                                                             FILED BY CLERK
                                                                 JUN -2 2006
                             IN THE COURT OF APPEALS             COURT OF APPEALS
                                 STATE OF ARIZONA                  DIVISION TWO
                                   DIVISION TWO


SONORAN DESERT                                )
INVESTIGATIONS, INC., an Arizona              )
corporation; MICHAEL F. GHIGO and             )
JANE DOE GHIGO, husband and wife;             )
JOSE A. HOWARD and JANE DOE                   )   2 CA-SA 2006-0006
HOWARD, husband and wife;                     )   DEPARTMENT A
SAFEWAY, INC., a Delaware                     )
corporation,                                  )   OPINION
                                              )
                               Petitioners,   )
                                              )
                    v.                        )
                                              )
HON. LESLIE B. MILLER, Judge of the           )
Superior Court of the State of Arizona, in    )
and for the County of Pima,                   )
                                              )
                             Respondent,      )
                                              )
                   and                        )
                                              )
LORNA HERNANDEZ, a widow, for and             )
on behalf of all surviving statutory          )
beneficiaries of Frank M. Hernandez, Jr.,     )
deceased, including: LORNA                    )
HERNANDEZ, surviving wife;                    )
FRANK D. HERNANDEZ, BRIANNA                   )
HERNANDEZ, and JESSICA                        )
HERNANDEZ, surviving children;                )
and FRANK HERNANDEZ and                       )
GLORIA HERNANDEZ, surviving                   )
natural parents,                              )
                                              )
                    Real Party in Interest.   )
                                              )
                            SPECIAL ACTION PROCEEDING

                           Pima County Cause No. C20050370

                     JURISDICTION ACCEPTED; RELIEF DENIED



Gust Rosenfeld, P.L.C.
 By Gerard R. O’Meara and Roger W. Frazier                                            Tucson
                                                          Attorneys for Petitioners Sonoran
                                                          Desert Investigations, Inc., Ghigo,
                                                                                and Howard

Quarles & Brady Streich Lang, L.L.P.
 By Stephen T. Portell and Timothy M. Medcoff                                       Tucson
                                                      Attorneys for Petitioner Safeway, Inc.

Charles M. Brewer, Ltd.
 By Charles M. Brewer, John B. Brewer,
    Dane L. Wood, and David L. Abney                                                Phoenix
                                                         Attorneys for Real Party in Interest


H O W A R D, Presiding Judge.


¶1            In the underlying wrongful death action filed by Lorna Hernandez, defendants

Sonoran Desert Investigations, Inc., Michael Ghigo, Jose Howard, and Safeway, Inc.

(collectively, SDI) moved for summary judgment based on A.R.S. § 12-712(B), which

absolves a defendant from liability to a plaintiff who is injured while involved in a criminal

act. The respondent judge found that § 12-712(B) impermissibly removes the determination

of contributory negligence or assumption of the risk from the jury in violation of article

XVIII, § 5 of the Arizona Constitution and denied SDI’s motion. SDI brought this special


                                              2
action to challenge the respondent judge’s ruling. Based on the broad language of article

XVIII, § 5 and Arizona Supreme Court cases construing that section, we agree with the

respondent judge that § 12-712(B) is unconstitutional and therefore conclude that the

respondent judge did not abuse her discretion by denying SDI’s motion.

Jurisdiction

¶2             It is well settled that a denial of a motion for summary judgment is a

nonappealable, interlocutory order that may be reviewed only by special action. Sorensen

v. Farmers Ins. Co. of Am., 191 Ariz. 464, 465-66, 957 P.2d 1007, 1008-09 (App. 1997).

Consistent with our policy of avoiding piecemeal appeals, however, we accept jurisdiction

of a special action challenging a denial of summary judgment only in exceptional cases.

Orme Sch. v. Reeves, 166 Ariz. 301, 302-03, 802 P.2d 1000, 1001-02 (1990). Our supreme

court requires appellate courts to exercise particular caution in accepting jurisdiction in

order to affirm a respondent judge’s denial of summary judgment. Ft. Lowell-NSS Ltd.

P’ship v. Kelly, 166 Ariz. 96, 99, 800 P.2d 962, 965 (1990). Nevertheless, special cases

may warrant our accepting jurisdiction. See Orme Sch., 166 Ariz. at 302-03, 802 P.2d at

1001-02. We find this to be such a case for the following reasons.

¶3             The question presented here is a “pure issue of law, requiring neither factual

review nor interpretation,” see id. at 603, 802 P.2d at 1002, and raises “a constitutional

issue of first impression.” Inzunza-Ortega v. Superior Court, 192 Ariz. 558, ¶ 7, 968 P.2d

631, 633 (App. 1998); see also Ariz. Dep’t of Pub. Safety v. Superior Court, 190 Ariz.

490, 494, 949 P.2d 983, 987 (App. 1997) (constitutional questions are matters of statewide


                                              3
importance). Although § 12-712 was enacted more than a decade ago, no extant opinion

provides guidance on its application or addresses the challenge raised here. See Cronin v.

Sheldon, 195 Ariz. 531, ¶ 3, 991 P.2d 231, 233 (1999) (potential for conflicting

interpretations by trial judges militates in favor of accepting special action jurisdiction); In

re Guardianship/Conservatorship of Denton, 190 Ariz. 152, 154, 945 P.2d 1283, 1285

(1997) (same). Indeed, the parties have drawn our attention to several superior court rulings

in which trial judges have found § 12-712 unconstitutional on similar grounds, but neither

the parties nor this court has found any opinion addressing the statute’s constitutionality.

We have no doubt the issue raised here will recur in future cases, and judicial economy, not

to mention the time and expense incurred by future litigants, is best served by addressing the

issue now, while it is before us. See Ariz. Dep’t of Pub. Safety, 190 Ariz. at 494, 949 P.2d

at 987 (“[I]t serves judicial economy to address a matter of first impression which is certain

to occur again.”).

¶4            Finally, although not determinative, both SDI and Hernandez urge us to accept

jurisdiction, agreeing there is a “state-wide need” for an appellate decision of this issue. See

ChartOne, Inc. v. Bernini, 207 Ariz. 162, ¶ 9, 83 P.3d 1103, 1107 (App. 2004) (acceptance

of jurisdiction influenced by parties’ characterization of issue); Qwest Corp. v. Kelly, 204

Ariz. 25, ¶ 3, 59 P.3d 789, 791 (App. 2002) (jurisdiction accepted to review denial of

motion for summary judgment in part because parties agreed review was warranted). The

parties’ insistence that this issue be resolved lessens concerns we might otherwise have about

delay or inconvenience to the parties caused by our accepting jurisdiction. Cf. City of


                                               4
Phoenix v. Yarnell, 184 Ariz. 310, 315, 909 P.2d 377, 382 (1995) (supreme court considers

effect of accepting review on litigation and parties). For all these reasons, we accept

jurisdiction of this special action.

Standard of Review

¶5            We review a denial of a motion for summary judgment for an abuse of

discretion and view the facts and all reasonable inferences therefrom in the light most

favorable to the party opposing the motion. Samaritan Health Sys. v. Superior Court, 194

Ariz. 284, ¶ 11, 981 P.2d 584, 588 (App. 1998). A statute’s constitutionality, however, is

a matter of law, which we analyze de novo. Martin v. Reinstein, 195 Ariz. 293, ¶ 16, 987

P.2d 779, 787-88 (App. 1999). Laws are presumed to be constitutional, and we have a duty

to construe statutes in harmony with the constitution whenever reasonably possible. Id.

Facts and Procedural Background

¶6            The facts, as stated by plaintiff Hernandez in her complaint and her response

to SDI’s motion for summary judgment below, are as follows. Frank M. Hernandez, Jr., died

of asphyxiation after he was apprehended on suspicion of shoplifting by Jose Howard, a

private security guard employed by Sonoran Desert Investigations who had been assigned

to a Tucson Safeway store. Howard allegedly confronted Hernandez after seeing him

conceal bottles of moisturizer in his clothing and walk toward the front of the store.1

Howard physically restrained Hernandez by wrestling him to the floor, face down, and


       1
         SDI alleges Hernandez resisted the investigation and repeatedly struck Howard; real
party in interest Lorna Hernandez disputes this, a matter not material to our resolution of
this issue.

                                             5
placing his arm around Hernandez’s neck. Although Hernandez complained he could not

breathe, Howard did not release him until, assisted by two Safeway employees, he had

handcuffed Hernandez. By that time, however, Hernandez had passed out. Hernandez

never regained consciousness, and the coroner opined his death was a homicide.

¶7            Lorna Hernandez, Hernandez’s widow, filed the underlying wrongful death

action, alleging that SDI’s negligence had caused her husband’s death. In its motion for

summary judgment, SDI claimed it was not liable to Hernandez, as a matter of law, based

on § 12-712(B), which provides:

                      B. In a civil action a defendant is not liable for damages
              that the plaintiff incurs if the plaintiff is harmed as a result of
              the negligence or gross negligence of the defendant while the
              plaintiff is attempting to commit or committing a misdemeanor
              criminal act and the act directly relates to the defendant or the
              defendant’s property.

Hernandez responded, inter alia, that § 12-7122 is unconstitutional under article XVIII, §§ 5

and 6 and article II, § 31 of the Arizona Constitution.3

       2
         In her response to SDI’s motion for summary judgment, Hernandez did not
distinguish between § 12-712(A), which pertains to defendants’ responses to felony conduct,
and § 12-712(B), which involves responses to misdemeanor conduct. § 12-712(A) provides:
“In any civil action, a defendant is not liable for damages that the plaintiff incurs if the
plaintiff is harmed as a result of the negligence or gross negligence of any defendant while
the plaintiff is attempting to commit, committing or fleeing from a felony criminal act.”
Contrary to SDI’s contention, in its reply here, that the trial court “held . . . that the whole
statute is unconstitutional,” the trial court’s ruling only expressly refers to § 12-712(B), and
our review is limited to whether that ruling was an abuse of discretion. See Ariz. R. P. Spec.
Actions 3, 17B A.R.S.
       3
        Article XVIII, § 6 provides: “The right of action to recover damages for injuries shall
never be abrogated, and the amount recovered shall not be subject to any statutory
limitation.” Article II, § 31 provides: “No law shall be enacted in this State limiting the

                                               6
¶8            The respondent judge found § 12-712(B) unconstitutional, relying on Schwab

v. Matley, 164 Ariz. 421, 425, 793 P.2d 1088, 1092 (1990), and other authorities addressing

the mandate of article XVIII, § 5. Consequently, the respondent denied SDI’s motion. SDI

moved for reconsideration; that motion was also denied. This special action followed.

Analysis

¶9            Article XVIII, § 5 of the Arizona Constitution provides: “The defense of

contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question

of fact and shall, at all times, be left to the jury.” In construing this provision, our supreme

court has repeatedly held that a statute may not provide that “the antecedent conduct of a

person injured is an absolute bar to the recovery of damages from one otherwise liable for

the injury under either statutory or common law principles.” City of Tucson v. Fahringer,

164 Ariz. 599, 601-02, 795 P.2d 819, 821-22 (1990); see also Schwab, 164 Ariz. at 424-

25, 793 P.2d at 1091-92; cf. Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, ¶ 15, 111

P.3d 1003, 1006 (2005) (issue of express contractual assumption of risk cannot be removed

from jury; article XVIII, § 5 subject to “expansive reading” on assumption of risk).

¶10           In Schwab, our supreme court invalidated A.R.S. § 4-312(A), which had

relieved a liquor licensee from liability for injuries sustained by either a customer or anyone


amount of damages to be recovered for causing the death or injury of any person.” Although
SDI and Hernandez argued these provisions below and here, the respondent judge did not
address the application of these provisions to A.R.S. § 12-712. These arguments are
therefore not before us. See Ariz. R. P. Spec. Actions 3, 17B A.R.S.; see also Cranmer v.
State, 204 Ariz. 299, 63 P.3d 1036 (App. 2003) (scope of special action limited to whether
court abused its discretion).


                                               7
accompanying the customer “who knew of [his or her] impaired condition.” 164 Ariz. at

422, 793 P.2d at 1089 (alteration added). The court held this statute was a “legislative

codification of the doctrine of contributory negligence and assumption of the risk” that

violated article XVIII, § 5 because it barred recovery of damages for negligence based on

“the conduct of a particular category of persons injured.” Id. at 425, 423, 793 P.2d at 1092,

1090.

¶11           The supreme court in Schwab rejected the defendant’s contention that the

statute did not remove consideration of contributory negligence or assumption of risk from

the jury but instead limited the duty of tavernkeepers, stating:

              First, the statute clearly deals with the antecedent conduct of
              the person injured, providing that the one who causes the injury
              “shall not be liable.” If there is a difference between this and
              contributory negligence, we are unable to perceive it, nor can
              Matley articulate it. The reason is apparent: “Contributory
              negligence is conduct on the part of the plaintiff, contributing
              as a legal cause to the harm he has suffered. . . .” PROSSER
              AND KEETON ON THE LAW OF TORTS § 65, at 451 (5th
              ed. 1984). . . .

                      Matley’s argument fares no better if we analyze the
              common law defense of assumption of the risk, which also
              barred recovery. . . . Assumption of the risk as a defense . . .
              always “rest[ed] upon the idea that the defendant [was] relieved
              of any duty toward the plaintiff.” Id. at 451. The very basis of
              the doctrine was that the plaintiff had expressly or impliedly
              consented to the defendant’s negligent conduct, “the legal
              result [being] that the defendant is simply relieved of the duty
              which would otherwise exist.” Id. § 68, at 481.

                     ....




                                              8
                    . . . If the legislature could abolish the recognized
              common law duties of care, the provisions of article 18, § 5
              would have no meaning at all.

Id. at 424-25, 793 P.2d at 1091-92 (brackets in Schwab). According to the supreme court,

the statute relieving defendants of liability was “simply a shorthand method of describing the

traditional common law defenses of contributory negligence and assumption of the risk”

because, prior to the statutory defense, any defendant arguing that the claim was barred

because a plaintiff had drunk too much or had associated with those who had “would plead

the defense under the rubric of contributory negligence or assumption of the risk.” Id. at

424, 793 P.2d at 1091.

¶12           The court reached a similar result in Fahringer. There, the City of Tucson

argued the plaintiffs’ claims were barred by A.R.S. § 12-820.03(2), which had provided that

a public entity was not liable to those injured while riding in a vehicle driven by someone

under the influence of alcohol, whether the injured claimants were adult passengers or the

intoxicated driver. 164 Ariz. at 600, 795 P.2d at 820. As in Schwab, the court noted that,

if the statutory defense had not been available, “any lawyer filing an answer to the complaint

would have raised the fact that plaintiff was injured as a result of riding with a drunk driver

under the rubric of contributory negligence.” Fahringer, 164 Ariz. at 602, 795 P.2d at 822.

The court reasoned that “the statute clearly deals with and sets a standard for the antecedent

conduct of the person injured” and “establishe[d] a defense triggered by the plaintiff’s

conduct.” Id. And, as in Schwab, the statute at issue in Fahringer legislatively relieved




                                              9
defendants of liability based on a plaintiff’s antecedent conduct in violation of article XVIII,

§ 5. Id. at 603, 795 P.2d at 823. The court therefore held the statute was void. Id.

¶13           If § 12-712(B) is applied here, Frank Hernandez’s antecedent criminal

conduct, and nothing else, triggers a statutory defense of nonliability. The statute, therefore,

bars recovery based on “the conduct of a particular category of persons injured.” Schwab,

164 Ariz. at 423, 793 P.2d at 1092. This result violates article XVIII, § 5 as the supreme

court has interpreted it.

¶14           SDI argues, however, that even though Frank Hernandez’s conduct gives rise

to the traditional common law defenses of contributory negligence and assumption of risk,

the “same conduct also supports the statutory defense of A.R.S. § 12-712, [so] defendants

are not liable for negligently responding to plaintiff’s criminal act.” We find this argument

insufficient to distinguish the supreme court’s holdings in Schwab and Fahringer.

¶15           First, if the conduct which gives rise to the defense can properly be described

as contributory negligence or assumption of risk, according to the supreme court’s

interpretation of article XVIII, § 5, the jury must decide whether the defendant is liable. As

in Schwab, the statute at issue here is a “legislative codification” of these defenses. Schwab,

164 Ariz. at 425, 793 P.2d at 1092; cf. Manhattan-Dickman Constr. Co. v. Shawler, 113

Ariz. 549, 555, 558 P.2d 894, 900 (1976) (jury instruction may not mandate verdict for

defendant in event plaintiff found contributorily negligent). Our determination of statutory

effect cannot turn on how a particular defendant identifies or frames the affirmative defenses




                                              10
in its answer or how it chooses to argue what legal effect the plaintiff’s antecedent conduct

should have, as SDI seems to suggest. See Fahringer, 164 Ariz. at 603, 795 P.2d at 823.

¶16           Second, Fahringer implicitly preserved claims by intoxicated drivers, who,

like Frank Hernandez, allegedly engaged in criminal acts that might have contributed to their

injuries. As our supreme court stated: “this holding does not mean that the City . . . is

automatically liable to a drunk driver . . . . Under our constitution, it is the jury that must

decide.” Fahringer, 164 Ariz. at 603, 795 P.2d at 823. If it were permissible for the

legislature to bar claims based on a claimant’s antecedent criminal conduct, the supreme

court need not have made this broad statement.

¶17           In a related argument, SDI suggests that criminal conduct cannot constitute

contributory negligence because it is “beyond” negligent conduct and cannot constitute

assumption of the risk because the criminal act occurs before any alleged negligence by a

defendant and without specific knowledge of the risk a defendant poses. But it interprets

the defenses of contributory negligence and assumption of risk too narrowly. See, e.g., S.

Pac. R.R. Co. v. Svensden, 13 Ariz. 111, 117-18, 108 P. 262, 265 (1910) (affirmative

defense of contributory negligence available against trespasser injured when negligently

ousted from train); 6 Am. Jur. 2d, Assault & Battery § 118, at 104 (1999) (“[w]hen an

arrestee seeks damages for a purported assault committed incident to an arrest, the jury is

properly instructed on the doctrine of implied assumption of the risk,” citing Fernandez v.

City of New York, 669 N.Y.S.2d 20 (N.Y. App. Div. 1998)); see also District of Columbia

v. Coleman, 667 A.2d 811, 819 (D.C. 1995) (Maryland’s law permits defense of


                                              11
contributory negligence and assumption of risk in excessive-force case brought by criminal

claimant; contributory negligence focuses on whether plaintiff neglected duty to observe

ordinary care for one’s personal safety; assumption of risk “‘rests upon the plaintiff’s

consent to relieve the defendant of an obligation of conduct toward him, and to take his

chances of harm from a particular risk,’” quoting Schroyer v. McNeal, 592 A.2d 1119, 1122

(Md. 1991)); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 65, at 453

(5th ed. 1984) (“[I]t is perhaps unfortunate that contributory negligence is called negligence

at all. ‘Contributory fault’ would be a more descriptive term. . . . Contributory negligence

is conduct which involves undue risk of harm to the actor himself.”); cf. Restatement (Third)

of Torts: Apportionment of Liability § 3 cmt. a (2000) (identifying rules for plaintiffs’

comparative fault; “[p]laintiff’s negligence can include conduct that is reckless, grossly

negligent, or intentional”). Consequently, we reject SDI’s argument that criminal conduct

is sufficiently distinguishable from ordinary contributory negligence and assumption of the

risk to prevent § 12-712(B) from conflicting with article XVIII, § 5.

¶18            SDI additionally argues that “a person harmed while committing criminal acts

was never entitled to recover for damages for negligence at common law, when the

constitution was adopted, or thereafter.” Although SDI raises this argument primarily in

relation to its article XVIII, § 6 contention, the argument also relates to the article XVIII, § 5

issue as stated in Fahringer: whether a statute may prevent the imposition of liability on a




                                               12
defendant “otherwise liable for the injury under either statutory or common law principles.”4

164 Ariz. at 601, 795 P.2d at 821. But Arizona courts have long recognized that a

defendant has a duty to act reasonably in response to criminal conduct and that

unreasonable, excessive use of force may result in liability.

¶19           In Gortarez v. Smitty’s Super Valu, Inc., 140 Ariz. 97, 680 P.2d 807 (1984),

the supreme court reviewed the history of the shopkeeper’s defense. In that case, two

suspected shoplifters had been confronted by a security guard. Id. at 100-01, 680 P.2d at

810-11. The guard placed one of them, Gortarez, in a choke hold, injuring him. Gortarez

sued the guard and the store. The supreme court reversed the trial court’s directed verdict

for the defendants and held that the jury should determine whether the detention had been

undertaken for a proper purpose and in a reasonable manner. Id. at 104-05, 680 P.2d at

814-15.

¶20           The supreme court explained that, under the common law, there was no

“shopkeeper’s privilege” to arrest or detain a suspected thief because the privilege of a

private citizen to arrest a misdemeanant was limited to crimes involving a breach of peace,

which did not include shoplifting. Id. at 102, 680 P.2d at 812. Although a limited privilege

might have permitted an owner in fresh pursuit of a thief to use reasonable force to recapture

a chattel, the owner would be liable for any damages if he was mistaken about the facts, and


       4
        Wrongful death is a statutory cause of action, A.R.S. § 12-611 through 12-613, and
may be granted or limited by the legislature. Schoenrock v. Cigna Health Plan of Ariz.,
Inc., 148 Ariz. 548, 551, 715 P.2d 1236, 1239 (App. 1985). At oral argument, SDI agreed
that the fact that wrongful death is a statutory cause of action is not relevant to a
determination of whether § 12-712(B) violates article XVIII, § 5.

                                             13
“[t]he force privileged must [have] be[en] reasonable under the circumstances, and not

calculated to inflict serious bodily harm. Ordinarily, the use of any force at all w[ould] not

be justified until there ha[d] been a demand made for the return of the property.” Id.

¶21           The court acknowledged the “developing, common law ‘shopkeeper’s

privilege,’” codified in A.R.S. § 13-1805, which provides in part: “A merchant, or his agent

or employee, with reasonable cause, may detain on the premises in a reasonable manner

and for a reasonable time any person suspected of shoplifting . . . for questioning or

summoning a law enforcement officer.” Gortarez, 140 Ariz. at 102, 680 P.2d at 812,

quoting former § 13-1805(C) (emphasis in Gortarez). The court emphasized that such a

privilege only applied to a detention accomplished in a reasonable manner and noted that

“the use of force is never privileged unless the resistance of the suspected thief makes the use

of such force necessary for the actor’s self-defense.”5 Id. at 104, 680 P.2d at 814, citing

Restatement (Second) of Torts § 120A cmt. h (1965).

¶22           Other Arizona cases similarly reflect these principles. In Transamerica

Insurance Group v. Meere, 143 Ariz. 351, 357, 694 P.2d 181, 187 (1984), the court

expressly recognized the tort of excessive force in the course of self-defense. It stated that,

to be entitled to the privilege of self-defense, “[o]ne may use only reasonable force . . . to

prevent harm to his person.” Id.; see also Chaudoin v. Fuller, 67 Ariz. 144, 148-49, 192


       5
        Other Arizona statutes setting forth self-defense privileges also require that a
defendant’s conduct be reasonable. See, e.g., A.R.S. §§ 13-409 and 13-413 (person using
force in arrest or detention not subject to civil liability only if “[a] reasonable person would
believe that such force is immediately necessary”); §§ 13-405 and 13-410 (additional
“reasonable belief” requirements for using deadly force).

                                              14
P.2d 243, 246-47 (1948) (plaintiff convicted of disorderly conduct entitled to recover for

injuries caused by use of tear gas during arrest); S. Pac. R.R. Co., 13 Ariz. at 117-18, 108

P. at 265 (railroad liable for excessive force in ejecting trespasser from freight train); Weekly

v. City of Mesa, 181 Ariz. 159, 165, 888 P.2d 1346, 1352 (App. 1994) (plaintiff bitten by

police dog during arrest entitled to have case submitted to jury; defendant could base

defense on justification statutes, A.R.S. §§ 13-409 and 13-413; Havier v. Partin, 16 Ariz.

App. 265, 267-68, 492 P.2d 761, 763-64 (1972) (recognizing wrongful death cause of

action for defendant’s alleged use of excessive force); cf. Harding v. State, 26 Ariz. 334,

337-39, 225 P. 482, 483-84 (1924) (police officer’s manslaughter conviction affirmed

because police had duty to avoid killing misdemeanant during chase); Robertson v.

Territory, 13 Ariz. 10, 16, 108 P. 217, 220 (1910) (same; jury properly instructed that “it

was [officer’s] duty . . . not to inflict bodily harm or death upon the deceased

[misdemeanant] in order to effect the arrest”).

¶23           Respected commentators also have long recognized that, although the use of

force in self-defense or defense of property may be privileged, the actor has a duty to act

reasonably, and a claimant who is injured while breaking the law may have a cause of action

if the response involves an unreasonable, excessive use of force. See Restatement (Second)

of Torts §§ 70 (“Character and Extent of Force Permissible”), 71 (“Force in Excess of

Privilege”) and 889 (“Injury Received While Committing a Tort or Crime”; “[o]ne is not

barred from recovery for an interference with his legally protected interests merely because

at the time of the interference he was committing a tort or a crime”) (1965); Keeton, supra


                                               15
§ 19, at 126 (“[T]he defendant is not privileged to inflict a beating which goes beyond the

real or apparent necessities of his or her own defense. If he does, he is committing a tort to

the extent of excessive force, and it is entirely possible that each party may have an action

against the other”) citing, inter alia, Elliott v. Brown, 2 N.Y. (Wend.) 497 (1829).

¶24             The only Arizona case SDI cites is Veytia v. Alvarez, 30 Ariz. 316, 247 P. 117

(1926). In that case our supreme court recognized, in dicta, that public policy may preclude

enforcement of a contract based upon an immoral or illegal act. But Veytia was a contract

case, and SDI has been unable to cite any Arizona authority barring, as a matter of law,

recovery by a tort plaintiff who was engaged in criminal conduct at the time of the injury.



¶25             Thus, the Arizona common law originally did not recognize a shopkeeper’s

privilege. See Gortarez, 140 Ariz. at 102, 680 P.2d at 812. And, even after that privilege

developed, the law in Arizona has always been that the use of force in the face of wrongful

conduct—even if that conduct may be categorized as criminal—only relieves a defendant

of liability to the extent that the force used was reasonable. An injured party may bring an

action for damages arising out of allegedly unwarranted or excessive force, and any disputed

facts or inferences to be drawn from undisputed facts in such a case must be resolved by a

jury. See id. at 104, 680 P.2d at 814. SDI has failed to present any authority convincing

us otherwise.

¶26             Ultimately, regardless of whether Frank Hernandez’s antecedent conduct was

criminal in nature and whether it is characterized as contributory negligence or assumption


                                              16
of the risk, we cannot overcome our supreme court’s strong direction that the legislature may

not bar recovery of damages based on the conduct of “a particular category of persons who

otherwise could proceed with an action for damages” and that “‘in all cases’ issues of

contributory negligence and assumption of the risk be left to the jury, even if the rule or

statute directing otherwise attaches some other name to the defenses.” Fahringer, 164 Ariz.

at 603, 795 P.2d at 823, quoting article XVIII, § 5.

¶27           Based on prior supreme court cases, we agree with the respondent judge that

§ 12-712(B) violates article XVIII, § 5 of the Arizona Constitution and is therefore void.

Accordingly, the respondent judge did not abuse her discretion in denying SDI’s motion for

summary judgment based on the statute and striking as unconstitutional that statutory

defense.



                                              ____________________________________
                                              JOSEPH W. HOWARD, Presiding Judge



CONCURRING:


____________________________________
JOHN PELANDER, Chief Judge



____________________________________
GARYE L. VÁSQUEZ, Judge




                                             17
