Most of this case against the various public entities is dismissed for failure to comply with the notice of claim statute. (The court tells us the minor plaintiffs were dismissed without prejudice and are not subject to the appeal. Remember a minor’s wrongful death claim is tolled. Porter v. Triad of Ariz., L.P., 203 Ariz. 230 (App. 2002)). The notices did not include sufficient facts as to the liability claims. The notices were identical and include broad statements that the defendants failed “to follow all laws, prevent dangerous conditions, to protect against hazards, not to create a dangerous condition, to warn of dangerous conditions, and to otherwise assure the safety of the Sanchez Family claimants.”  Against the State, the notice states the State Dept. of Liquor Licenses issued a liquor license, and renewed the license “despite it being open and obvious through their advertising and website that Billy Jack’s (the bar) seeks to overserve their customers.” The court holds this notice sufficiently states liability facts only against the State. The court of appeals distinguishes Backus v. State, 220 Ariz. 101 (2009) (“sufficiency of facts” requirement applies to liability but not damages). Nothing new here. (There is also a procedural mess caused by multiple judgments that the court has to sort through.)

The more important issue is whether the State has a duty. The court holds the Arizona statutes governing liquor licenses create a duty. By statute, the State extensively regulates alcohol and can suspend a license. Further, the immunity statute grants qualified immunity for failure to revoke or suspend a permit, license, etc. A.R.S. 12-820.02. Since the immunity applies only to negligence claims, plaintiff can still make a claim for gross negligence. (Rather strange to infer a cause of action from an immunity statute.) This draws a dissent from Judge Eppich. Judge Eppich emphasizes most of these statutes cited by Judge Eckerstrom regulate the conduct of the licensee not the State. The question of duty turns on whether a public agency’s conduct is such that it has endeavored to provide specific protection to a particular person. Here, the class is the general public, and Judge Eppich agrees with the state that the statutory authority is akin to general law enforcement powers, which provide no actionable duty to protect any individual member of the public. We expect to see a petition for review.