IN THE

SUPREME COURT OF THE STATE OF ARIZONA

ROBERTO TORRES, ET AL.,

Plaintiffs/Appellees,

v.

JAI DINING SERVICES (PHOENIX)INC.,

Defendant/Appellant.

No. CV-20-0294-PR

Filed November 2, 2021

Appeal from the Superior Court in Maricopa County

The Honorable Sherry K. Stephens, Judge (Retired)

No. CV2016-016688

Opinion of the Court of Appeals, Division One

250 Ariz. 147 (App. 2020)

VACATED AND REMANDED

COUNSEL:

David L. Abney (argued), Ahwatukee Legal Office, P.C., Phoenix; Robert F. 

Clarke, Clarke Law Offices, Phoenix; and Matthew D. Koglmeier, 

Koglmeier Law Group, PLC, Mesa, Attorneys for Roberto Torres, et al.

Eric M. Fraser (argued), Joshua D. Bendor, Hayleigh S. Crawford, Osborn 

Maledon, P.A., Phoenix; and Dominique Barrett, Quintairos, Prieto, Wood 

& Boyer, P.A., Phoenix, Attorneys for JAI Dining Services (Phoenix) Inc.

Camila Alarcon, Christopher L. Hering, Gammage & Burnham, P.L.C., 

Phoenix, Attorneys for Amicus Curiae Arizona Restaurant and Hospitality 

Association
TORRES, ET AL. V. JAI DINING

Opinion of the Court 

2

VICECHIEFJUSTICETIMMER authored the opinion of the Court, in which 

CHIEF JUSTICE BRUTINEL, JUSTICES BOLICK, LOPEZ, BEENE, KING,

and PELANDER (RETIRED) * joined.

VICE CHIEF JUSTICE TIMMER, opinion of the Court:

¶1 After spending an evening drinking and socializing at Jaguars 

Club in Phoenix, Cesar Aguilera Villanueva drove his truck from the club 

while intoxicated. He eventually returned home and fell asleep for a short 

time before getting up to take a friend home. Tragically, Villanueva was 

still intoxicated, and he smashed his truck into a car that was stopped at a 

red light, killing Guadalupe Gastelum Suarez and Jesus O. Torres Guillen. 

The issue here is whether Villanueva’s decision to resume driving after 

reaching home constituted an intervening and superseding cause of 

Suarez’sand Guillen’s deathsas a matter of law, thereby relieving the club’s 

owner from liability for overserving alcohol to Villanueva. We hold it was 

not, and the trial court therefore properly submitted this issue for a jury to 

decide.

BACKGROUND

¶2 Villanueva spent hours drinking with friends at Jaguars Club

and became intoxicated. He was eventually embroiled in a dispute with a 

club employee and told to leave. After bouncers pushed him out the door 

around 2:30 a.m. on the day of the accident, Villanueva got into his truck 

and drove away.

¶3 Villanueva drove to his brother’s house, where he remained 

for more than an hour to “chill out for a little bit and sober up.” Around 

4:00 a.m., a friend used Villanueva’s truck to drive Villanueva, his 

girlfriend, and her friend to Villanueva’s house and drop off the truck. 

*

 Justice Montgomery is recused from this matter. Pursuant to article 6, 

section 3 of the Arizona Constitution, Justice John Pelander (Ret.) of the 

Arizona Supreme Court was designated to sit in this matter.
TORRES, ET AL. V. JAI DINING

Opinion of the Court 

3

Once home, Villanueva slept for a short time before his girlfriend woke him,

and he agreed to take her friend home.

¶4 The friend drove Villanueva’s truck to her house while 

Villanueva slept in the backseat. After dropping her off, Villanueva 

resumed driving. Just after 5:00 a.m., he struck Suarez and Guillen’s car, 

killing them. Villanueva was subsequently convicted of two counts of 

manslaughter, and he is currently serving a lengthy prison sentence.

¶5 Suarez’s and Guillen’s families sued Villanueva and JAI 

Dining Services (Phoenix), Inc. (“JAI”), which owns Jaguars Club. The 

families alleged negligence-based claims against JAI for overserving 

alcohol to Villanueva. JAI unsuccessfully moved for summary judgment,

arguing that Villanueva’s decision to drive again after arriving home was 

an intervening and superseding cause of Suarez’s and Guillen’s deaths as a 

matter of law, thereby relieving JAI of liability.

¶6 At the close of Plaintiffs’ case during the ensuing jury trial, 

JAI reasserted its intervening and superseding cause argument in a motion 

for judgment as a matter of law, which the trial court denied. See Ariz. R. 

Civ. P. 50(a). The court instructed the jury on intervening and superseding 

cause, and the parties vigorously argued the issue. The jury ultimately 

returned a verdict in Plaintiffs’ favor on their common law negligence 

claims (Villanueva and JAI) and their dram shop liability claim (JAI), but it

found in JAI’s favor on Plaintiffs’ statutory negligence claim. See A.R.S. 

§ 4-311(A). The jury awarded the families $2 million in compensatory 

damages and apportioned 60% of fault to Villanueva and 40% to JAI. The 

court subsequently denied JAI’s renewed motion for judgment as a matter 

of law. See Ariz. R. Civ. P. 50(b).

¶7 The court of appeals reversed the judgment against JAI, 

holding the trial court erred by not entering judgment in JAI’s favor as a 

matter of law. See Torres v. JAI Dining Servs. (Phx.) Inc., 250 Ariz. 147, 149 

¶ 2 (App. 2020). The court reasoned that the risk created by a liquor 

licensee overserving a patron is that the patron “may be unable to return to 

his or her home or other place of repose safely.” Id. at 155 ¶ 33. It 

therefore concluded that once Villanueva had “safely reached his residence, 

gone to bed, and fallen asleep, with no known compelling reason to leave,” 

his independent decision to leave and drive his truck was an intervening 

and superseding cause that broke the chain of proximate causation. Id.¶¶ 

33–34. Those circumstances, according to the court, “[were] no different 
TORRES, ET AL. V. JAI DINING

Opinion of the Court 

4

than if he had become intoxicated at home with alcohol purchased at a 

grocery store.” Id. ¶ 33.

¶8 We granted review to answer a recurring question of 

statewide importance in dram shop liability cases: Does an overserved 

patron’s decision to drive while intoxicated after safely reaching home or a 

similar resting place constitute an intervening and superseding cause that 

breaks the chain of causation as a matter of law, thus relieving the 

defendant liquor licensee of liability?

DISCUSSION

¶9 We review the trial court’s ruling on a motion for judgment 

as a matter of law de novo. See Glazer v. State, 237 Ariz. 160, 167 ¶ 29 (2015). 

JAI was entitled to judgment as a matter of law if, viewing the evidence in 

the light most favorable to Plaintiffs, reasonable people could not have 

found in their favor. Id. ¶ 28. 

¶10 To recover on their common law negligence and dram shop 

claims, Plaintiffs were required to “prove a duty requiring [JAI] to conform 

to a standard of care, breach of that duty, a causal connection between 

breach and injury, and resulting damages.” Ryan v. Napier, 245 Ariz. 54, 

59 ¶ 17 (2018). JAI, as a liquor licensee, had a duty to exercise due care in 

serving alcohol to Villanueva to protect members of the traveling public

from being injured as a result of his intoxication. See Ontiveros v. Borak, 

136 Ariz. 500, 511 (1983). We are solely concerned here with whether JAI’s 

breach of that duty was causally connected with Suarez’s and Guillen’s 

deaths.

¶11 Plaintiffs proved causation if they showed both actual cause 

and proximate cause, which are ordinarily questions of fact for the jury.

1 

See id. at 505–06; Robertson, 163 Ariz. at 546; Dupray v. JAI Dining Servs.

(Phx.), Inc., 245 Ariz. 578, 583–84 ¶¶ 17–18 (App. 2018). “Actual cause,”

sometimes called “cause in fact,” existed if JAI’s acts “helped cause the final 

result,” even if “only a little.” Ontiveros, 136 Ariz. at 505 (citation omitted). 

The key inquiry is whether Suarez’s and Guillen’s deaths would not have 

occurred “but for” JAI’s acts. See id.

1 Courts have often blended these concepts under the shorthand term

“proximate cause.” See, e.g.,Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 

539, 546 (1990). Regardless, both must be proven.
TORRES, ET AL. V. JAI DINING

Opinion of the Court 

5

¶12 “Proximate cause,” sometimes called “legal cause,” existed if 

JAI’s acts produced Suarez’s and Guillen’s deaths “in a natural and 

continuous sequence, unbroken by any efficient intervening cause.” 

Robertson, 163 Ariz. at 546;see also Ontiveros, 136 Ariz. at 505–06; Dupray, 245 

Ariz. at 584 ¶ 17. An intervening cause is an independent cause that 

occurs between a defendant’s negligent conduct and the final harm and is 

necessary in bringing about that harm. See Robertson, 163 Ariz. at 546. It

becomes a superseding cause, which relieves the original negligent actor 

from liability, when “an intervening act of another was unforeseeable by a 

reasonable person in the position of the original actor and when, looking 

backward, after the event, the intervening act appears extraordinary.” 

Ontiveros, 136 Ariz. at 506; see also Robertson, 163 Ariz. at 546; Rossell v. 

Volkswagen of Am., 147 Ariz. 160, 169 (1985).

¶13 JAI does not dispute actual causation. Instead, it argues that

Plaintiffs failed to prove proximate cause as a matter of law because 

Villanueva’s decision to resume driving while intoxicated after arriving 

home and falling asleep was an intervening and superseding cause that 

broke the natural sequence of events occurring after the club overserved 

him. Like the court of appeals, JAI asserts that the risk created by a liquor 

licensee’s negligence in overserving alcohol to a patron is only that the 

intoxicated patron will cause an accident while driving home or to a similar 

resting place. See Torres, 250 Ariz. at 155 ¶ 33. Once the patron safely 

arrives there, JAI argues, the patron’s decision to resume driving can never

reasonably be said to fall within the risk created by the liquor licensee’s 

negligent conduct, making that decision unforeseeable and extraordinary 

in hindsight and a superseding cause as a matter of law. Id.

¶14 Plaintiffs take the opposite position, asserting that the risk the 

patron will cause an accident while driving exists as long as the patron 

drives while intoxicated, regardless of any temporary stop at home. They 

therefore argue that an intoxicated patron’s decision to resume driving after 

reaching home is not a superseding cause as a matter of law if the patron 

drives again while intoxicated.

¶15 Resolution of this issue depends on the scope of the risk in 

dram shop cases. See Rossell, 147 Ariz. at 169 (stating that an intervening 

cause falling within the scope of the original risk created by the negligent 

conduct cannot also constitute a superseding cause (citing Parness v. City of 

Tempe, 123 Ariz. 460, 464 (App. 1979))). The risk created by overserving 
TORRES, ET AL. V. JAI DINING

Opinion of the Court 

6

alcohol to a patron is that the patron will drive while intoxicated and cause 

an accident that results in injury or death to members of the traveling 

public. See Ontiveros, 136 Ariz. at 506. The injury-producing conduct by 

the intoxicated patron—driving a vehicle while impaired by alcohol—“is 

one of the very hazards which make[s] the tavern owner’s act negligent.” 

Id. Consequently, we have stated it is foreseeable to a liquor licensee that 

an overserved patron will drive while intoxicated and cause an accident 

that injures or kills another person. See id.(“[T]he consequences of serving 

liquor to an intoxicated motorist, in light of the universal use of automobiles 

and the increasing frequency of accidents involving drunk drivers, are 

foreseeable to a tavern owner.” (quoting Ono v. Applegate, 612 P.2d 533, 

540–41 (Haw. 1980))).

¶16 Neither JAI nor the court of appeals cite any authority for 

limiting the scope of risk in dram shop cases to the patron’s drive from the 

liquor licensee’s venue to the patron’s home or similar resting place, and 

we are not aware of any. See Torres, 250 Ariz. at 154 ¶ 25 (citing an 

unpublished court of appeals’ decision that offers no authority for its 

conclusion). The foreseeable risk that an intoxicated patron might drive 

and cause an accident that injures or kills someone does not vanish solely 

because the patron initially returns home with the intent to sleep, eat, 

change clothes, or do myriad other things before deciding to leave home 

and resume driving. Intoxicated people frequently make foolhardy 

decisions, including refusing to stay put and sober up before getting behind 

the wheel. We agree with Plaintiffs that the risk created by a liquor 

licensee overserving a patron exists as long as the patron drives while 

intoxicated, regardless of when or where the patron travels and even with 

a short stop at home. See Ontiveros, 136 Ariz. at 507 (identifying the risk as 

the drunk patron’s “subsequent driving of a vehicle” without limiting that 

risk to merely driving home or to some other place of rest); Restatement 

(Second) of Torts § 449 (Am. Law Inst. 1965) (“If the likelihood that a third 

person may act in a particular manner is the hazard or one of the hazards 

which makes the actor negligent, such an act whether innocent, negligent, 

intentionally tortious, or criminal does not prevent the actor from being 

liable for harm caused thereby.”).

¶17 Refusing to adopt JAI’s narrower view of the scope of risk in 

dram shop cases does not impose “potentially never-ending liability” on 

liquor licensees, as JAI asserts. First, in all cases the risk of liability ends 

when the patron sobers up. Thus, the risk of liability correlates directly to 

the degree in which the liquor licensee overserves the patron. Second, 
TORRES, ET AL. V. JAI DINING

Opinion of the Court 

7

there are cases in which the patron’s decision to resume driving after 

reaching home is unforeseeable and extraordinary in hindsight, making the 

patron’s act a superseding cause that relieves the liquor licensee from 

liability. In most cases, a jury as factfinder must decide that issue. See 

Robertson, 163 Ariz. at 546. In other cases, however, the issue may be a 

legal one. See, e.g., Patterson v. Thunder Pass, Inc., 214 Ariz. 435, 440 ¶ 19 

(App. 2007) (holding that after a tavern employee took an intoxicated 

patron home and left her car in the tavern parking lot, the patron’s decision 

to walk back to retrieve her car and then drive was unforeseeable and 

extraordinary and therefore a superseding cause as a matter of law).

¶18 Turning to the case here, the trial court properly declined to 

enter judgment as a matter of law for JAI. A reasonable person in the 

club’s position could have foreseen that Villanueva would drive while 

intoxicated, cause an accident, and injure someone, so long as he remained 

intoxicated. See Ontiveros, 136 Ariz. at 506. Unlike the situation in 

Patterson, club personnel did not separate Villanueva from his truck or 

ensure his safe transportation home. See Patterson, 214 Ariz. at 440 ¶ 19. 

They knew only that he drove from the club after being escorted out. 

Nothing in the record suggests they knew where he was heading or how 

long he would be on the road while intoxicated. See Dupray, 245 Ariz. at 

584–85 ¶ 21 (distinguishing Patterson on this basis). Thus, a jury could 

have reasonably concluded that Villanueva’s act in driving while 

intoxicated, even after he reached home, although an intervening cause of 

the accident, wasnevertheless foreseeable by someone in the club’s position 

and not extraordinary in hindsight. See Ontiveros, 136 Ariz. at 506. The 

trial court properly submitted this issue to the jury.

¶19 JAI and amicus ask us to decide whether Plaintiffs’ negligence 

and common law dram shop claims have been preempted by A.R.S. § 4-

312(B). We decline to do so. We did not grant review of this issue, and 

therefore Plaintiffs did not address preemption in their simultaneously 

filed supplemental brief. Similarly, other parties interested in this 

significant issue have not been notified of the opportunity to submit amicus 

briefs. Also, JAI did not raise this issue to the trial court, although it did 

argue it before the court of appeals. That court should decide in the first 

instance whether an exception to the waiver doctrine is warranted and, if 

so, what the proper disposition on the merits should be.
TORRES, ET AL. V. JAI DINING

Opinion of the Court 

8

CONCLUSION

¶20 For the foregoing reasons, we vacate the court of appeals’ 

opinion. We remand the case to the court of appeals to consider other 

issues raised by JAI on appeal but not addressed by that court.