Ocotillo West Joint Venture v. Superior Court In and For County of Maricopa
| Decision Date | 03 November 1992 |
| Docket Number | J,CA-SA,P,I-II,No. 1,1 |
| Citation | 173 Ariz. 486,844 P.2d 653 |
| Parties | OCOTILLO WEST JOINT VENTURE, an Arizona business entity, ABQ Corporation, a New Mexico corporation, ABQ Development Corporation, a New Mexico corporation, ABQ Bank, a New Mexico corporation, Amrock Enterprises, a New Mexico corporation, all doing business as Ocotillo Golf Course and/or Ocotillo Country Club; Black Corporationohn Doesetitioners, v. SUPERIOR COURT of the State of Arizona, IN and FOR the COUNTY OF MARICOPA, the Honorable Jonathan H. Schwartz, a judge thereof, Respondent Judge, Penni ZYLKA, on her own behalf and for and on Behalf of Joseph Henry Zylka, Jr. and Bonnie Rebekah Zylka, Joseph Zylka's surviving children and for and on Behalf of Joseph John Zylka and Joye Frances Zylka, Joseph Zylka's surviving parents, Real Parties in Interest. 92-0170. |
| Court | Arizona Court of Appeals |
In this special action, the petitioners seek review of the trial court's order striking their notice of nonparty at fault. We previously entered an order accepting jurisdiction and granting relief with an opinion to follow. This is that opinion.
We interpret the facts and all reasonable inferences to the benefit of petitioners, the parties aggrieved by the trial court's summary disposition. Cf. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142, 639 P.2d 330, 332 (1982). In 1989 Joseph Zylka and William Easley played golf and consumed alcoholic beverages at the Ocotillo Golf Course ("Ocotillo") which is operated by the petitioners. Because Zylka appeared intoxicated, two Ocotillo employees took possession of Zylka's car keys. At that time, Easley stepped forward and offered to drive Zylka home. With that assurance, and observing Easley's apparent lack of impairment, the two employees gave Zylka's keys to Easley. Once in the parking lot, Easley returned the keys to Zylka. Zylka left the golf course in his own automobile and was involved in a one car accident. He subsequently died from his injuries.
The respondents brought a wrongful death action against the golf course alleging that Ocotillo's sale of alcohol to Zylka was the cause of the accident. The petitioners filed a notice of nonparty at fault, pursuant to Rule 26(b)(5), Arizona Rules of Civil Procedure, alleging that Easley was at least partially at fault because he volunteered to drive Zylka home and then gave the car keys back to Zylka. The respondents filed a motion for summary judgment asking the court to dismiss the petitioners' allegation of a nonparty at fault. The trial judge treated the motion for summary judgment as a motion to strike the notice of nonparty at fault and granted it. The petitioners then brought this special action.
Our decision to grant special action relief is largely discretionary and it is the rare case where we will grant such relief where a later appeal is available. Here, we have that rare case and justice requires that we grant special action relief. The issue presented is solely one of law and we agree with petitioners that there is no justification for the trial court's action. Cravens, Dargan & Co. v. Superior Court, 153 Ariz. 474, 477, 737 P.2d 1373, 1376 (1987).
Rule 26(b)(5), Arizona Rules of Civil Procedure, provides that a defendant can give notice that a person or entity not a party to the action is allegedly wholly or partially at fault so that Ariz.Rev.Stat.Ann. ("A.R.S.") § 12-2506(B) (as amended) comes into play. When assessing the percentage of fault of each defendant, A.R.S. § 12-2506(B) (Supp.1991) provides that the fact finder "shall consider the fault of all persons who contributed to the alleged injury ... regardless of whether the person was, or could have been, named as a party to the suit."
Our supreme court recently interpreted A.R.S. § 12-2506(B) in Dietz v. General Elec. Co., 169 Ariz. 505, 821 P.2d 166 (1991). There the court held that the provisions of A.R.S. § 12-2506(B), requiring the assessment of nonparty fault regardless of whether the nonparty was or could be made a defendant to the action, prevail over the provision in A.R.S. § 12-2501(H) which prohibits such assessment against employers. Id. at 511, 821 P.2d at 172. Essentially, a defendant can name a nonparty at fault even if the plaintiff is prohibited from directly naming or recovering from such a party.
The purpose of A.R.S. § 12-2506(B) articulated by Dietz applies here.
[Petitioners] invoked these statutory provisions, naming [Easley] as a nonparty at fault under § 12-2506. Designating [Easley] as a nonparty at fault would allow [petitioners] to offer trial evidence of [Easley's] negligence and to argue that the jury should attribute all or some percentage of fault to [Easley], thereby reducing [petitioners'] percentage of fault and consequent liability.
The issue, then, is whether Easley's actions "contributed" to Zylka's death, rendering Easley "wholly or partially at fault." To find a person at fault in a negligence action, four elements must be shown: 1) duty, 2) breach of duty, 3) causation, and 4) damages. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983). A duty must be recognized by law and must obligate a defendant "to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm." Markowitz v. Arizona Parks Board, 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Whether a duty exists is usually a question of law for the court to decide. Id.
The petitioners argue that Easley had a duty to Zylka under the good samaritan doctrine. The doctrine has long been recognized in Arizona. Roberson v. U.S., 382 F.2d 714, 718 (9th Cir.1967); Taylor v. Roosevelt Irr. Dist., 72 Ariz. 160, 165, 232 P.2d 107, 110 (1951). It is set forth in two sections of the Restatement (Second) of Torts (1986) (hereinafter "Restatement § .... cmt. ...."). Restatement § 323 provides:
One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.
Restatement § 324 provides:
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or
(b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.
Our courts follow the Restatement of the Law of Torts on matters not covered by statute or an earlier judicial decision....
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