Patterson v. Thunder Pass, Inc.

• Decision Date: 08 March 2007
• Docket Number: No. 1 CA-CV 06-0421.,1 CA-CV 06-0421.
• Citation: 153 P.3d 1064,214 Ariz. 435
• Parties: Peter R. PATTERSON, a single man, Plaintiff/Appellant, v. THUNDER PASS, INC., an Arizona corporation, Defendant/Appellee.
• Court: Arizona Court of Appeals

153 P.3d 1064

214 Ariz. 435

Peter R. PATTERSON, a single man, Plaintiff/Appellant, v. THUNDER PASS, INC., an Arizona corporation, Defendant/Appellee.

No. 1 CA-CV 06-0421.

Court of Appeals of Arizona, Division 1, Department D.

March 8, 2007.

Franklin & Associates, By Charles P. Franklin, Colby R. Kanouse, Scottsdale, Attorneys for Plaintiff/Appellant.

Jones, Skelton & Hochuli, P.L.C., By Donald L. Myles, Jr., Jefferson T. Collins, Phoenix, Attorneys for Defendant/Appellee.

OPINION

WINTHROP, Presiding Judge.

¶ 1 Peter Patterson appeals the trial court's summary judgment in favor of Thunder Pass, Inc. ("Thunder Pass"), and dismissal with prejudice of his complaint alleging dram shop liability. The issues are whether a tavern fulfilled its duty of reasonable care by driving an intoxicated patron home and whether the patron's return to the tavern constituted a superseding, intervening event that broke the chain of proximate causation, thereby relieving the tavern of subsequent liability. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2 Because we are reviewing a decision granting summary judgment in favor of Thunder Pass, we construe the facts and reasonable inferences in the light most favorable to Patterson, the non-moving party. Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13, 38 P.3d 12, 20 (2002); Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430, 433, ¶ 10, 36 P.3d 1200, 1203 (App.2001).

¶ 3 Thunder Pass operates a tavern known as Spirits Bar and Grill ("the tavern") in Mesa. On the evening of February 8, 2005, Dawn Roque went to the tavern, where she drank liquor and was observed to be intoxicated. When Roque tried to leave the premises, she backed her vehicle into a parked Jeep and then drove forward over a parking block. A tavern employee confiscated her keys and called a taxicab to transport her home, but the taxicab never arrived. Another tavern employee eventually drove Roque home and then returned her keys. However, within an hour, and unbeknownst to the tavern employees, Roque returned to the parking lot behind the tavern to get her vehicle. She exited the parking lot and began traveling westbound in the eastbound lane of Apache Trail at a high rate of speed. Roque's vehicle collided head-on with a vehicle driven by Patterson, who was traveling eastbound on Apache Trail. Both drivers were transported to a hospital.

¶ 4 Patterson subsequently filed a complaint against Thunder Pass, alleging that he had sustained damages as a result of the tavern serving intoxicating liquor to Roque, who later caused the motor vehicle accident with him. Patterson sought damages under the theories of negligence, negligence per se pursuant to Arizona Revised Statutes ("A.R.S.") section 4-244 (Supp.2006),¹ and respondeat superior. Thunder Pass filed an answer, denying liability.

¶ 5 Later, Thunder Pass also filed a motion for summary judgment, arguing that it had fulfilled any duty owed because Roque had been safely driven home and that Roque's decision to return that night to retrieve her vehicle was unforeseeable and a superseding, intervening event that negated any alleged negligence on the part of the tavern or its employees. After further briefing and oral argument, the trial court granted the motion in a minute entry dated May 1, 2006:

IT IS ORDERED granting Defendant Thunder Pass, Inc.'s Motion for Summary Judgment.

The Court in granting this Motion finds that for purposes of this Motion, the third party Dawn Roque was "obviously intoxicated" as defined by A.R.S. § 4-311, requiring the Defendant to take reasonable steps to protect the public safety. Once the Defendant's employee[s] recognized that Roque was impaired, they took steps to procure a cab for her, and when those efforts failed, an employee of the Defendant drove Roque home, a distance of more than five miles from the bar.

The Court finds as a matter of law that it was not reasonably foreseeable that Roque would return to the Defendant's bar within 45 minutes after being left at her residence to then operate her motor vehicle while intoxicated. The Defendant had little choice but to give Roque her keys as they had no authority to either take her keys or to impound her vehicle. Additionally, they were under no obligation to seek law enforcement assistance as, until Roque drove her motor vehicle, she was not in violation of the law.

Additionally, even if this Court were to determine that it was reasonably foreseeable that she would return to the bar, her independent action, without aid or assistance of the Defendant, would be a superceding intervening cause, and a recovery would be precluded under [Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983)].

On May 24, 2006, the trial court issued a signed judgment in favor of Thunder Pass.

¶ 6 On June 13, 2006, Patterson filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003) and 12-2101(B) (2003).

ANALYSIS

¶ 7 Patterson argues that the trial court erred in granting Thunder Pass's motion for summary judgment. He contends that summary judgment was inappropriate because the tavern had a duty not to serve alcohol to Roque when she was obviously intoxicated, it violated that duty, it did not extinguish its liability merely by driving Roque home, and Roque's return to retrieve her vehicle was not a superseding, intervening event relieving Thunder Pass from liability. Thunder Pass argues that it fulfilled its common law and statutory duties and Roque's return to the tavern was a superseding, intervening event precluding recovery by Patterson.

¶ 8 We review the trial court's summary judgment de novo. Wells Fargo Bank, 201 Ariz. at 482, ¶ 13, 38 P.3d at 20; Strojnik, 201 Ariz. at 433, ¶ 10, 36 P.3d at 1203. Summary judgment is proper only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990); Ariz. R. Civ. P. 56(c)(1). Accordingly, we will affirm only if the facts produced in support of the claim have so little probative value, given the quantum of evidence required, that no reasonable person could find for its proponent. See Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008.

¶ 9 Generally, a plaintiff may maintain an action in negligence if the plaintiff proves (1) a legal duty or obligation requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks; (2) a failure on the defendant's part to conform to the standard required; (3) a reasonably close causal connection between the conduct and the resulting injury; and (4) actual loss or damage. Ontiveros, 136 Ariz. at 504, 667 P.2d at 204 (citing William L. 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)).

¶ 10 The first element, whether a duty exists, is a question of law for the court to decide. Gipson v. Kasey, 214 Ariz. 141 143, ¶ 9, 150 P.3d 228, 230 (2007) (citing Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985), superseded by statute on other grounds as recognized in Maher v. United States, 56 F.3d 1039, 1042 n. 4 (9th Cir.1995)). The other elements are generally factual issues decided by a jury. Id. (citing Markowitz, 146 Ariz. at 358, 706 P.2d at 370). However, "summary judgment may be appropriate if no reasonable juror could conclude that the standard of care was breached or that the damages were proximately caused by the defendant's conduct." Id. at 143 n. 1, ¶ 9, 150 P.3d at 228, 150 P.3d at 230 n. 1 (citing Markowitz, 146 Ariz. at 357-58, 706 P.2d at 369-70; Coburn v. City of Tucson, 143 Ariz. 50, 53, 691 P.2d 1078, 1081 (1984)); see also Rogers v. Retrum, 170 Ariz. 399, 402-03 n. 4, 825 P.2d 20, 23-24 n. 4 (App.1991) (noting that, "in approaching the question of negligence or unreasonable risk, `the courts set outer limits. A jury will not be permitted to require a party to take a precaution that is clearly unreasonable.'" (quoting 3 F. Harper, F. James, & O. Gray, The Law of Torts § 15.3, at 355-57 (2d ed.1986))).

¶ 11 Before 1983, the common law rule in Arizona was that a tavern owner could not be held liable for injuries sustained off-premises by third persons as the result of the acts of an intoxicated tavern patron, even though the tavern owner's negligence in serving that patron was a contributing cause of the accident. Ontiveros, 136 Ariz. at 504, 667 P.2d at 204 (citing Cruse v. Aden, 127 Ill. 231, 20 N.E. 73, 74 (1889); Waller's Adm'r v. Collinsworth, 144 Ky. 3, 137 S.W. 766, 767 (1911); 45 Am.Jur.2d Intoxicating Liquors § 553 (1969)).

¶ 12 In 1983, however, the Arizona Supreme Court decided Ontiveros v. Borak and a companion case, Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d 213 (1983), in which the court abolished the common law doctrine of tavern owner nonliability in Arizona. See Ontiveros, 136 Ariz. at 513, 667 P.2d at 213. In Ontiveros, the court further concluded that tavern owner liability could be premised on statutory authority, specifically A.R.S. § 4-244(14) (making it unlawful for a licensee to furnish alcohol to an intoxicated person). Id. at 509, 667 P.2d at 209.

¶ 13 The supreme court held that a tavern owner is under a duty, imposed both by common law principles and statute, to exercise affirmative, reasonable care in serving intoxicants to patrons who might later injure themselves or an innocent third party, whether on or off the premises.² Ontiveros, 136 Ariz. at 508-11, 667 P.2d at 208-11; see also Brannigan, 136 Ariz. at 515-17, 667 P.2d at 215-17. If a tavern owner breaches that duty of reasonable care, the owner may be held liable for injuries or damages caused by his or her negligence.³ Ontiveros, 136 Ariz. at 513, 667 P.2d at 213; Hebert, 145 Ariz. at 353, 701...