OPINION
FELDMAN, Vice Chief Justice.
This case comes to us for review of a court of appeals opinion reversing a trial court’s order dismissing a personal injury action. The trial court dismissed pursuant to A.R.S. § 4-312(A), which modifies the common law liability of tavernkeepers. The issues presented illustrate the tension between legislative attempts to suppress or control the assertion of damage claims and Arizona’s constitutional provisions protecting such claims.
We have jurisdiction under Ariz.Const. art. 6, § 5(3) and A.R.S. § 12-120.24. We granted review to determine the constitutionality of the statute in question. See Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. .
FACTS AND PROCEDURAL BACKGROUND
Plaintiff Lloyd Schwab (Schwab) and Earl Barnaby (Barnaby) entered a tavern owned by defendant, Therese Matley (Mat-[422]*422ley), in Yavapai County on September 23, 1985. Schwab alleges that Matley was negligent in serving the two men and in allowing them to remain on the premises. He claims because he and Barnaby became intoxicated, they argued, and, while standing in the parking lot, Barnaby shot and injured Schwab, who was standing near the front door of the tavern.
The shooting occurred on September 23, 1985, and Schwab sued Matley almost one year later. In the interim, the legislature enacted A.R.S. § 4-312(A), which, in pertinent part, provides that a liquor licensee who negligently furnished liquor to a customer “is not liable” for injuries sustained by either the customer or anyone accompanying the customer “who knew of the impaired condition of the person [served].” 1
The statute became effective August 13, 1986, approximately eleven months after Schwab was injured and almost thirty days before he filed the negligence action. Mat-ley moved to dismiss Schwab’s claim, asserting the protection of the statute. Schwab argued that the law prohibited such a retroactive application of the statute. See A.R.S. § 1-244. Disagreeing, the trial court granted Matley’s motion to dismiss. Schwab appealed. After first rejecting Schwab’s arguments, the court of appeals concluded that because a referendum petition had been filed to challenge A.R.S. § 4-312, the effective date of the statute had been delayed until September 12, 1986, the day bn which the referendum petition was invalidated by the secretary of state. Schwab v. Matley, 162 Ariz. 46, 47, 780 P.2d 1387, 1388 (1988) (opinion on motion for reconsideration). The court of appeals thus reversed the trial court’s judgment, concluding that the statute declaring Mat-ley “not liable” was not in effect when the tort action was filed, even though the referendum petition was subsequently found void for lack of sufficient valid signatures. Id.
Matley petitioned this court to review the court of appeals’ opinion, and Schwab timely filed a cross-petition challenging the statute under Ariz.Const. art. 18, § 6 and art. 2, § 31. See Rule 23(a), Ariz.R.Civ.App.P., 17B A.R.S. We granted review; believing that the statute in question also implicated the protections guaranteed under article 18, § 5, we ordered supplemental briefing and heard oral argument. Because of our disposition of this case, we need not address the other challenges.2
DISCUSSION
A. Dram Shop Liability
Prior to 1983, an Arizona seller of alcoholic beverages who negligently furnished alcohol to a customer was not liable for resulting “dram shop” type injury. See, e.g., Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125 (1945); Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147 (1940).
[423]*423The rule of tavernkeepers’ nonliability was based on concepts of foreseeability and proximate cause. In first holding tavern-keepers not liable for injuries that resulted from their negligence in serving impaired or underage patrons, we stated:
[I]t has been held by all the courts and by every commentator that the proximate cause, as the expression is understood in the law of torts, of the resultant effects arising from voluntary intoxication is the act of the drinker, and not the seller of the beverage.
Collier, 63 Ariz. at 290, 162 P.2d at 127 (emphasis added).
In 1983, we disapproved of Collier and Pratt, holding that the “common law doctrine of tavern owner non-liability is abolished in Arizona.” Ontiveros v. Borak, 136 Ariz. 500, 513, 521, 667 P.2d 200, 213, 221 (1983); Brannigan v. Raybuck, 136 Ariz. 513, 521, 667 P.2d 213, 221 (1983). We held that the rule in Arizona was that
[t]avern owners and other licensed sellers in Arizona will be under a duty of care and may be held liable when they sell liquor to an intoxicated patron ... under circumstances where the licensee ... know[s] or should know that such conduct creates an unreasonable risk of harm to others who may be injured either on or off the premises. [Footnote omitted.] If the duty of care is breached, the seller will be liable for the damage caused by his negligence.
Ontiveros, 136 Ariz. at 513, 667 P.2d at 213.
Our holdings in Ontiveros and Branni-gan simply abolished the judicially created doctrine that as a matter of law principles of causation prohibited imposing liability on a negligent seller of alcoholic beverages. Indeed, the former rule had never been uniformly applied. Even before Ontiveros and Brannigan, it had been the common law rule in Arizona that a tavernkeeper could be liable if his negligence in operating his establishment led to one of his patrons injuring another. See, e.g., McFar-lin v. Hall, 127 Ariz. 220, 619 P.2d 729 (1980).
Section 4-312 partially overturns both Ontiveros and McFarlin by declaring that the licensee cannot be held liable for his or her negligence in furnishing alcohol to any customer who was served or to any person who was present when the customer was served and who knew of the customer’s impaired condition. The statute, in effect, declares that because the person injured had engaged in certain conduct — drinking or being present with one who drank — the person injured may not recover.
Thus, the challenge to the statute raises an issue not considered in either Ontiveros or Brannigan, nor, for that matter, in McFarlin or any previous case.
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OPINION
FELDMAN, Vice Chief Justice.
This case comes to us for review of a court of appeals opinion reversing a trial court’s order dismissing a personal injury action. The trial court dismissed pursuant to A.R.S. § 4-312(A), which modifies the common law liability of tavernkeepers. The issues presented illustrate the tension between legislative attempts to suppress or control the assertion of damage claims and Arizona’s constitutional provisions protecting such claims.
We have jurisdiction under Ariz.Const. art. 6, § 5(3) and A.R.S. § 12-120.24. We granted review to determine the constitutionality of the statute in question. See Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. .
FACTS AND PROCEDURAL BACKGROUND
Plaintiff Lloyd Schwab (Schwab) and Earl Barnaby (Barnaby) entered a tavern owned by defendant, Therese Matley (Mat-[422]*422ley), in Yavapai County on September 23, 1985. Schwab alleges that Matley was negligent in serving the two men and in allowing them to remain on the premises. He claims because he and Barnaby became intoxicated, they argued, and, while standing in the parking lot, Barnaby shot and injured Schwab, who was standing near the front door of the tavern.
The shooting occurred on September 23, 1985, and Schwab sued Matley almost one year later. In the interim, the legislature enacted A.R.S. § 4-312(A), which, in pertinent part, provides that a liquor licensee who negligently furnished liquor to a customer “is not liable” for injuries sustained by either the customer or anyone accompanying the customer “who knew of the impaired condition of the person [served].” 1
The statute became effective August 13, 1986, approximately eleven months after Schwab was injured and almost thirty days before he filed the negligence action. Mat-ley moved to dismiss Schwab’s claim, asserting the protection of the statute. Schwab argued that the law prohibited such a retroactive application of the statute. See A.R.S. § 1-244. Disagreeing, the trial court granted Matley’s motion to dismiss. Schwab appealed. After first rejecting Schwab’s arguments, the court of appeals concluded that because a referendum petition had been filed to challenge A.R.S. § 4-312, the effective date of the statute had been delayed until September 12, 1986, the day bn which the referendum petition was invalidated by the secretary of state. Schwab v. Matley, 162 Ariz. 46, 47, 780 P.2d 1387, 1388 (1988) (opinion on motion for reconsideration). The court of appeals thus reversed the trial court’s judgment, concluding that the statute declaring Mat-ley “not liable” was not in effect when the tort action was filed, even though the referendum petition was subsequently found void for lack of sufficient valid signatures. Id.
Matley petitioned this court to review the court of appeals’ opinion, and Schwab timely filed a cross-petition challenging the statute under Ariz.Const. art. 18, § 6 and art. 2, § 31. See Rule 23(a), Ariz.R.Civ.App.P., 17B A.R.S. We granted review; believing that the statute in question also implicated the protections guaranteed under article 18, § 5, we ordered supplemental briefing and heard oral argument. Because of our disposition of this case, we need not address the other challenges.2
DISCUSSION
A. Dram Shop Liability
Prior to 1983, an Arizona seller of alcoholic beverages who negligently furnished alcohol to a customer was not liable for resulting “dram shop” type injury. See, e.g., Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125 (1945); Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147 (1940).
[423]*423The rule of tavernkeepers’ nonliability was based on concepts of foreseeability and proximate cause. In first holding tavern-keepers not liable for injuries that resulted from their negligence in serving impaired or underage patrons, we stated:
[I]t has been held by all the courts and by every commentator that the proximate cause, as the expression is understood in the law of torts, of the resultant effects arising from voluntary intoxication is the act of the drinker, and not the seller of the beverage.
Collier, 63 Ariz. at 290, 162 P.2d at 127 (emphasis added).
In 1983, we disapproved of Collier and Pratt, holding that the “common law doctrine of tavern owner non-liability is abolished in Arizona.” Ontiveros v. Borak, 136 Ariz. 500, 513, 521, 667 P.2d 200, 213, 221 (1983); Brannigan v. Raybuck, 136 Ariz. 513, 521, 667 P.2d 213, 221 (1983). We held that the rule in Arizona was that
[t]avern owners and other licensed sellers in Arizona will be under a duty of care and may be held liable when they sell liquor to an intoxicated patron ... under circumstances where the licensee ... know[s] or should know that such conduct creates an unreasonable risk of harm to others who may be injured either on or off the premises. [Footnote omitted.] If the duty of care is breached, the seller will be liable for the damage caused by his negligence.
Ontiveros, 136 Ariz. at 513, 667 P.2d at 213.
Our holdings in Ontiveros and Branni-gan simply abolished the judicially created doctrine that as a matter of law principles of causation prohibited imposing liability on a negligent seller of alcoholic beverages. Indeed, the former rule had never been uniformly applied. Even before Ontiveros and Brannigan, it had been the common law rule in Arizona that a tavernkeeper could be liable if his negligence in operating his establishment led to one of his patrons injuring another. See, e.g., McFar-lin v. Hall, 127 Ariz. 220, 619 P.2d 729 (1980).
Section 4-312 partially overturns both Ontiveros and McFarlin by declaring that the licensee cannot be held liable for his or her negligence in furnishing alcohol to any customer who was served or to any person who was present when the customer was served and who knew of the customer’s impaired condition. The statute, in effect, declares that because the person injured had engaged in certain conduct — drinking or being present with one who drank — the person injured may not recover.
Thus, the challenge to the statute raises an issue not considered in either Ontiveros or Brannigan, nor, for that matter, in McFarlin or any previous case. May the legislature enact a statute declaring that the conduct of a particular category of persons injured by the negligence of another shall be a bar to recovery of damages?
Schwab claims the statute violates article 18, § 5 of the Arizona Constitution, which provides as follows:
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.
This court has previously considered the purpose and intent of the framers in enacting article 18, § 5. We have stated that:
Prior to the Constitutional Convention, the status of contributory negligence under the common law was, in Arizona as elsewhere, that if it affirmatively appeared in the case, irrespective of the degree of negligence of the plaintiff and of the magnitude of the risk to which defendant exposed him, the court directed the verdict of the jury against the plaintiff. Only if the evidence of the plaintiff’s concurrent negligence was substantially conflicting would the contributory negligence fact be left for resolution to the jury, and then with an instruction that if the jury found contributory negligence it was its duty — it must — return a verdict for the defendant. [Citations omitted.]
Under the language of Article 18, § 5, that the defense of contributory negligence shall at all times be left to the [424]*424jury, the trial court cannot direct a verdict even though the plaintiff’s negligence is undisputed, and the trial court must not, directly or indirectly, tell the jury that it shall return a verdict compatible with the law of contributory negligence as declared by the court. While the jury should be instructed as to the law of contributory negligence, so that it may apply the defense if it sees fit, the court cannot peremptorily require the jury to follow such instructions in arriving at a verdict in the case.
Heimke v. Munoz, 106 Ariz. 26, 29-30, 470 P.2d 107,110-11 (1970); see also Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962).
Thus, we have held that an instruction telling the jury that the defendant is not liable if the facts establish contributory negligence contravenes the state constitution. Gosewisch v. American Honda Motor Co., Inc., 153 Ariz. 400, 406, 737 P.2d 376, 382 (1987). If A.R.S. § 4-312(A) deals with contributory negligence or assumption of the risk, it has an even more serious effect on constitutional rights than a judge’s peremptory instruction to the jury. The statute is in effect a peremptory instruction to the judge that the case must be dismissed if the facts establish the defense of contributory negligence — that the plaintiff was drinking or knowingly accompanied one who had been drinking.
We note, of course, that article 18, § 5 is not addressed just to trial judges. The framers’ language is, instead, quite broad and phrased in mandatory terms. The “defense ... shall in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.” As we have previously held, this means that the jury, and only the jury, is given the duty and privilege to determine whether the facts establish contributory negligence and whether, if they do, the defense should be applied. Layton, 90 Ariz. at 370-71, 368 P.2d at 445.
Matley argues, however, that the statute does not deal with contributory negligence or assumption of the risk. Instead, she contends, the statute deals with the question of duty and simply declares that the tavernkeeper has no duty toward one who knowingly accompanies the patron. We disagree. 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). Of course, the common law defense was a complete defense, barring any recovery by a plaintiff who had been contributor ily negligent. Id. at 452-53. The doctrine arose, as perhaps did the statute, from “distrust of the [supposedly] plaintiff-minded jury.” Id. at 452.
Matley’s argument fares no better if we analyze the common law defense of assumption of the risk, which also barred recovery. Again, Matley claims the statute deals with duty, not assumption of the risk. Assumption of the risk as a defense, however, 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.
We conclude, therefore, that what Mat-ley describes as a legislative rule that no duty exists toward those who overindulge or accompany those who overindulge is simply a shorthand method of describing the traditional common law defenses of contributory negligence and assumption of the risk. Any lawyer defending the tav-ernkeeper and wishing to plead that the action must fail because the plaintiff consumed too much alcohol or remained in the zone of danger of one who had done so, would plead the defense 'under the rubric of contributory negligence or assumption of the risk. Id. § 65, at 451-52.
[425]*425Such defenses, “in all cases,” are questions of fact for the jury (article 18, § 5), and we have held that the trial judge is forbidden, therefore, to dismiss on the grounds that contributory negligence or assumption of the risk exists as a matter of law. See Layton. Certainly, if such issues must always be left to the jury so litigants will be protected from actions of the judiciary, the constitutional provisions must also apply to legislative enactment requiring such dismissal, or the protections provided by the constitution would be meaningless.
Thus, while the argument that the legislature has simply abolished the tavernkeeper’s duty has an ingenious ring to it, it too fails to withstand scrutiny. If the legislature could abolish the recognized common law duties of care, the provisions of article 18, § 5 would have no meaning at all.
CONCLUSION
The statute constitutes nothing more than a legislative codification of the doctrine of contributory negligence and assumption of the risk. We hold that it therefore violates article 18, § 5 and is void.
The opinion of the court of appeals is vacated. The judgment of the trial court is reversed. The cause is remanded for further proceedings consistent with this opinion.
GORDON, C.J., and MOELLER, J., concur.
CAMERON, J., recused himself and did not participate in the determination of this matter.