In a special action, a unanimous panel of division two held that A.R.S. 12-712(B), which absolves a defendant from liability to a plaintiff who is injured while involved in a criminal act, was unconstitutional under article XVIII, Section 5 of the Arizona Constitution.
In the underlying action, Frank Hernandez died of asphyxiation after he was apprehended on suspicion of shoplifting by a private security guard at a Safeway. After Hernandez's widow filed a wrongful death action, the security service filed a motion for summary judgment under 12-712(B), which provides that "a defendant is not liable for damages that the plaintiff incurs if the plaintiff is harmed...while the plaintiff is attempting to commit or committing a misdemeanor criminal act." Article XVIII, Section 5 of the Arizona Constitution relegates all questions of contributory negligence or assumption of risk defenses to the jury, and has been interpreted to prohibit a statute from barring recovery of damages for "the antecedent conduct of a person injured" from "one otherwise liable for the injury." City of Tucson v. Fahringer, 164 Ariz. 599, 795 P.2d 819 (1990). Finding that the statutory defense provided in 712(B) insufficiently indistinguishable from defenses of contributory negligence and assumption of the risk, the absolute bar to recovery provided in that section violates the Arizona constitution.