In a prior post, we discussed the Arizona Supreme Court’s opinion in this case involving superseding and intervening cause. The supreme court had rejected the court of appeals’ holding that an intoxicated customer’s arrival at home breaks the chain of causation as a matter of law and held this may be a jury question. At the end of its opinion, the supreme court remanded for the court of appeals’ consideration of an issue lurking in the background, i.e., whether Arizona’s dramshop statute (A.R.S. § 4-312(B)) preempts a common law negligence claim. In a jury trial, plaintiffs had prevailed on its common law negligence claim but had lost on the statutory dram shop claim. Now, on remand the court of appeals holds the statute preempts a common law negligence claim. Plaintiffs now ends up with nothing. This preemption defense was never raised with the trial court, but because the issue is of statewide importance, the court of appeals permitted supplemental briefing and considered the issue.

After reviewing earlier Arizona Supreme Court cases the court holds: “[I]f 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.” Because the legislature enacted the dram shop statute in response to a newly minted common law cause of action, the subsequent legislation preempted it. The court further rejected the argument that a common law cause of action may evolve holding “although the judiciary remains free to change the common law, the legislature retains the constitutional power to recraft the parameters or scope of a court-pronounced common law cause of action.” This decision may change other areas because the legislature has adopted statutory changes to a common law creation only to be rebuffed under the anti-abrogation clause. E.g., Little v. All Phoenix S. Com. Men. Hlth, 186 Ariz. 97 (App. 1996). The cases relied upon in Little are the same cases rejected in this opinion. One should suspect there will be another petition for review filed.

Expect courts will continue to hobble through the preemption issue. Why was the lesson on superseding and intervening cause of such importance to our supreme court on a preempted cause of action? Thus progress?