AZ ruling on statutory immunity to suit
The Arizona Court of Appeals has ruled in Sonoran Investigations v. Hernandez.
Decedent Hernandez was caught shoplifting by security guards, who used a choke hold on him, which allegedly killed him. His estated sued for wrongful death/overuse of force. Defendants plead a statute which absolves a person of liability for negligent or grossly negligent harm to a person who was committing a property misdemeanor.
The Court of Appeals found the statute unconstitutional under a provision of the state constitution that states: “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.” It cites an early state supreme court ruling striking down a statute that immunized tavern owners against liability for harm caused to patrons by reason of their intoxication, the Supreme Court concluding that that immunity was a roundabout way of creating a contributor negligence defense.
The Arizona provision (together with another that forbids the legislature to restrict recovery for physical injury or death) reflected the distrust of the state framers for tort doctrine of the time. Employers had frequently won dismissals of suits alleging dangerous workplace conditions, by arguing that as a matter of law the employee was negligent or "had assumed the risk" by taking a dangerous job! The simplest way to deal with it was to ensure that only juries (largely made up of working class people) could rule on those issues.
The result has been a series of court rulings on just what the jury instructions should say. They clearly can't say "if you find contributory negligence, you MUST rule for defendant." So there have been strings of cases on whether you can say "should" or just "may" or variations of the above.