Keckonen v. Robles

• Decision Date: 24 April 1985
• Docket Number: CA-CIV,No. 2,2
• Citation: 705 P.2d 945,146 Ariz. 268
• Parties: Gary KECKONEN and Faye Keckonen, Plaintiffs/Appellants, v. James J. ROBLES and Arsinia Robles, husband and wife; Michael Slepko and Ann Slepko, husband and wife, doing business as Rusty Nail Tavern; Vincent Russo, a single man; Mary Stone and Wayne Stone, wife and husband; Neil's Detroit Diesel, Inc., an Arizona Corporation; James L. Bennett and Mary H. Bennett, husband and wife; Ralph P. Casillas and Diana K. Casillas, husband and wife; Jim Click Ford, an Arizona corporation; Ford Motor Company, a corporation, Defendants/Appellees. 5280.
• Court: Arizona Court of Appeals

Page 945

705 P.2d 945

146 Ariz. 268

Gary KECKONEN and Faye Keckonen, Plaintiffs/Appellants, v. James J. ROBLES and Arsinia Robles, husband and wife; Michael Slepko and Ann Slepko, husband and wife, doing business as Rusty Nail Tavern; Vincent Russo, a single man; Mary Stone and Wayne Stone, wife and husband; Neil's Detroit Diesel, Inc., an Arizona Corporation; James L. Bennett and Mary H. Bennett, husband and wife; Ralph P. Casillas and Diana K. Casillas, husband and wife; Jim Click Ford, an Arizona corporation; Ford Motor Company, a corporation, Defendants/Appellees.

No. 2 CA-CIV 5280.

Court of Appeals of Arizona,

Division 2, Department A.

April 24, 1985.

Review Denied Aug. 27, 1985.

[146 Ariz. 269]

Les Gilbertson, Tucson, for plaintiffs/appellants

Lieurance, Wright & Davis, P.C. by George S. Wright and Kevin D. Ray, Phoenix, for defendants/appellees.

OPINION

HOWARD, Judge.

In Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983) the Arizona Supreme Court held that tavern owners and other licensed sellers of intoxicating liquor may be held liable when they sell liquor to an intoxicated customer under circumstances where the licensee or his employees know or should know that such conduct creates an unreasonable risk of harm to others who may be injured either on or off the premises. In this case we are asked to extend this liability to persons other than licensed sellers of liquor. ¹ We decline to do so and hold that the trial court did not err in granting summary judgment to defendants Neil's Detroit Diesel, Inc. (Neil's), James L. Bennett and Mary H. Bennett, husband and wife, and Ralph P. Casillas and Diana K. Casillas, husband and wife.

The facts considered in the light most favorable to plaintiffs are as follows. For about ten or fifteen years some of the employees of Neil's have engaged in a check pool every payday. They each contribute a dollar to the pool and the one who has the highest number on his payroll check buys a case of beer for the others at a social gathering that takes place on the Neil's premises after working hours.

On September 15, 1983, the employees in the pool met after working hours, at about 3:30 p.m. The business was closed and the entrance gate to the premises was locked. An employee named Neil Burgess had won the pool and had purchased the case of beer. Although the evidence is not crystal clear, it can be inferred that defendants James Bennett, the Tucson branch manager of Neil's, and Ralph Casillas, the Tucson branch service manager, had contributed money to the pool. The defendant Robles was also present, and all of the previously mentioned persons, at one time or another, took part in a discussion which the main group of employees was having concerning a work-related problem.

At approximately 7 p.m. the gathering broke up. Defendants Ralph Casillas and James Robles, along with another employee, went from Neil's to the Rusty Nail Tavern where they drank more beer. Robles left the tavern at approximately 8:30 p.m. in his car and at 9 p.m. drove across the center line of a two-lane highway and collided with two on-coming cars, causing serious injury to plaintiff Faye Keckonen. Robles was then taken to the hospital for treatment and a sample of his blood was analyzed. It contained 0.33 per cent alcohol. The next day Robles told a Pima County deputy sheriff that he had consumed three or four beers at Neil's and three more beers at the tavern.

The first experiment with extending the liability of the tavern keeper to non-licensees, or the social host, occurred in California in the case of Coulter v. Superior Court of San Mateo County, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669 (1978). The court held that under modern negligence law a social host who furnishes alcoholic beverages to an obviously intoxicated person, under circumstances which create a reasonably foreseeable risk of harm to others, may be held legally accountable to those third parties who are injured when that harm occurs. This experiment was very short-lived. Within five months, the wrath of God, in the form of the California Legislature, struck, expressly abrogating the Coulter holding by amending § 1714 of the California Civil Code. Not only did the legislature expressly abrogate the opinion in the Coulter case but it also expressly abrogated the holding in Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 (1971), which held, similar to our case of Ontiveros v. Borak, supra, that tavern owners could be liable.

Except for the State of New Jersey, all the state courts which have considered the question of extending the liability of the social host have declined to do so. See Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983) and the cases cited therein. ² One of the reasons given for declining to extend liability is that in the case of an ordinary able-bodied person it is the consumption of alcohol, rather than the furnishing of alcohol, which is the proximate cause of any subsequent occurrence. See Klein v. Raysinger, supra. In those states in which there is a dramshop act, the courts have refused to extend liability to the social host on the ground, inter alia, that any extension of the dramshop act should be done by the legislature. See Lowe v. Rubin, 98 Ill.App.3d 496, 53 Ill.Dec. 919, 424 N.E.2d 710 (1981); Miller v. Moran, 96 Ill.App.3d 596, 52 Ill.Dec. 183, 421 N.E.2d 1046 (1981). In Settlemyer v. Wilmington Veteran's Post No. 49, American Legion, Inc., 11 Ohio St.3d 123, 464 N.E.2d 521 (1984), the court gave four reasons why it refused to extend liability to the social host. First, the commercial proprietor has a proprietary interest and profit motive and should be expected to exercise greater supervision than the non-commercial social setting. Second, the person in the business of selling and serving alcohol is usually better organized to control patrons and has the financial wherewithal to do so. Third, by virtue of experience a commercial proprietor is more familiar with his customers and their habits and capacities. Fourth, since the ratification of the Twenty-first Amendment to the United States Constitution virtually every aspect of the manufacture, sale and distribution of alcoholic beverages has been regulated by the legislature and any policy modifications which are designed to encompass the potential liability of social providers of intoxicating beverages should be left to the sound discretion of the legislature.

In Miller v. Owens-Illinois Glass Company, 48 Ill.App.2d 412, 199 N.E.2d 300 (1964) the court noted that to extend the dramshop act rationale to social hosts would have the consequence that providing a social drink to a neighbor or friend would become a hazardous act and open the floodgates of litigation. See also the concurring opinion in Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972).

The distinction between the social host and the tavern owner was recognized in the case of Lowe v. Rubin, supra, where the court quoted from DeMoulin & Whitcomb, Social Host's Liability in Furnishing Alcoholic Beverages, 27 Fed'n Ins. Counsel Q. at 357 (1977), where the author states:

"The historic rationale of the dram shop act, was, theoretically, to shift the cost of damage or injury to the commercial vendor who was considered to have a greater capacity to absorb the cost. The vendor may be required by statute to post bond or carry insurance against the damage. The social host, on the other hand, receives no...