Ontiveros v. Borak

Decision Date05 July 1983
Docket NumberNo. 16486,16486
Citation136 Ariz. 500,667 P.2d 200
PartiesJuan ONTIVEROS and Rosario Ontiveros, husband and wife, Plaintiffs-Appellants, v. Peter S. BORAK, Sr. d/b/a Max's Terminal Buffet, and John Does I through X, inclusive, Defendants-Appellees.
CourtArizona Supreme Court
Charles M. Brewer, Ltd. by Stuart J. Reilly, Phoenix, for plaintiffs-appellants

Fennemore, Craig, von Ammon, Udall & Powers by William L. Thorpe, Phoenix, for defendants-appellees.

FELDMAN, Justice.

Plaintiff brought this tort action for damages against the defendant, Peter Borak, Sr., d/b/a Max's Terminal Buffet (Borak), and others. The action against Borak, the owner of a tavern, was based on the claim that Borak's negligence in serving liquor to an intoxicated patron, Reuben Flores, had been a cause of a subsequent motor vehicle accident in which Flores had inflicted serious injuries on plaintiff. Flores was joined as a defendant.

Borak moved for summary judgment on the ground that under Arizona law a tavern owner was not liable for negligence in serving an underaged, incompetent or intoxicated patron who injured a third party in a subsequent automobile accident. The trial court agreed and granted the motion; it also found no just reason for delay and entered judgment in favor of Borak and against the plaintiff. See Ariz.R.Civ.P. 54(b), 16 A.R.S. Plaintiff filed notice of appeal to Division I of the Court of Appeals. After the appeal was at issue, the Chief Judge of that division petitioned to transfer the case to this court. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and Ariz.R.Civ.App.P. 19(b), 17A A.R.S.

This case presents the issue of a tavern owner's common law liability for negligence in serving his or her patrons. Believing the question is of considerable importance and that the public interest requires a speedy and final decision, we granted the petition for transfer in order to meet and finally resolve the issue so squarely presented by the facts of this case. While the evidence is conflicting, the case was decided on motion for summary judgment and we are therefore required to review the facts in the light most favorable to the party against whom summary judgment was taken. Gulf Insurance Company v. Grisham, 126 Ariz. 123, 124, 613 P.2d 283, 284 (1980). Acknowledging this principle, defendant properly conceded in oral argument that for the purpose of deciding the question of law presented on this appeal the facts are as follows:

On May 22, 1975, Flores left work and, as was his custom, went to Borak's bar before going home. According to Flores' statement and deposition, he there had "quite a few" beers, which were served by the owner's son, and then went across the street to another bar for a short time. He returned to Borak's bar and remained there until closing time was announced at approximately 8:00 p.m. During the afternoon and early evening Flores consumed approximately 30 beers. Unfortunately, he was able to leave the bar and get in his car, which was parked in the bar's parking lot, 1 and headed for home. A few blocks from the bar, he hit a fire hydrant, then swerved, saw cars from the other direction, swerved again and then "all of a sudden a man was there and I hit him. I told the police officer there was no need to take a breath test because I was drunk." Nevertheless, the police did administer a breathalyzer test; the result was a reading of .33, more than triple the point at which the law now forbids driving. See A.R.S. § 28-692(B).

Plaintiff survived the accident, but received a fractured skull, subdural hematomas and liver damage. These injuries allegedly resulted in partial paralysis and

mental retardation. Plaintiff has been unable to work since the accident.


Ordinarily, a plaintiff may maintain an action in negligence if he proves:

1. A duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

2. A failure on [defendant's] part to conform to the standard required....

3. A reasonably close causal connection between the conduct and the resulting injury....

4. Actual loss or damage....

W. Prosser, Handbook on the Law of Torts § 30, at 143 (4th ed. 1971); Wisener v. State, 123 Ariz. 148, 149, 598 P.2d 511, 512 (1979).

At common law, however, a tavern owner is not liable for injuries sustained off-premises by third persons as the result of the acts of an intoxicated patron, even though the tavern owner's negligence in serving that patron was a contributing cause of the accident. See Cruse v. Aden, 127 Ill. 231, 234, 20 N.E. 73, 74 (1889); Waller's Adm'r v. Collingsworth, 144 Ky. 3, 6, 137 S.W. 766, 767 (1911); 45 Am.Jur.2d, Intoxicating Liquors § 553 (1969).

The seminal cases in Arizona on tavern owner ("dram shop") liability are Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147, and Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125, decided in 1940 and 1945, respectively. Plaintiff argues correctly that neither case explicitly held that a tavern owner could not be held liable under the common law in a fact situation similar to the one presented by the case at bench. We agree; however, implicit, if not explicit, in both Pratt and Collier is the acceptance of the common law rule. Thus, it was recognized both within and without Arizona that Pratt v. Daly had approved and adopted the common law rule of nonliability. See, for example, the annotation to Pratt v. Daly, entitled Right of Action at Common Law for Damages Sustained by Plaintiff in Consequence of Sale of Intoxicating Liquor or Habit-forming Drugs to Another, 130 A.L.R. 352, 357 (1941). This was well understood by our court of appeals, and the common law rule of nonliability was applied for injuries which occurred both on and off the premises in cases such as Lewis v. Wolf, 122 Ariz. 567, 568, 596 P.2d 705, 706 (App.1979); Profitt v. Canez, 118 Ariz. 235, 236, 575 P.2d 1261, 1262 (App.1978); Thompson v. Bryson, 19 Ariz.App. 134, 138, 505 P.2d 572, 576 (1973); Pierce v. Lopez, 16 Ariz.App. 54, 57, 490 P.2d 1182, 1185 (1971); and Vallentine v. Azar, 8 Ariz.App. 247, 249, 445 P.2d 449, 451 (1968). We conclude, therefore, that the rule of nonliability for tavern owners has been the common law in Arizona.

However, the common law, which is judge-made and judge-applied, can and will be changed when changed conditions and circumstances establish that it is unjust or has become bad public policy. In reevaluating previous decisions in light of present facts and circumstances, we do not depart from the proper role of the judiciary.

Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose. If this were not so, we must succumb to a rule that a judge should let others "long dead and unaware of the problems of the age in which he lives, do his thinking for him."

Lewis v. Wolf, 122 Ariz. at 568, 596 P.2d at 706 (quoting Mr. Justice Douglas, Stare Decisis, 49 Colum.L.Rev. 735, 736 (1949)). This court has adhered to that concept in the past. Ryan v. State of Arizona, 134 Ariz. 308, 310, 656 P.2d 597, 599 (1982); Fernandez v. Romo, 132 Ariz. 447, 449, 646 P.2d 878, 880 (1982); Harris v. Buckeye Irrigation Co., 118 Ariz. 498, 502, 578 P.2d 177, 181 (1978); Stone v. Arizona Highway Commission, 93 Ariz. 384, 387, 381 P.2d 107, 109 (1963). We take judicial notice of the terrible toll taken, both in personal injuries and property damage, by drivers who mix alcohol and gasoline ....

We turn, therefore, to reexamine the present common law rule, its basis and its applicability under the present conditions. In doing so, we are mindful of our words in Noland v. Wootan, 102 Ariz. 192, 193, 427 P.2d 143, 144 (1967):


All counsel agreed at oral argument that the common law rule was not a rule of immunity. Indeed, it is impossible to imagine why, of all occupations, those who furnish liquor should be singled out for a judicially conferred blessing of immunity to respond in damages for their wrongful acts. The common law rule was one of nonliability, founded, as indicated in both Pratt and Collier, upon concepts of causation. In Pratt, this court indicated that the drinking of the liquor, and not the selling of it, is the act which causes the injury. We again acknowledge the obvious fact, mentioned in Pratt, that one cannot become intoxicated if one does not drink. However, the obverse is equally true: one cannot become intoxicated by drinking liquor unless someone furnishes it. Our common sense tells us that both the furnishing and the drinking are part of the chain of cause and effect that produces accidents such as the one in this case.

Arizona law holds that cause-in-fact exists if the defendant's act helped cause the final result and if that result would not have happened without the defendant's act. McDowell v. Davis, 104 Ariz. 69, 72, 448 P.2d 869, 872 (1968). Defendant's act need not have been a "large" or "abundant" cause of the final result; there is liability if the result would not have occurred but for defendant's conduct, even if that conduct contributed "only a little" to plaintiff's injuries. Markiewicz v. Salt River Valley Water Users' Association, 118 Ariz. 329, 338 n. 6, 576 P.2d 517, 526 n. 6 (App.1978) (citing McDowell v. Davis, supra ). Arizona also recognizes that more than one person may be liable for causing an injury and that a particular defendant may not avoid liability for his causative act by claiming that the conduct of some other person was also a contributing cause. McDowell v. Davis, supra; see also Recommended Arizona Jury Instructions, Negligence 4, Multiple Causation.

Therefore, as far as...

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