Riddle v. Arizona Oncology Services, Inc.

• Decision Date: 07 March 1996
• Docket Number: No. 2,CA-CV,2
• Citation: 924 P.2d 468,186 Ariz. 464
• Parties: Steven B. RIDDLE, Plaintiff/Appellant, v. ARIZONA ONCOLOGY SERVICES, INC., an Arizona corporation, Defendant/Appellee. 95-0314.
• Court: Arizona Court of Appeals

Page 468

924 P.2d 468

186 Ariz. 464

Steven B. RIDDLE, Plaintiff/Appellant, v. ARIZONA ONCOLOGY SERVICES, INC., an Arizona corporation, Defendant/Appellee.

No. 2 CA-CV 95-0314.

Court of Appeals of Arizona,

Division 2, Department A.

March 7, 1996.

As Corrected March 8, 1996.

Review Denied Sept. 24, 1996.

[186 Ariz. 465] Roush, McCracken & Guerrero by Charles D. Roush and Bryn R. Johnson, Phoenix, and Philip G. May, P.C. by Philip G. May, Phoenix, for Plaintiff/Appellant.

Teilborg, Sanders & Parks, P.C. by Robert J. Bruno and Melinda K. Cekander, Phoenix, for Defendant/Appellee.

OPINION

PELANDER, Judge.

In this personal injury action, plaintiff/appellant Steven Riddle appeals from the trial court's judgment dismissing his complaint under Ariz.R.Civ.P. 12(b)(6), 16 A.R.S., based on the court's legal conclusion that defendant/appellee Arizona Oncology Services, Inc. (AOS) owed no duty to plaintiff. We affirm.

"Because the trial court granted a motion to dismiss the complaint for failure to state a claim, we must take the alleged facts as true." Petolicchio v. Santa Cruz County Fair and Rodeo Ass'n, Inc., 177 Ariz. 256, 258, 866 P.2d 1342, 1344 (1994). The dismissal "can be upheld only if plaintiff would not be entitled to relief under any facts susceptible of proof under the claim stated." Mattison v. Johnston, 152 Ariz. 109, 114, 730 P.2d 286, 291 (App.1986).

The material allegations of plaintiff's complaint are as follows. In September 1992, Kelly Sutton was employed by AOS as a radiology technician. She had a history of drug abuse which was known to AOS. On the morning of September 21, 1992, Sutton came to work at AOS high on cocaine and consumed additional cocaine while at work. She was conspicuously intoxicated and incapable of performing her work duties. Recognizing Sutton's condition and severely impaired motor function, her supervisor, in furtherance of AOS's business interests, ordered Sutton to leave AOS's premises before the end of her work shift. AOS, through its employees, knew or should have known that Sutton could not safely operate a vehicle in her intoxicated condition.

In compliance with her employer's order, Sutton left work. Shortly after leaving AOS's premises, Sutton drove her vehicle across the centerline, colliding head-on with plaintiff's vehicle and seriously injuring him. The accident occurred at approximately 3:30 p.m., during Sutton's normal work shift.

Plaintiff's complaint further alleged that "[h]aving exercised its authority and control over Sutton by the affirmative act of ordering her from the premises under the circumstances described herein, [AOS] had a duty to act reasonably to protect third parties such as the Plaintiff from the foreseeable risk of harm." ¹ Relying on Bruce v. Chas Roberts Air Conditioning, Inc., 166 Ariz. 221, 801 P.2d 456 (App.1990), and Keckonen v. Robles, 146 Ariz. 268, 705 P.2d 945 (App.1985), AOS moved for dismissal, contending that an employer does not have a duty to protect a third party from injury allegedly caused by an off-duty employee away from the employer's premises. The trial court agreed, granted the motion, and this appeal followed.

The only issue addressed in the trial court and requiring our decision now is whether, assuming the truth of all of plaintiff's factual allegations, AOS owed a duty to third party motorists such as plaintiff. Relying primarily on Petolicchio v. Santa Cruz County Fair and Rodeo Ass'n, Inc., 177 Ariz. 256, 866 P.2d 1342 (1994) ², and Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex.1983), plaintiff contends that AOS "owed a duty to the motoring public to use reasonable care (in dealing with Sutton) to 'guard against' the dangers of driving while under the influence of drugs." That duty, according to plaintiff, arose from AOS's "employment relationship which gave [AOS] the ability to control the dangerous conduct of Sutton."

As our supreme court has stated:

1. The question of duty is decided by the court. The question is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff. If the answer is no, the defendant is not liable even though he may have acted negligently in light of the foreseeable risks....

2. If there is a duty, then the law requires that the defendant conform to a standard of care. In negligence cases that is usually "reasonable care under the circumstances," though it may differ, depending on the relationship.... All of these standards carry with them an implicit requirement that defendant act reasonably in light of the known and forseeable [sic ] risks. It is here, in determining whether the defendant acted reasonably or negligently, that the law concerns itself with specifics of defendant's conduct.

Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 356-57, 706 P.2d 364, 368-69 (1985).

Contrary to plaintiff's contention, the legal determination of duty does not totally hinge on foreseeability of risk or injury. As plaintiff correctly notes, foreseeability of harm appears to be an element of duty under Arizona case law. See, e.g., Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 42, 796 P.2d 470, 474 (1990) (school district owed duty to foreseeable user of marked crosswalk); Fedie v. Travelodge Int'l, Inc., 162 Ariz. 263, 266, 782 P.2d 739, 742 (App.1989) ("One element of duty is foreseeability."). ³ Foreseeability alone, however, does not create a duty. D'Amico v. Christie, 71 N.Y.2d 76, 87, 524 N.Y.S.2d 1, 6, 518 N.E.2d 896, 901 (1987) ("Foreseeability of harm is alone not enough."). Thus, that an impaired driver under the influence of alcohol or drugs may foreseeably cause an accident is not determinative of the duty issue here.

"In the absence of precedent, unraveling the legal doctrines pertaining to duty and applying them to a particular situation is often a difficult task." Davis v. Cessna Aircraft Corp., 182 Ariz. 26, 31, 893 P.2d 26, 31 (App.1994). Here, however, we do have some helpful precedent. In Keckonen, supervisory personnel of the defendant/employer participated with other employees in a paycheck pool. Money from the pool was then used to buy beer consumed at a social gathering on the employer's premises after work hours. The gathering lasted over three hours, during which time an employee consumed three or four beers on the employer's premises. The employee, accompanied by a supervisor, then went to a bar where the employee spent approximately one and one-half hours and drank three more beers. It was assumed that the employee was intoxicated when he left the employer's premises to go to the bar. After leaving the bar, the employee crossed the centerline and caused a serious accident.

In affirming a summary judgment for the defendant/employer, this court declined to find "any duty on the part of the social host ... not to furnish intoxicating beverages to an intoxicated guest in order to protect a person who might be injured by the guest's drunk driving after leaving the premises." Keckonen, 146 Ariz. at 271, 705 P.2d at 948. In essence, this court held that "an employer is not liable for the negligent acts of an employee occurring off the employer's property even though the employee became intoxicated on the employer's property and the employer knew the employee was intoxicated when he left his property." Bruce, 166 Ariz. at 227, 801 P.2d at 462. ⁴

In Bruce, an employee became intoxicated while attending an impromptu social gathering with co-employees after work on the employer's premises. The employer's supervisors knew about the workers' beer drinking at and around the work yard and did not object or prohibit it. The employee spent about three hours socializing and drinking beer in or near the work yard. His blood alcohol content would have been between .27% and .29%, and he would have been visibly intoxicated to an unimpaired person, when he left the employer's premises. Approximately three hours later, while driving home, the employee collided head-on with plaintiff's vehicle.

The court in Bruce rejected plaintiff's contention that the employer "had a duty to exercise reasonable care to prevent [the employee] from leaving his premises while intoxicated and that for breach of that duty, [the employer] may be held independently liable for the resulting injuries." Bruce, 166 Ariz. at 227, 801 P.2d at 462. Therefore, the court affirmed summary judgment for the defendant/employer, holding that the employer "owed no duty to [plaintiff] on which liability could be founded." Id. at 223, 801 P.2d at 458.

Plaintiff attempts to distinguish Keckonen and Bruce on several grounds, none of which we find persuasive. He first contends that there "was no evidence that the employer [in Bruce ] knew the employee was intoxicated nor appreciated that the employee could not safely operate a vehicle." However, the employer's supervisors "knew about the workers' occasional beer drinking at and around the yard," 166 Ariz. at 222, 801 P.2d at 457, and two supervisors were present when the employee drank and socialized before the accident. In addition, the employee "would have been visibly intoxicated" to an unimpaired person when he left the yard. Id. at 223, 801 P.2d at 458. Similarly, in Keckonen it was assumed that the employee "was intoxicated when he left his employer's premises," and he went with a supervisor from there to a bar, where they drank more beer. Keckonen, 146 Ariz. at 272 n. 3, 705 P.2d at 949 n. 3. Thus, just as plaintiff alleged in this case, the employers in Keckonen and Bruce knew or should have known that the employee could not safely operate a motor vehicle when he left the employer's premises because of his intoxicated, impaired condition.

Plaintiff also contends that, unlike AOS, the employers in Keckonen and Bruce did not affirmatively order their employees to leave the workplace or cause them to drive from the employer's premises in an...