Barkhurst v. Kingsmen of Route 66, Inc.

Citation234 Ariz. 470,685 Ariz. Adv. Rep. 29,323 P.3d 753
Decision Date01 May 2014
Docket NumberNo. 1 CA–CV 13–0166.,1 CA–CV 13–0166.
PartiesTrenton BARKHURST, a single person, Plaintiff/Appellant, v. The KINGSMEN OF ROUTE 66, INC., an Arizona corporation, Defendant/Appellee.
CourtCourt of Appeals of Arizona

OPINION TEXT STARTS HERE

Moriarity Badaruddin & Booke, L.L.C., Missoula, MT By Bradley L. Booke Counsel for Plaintiff/Appellant.

Brownlee Law Firm, P.C., Phoenix By Joseph L. Brownlee Counsel for Defendant/Appellee.

Presiding Judge DONN KESSLER delivered the opinion of the Court, in which Judge PATRICIA K. NORRIS and Judge MAURICE PORTLEY joined.

OPINION

KESSLER, Presiding Judge.

¶ 1 Trenton Barkhurst appeals the superior court's order granting summary judgment to The Kingsmen of Route 66, Inc. (The Kingsmen). For the following reasons, we agree with the superior court's conclusion that The Kingsmen owed no duty to Barkhurst. We therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 The Kingsmen is a non-profit organization of local volunteers that annually sponsors, organizes and conducts the Andy Devine Rodeo Days (“Rodeo Days”), a two-day rodeo in Kingman that occurs at the end of “Western Week.” Local businesses host specific events during Western Week, and The Kingsmen assists in any way they can. In 2009, the Dambar Steakhouse hosted a “Rodeo Dance” and “Best Butt Contest” (collectively, the “Dambar Entertainment”) in the evening of the rodeo's first day.

¶ 3 To encourage community involvement and tourism in Kingman, The Kingsmen promoted the 2009 Rodeo Days and Western Week on a website. The website listed the dates and times of the various activities, including the Dambar Entertainment. The website also stated:

The Andy Devine Days PRCA Rodeo is in its 25[th] year here in Kingman Arizona, brought to you by the KINGSMEN, a group of local businessmen dedicated to the preservation of our area's ranching and rodeo western heritage....

We invite you to enjoy all of the fun and entertainment brought to Kingman during Western Week, including the dances, parade, chili feed, and of course, the Rodeo!

¶ 4 Approximately two-and-one-half hours after the Dambar Entertainment ended, two intoxicated patrons, Devore and Fancher, assaulted Barkhurst in the Dambar parking lot. Devore was under twenty-one years old. Barkhurst sustained serious injuries. At least one member of The Kingsmen was at the Dambar acting as a judge during the Dambar Entertainment wearing a Kingsmen shirt. The member called 911 when he was informed someone was injured in the fight, and he assisted the security guard in a “backup capacity” by “making sure ... [the fight] had been defused and people were gone.”

¶ 5 Barkhurst filed a complaint for damages against several parties including The Kingsmen, the Dambar and the security provider. The allegations against The Kingsmen included statutory and common law dram shop liability (“Claims 1 and 2”) and negligence claims (“Claim 5”).1 The Kingsmen successfully moved for summary judgment on all claims against it. In dismissing Claims 1 and 2, the court found The Kingsmen do not “fall within the dram shop provisions ... [because] [t]he allegations in [Barkhurst's] complaint do not even reference other than the Dambar that any of the other defendants are licensees or that they have sold or furnished alcohol.” Regarding the negligence claim, the court concluded The Kingsmen owed no duty of care to Barkhurst.

¶ 6 Barkhurst timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”) sections 12–120.21(A)(1) (2003) and –2101(A)(1) (Supp.2013).

DISCUSSION

¶ 7 Barkhurst argues the court erred in granting The Kingsmen summary judgment on the negligence claim. The sole issue is whether The Kingsmen owed Barkhurst a duty of care.

¶ 8 Summary judgment is appropriate “if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.” Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 14, 38 P.3d 12, 20 (2002). We review the grant of summary judgment de novo, “viewing the evidence and reasonable inferences in the light most favorable to” Barkhurst. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003).

I. DUTY OF CARE

¶ 9 A negligence claim requires proof of four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). The threshold issue regarding duty is a question of law determined by the court, and:

The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.”

Id. at ¶ 10 (quoting Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985)).

¶ 10 Whether a defendant owes a plaintiff a duty of care does not turn on the foreseeability of injury.2Id. at 144, ¶ ¶ 15–17, 150 P.3d at 231. “Duties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant.” Id. at 145, ¶ 18, 150 P.3d at 232.3 The formation of a special relationship is often based on some aspect of control. As a general matter, there is no duty to prevent a third person from causing physical harm to another unless the defendant stands in a special relationship with the third person or with the victim that gives the victim a right to protection. Restatement (Second) of Torts § 315 (1965); see also Gipson, 214 Ariz. at 145, ¶ 19, 150 P.3d at 232 (explaining that various categorical relationships can give rise to a duty, including special relationships recognized by § 315 of the Restatement (Second) of Torts “that create a duty to control the actions of another”). For example, special relationships include a parent's duty to control a child, a master's duty to control a servant, a landowner's duty to control a licensee, and the duty of caretakers in charge of individuals with dangerous propensities to control those individuals. Restatement (Second) of Torts §§ 316– 19. “A special or direct relationship, however, is not essential in order for there to be a duty of care.” Gipson, 214 Ariz. at 145, ¶ 18, 150 P.3d at 232. In the absence of a special or direct relationship, public policy considerations may support the existence of a legal obligation. Id. at ¶ 22.

¶ 11 In their summary judgment motion, the Kingsmen presented evidence that it did not sponsor, control, host, organize, pay for, or participate in the Dambar Entertainment except to help advertise the Rodeo Days events and that any of its members who attended the Dambar Entertainment did so in their individual capacity. The Kingsmen also presented evidence that it did not provide security for the Dambar Entertainment. In promoting Rodeo Days, the Kingsmen sold sponsorships for Rodeo Days and Dambar, as one of the paid sponsors, was able to hang a Dambar banner at the rodeo. Barkhurst pointed out that the Kingsmen advertised various businesses like the Dambar which had paid for sponsorships for the Rodeo Days and that several Kingsmen members had attended the Dambar dance dressed in Kingsmen shirts. Barkhurst claimed in the superior court and argues on appeal that by organizing the Rodeo Days and promoting the Dambar Entertainment along with the other events during Rodeo Days, The Kingsmen was legally obligated to undertake reasonable measures to ensure intoxicated and underage patrons were not served alcohol at the Dambar. In other words, Barkhurst argues that mere sponsorship and promotion of Rodeo Days events by the Kingsmen were enough to create a duty by The Kingsmen to protect people attending the Dambar Entertainment, even without evidence that The Kingsmen had any control over the property, event, or serving of alcohol at that event.4 Barkhurst relies on three Arizona cases to support his argument. Each of those cases is distinguishable from the issue here in which The Kingsmen did not control the dance or contest at the Dambar or own or lease the property at which those events took place.

¶ 12 Barkhurst primarily relies on Estate of Hernandez by Hernandez–Wheeler for & on Behalf of Hernandez v. Arizona Board of Regents, 177 Ariz. 244, 866 P.2d 1330 (1994). In Hernandez, an underage college student drank alcohol at a fraternity party before crashing his car into a vehicle driven by Hernandez. Id. at 247, 866 P.2d at 1333. Hernandez suffered severe physical injuries, and brought an action against several parties, including the students, the fraternity, and the Arizona Board of Regents, which owned the property where the party occurred and leased it to the fraternity. Id. Hernandez alleged that the Board of Regents was “negligent in continuing to lease the premises to the house corporation when it knew that the fraternity served alcoholic beverages to persons under the legal drinking age,” and was “liable both under the doctrine of respondeat superior and for its negligent supervision of [the driver].” Estate of Hernandez by Hernandez–Wheeler on Behalf of Hernandez v. Arizona Bd. of Regents, 172 Ariz. 522, 526, 838 P.2d 1283, 1287 (App.1991), vacated, Hernandez, 177 Ariz. at 256, 866 P.2d at 1342. The superior court held that the Board of Regents, as a social host, was statutorily immune from liability for serving alcohol to a minor who became intoxicated and injured a third party. Hernandez, 177 Ariz. at 247, 866 P.2d at 1333. This court affirmed, but our supreme court reversed, concluding...

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