Deceased v. Tamaya Enter.s Inc.

• Decision Date: 25 May 2010
• Docket Number: Certiorari Granted, Aug. 10, 2010, No. 32,447.,No. 28,809.,28,809.
• Citation: 238 P.3d 903,148 N.M. 534,2010 NMCA 074
• Parties: Gina MENDOZA, as Personal Representative under the Wrongful Death Act of Michael Mendoza, deceased, and F. Michael Hart, as Personal Representative under the Wrongful Death Act of Desiree Mendoza, deceased, Plaintiffs-Appellants, v. TAMAYA ENTERPRISES, INC., a federally chartered corporation, d/b/a Santa Ana Star Casino, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

148 N.M. 534

238 P.3d 903

2010 NMCA 074

Gina MENDOZA, as Personal Representative under the Wrongful Death Act of Michael Mendoza, deceased, and F. Michael Hart, as Personal Representative under the Wrongful Death Act of Desiree Mendoza, deceased, Plaintiffs-Appellants,

v.TAMAYA ENTERPRISES, INC., a federally chartered corporation, d/b/a Santa Ana Star Casino, Defendant-Appellee.

No. 28,809.

Court of Appeals of New Mexico.

May 25, 2010.

Certiorari Granted, Aug. 10, 2010, No. 32,447.

Oldaker, Norris & Rockwell, LLC, Earl R. Norris, Albuquerque, NM, for Appellants.

Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Richard W. Hughes, Donna M. Connolly, Santa Fe, NM, for Appellee.

OPINION

ROBLES, Judge.

{1} Gina Mendoza and Michael Hart (Plaintiffs), as personal representatives of Michael and Desiree Mendoza, brought a wrongful death action against Tamaya Enterprises, Inc. (Tamaya) in the Bernalillo County District Court. The complaint alleged that Tamaya sold alcohol to Michael and Desiree Mendoza at a social function despite their intoxication and, as a result of Tamaya's negligence, they were killed on their way home in a single, vehicle accident. The action was dismissed for failure to state a claim upon which relief can be granted. See Rule 1-012(B)(6) NMRA. On appeal, the issues presented are (1) whether Plaintiffs preserved their arguments below, (2) whether Plaintiffs may assert a claim based upon New Mexico's common law, and (3) whether the action must jurisdictionally be brought in the Santa Ana Pueblo Tribal Court. We reverse the district court and remand for further proceedings.

I. BACKGROUND

{2} Plaintiffs filed a complaint alleging that, on July 9, 2006, after attending a wedding reception held at the Santa Ana Star Casino, twenty-three-year-old Michael and twenty-two-year-old Desiree (Decedents) were involved in a one-vehicle rollover accident that claimed their lives. The complaint alleges that Tamaya, through their agents, servants, or employees, knew or should have known from the circumstances that Decedents were intoxicated, yet continued to sell and serve alcohol, notwithstanding their apparent intoxication. Further, the serving and sale of alcohol was negligent and in reckless disregard for Decedents' safety and was the proximate cause of their deaths. At the time of the accident, Decedents' cousin was also in the vehicle and, although he was injured, he is not a party to this appeal. A subsequent investigation by New Mexico State Police was unable to determine who was driving the vehicle at the time of the accident. Decedents' cousin, who suffered a head injury, has given conflicting accounts as to which Decedent was driving.

{3} Tamaya moved to dismiss Plaintiffs' complaint for failure to state a claim upon which relief could be granted and filed a memorandum in support of their motion, in which they argued that an over-served patron had no common law right to recover from a tavernkeeper. Following a hearing on the motion, the action was dismissed.

II. DISCUSSION

{4} On appeal, Tamaya argues that Plaintiffs only asserted Decedents were over-served patrons and never argued injured, third-party liability. Moreover, Tamaya contends that there is no common law claim for over-served patrons. Finally, Tamaya encourages affirmance because New Mexico law provides that sales of alcohol on Santa Ana Pueblo land must be governed by Pueblo law, and actions should therefore be brought in tribal court. Additionally, Tamaya argues that the tribal ordinance itself requires enforcement in tribal court.

{5} A district court's decision to dismiss a case under Rule 1-012(B)(6) is reviewed de novo. Chavez v. Desert Eagle Distrib. Co. of N.M., LLC, 2007-NMCA-018, ¶ 5, 141 N.M. 116, 151 P.3d 77 (filed 2006). “A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint, not the factual allegations of the pleadings which, for purposes of ruling on the motion, the court must accept as true.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 2, 134 N.M. 43, 73 P.3d 181 (internal quotation marks and citation omitted). “Dismissal on [Rule 1-0]12(B)(6) grounds is appropriate only if [the p]laintiffs are not entitled to recover under any theory of the facts alleged in their complaint.” Callahan v. N.M. Fed'n of Teachers-TVI, 2006-NMSC-010, ¶ 4, 139 N.M. 201, 131 P.3d 51. We review the evidence in the light most favorable to the party resisting the motion. Porter v. Ortiz, 100 N.M. 58, 59, 665 P.2d 1149, 1150 (Ct.App.1983).

A. New Mexico's Common Law Dramshop Liability

{6} Before we address the issues on appeal, we will provide some background context for our discussion. In New Mexico, the Legislature has prohibited the providing or selling of alcoholic beverages to an intoxicated person when “the person selling, serving, procuring or aiding in procurement, knows or has reason to know that he is selling, serving, procuring or aiding in procurement of alcoholic beverages for a person that is intoxicated.” NMSA 1978, § 60-7A-16 (1993). The Legislature has further outlined when an injured, third party may recover from a licensed provider of alcohol who over serves a patron, and the third party is subsequently injured by that patron. See NMSA 1978, § 41-11-1(A) (1983) (amended 1986) (providing civil liability for licensees that provide alcohol to an intoxicated individual when it is reasonably apparent that the individual is intoxicated, and the licensee knew from the circumstances that the receiver of the alcohol was intoxicated).

{7} Prior to the enactment of Section 41-11-1 in 1983, our Supreme Court recognized for the first time that a third party who was injured by an intoxicated driver had a cause of action against the tavernkeeper who illegally served alcohol to the intoxicated driver. See Lopez v. Maez, 98 N.M. 625, 628, 651 P.2d 1269, 1272 (1982). In reaching this conclusion, the Court analyzed the history of New Mexico dramshop liability. The Court noted that, although it was illegal to sell alcohol to an individual who was intoxicated, it previously had not been recognized as a tort. Id. “The reason generally given for this rule was that the proximate cause of the injury was not the furnishing of the liquor, but the drinking of it.” Id. However, the Court observed that some jurisdictions imposed liability on vendors of alcohol by creating dramshop civil damage statutes, whereas other jurisdictions imposed liability under common law negligence principles. Id. at 628-29, 651 P.2d at 1272-73. Although New Mexico did not have a dramshop civil damage statute at the time, the Court concluded that the injured, third-party plaintiff could establish the existence of a duty that ran from the tavernkeeper by showing a violation of a regulation or statute. Id. at 631, 651 P.2d at 1275. The Court's ability to change common law doctrine was within its unique province because, as a creation of the judiciary, the common law should adapt if and when the judiciary determined that a past decision had reached a point of obsolescence or had become unwise. Id. at 629, 651 P.2d at 1273 (“A common law doctrine which developed in the horse and buggy days may be out of tune with today's society. The serious danger to the public caused by drunken drivers operating automobiles on public roadways is now a matter of common knowledge.”). In response to the increasing frequency of accidents involving drunk drivers and the reasonable foreseeability of the consequence of serving alcohol to an individual who is or was intoxicated and may end up driving, the Court determined that

a person may be subject to liability if he or she breaches his or her duty by violating a statute or regulation which prohibits the selling or serving of alcoholic liquor to an intoxicated person; the breach of which is found to be the proximate cause of injuries to a third party.

Id. at 632, 651 P.2d at 1276.

{8} Following New Mexico's judicial recognition of dramshop liability, the Legislature enacted Section 41-11-1, which limited the scope of dramshop liability. Baxter v. Noce (Baxter II), 107 N.M. 48, 52, 752 P.2d 240, 244 (1988) (Stowers, J., dissenting). In the case of Trujillo v. Trujillo, this Court concluded that the estate of an intoxicated patron had no cause of action against a tavernkeeper for injuries. 104 N.M. 379, 382, 721 P.2d 1310, 1313 (Ct.App.1986). There, an intoxicated individual had wandered by foot onto the highway where he was fatally struck. Id. at 380, 721 P.2d at 1311. We concluded that, in Lopez, the Supreme Court had determined that the statute at issue was enacted for the benefit of the public, the violation of which was a breach of duty to members of the public. Trujillo, 104 N.M. at 380-82, 721 P.2d at 1311-13. After noting that Lopez did not indicate whether the patron himself was to be included in the public group that the statute sought to protect, we looked to policy considerations to define the scope of the duty and determine whether a patron could have a recognized cause of action. Trujillo, 104 N.M. at 381, 721 P.2d at 1312. We concluded that a common law duty should not be imposed on a tavernkeeper that runs to an intoxicated patron because it would allow recovery by someone who had full knowledge of the possible results of their voluntary intoxication, and it would allow him or her to benefit by their wrongful act. Id. at 382, 721 P.2d at 1313.

{9} In 1985, the Legislature amended Section 41-11-1 to include a statutory right for an injured patron to collect for damages and obtain relief against a licensee who sold or served alcoholic beverages if it was determined that the licensee acted with gross negligence and a reckless disregard for the safety of the patron in question. See § 41-11-1(B); Trujillo, 104 N.M. at 383-84, 721 P.2d at 1315-16. A little over two months before that amendment became effective, the decedent in Baxter lost his life. 107 N.M. at...