The Arizona Supreme Court has reaffirmed that the anti-abrogation clause of the Arizona Constitution, which guarantees “[t]he right of action to recover damages for injuries,” found in article 18, section 6, “only prohibits abrogation of rights of action that existed at statehood or that are based in rights of action existing at statehood.” In Torres v. JAI Dining Services (Phoenix), Inc., the court held that because dram-shop actions are not based on a right of action that was recognized by pre-statehood common law, the legislature was free to enact a standard that was stricter than common law precedent for dram-shop liability. In its decision, the court not only overturned a prior appellate court decision to the contrary, but took the opportunity to specifically reject two prior Arizona Supreme Court cases containing “dicta implying that the anti-abrogation clause extends to all rights of action regardless of when those rights were recognized.” The court said it was rejecting that dicta “because it undermines the legislature’s role in developing and restricting tort causes of action that are unprotected by the anti-abrogation clause.”
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