Bruce v. Chas Roberts Air Conditioning

• Decision Date: 31 May 1990
• Docket Number: No. 1,CA-CV,1
• Citation: 801 P.2d 456,166 Ariz. 221
• Parties: Claudia BRUCE and Norman D. Bruce, husband and wife; Norman D. Bruce, individually and as father and next best friend of the minor children of Claudia Bruce; Carol Lee Bruce, Nancy Dea Anne Bruce; Cynthia L. Davis; and Norman Bruce; Claudia Bruce, by and through her duly appointed conservator, Nancy Elliston, Plaintiffs-Appellants, v. CHAS ROBERTS AIR CONDITIONING, INC., an Arizona corporation, Defendant-Appellee. 88-261.
• Court: Arizona Court of Appeals

Page 456

801 P.2d 456

166 Ariz. 221

Claudia BRUCE and Norman D. Bruce, husband and wife; Norman D. Bruce, individually and as father and next best friend of the minor children of Claudia Bruce; Carol Lee Bruce, Nancy Dea Anne Bruce; Cynthia L. Davis; and Norman Bruce; Claudia Bruce, by and through her duly appointed conservator, Nancy Elliston, Plaintiffs-Appellants, v. CHAS ROBERTS AIR CONDITIONING, INC., an Arizona corporation, Defendant-Appellee.

No. 1 CA-CV 88-261.

Court of Appeals of Arizona,

Division 1,

Department B.

May 31, 1990.

Review Denied Dec. 18, 1990. ^*

[166 Ariz. 222] Steven M. Friedman, Dain K. Calvin, Phoenix, for plaintiffs-appellants.

Holloway & Thomas, P.C. by Benjamin C. Thomas, Craig W. Phillips, Phoenix, for defendant-appellee.

OPINION

VOSS, Judge.

Claudia and Norman Bruce and their children (collectively, Bruce) appeal from summary judgment for appellee Chas Roberts Air Conditioning, Inc. (Roberts) on the Bruce claims for negligence. Claudia and Norman Bruce were injured in a collision with a Roberts' employee, Michael Duarte, (Duarte). This appeal presents the following issues for our consideration:

(1) whether under Keckonen v. Robles, 146 Ariz. 268, 705 P.2d 945 (App.1985), Roberts had a duty to protect Bruce from injuries caused by Duarte;

(2) whether A.R.S. § 4-301 forecloses Roberts' liability;

(3) whether Roberts may be liable for Duarte's negligence under the doctrine of respondeat superior; and

(4) whether under the Restatement (Second) of Torts, § 317 (1965), Roberts may be liable for failing to control the conduct of Duarte.

FACTS

On appeal from summary judgment we view the record in the light most favorable to the party against whom judgment was taken. Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (1985). Roberts is an air conditioning contractor. Roberts was installing air conditioners for Del Webb in new homes in the Sun City West area. Near the job site, Roberts had exclusive use of an enclosed yard that measured about 100 feet by 150 feet. Fifteen or twenty installers worked for Roberts from that yard, including Duarte, who worked for Roberts since 1983.

Nick Arico, a subforeman for Roberts, testified in deposition that most of Roberts' workers usually came back to the yard at 1:30 or 2:00 p.m. (an installers work day normally began at 6:00 a.m.), but would sometimes return earlier, especially on Fridays. One reason employees returned to the yard was to retrieve their personal vehicles. It was not unusual for some of the workers to remain after work and socialize at the yard. Occasionally, the socialization included drinking pop and beer. At these gatherings Arico sometimes placed boxes around the yard for the disposal of trash, papers and beer cans.

Roberts' supervisors knew about the workers' occasional beer drinking at and around the yard. During such gatherings, if a Roberts' worker came to the yard from another job and asked for help, it was not uncommon for other workers to leave the yard and supply the requested help. Roberts had a policy that if a worker finished a job early, (i.e. they finished an eight hour job in six hours), they got paid for the whole eight hour day.

In the early afternoon on Friday, October 18, 1985, most of the Roberts' workers finished their work and returned to the Sun City West yard. Among them was Duarte. Though Duarte finished his work in less than eight hours, he was paid for the full day. Duarte and his co-workers joined in a spur-of-the-moment volleyball game and picnic at the yard. At this picnic the workers drank beer, cooked hamburgers, and played volleyball. Two Roberts' supervisors, Chris Burkhardt and Nick Arico, were present.

After the picnic began, Duarte and other employees left to buy beer. Duarte purchased a six pack and returned. He left it in his pickup truck, which was parked outside the yard. Between noon and 3:00 p.m. Duarte periodically drank beer from the cooler in his pickup and continued to participate in the volleyball game and picnic. Duarte primarily drank his beer outside the fence during breaks between volleyball games, however, if another game started and he still had beer to drink, he would take it with him into the yard. As before, no one from Roberts told Duarte not to drink beer at the picnic. The workers would have stopped drinking beer at the picnic if the supervisors requested. Roberts did not provide any of the beer at the picnic.

Duarte left Robert's yard between 3:00 and 3:15 p.m. in his pickup truck. In the opinion of Lucien Haag, Bruce's expert, Duarte's blood-alcohol content would have been between .27% and .29% at 3:00 p.m., and to an unimpaired person he would have been visibly intoxicated. Duarte's truck ran out of gas as he was driving home. He spent some time walking toward home on 67th Avenue, but decided to return to his truck and try to prime the carburetor. He did so successfully, and continued home at approximately 6:00 p.m. While driving home he collided head-on with Bruce's vehicle.

Roberts moved for and was granted summary judgment.

ANALYSIS OF ISSUES ON APPEAL

a. Applicability of Keckonen.

Both sides rely on Division Two's decision in Keckonen, in support of their respective positions on appeal. Bruce relies on footnote number 3 in Keckonen which reads as follows:

For the purposes of this opinion we have assumed but have not decided that there could have been some liability on the part of Neil's as the owner of the premises and have further assumed but not decided that there was sufficient proof that Robles was intoxicated when he left his employer's premises to go to the Rusty Nail Tavern.

Id. 146 Ariz. at 272 n. 3, 705 P.2d at 949 n. 3. Bruce argues that the footnote means that an employer is under a duty to protect third persons from injuries caused by an employee who leaves the employer's business premises at the end of the work day in an incapacitated condition. Roberts urges that Keckonen's facts are similar to those before us, and interprets Keckonen to require a holding that Roberts owed no duty to Bruce on which liability could be founded. We agree with Roberts.

In Keckonen, James Robles, an employee of Neil's Detroit Diesel, Inc., participated in a social gathering on Neil's premises after working hours. The participants, including the branch manager and branch service manager, collectively bought and drank a case of beer at the gathering. After leaving the work party, Robles drank more beer at a bar. Thereafter, Robles collided with two oncoming cars. The plaintiffs sued Neil's for negligence. On appeal from a grant of summary judgment for Neil's, Division Two affirmed.

The court in Keckonen stated that the sole issue on appeal was whether liability for negligently providing liquor to an intoxicated person, to which the supreme court subjected licensed sellers of liquor in Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983), should be extended to persons other than licensed sellers of liquor. ¹ The court referred to all categories of nonlicensees as social hosts. After considering the applicable law and noting that except for the state of New Jersey, ² all the state courts that have considered the question of extending the liability of the nonlicensee, or social host, had declined to do so, the Keckonen court held:

We do not believe that reasonable persons would extend to the social host the liability imposed upon the tavern keeper. The consequences of imposing such a duty are economically and socially staggering. Considering the public and social requirements, the consequences of extending liability, and the reasons for not extending it mentioned in the cases which we have previously cited and in the article by DeMoulin and Whitcomb (except for the proximate cause argument), we decline to extend liability to the social host.

146 Ariz. at 272, 705 P.2d at 949.

We do not agree with Bruce's argument that footnote 3 in Keckonen holds that an employer has a legal duty to protect third persons from injuries caused by an employee who leaves his employer's business at the end of a work day in an incapacitated condition. In Keckonen the court declined to extend to nonlicensees the duty created in Ontiveros. The court did not, as Bruce suggests, foreclose liability only for the social host. The context of the footnote makes clear that Division Two meant only that it had assumed for purposes of discussion that Neil's was the "host" because Neil's owned the premises in question not that an employer could be liable. Id. at 272 n. 3, 705 P.2d 949 n. 3.

Keckonen does support the proposition that a nonlicensee, in this case as in Keckonen an employer, is not liable when it serves or furnishes liquor to intoxicated persons. The facts here are less egregious than those in Keckonen as Roberts' supervisors did not purchase any of the beer at the picnic. Therefore, applying the holding of Keckonen, Roberts, as a nonlicensee, is not liable for Duarte's actions.

b. A.R.S. § 4-301.

Bruce argues that A.R.S. § 4-301 does not apply to foreclose liability because the statute only addresses social host and not employer liability. Alternatively, Bruce maintains that if we do find the statute applicable, we must also find that it is unconstitutional as violative of the Arizona Constitution, art. 18, § 6. Roberts urges that the statute does apply to bar liability. We agree with Roberts that the legislature has acted to bar its liability.

Arizona Revised Statutes § 4-301 provides:

A person other than a licensee or an employee of a licensee acting during the employee's working hours or in connection with such employment is not liable in damages to any person who is injured, or to the survivors of any person killed, or for damage to property, which is alleged to have been caused in whole or in part by reasons of the furnishing or serving of spirituous liquor to a person of the legal drinking age.

(Emphasis added.) A.R.S. § 4-101(22)...