibits legislative abrogation, but not legislative regulation, of a cause of action." Boswell, 152 Ariz. at 18, 730 P.2d at 195. Although we conclude that § 4-312(B) provides immunity to appellees for appellant's loss, thereby abrogating a cause of action, we note that appellant has recovered damages in his suit against John Rayner.
We conclude that § 4-312(B) does not violate the constitutional provisions against the abrogation of a cause of action.
Violation of Equal Protection and Due Process Clauses
Appellant next contends that § 4-312(B) violates both the equal protection and due process clauses of the Arizona Constitution. Ariz. Const. art. 2, §§ 13, 4. Arguing that the appropriate test for analyzing its equal protection claim is the strict scrutiny test because the right to bring and pursue a negligence cause of action is a fundamental right, Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984), appellant contends that there is no compelling state interest upon which the statute can be upheld. The national fraternity argues that only the rational basis test applies here. Appellant also argues that the statute violates the due process clause because it has no "substantial relation to any goals sought to be obtained by the legislature."
Appellant's basic complaint is that nonlicensees are rendered immune from liability by the statute while licensees remain subject to liability in certain instances. We find no merit to that complaint. Social hosts have essentially always had immunity from liability as evidenced by the fact that no case in Arizona has ever held a social host liable. Moreover, distinctions between the responsibilities and obligations of licensees and nonlicensees are common in other areas without any contention that those distinctions violate the constitution.
As this court observed in Keckonen v. Robles, supra, there are at least four valid reasons why licensees may be held liable and not social hosts:
First, the commercial proprietor has a proprietary interest and profit motive and should be expected to exercise greater supervision than the non-commercial social setting. Second, the person in the business of selling and serving alcohol is usually better organized to control patrons and has the financial wherewithal to do so. Third, by virtue of experience a commercial proprietor is more familiar with his customers and their habits and capacities. Fourth, since the ratification of the Twenty-first Amendment to the United States Constitut
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