Delfino v. Griffo

Decision Date08 April 2011
Docket NumberNo. 32,372.,32,372.
CourtNew Mexico Supreme Court
PartiesGina DELFINO, individually and as personal representative of the Estate of Manuel Delfino and as parent and next friend of Dominic S. and Gabriel D., minors, Plaintiffs–Appellants,v.Don GRIFFO, et al., Defendants–Appellees,andKraffty, L.L.C., a New Mexico limited liability company d/b/a Uptown Sports Bar & Grill, Uptown Square Venture, a New Mexico general partnership, John Whisenant, and Ronald Nelson, Defendants–Appellants,andCue Inc., a New Mexico corporation, et al., Defendants.

150 N.M. 97
257 P.3d 917
2011 -NMSC- 015

Gina DELFINO, individually and as personal representative of the Estate of Manuel Delfino and as parent and next friend of Dominic S. and Gabriel D., minors, Plaintiffs–Appellants,
v.
Don GRIFFO, et al., Defendants–Appellees,andKraffty, L.L.C., a New Mexico limited liability company d/b/a Uptown Sports Bar & Grill, Uptown Square Venture, a New Mexico general partnership, John Whisenant, and Ronald Nelson, Defendants–Appellants,andCue Inc., a New Mexico corporation, et al., Defendants.

No. 32,372.

Supreme Court of New Mexico.

April 8, 2011.


[257 P.3d 920]

Aguilar & Aguilar, P.C., Esteban A. Aguilar, Sr., Robles, Rael & Anaya, P.C., Brian S. Colon, Albuquerque, NM, for Appellant Gina Delfino.Riley & Shane, P.A., Mark J. Riley, Kristen J. Dalton, Albuquerque, NM, for Appellants Kraffty, L.L.C., Uptown Square Venture, John Whisenant, and Ronald Nelson.Yenson, Lynn, Allen & Wosick, P.C., Terrance P. Yenson, Michael S. Jahner, Albuquerque, NM, for Appellee Don Griffo.O'Brien & Padilla, P.C., Daniel J. O'Brien, Albuquerque, NM, for Appellee Tom Gonzales.Modrall, Sperling, Roehl, Harris & Sisk, P.A., Douglas G. Schneebeck, Megan A. Muirhead, Bannerman & Johnson, P.A., Thomas P. Gulley, Rebecca Avitia, Albuquerque, NM, Baker & Botts L.L.P., Travis J. Sales, Houston, TX, for Appellees James Paz and Merck & Company.Keleher & McLeod, P.A., Thomas C. Bird, Kathleen Wilson, Albuquerque, NM, for Appellee Michael Donahue.The Roehl Law Firm, P.C., Jerrald Joseph Roehl, Albuquerque, NM, Ashe, Raguse and Hill, L.L.P., William B. Hill, Jr., Joshua D. Jewkes, Atlanta, GA, for Appellee Abbott Laboratories, Inc.

OPINION
SERNA, Justice.

{1} Who is liable for injuries caused by an individual for whom alcohol was purchased and served in a public establishment? The events precipitating this lawsuit began with a luncheon and ended in tragedy. Plaintiff Gina Delfino was struck by a drunk driver, resulting in the death of Plaintiff's minor son and injuries to herself and the other passengers in her car. The driver, Alicia Gonzales, recently had left the company of the individual Defendants in this appeal, pharmaceutical representatives who were acquainted with Ms. Gonzales through her employment in a doctor's office, following approximately eight hours of consuming alcohol. Plaintiff filed a wrongful death suit against the establishments that served Ms. Gonzales and against the pharmaceutical representatives and their employers, Don Griffo, Tom Gonzales, James Paz, Mike Donahue, Merck & Company, Inc., Schering Corporation, and Abbott Laboratories, Inc. (collectively, Pharmaceutical Defendants).

{2} The Second Judicial District Court granted Pharmaceutical Defendants' motion to dismiss under Rule 1–012(B)(6) NMRA, concluding Pharmaceutical Defendants owed Plaintiff no legal duty under our common law or the Liquor Liability Act, NMSA 1978, Section 41–11–1(E) (1986). Plaintiff appealed, and the Court of Appeals certified the question to this Court because it presents a unique legal issue of substantial public interest. We accepted certification and exercise jurisdiction under NMSA 1978, Section 34–5–14(C)(2) (1972). We conclude that the district court erred by granting Pharmaceutical Defendants' motion to dismiss for failure to state a claim upon which relief can be granted because Plaintiff properly characterized Pharmaceutical Defendants as social hosts under the Liquor Liability Act. The district court is hereby reversed, and this case is remanded for further proceedings.

I. BACKGROUND

{3} This appeal is before us after being dismissed by the district court for failure to state a claim upon which relief can be granted,

[257 P.3d 921]

and therefore “we accept all well-pleaded factual allegations in the complaint as true.” Valdez v. State, 2002–NMSC–028, ¶ 4, 132 N.M. 667, 54 P.3d 71. The following recitation of events are derived from the allegations set forth in Plaintiff's Third Amended Complaint.

{4} On April 29, 2005, Plaintiff was in an automobile accident caused by Ms. Gonzales, who was speeding and had a blood alcohol content level of more than twice the legal limit. Plaintiff's minor son was killed, and Plaintiff and her passengers suffered grave injuries.

{5} Ms. Gonzales had spent the hours prior to the accident with the individual pharmaceutical representatives: Griffo and Gonzales, employees of Schering; Donahue, an employee of Abbot; and Paz, an employee of Merck. The pharmaceutical representatives hosted an out-of-office business luncheon for Ms. Gonzales and her colleagues from Dr. David Leech's1 office. The employers of the pharmaceutical representatives had policies that authorized the entertainment of physicians and their staff, through the purchase of food and alcohol, to further the business interests of the companies. The pharmaceutical representatives were working within the scope of their employment during the luncheon.

{6} The luncheon began at Chili's Restaurant. After consuming multiple alcoholic beverages over the course of several hours, Ms. Gonzales drove to Uptown Bar & Grill with Griffo as her passenger. At Uptown, Ms. Gonzales, Griffo, and Donahue consumed more alcohol, and then Ms. Gonzales drove to Doc & Eddy's, again with Griffo in her car. After one and one half hours of drinking at Doc & Eddy's, Ms. Gonzales, obviously intoxicated, departed in her vehicle. The fatal accident occurred approximately 14 minutes later. Griffo purchased alcoholic beverages for Ms. Gonzales at all three bars; Gonzales, Donahue, and Paz purchased alcohol for Ms. Gonzales in at least one bar.

{7} Plaintiff filed a wrongful death suit against Pharmaceutical Defendants and the owners and operators of the various bars and restaurants where Ms. Gonzales had consumed alcohol that evening (collectively, Bar Defendants). 2 Plaintiff's complaint included 21 counts against the various Defendants. The counts at issue in this appeal are those alleging common-law negligence against the individual pharmaceutical representatives for purchasing alcohol for Ms. Gonzales and permitting her to drive, recklessness for the same actions under the Liquor Liability Act, and against their employers under respondeat superior (Counts 7–9); negligent hiring, retention and training against the pharmaceutical companies (Counts 13–15); and prima facie tort, negligent infliction of emotional distress, intentional infliction of emotional distress, and loss of consortium against all Defendants (Counts 16–18). The theories underlying the claims asserting liability against Pharmaceutical Defendants are that they owed a common-law duty to prevent Ms. Gonzales from driving while intoxicated; that Pharmaceutical Defendants were aiding and abetting Ms. Gonzales in committing a tortious action under Restatement (Second) of Torts Section 876(B) (1977); and that Pharmaceutical Defendants are social hosts who acted recklessly and thus liable under the Liquor Liability Act.

{8} Each of the Pharmaceutical Defendants filed a motion to dismiss under Rule 1–012(B)(6).3 The district court granted Pharmaceutical Defendants' motions to dismiss filed under Rule 1–012(B)(6); the letter explaining the reasons for granting the initial motion to dismiss is referenced in the orders dismissing all other Pharmaceutical Defendants.

[257 P.3d 922]

The district court concluded that Pharmaceutical Defendants were not social hosts under the Liquor Liability Act; that the Liquor Liability Act precludes any common-law cause of action that may have existed against Pharmaceutical Defendants; and that the complaint states no cause of action under the Restatement. Donahue's motion to dismiss for improper service also was denied.

II. ANALYSISA. Standard of Review

{9} The question presented by this appeal is whether the district court erred in granting the Pharmaceutical Defendants' motions to dismiss under Rule 1–012(B)(6) for failure to state a claim under which relief can be granted. Dismissals under Rule 1–012(B)(6) are proper when the claim asserted is legally deficient. “A district court's decision to dismiss a case for failure to state a claim under Rule 1–012(B)(6) is reviewed de novo.” Valdez, 2002–NMSC–028, ¶ 4, 132 N.M. 667, 54 P.3d 71. “In reviewing a district court's decision to dismiss for failure to state a claim, we accept all well-pleaded factual allegations in the complaint as true and resolve all doubts in favor of sufficiency of the complaint.” Id.

{10} Plaintiff and Abbot suggest that our review should convert the Rule 1–012(B)(6) motions to motions for summary judgment under Rule 1–056 NMRA. We review motions to dismiss as motions for summary judgment when the district court considered matters outside the pleadings in making its ruling. See Rule 1–012(B); V.P. Clarence Co. v. Colgate, 115 N.M. 471, 472, 853 P.2d 722, 723 (1993). As with motions to dismiss, we review rulings on motions for summary judgment de novo. See Montgomery v. Lomos Altos, Inc., 2007–NMSC–002, ¶ 16, 141 N.M. 21, 150 P.3d 971. The difference in the review is that evidentiary information submitted to the district court is considered when determining whether summary judgment was proper. Id. “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Id.

{11} Our review of the record proper and the transcripts of the hearings on the motions to dismiss indicate the district court did not rely on matters outside the pleadings in granting Pharmaceutical Defendants' motions to dismiss. Indeed, certain of the Pharmaceutical Defendants were dismissed before any exhibits or affidavits were submitted to the district court, and all Pharmaceutical Defendants that were later dismissed were dismissed in reference to the initial ruling. The district court dismissed Pharmaceutical Defendants under Rule 12–012(b)(6), and thus our review is de novo, taking as true the facts pled in the complaint...

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