anti-abrogation clause in Arizona

2023Id. at 470–71. ¶11 Our older caselaw accords with our most recent cases on this topic, Cronin and Dickey, in which we emphasized that the anti-abrogation clause does not “extend constitutional protection to all tort causes of action, whenever or however they may have arisen.” Cronin, 195 Ariz. at 539 ¶ 36.

2023In Cronin, we found that an action for wrongful discharge in violation of public policy—a right of action created by statute in 1965, id. at 533 ¶ 1—was unprotected by the anti-abrogation clause because it “originate[d] exclusively within the statute, would not otherwise exist, and cannot trace its antecedents to a common law right of action.” Id. at 539 ¶ 39. ¶12 Similarly, in Dickey, we found that “to fall within the protection of the anti-abrogation provision of the Arizona Constitution,” a right of action “must have existed at common law or have found its basis in the common law at the tim

2023Although contradictory dicta can be found in a few of this Court’s cases—namely, Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9 , 17–18 (1986) and Hazine v. Montgomery Elevator Co., 176 Ariz. 340 , 343–44 (1993)—this Court has never extended the anti-abrogation clause to rights of action not recognized at statehood, and we will not do so now.

2023The Court first employed this language in Boswell, stating that “[a]lthough [the anti- abrogation clause] preserves common law rights, our common law is not frozen as of 1912.” 152 Ariz. at 17 .

2023Although contradictory dicta can be found in a few of this Court’s cases—namely, Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9 , 17–18 (1986) and Hazine v. Montgomery Elevator Co., 176 Ariz. 340 , 343–44 (1993)—this Court has never extended the anti-abrogation clause to rights of action not recognized at statehood, and we will not do so now.

2023Co., 156 Ariz. 193, 195 (1988), overruled by Hazine, 176 Ariz. at 344 ; Boswell, 152 Ariz. at 13 . ¶58 This Court interprets the anti-abrogation clause “broadly and unrestrictively,” Cronin, 195 Ariz. at 538 ¶ 35, and we have repeatedly recognized that the “right of action” protected by the anti-abrogation clause “is not limited to those elements and concepts of particular actions which were defined in our pre-statehood case law.” Boswell, 152 Ariz. at 17–18 (extending anti-abrogation clause protection to emotional distress damages, although such damages were first recognized post-statehood);

2023See Barrio, 143 Ariz. at 106 . ¶81 In sum, because § 4-312(B) abolishes a dram-shop claim for persons like the plaintiffs in this case, whose family members were killed by a drunk driver who was overserved but not “obviously intoxicated” as defined by § 4-311(D), I conclude that the anti-abrogation clause renders § 4-312(B) unconstitutional.

2016The anti-abrogation clause is implicated when one’s right of action is “completely abolished.” Barrio, 143 Ariz. at 106 , 692 P.2d 280 (citing Ruth v. Indus.

2023Dickey v. City of Flagstaff, 205 Ariz. 1 (2003), to hold “that if a plaintiff could not have asserted a claim for a particular type of harm against a particular defendant in 1912, then the anti-abrogation clause provides that claim no protection.” Id. at 75 ¶ 31.

2023Dickey v. City of Flagstaff, 205 Ariz. 1 (2003), to hold “that if a plaintiff could not have asserted a claim for a particular type of harm against a particular defendant in 1912, then the anti-abrogation clause provides that claim no protection.” Id. at 75 ¶ 31.

2023The framers felt so strongly about this right they repeated it when declaring individual rights.4 See Ariz. Const. art. 2, § 31 (“No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person.”); Kenyon, 142 Ariz. at 80 n.9 (describing the “hard-fought battles waged on the floor of the constitutional convention of 1910” that culminated in adopting article 18, section 6 and article 2, section 31, and concluding that “the two provisions were intended to guarantee the same basic right”). ¶56 In short, the anti-abrogation clause

2013Although Eastin had generally applied a rational basis standard in reviewing a medical malpractice statute, and struck down only the $2000 bond requirement that affected access to the courts, the Kenyon court declared that Eastin “stands for the proposition that where the fundamental right to bring or pursue the action is affected, this court will not apply the rational basis analysis.” Id. ¶ 45 Relying on Kenyon , Mr. Baker urges the Court to apply greater scrutiny to an equal protection claim based on a violation of the anti-abrogation clause than would apply to an alleged violation of the a

2022Id. at ¶ 9 n.3; see also Lerner v. DMB Realty, LLC, 234 Ariz. 397, 407, ¶ 41 (App. 2014) (“We therefore hold that, like the wrongful termination claim in Cronin, the Lerners’ claim for negligent failure to disclose is not protected by the anti-abrogation clause.”); Goodman v. Samaritan Health Sys., 195 Ariz. 502, 506-07, ¶ 18 (App. 1999) (“It is not enough, as Goodman attempts here, to append to the asserted claim a name derived from the catalogue of common law actions.

2021While Sharifi correctly notes that prior cases upholding A.R.S. § 36-445.02 against anti-abrogation challenges did not consider the statute’s application in defamation actions, Goodman, 195 Ariz. at 509 , ¶ 29 n.9 (limiting the analysis upholding A.R.S. § 36-445.02 against an anti-abrogation challenge to the claims raised, explaining that “[a] different analysis might be required if a defamation claim were made against an individual peer reviewer”); see also Humana, 154 Ariz. at 399–400, the superior court ruled early in this litigation (before Sharifi filed his amended complaint) that no stat

2025See Nunez v. Prof’l Transit Mgmt. of Tucson, Inc., 229 Ariz. 117 , 122–23 ¶¶ 25–26 (2017) (holding that the anti-abrogation clause does not prohibit regulation of torts but protects access to the courts).

2023Cf. Nunez, 229 Ariz. at 122-23, ¶¶ 24-25 (holding that abandoning doctrine imposing heightened standard of care on common carriers did not violate the anti-abrogation clause). ¶24 Section 12-516 does more, however, than simply raise plaintiffs’ burden of proof for COVID-related medical malpractice claims.

2023Relying on Duncan v. Scottsdale Medical Imaging, Ltd., 205 Ariz. 306 (2003), Dillon argues the superior court’s ruling applying the MMA unconstitutionally abrogated her right under Article 18, Section 6, of the Arizona Constitution (the anti-abrogation clause)4 to recover damages caused by Pitt’s breach of his common-law fiduciary duty. ¶17 In Duncan, the plaintiff brought a claim for common law battery after her healthcare providers gave her a particular painkiller against her express wishes. 205 Ariz. at 308, ¶ 1 .

2023Relying on Duncan v. Scottsdale Medical Imaging, Ltd., 205 Ariz. 306 (2003), Dillon argues the superior court’s ruling applying the MMA unconstitutionally abrogated her right under Article 18, Section 6, of the Arizona Constitution (the anti-abrogation clause)4 to recover damages caused by Pitt’s breach of his common-law fiduciary duty. ¶17 In Duncan, the plaintiff brought a claim for common law battery after her healthcare providers gave her a particular painkiller against her express wishes. 205 Ariz. at 308, ¶ 1 .

2023Co., 156 Ariz. 193, 195 (1988), overruled by Hazine, 176 Ariz. at 344 ; Boswell, 152 Ariz. at 13 . ¶58 This Court interprets the anti-abrogation clause “broadly and unrestrictively,” Cronin, 195 Ariz. at 538 ¶ 35, and we have repeatedly recognized that the “right of action” protected by the anti-abrogation clause “is not limited to those elements and concepts of particular actions which were defined in our pre-statehood case law.” Boswell, 152 Ariz. at 17–18 (extending anti-abrogation clause protection to emotional distress damages, although such damages were first recognized post-statehood);

2022See Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 345-46 (App. 1992). ¶23 In Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 17-18 (1986), our supreme court held that the anti-abrogation clause “extends to wrongs recognized at common law, but it is not limited to those elements and concepts of particular actions which were defined in our pre-statehood case law.” Two years later, however, in Bryant v. Continental Conveyor & Equipment Co., 156 Ariz. 193, 195 (1988), a split supreme court held that A.R.S. § 12-551, which limits product liability for manufacturers and sellers, “is not an ab

2023This rule does not render the anti-abrogation clause toothless: “[w]ithout limitation it confers the right to recover damages for injuries as existing under the common law.” Kilpatrick v. Superior Court, 105 Ariz. 413, 419 (1970).

2023Bldg. & Supply Ass’n, 349 N.W.2d 419, 425 (S.D. 1984))); Kilpatrick v. Superior Court, 105 Ariz. 413, 419 (1970) (stating that “[without] room for quibbling” and “[w]ithout limitation” the anti-abrogation clause “confers the right to recover damages for injuries as existing under the common law”). ¶55 The anti-abrogation clause was not a mere afterthought in the Arizona Constitution.

2022Id. at ¶ 9 n.3; see also Lerner v. DMB Realty, LLC, 234 Ariz. 397, 407, ¶ 41 (App. 2014) (“We therefore hold that, like the wrongful termination claim in Cronin, the Lerners’ claim for negligent failure to disclose is not protected by the anti-abrogation clause.”); Goodman v. Samaritan Health Sys., 195 Ariz. 502, 506-07, ¶ 18 (App. 1999) (“It is not enough, as Goodman attempts here, to append to the asserted claim a name derived from the catalogue of common law actions.

2015In Lemer v. DMB Realty, LLC, we stated that “to be protected by the anti-abrogation clause, a cause of action must have existed at common law or have found its basis in the common law at the time the constitution was adopted.” 234 Ariz. 397, 406, ¶ 36 , 322 P.3d 909, 918 (App.2014) (quoting Dickey v. City of Flagstaff, 205 Ariz. 1, 3, ¶ 9 , 66 P.3d 44, 46 (2003)) (internal quotation marks omitted).

2022See Jimenez, 183 Ariz. at 406 ; City of Tucson v. Tanno, 245 Ariz. 488 , 494, ¶ 23 (App. 2018) (considering an issue first raised on appeal when the opposing party was “afforded the opportunity to, and did in fact, respond to [the waived issue] in its answering brief”); Evenstad v. State, 178 Ariz. 578 , 582 n.2 (App. 1993) (addressing a new issue after affording both sides an opportunity to file supplemental briefs on the issue). ¶16 Furthermore, well-settled exceptions to the waiver doctrine apply, as the preemption issue raised by JAI turns on whether this court correctly determined in Youn

2015See Ramirez v. Health Partners of S. Ariz., 193 Ariz. 325, 334-35, ¶ 32 , 972 P.2d 658, 667-68 (App.1998) (finding the Uniform Anatomical Gift Act did not unconstitutionally abrogate an action to recover damages for injuries); see also Cronin v. Sheldon, 195 Ariz. 531, 538, ¶ 34 , 991 P.2d 231, 238 (1999) (“We have held that article 18, § 6 precludes abrogation, but not regulation.”)-, Jimenez v. Sears Roebuck & Co., 183 Ariz. 399, 407 , 904 P.2d 861, 869 (1995) (“We long ago held that our constitution permits regulations effectively reducing *420 a plaintiffs recovery.”).

2022We further conclude that, contrary to this court’s opinion in Young v. DFW Corp., 184 Ariz. 187 (App. 1995) (review denied Dec. 21, 1995), § 4-312(B) does not run afoul of the Arizona Constitution’s anti-abrogation clause, see Ariz. Const. art. 18, § 6, a conclusion compelled by our supreme court’s opinion in Dickey ex rel.

2022Consequently, § 4-312(B) cannot run afoul of the anti-abrogation clause and therefore remains good law. 7 Young concluded that, in enacting § 4-312(B) in conjunction with § 4- 311, the legislature did not merely regulate the general negligence cause of action recognized in Ontiveros, but unconstitutionally abrogated it. 184 Ariz. at 189-90 .

2025Sys., Inc., 217 Ariz. 222 , 229 ¶¶ 34–37 (2007) (explaining that a statute abolishing joint and several liability in strict products liability cases did not violate the anti-abrogation clause because “the claimant remains entirely free to bring his claim against all responsible parties”); Baker, 231 Ariz. at 388 ¶ 35 10 ROBIN ROEBUCK v. MAYO CLINIC, ET AL.

2017Physicians Healthcare, 231 Ariz. 379, 388, ¶ 39 (2013), we are aware of no authority suggesting that “injuries” under the anti-abrogation clause should be interpreted differently than “injuries” recognized under tort law, see Samaritan Health Sys. v. Superior Court of State of Ariz., 194 Ariz. 284, 293-94, ¶¶ 37, 44 (App. 1998) (explaining that the founders’ intent was “to limit the application of the anti-abrogation clause to tort claims”).

2023Desert Valley v. Superior Court, 154 Ariz. 396, 399 (App. 1987) (concluding that a negligent supervision cause of action is protected by the anti-abrogation clause even though the action was first recognized in 1972); Franks v. U.S. Fid. & Guar.

2021While Sharifi correctly notes that prior cases upholding A.R.S. § 36-445.02 against anti-abrogation challenges did not consider the statute’s application in defamation actions, Goodman, 195 Ariz. at 509 , ¶ 29 n.9 (limiting the analysis upholding A.R.S. § 36-445.02 against an anti-abrogation challenge to the claims raised, explaining that “[a] different analysis might be required if a defamation claim were made against an individual peer reviewer”); see also Humana, 154 Ariz. at 399–400, the superior court ruled early in this litigation (before Sharifi filed his amended complaint) that no stat

2007Id. ¶ 11 Our supreme court held, however, that the anti-abrogation clause was more general than the immunity clause and that the latter “directly addresses the authority of the legislature in relation to actions against the state” and applied the immunity clause to resolve the case.

2003Clouse v. State, 199 Ariz. 196 , 16 P.3d 757 (2001), for the proposition “that changing a standard of proof from negligence to gross negligence for a particular’ subclass of tort victims would violate” the anti-abrogation clause.

2022See Jimenez, 183 Ariz. at 406 ; City of Tucson v. Tanno, 245 Ariz. 488 , 494, ¶ 23 (App. 2018) (considering an issue first raised on appeal when the opposing party was “afforded the opportunity to, and did in fact, respond to [the waived issue] in its answering brief”); Evenstad v. State, 178 Ariz. 578 , 582 n.2 (App. 1993) (addressing a new issue after affording both sides an opportunity to file supplemental briefs on the issue). ¶16 Furthermore, well-settled exceptions to the waiver doctrine apply, as the preemption issue raised by JAI turns on whether this court correctly determined in Youn

1999December 15, 1998) (holding that “the anti-abrogation clause does not apply to negligence actions against the government in Arizona” because the state was immune from negligence actions until 1963 and that A.R.S. § 12-820.02(A)(1) “is a constitutional grant of governmental immunity”); Evenstad v. State of Arizona, 178 Ariz. 578, 586 , 875 P.2d 811, 819 (App.1993) (holding that, “because neither the Arizona courts nor the legislature has ever recognized a right of action against public entities for conduct shielded by A.R.S. section 12-820.01, the Arizona Constitution does not guarantee a cause

2015Because the tariff provision does not bar US Airways’ negligence claim but only limits its damages, and the provision does not prevent Qwest from being sued for willful conduct or gross negligence, see Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 493, ¶ 21 , 88 P.3d 557, 563 (App.2003) (“[L]imiting recovery does not violate the anti-abrogation clause unless it ‘completely abolishe[s]’ the cause of action.”) (quoting Barrio v. San Manuel Div. Hosp., Magma Copper, 143 Ariz. 101, 106 , 692 P.2d 280, 285 (1984)), the tariff provision does not violate the constitutional anti-abrogation

2015Because the tariff provision does not bar US Airways’ negligence claim but only limits its damages, and the provision does not prevent Qwest from being sued for willful conduct or gross negligence, see Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 493, ¶ 21 , 88 P.3d 557, 563 (App.2003) (“[L]imiting recovery does not violate the anti-abrogation clause unless it ‘completely abolishe[s]’ the cause of action.”) (quoting Barrio v. San Manuel Div. Hosp., Magma Copper, 143 Ariz. 101, 106 , 692 P.2d 280, 285 (1984)), the tariff provision does not violate the constitutional anti-abrogation

2025Supply Ass’n, 349 N.W.2d 419, 425 (S.D. 1984)). ¶28 The Attorney General additionally argues that construing the anti-abrogation clause to prevent the Legislature from temporarily limiting the liability of health care providers during a public pandemic would undermine its police powers under article 4, part 1, section 1 of the Arizona Constitution.

2023Bldg. & Supply Ass’n, 349 N.W.2d 419, 425 (S.D. 1984))); Kilpatrick v. Superior Court, 105 Ariz. 413, 419 (1970) (stating that “[without] room for quibbling” and “[w]ithout limitation” the anti-abrogation clause “confers the right to recover damages for injuries as existing under the common law”). ¶55 The anti-abrogation clause was not a mere afterthought in the Arizona Constitution.

2023This case requires us to consider whether that “anti- abrogation clause” extends to rights of action created after our constitution was ratified, and more specifically, whether the anti-abrogation clause prevents the legislature from limiting the common law dram-shop action recognized in Ontiveros v. Borak, 136 Ariz. 500 (1983), which imposed tort liability upon liquor licensees that cause harm by overserving their patrons.

2023Dickey v. City of Flagstaff, 205 Ariz. 1 , 3 ¶ 9 (2003) (quoting Cronin, 195 Ariz. at 539 ¶ 39). ¶60 I disagree with my colleagues that the common law dram-shop cause of action this Court recognized in Ontiveros v. Borak, 136 Ariz. 500, 513 (1983), is not a “right of action” protected by the anti-abrogation clause.

2022See Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 345-46 (App. 1992). ¶23 In Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 17-18 (1986), our supreme court held that the anti-abrogation clause “extends to wrongs recognized at common law, but it is not limited to those elements and concepts of particular actions which were defined in our pre-statehood case law.” Two years later, however, in Bryant v. Continental Conveyor & Equipment Co., 156 Ariz. 193, 195 (1988), a split supreme court held that A.R.S. § 12-551, which limits product liability for manufacturers and sellers, “is not an ab

2011Id. (“A party to an action does not have a vested right in a particular remedy or mode of procedure.”).

2023Comm’n, 107 Ariz. 572, 575 (1971) (“The case law is replete with the history of the [anti-abrogation clause]” and reveals that the clause “was enacted to elevate the common law action of negligence to constitutional stature to preserve the right 4 In his concurrence, Justice Bolick disagrees that article 18, section 6 and article 2, section 31 guarantee the same fundamental right.

2016Comm’n, 107 Ariz. 572, 575 , 490 P.2d 828 (1971)); see also Hazine, 176 Ariz. at 342 , 861 P.2d 625 (holding that statute of repose that abolished claim before any injury occurred abrogates cause of action and was not mere regulation of cause of action). ¶ 18 We held in Flood Control District of Maricopa County v. Gaines, 202 Ariz. 248 , 253-54, ¶¶ 14-17, 43 P.3d 196 (App. 2002), that § 12-821 was constitutional because it does not abrogate the fundamental right to sue, but merely provides a reasonable period of time within which it might be brought.

2023See supra ¶¶ 25–26 (quoting Stone v. Ariz. Highway Comm’n, 93 Ariz. 384, 393 (1963)).

2007The court cited Jones v. City of Phoenix, 29 Ariz. 181, 183 , 239 P. 1030, 1031 (1925), overruled in part by Stone, 93 Ariz. 384 , 381 P.2d 107 , for holding that the city’s liability in negligence “turned upon whether the function ... was ‘proprietary’ or ‘governmental’ because when a municipality was ‘acting in its governmental capacity, it had the exemptions of ... sovereignty.’ ” 205 Ariz. at 4, ¶ 13, 66 P.3d at 47 .

2023For instance, in Morrell v. City of Phoenix, 16 Ariz. 511 (1915), we found that a city charter immunizing the City of Phoenix from certain tort liability did not violate the anti-abrogation clause, stating the clause “only undertakes to preserve rights already cognizable by law, and does not undertake to create new rights of action.” Id. at 517 (emphasis added).

2023For instance, in Morrell v. City of Phoenix, 16 Ariz. 511 (1915), we found that a city charter immunizing the City of Phoenix from certain tort liability did not violate the anti-abrogation clause, stating the clause “only undertakes to preserve rights already cognizable by law, and does not undertake to create new rights of action.” Id. at 517 (emphasis added).

2023JAI DINING Opinion of the Court ¶10 One particularly instructive case is Industrial Commission v. Frohmiller, 60 Ariz. 464 (1943), where this Court held that a statutory limitation on the damages recoverable for injuries caused by occupational diseases was not prohibited by the anti-abrogation clause because “there was no common law right of action for occupational disease” at statehood.

2023The Court acknowledged that, “[i]f the right to recover damages or compensation under the common law for injury caused by occupational disease existed at the time [the anti-abrogation clause was] adopted,” the defendant’s argument that the challenged law violated the anti-abrogation clause “would have some force.” Id. at 468 .