Knoell v. Cerkvenik-Anderson Travel, Inc.

• Decision Date: 30 June 1994
• Docket Number: No. 1,CA-CV,CERKVENIK-ANDERSON,1
• Parties: Mark KNOELL and Vicki Knoell, husband and wife, parents of Timothy Knoell, deceased, Plaintiffs-Appellants, v.TRAVEL, INC., dba Student Tours, Defendant-Appellee. 91-0577.
• Court: Arizona Court of Appeals

Page 861

891 P.2d 861

181 Ariz. 394

Mark KNOELL and Vicki Knoell, husband and wife, parents of Timothy Knoell, deceased, Plaintiffs-Appellants, v. CERKVENIK-ANDERSON TRAVEL, INC., dba Student Tours, Defendant-Appellee.

No. 1 CA-CV 91-0577.

Court of Appeals of Arizona Division 1, Department A.

June 30, 1994.

Reconsideration Denied Aug. 4, 1994.

Review and Cross-Petition for

Review Granted March 21, 1995. ^*

[181 Ariz. 396] Earl Terman Law Offices by Earl Terman, Robert Steven Sharp, Phoenix, for plaintiffs-appellants.

Teilborg, Sanders & Parks by Brian R. Burt, Rick N. Bryson, Phoenix, for defendant-appellee.

OPINION

VOSS, Judge.

FACTS AND PROCEDURAL HISTORY

Cerkvenik-Anderson Travel, Incorporated ("Cerkvenik") is a travel agency headquartered in Phoenix. It arranges, promotes, and hosts tours to Mexico for recent high school graduates. In 1988, Cerkvenik arranged a trip to Mazatlan, Mexico. Timothy Knoell ("Timothy"), the decedent son of Mark Knoell and Vicki Knoell ("Knoells") reserved a spot on that trip. Timothy was eighteen years old when he purchased and participated in the trip.

As part of the trip, Cerkvenik allegedly hosted parties in Mexico at which it furnished alcoholic beverages to trip participants, including Timothy. The legal drinking age in Mexico is eighteen. Cerkvenik did not have a liquor license from Arizona.

On June 9, 1988, Timothy allegedly jumped or fell to his death from the balcony of his hotel room after having abused alcohol provided by Cerkvenik for three days. Thereafter, Knoells filed this wrongful death action against Cerkvenik, amending their complaint to allege the following theories of liability: Count I (misrepresentation), Count II (dram shop), Count III (negligence), and Count IV (outrage).

Cerkvenik filed a motion to dismiss the amended complaint pursuant to Rule 12(b)(6), Arizona Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. Cerkvenik argued that all four counts were based on the claim that it supplied or caused to be supplied alcohol to Timothy and that Timothy's death was the proximate result of his consumption of this alcohol. Accordingly, Cerkvenik contended that the four claims were barred by Arizona Revised Statutes Annotated ("A.R.S.") sections 4-301 and 4-312, which foreclose liability for anyone other than a liquor licensee for injuries resulting from the serving or furnishing of alcohol. Cerkvenik also argued that no cause of action for "outrage" exists in Arizona.

In response, Knoells contended that Cerkvenik should be held accountable under Arizona's dram shop laws as a de facto licensee. See A.R.S. §§ 4-301 and 4-312 (Supp.1993). They also claimed that the legal drinking age of Arizona (twenty-one), not the legal drinking age of Mexico (eighteen), applies here. Therefore, they argued, even if Cerkvenik was a non-licensee, it was still liable under A.R.S. section 4-301 because it served liquor to an underage person--Timothy.

Knoells maintained that their claim for "outrage" stated a valid cause of action. They argued that the "tort of outrage" was set forth in the Restatement (Second) of Torts and should be recognized in Arizona. Alternatively, they argued that their claim of "outrage" states a claim for intentional infliction of emotional distress.

The trial court granted Cerkvenik's motion to dismiss, holding that the misrepresentation, dram shop, and negligence counts fail to state claims upon which relief can be granted because "[a]ll three Counts allege and flow from [Timothy's] consumption of alcohol, allegedly provided by, or encouraged by defendants." Thus, the court held that A.R.S. sections 4-301 and 4-312 foreclosed any liability. The court also dismissed the outrage claim of the amended complaint because it failed "to state a cause of action in the State of Arizona" because "[t]he tort of 'outrage' has never been recognized in [this state]." Knoells timely filed this appeal.

The following issues are presented for review:

ISSUES

1. Are the claims contained in Knoells' amended complaint barred by A.R.S. sections 4-301 or 4-312(B)?

2. If any count is not barred by A.R.S. sections 4-301 or 4-312(B), does that count state a valid claim against Cerkvenik?

DISCUSSION

I. Standard of Review

On review of a motion to dismiss for failure to state a claim, the material allegations of the complaint are taken to be true. Sierra Madre Dev., Inc. v. Via Entrada Townhouses Ass'n, 20 Ariz.App. 550, 552, 514 P.2d 503, 505 (1973). In our review, this court will affirm the trial court's grant of the motion to dismiss for failure to state a claim only if Knoells could not be entitled to relief "under any facts susceptible of proof under the claims stated." Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 186, 677 P.2d 1292, 1294 (1984). This court may affirm for reasons other than those relied upon by the trial court. Earthworks Contracting, Ltd. v. Mendel-Allison Constr. of Cal., Inc., 167 Ariz. 102, 109, 804 P.2d 831, 838 (App.1990).

II. Dram Shop Liability

Knoells allege that Cerkvenik violated Arizona's dram shop laws by supplying Timothy with alcohol; therefore it is liable for the damages resulting from his death. In response, Cerkvenik notes that it does not have an Arizona liquor license, and it contends that dram shop liability is foreclosed against non-licensees for injuries resulting from the serving or furnishing of alcohol.

A. Legislative Background

"[T]he rule of nonliability for tavern owners [was] the common law in Arizona." Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983); see, e.g. Lewis v. Wolf, 122 Ariz. 567, 568, 596 P.2d 705, 706 (App.1979). However, in 1983, the Arizona Supreme Court held that a licensed tavern owner could be liable to a third person for injuries caused by the intoxicated patron. Ontiveros, 136 Ariz. 500, 667 P.2d 200; Brannigan v. Raybuck, 136 Ariz. 513, 516, 667 P.2d 213, 216 (1983) (extending licensee's duty of care to a minor who was furnished alcohol and, as a result, injured himself).

In response to these cases, in April 1985, the Arizona Legislature enacted A.R.S. section 4-301 to exempt from liability non-licensees who furnish alcohol to persons of legal drinking age. Estate of Hernandez v. Arizona Bd. of Regents, 177 Ariz. 244, 866 P.2d 1330 (1994). This statute was adopted as an emergency measure which became effective immediately. Id. at 248, 866 P.2d at 1334. It provides:

Liability limitation; social host

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 reason of the furnishing or serving of spirituous liquor to a person of the legal drinking age.

A.R.S. § 4-301 (1985) (emphasis added).

One week after this statute became effective, the court held that a social host was not liable to a third person injured by an intoxicated guest who was furnished alcohol by the social host. Keckonen v. Robles, 146 Ariz. 268, 272, 705 P.2d 945, 949 (App.1985). This statute was further applied to employer liability in Bruce v. Chas Roberts Air Conditioning, Incorporated, 166 Ariz. 221, 224, 801 P.2d 456, 459 (App.1990). By adopting A.R.S. section 4-301, the legislature "foreclosed liability for anyone, other than a licensee and his or her employees, for injuries resulting from the serving or furnishing of alcohol." Id. In 1986, the legislature passed A.R.S. sections 4-311 ¹ and 4-312. A.R.S. section 4-312 provides in pertinent part:

Liability limitation

A. A licensee is not liable in damages to any consumer or purchaser of spirituous liquor over the legal drinking age who is injured or whose property is damaged, or to survivors of such a person, if the injury or damage is alleged to have been caused in whole or in part by reason of the sale, furnishing or serving of spirituous liquor to that person.... ²

B. Subject to the provisions of subsection A of this section and except as provided in § 4-311, a person, firm, corporation or licensee 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 reason of the sale, furnishing or serving of spirituous liquor.

A.R.S. § 4-312 (1986) (emphasis added).

B. Cerkvenik is a Non-Licensee

Cerkvenik does not hold an Arizona liquor license; therefore, Cerkvenik cannot be held liable under those sections of Arizona's dram shop laws that impose liability on licensees.

1. Cerkvenik is not Liable Under Arizona's Dram Shop Laws as a De Facto Licensee

Knoells argue that even though Cerkvenik is not a licensee it should be held liable under the dram shop laws as a de facto licensee because its failure to become licensed was unlawful. Specifically, Knoells argue that Cerkvenik was required to obtain an Arizona liquor license because it was dispensing liquor in the course of its commercial business. Accordingly, they contend that Cerkvenik should be treated as a licensee subject to the liabilities set forth in the dram shop laws. They maintain that a contrary result would contravene public policy regarding the regulation of liquor in Arizona and would encourage other Arizona businesses to forgo licensing in an effort to avoid dram shop liability.

Nothing in the Arizona statutes regulating the sale or consumption of alcohol supports Knoells' argument. The regulatory provisions of the Arizona liquor license statutes clearly limit their scope to Arizona. For instance, the licensing provision states: "It is unlawful [f]or a person to buy for resale, sell or deal in spirituous liquors in this state without first having procured a license duly issued by the board." A.R.S. § 4-244(1) (Supp.1993) (emphasis added)....