Tellez v. Saban, A-AAA

CourtCourt of Appeals of Arizona
Citation933 P.2d 1233,188 Ariz. 165
Docket NumberA-AAA,CA-CV,No. 1,A-C,1
PartiesJose and Rosario TELLEZ, the Natural Parents and Survivors of Gloria M. Tellez, a single woman, Plaintiffs-Appellants, v. Dennis SABAN and Tracey Saban, husband and wife;ble Ltd., dba Saban's Rent-ar, an Arizona corporation, Defendants-Appellees. CV 94-0430.
Decision Date24 September 1996

Page 1233

933 P.2d 1233
188 Ariz. 165
Jose and Rosario TELLEZ, the Natural Parents and Survivors of Gloria M. Tellez, a single woman, Plaintiffs-Appellants,
Dennis SABAN and Tracey Saban, husband and wife; A-AAAble Ltd., dba Saban's Rent-A-Car, an Arizona corporation, Defendants-Appellees.
No. 1 CA-CV 94-0430.
Court of Appeals of Arizona,
Division 1, Department C.
Sept. 24, 1996.
Reconsideration Denied Oct. 17, 1996.
Review Denied March 25, 1997.

Page 1235

[188 Ariz. 167] Meyer, Hendricks, Victor, Osborn & Maledon by Mark D. Samson, Mark A. Fuller, Phoenix, for Plaintiffs-Appellants.

Cohen & Cotton, P.C. by John H. Cotton, Daniel G. Dowd, John M. O'Neal, Phoenix, for Defendants-Appellees.


TOCI, Judge.

Arizona prohibits a rental car company from knowingly renting a car to an unlicensed driver. Ariz.Rev.Stat.Ann. ("A.R.S.") § 28-477(B) (1989). 1 Dennis Saban and Saban's Rent-A-Car ("Sabans") violated the statute by renting a car to John Pitts, knowing that he was going to entrust the car to Karla Fernandez, an unlicensed driver. While driving the rental car, Fernandez ran a red light and collided with a van driven by Gloria M. Tellez, who died in the accident.

Jose and Rosario Tellez ("Tellez"), Gloria's parents, sued Sabans for her wrongful death. The trial court entered summary judgment for Sabans, ruling as a matter of law that Sabans' violation of a statute was not the proximate cause of the fatal accident. On appeal, we hold that the trial court erred in determining as a matter of law that Sabans' conduct was not the proximate cause of the accident. We reject the rationale of Christy v. Baker, 7 Ariz.App. 354, 439 P.2d 517 (1968), and reverse the judgment for defendants.


We view the facts in the light most favorable to Tellez, the party against whom the court entered summary judgment. Ontiveros v. Borak, 136 Ariz. 500, 503, 667 P.2d 200, 203 (1983). In August 1991, Fernandez was twenty-four years old and had neither a car, credit card, nor valid driver's license. Because she wanted to drive to Tucson, she asked John Pitts to use his credit card to help her rent a car.

Page 1236

[188 Ariz. 168] On August 30, Pitts and Fernandez drove Pitts' truck to Saban's Rent-A-Car and parked in view of Michael Loan and Dennis Saban, the employees on duty. Fernandez selected a car, and Loan consulted her through Pitts concerning the rental terms. Pitts rented the car but informed Loan that Fernandez was going to drive it.

Loan asked whether Fernandez had a driver's license. When Fernandez said that she did not, Loan told her that she could not drive the car off the lot. In Loan's presence, Pitts told Fernandez to drive his truck off the lot. Fernandez responded, "Okay, we'll go around the corner and we'll switch cars." Neither Saban nor Loan did anything to prevent the exchange of vehicles.

Although Pitts and Saban had understood that the rental was for a single day, Fernandez did not return the car after driving to and from Tucson. On September 7, 1991, seven days after taking possession of the car, Fernandez gave a party at which she drank heavily. During the evening, she left the party and drove the car to a bar where she consumed alcoholic beverages over a three-hour period. Upon leaving the bar, she stopped to purchase beer. In driving away from the store, she ran a red light and collided with Gloria Tellez's vehicle.

Tellez brought this action on September 8, 1992, and alleged, among other matters, that Sabans had negligently rented the vehicle and that as a result of Sabans' violation of the statute requiring inspection of Fernandez's driver's license, Fernandez caused the accident that killed Gloria Tellez. The trial court granted summary judgment for defendant Dennis Saban on the claim for negligent entrustment. The court found "[n]o evidence exists that Karla Fernandez's lack of a driver's license played any part in causing the accident." Therefore, as a matter of law, the court concluded that the evidence "failed to show that the Defendants' negligent entrustment of this vehicle to an unlicensed driver was a proximate cause of or contributed to Karla Fernandez negligently running the red light, hitting and killing" Gloria Tellez, citing Christy v. Baker, 7 Ariz.App. at 355-58, 439 P.2d at 518-20. The trial court also granted summary judgment to Saban Rent-A-Car on the same basis and denied Tellez's motion for reconsideration.


Defendants concede that they violated A.R.S. section 28-477(B) by entrusting Fernandez with a rental car knowing that she was an unlicensed driver. They contend, however, that the trial court correctly found no proximate cause linking either their conduct or Fernandez's lack of a license with the fatal accident. They argue that under Christy and Quintero v. Continental Rent-A-Car System, Inc., 105 Ariz. 135, 460 P.2d 189 (1969), they are not liable to Tellez. 2 Tellez, on the other hand, asserts that the court erred in deciding the question of proximate cause as a matter of law and that Christy does not control this case.

One who violates A.R.S. section 28-477(B) is subject to a fine. A.R.S. § 28-491 (1989). The court in Christy, however, assumed without discussion that a violation of this statute by the renter of an automobile constituted negligence per se. 7 Ariz.App. at 355, 439 P.2d at 518. The court's decision on

Page 1237

[188 Ariz. 169] this point implies that the statute establishes a standard of care for the renting of vehicles. This mandated standard of care necessarily preempts the inquiry in a common law negligence case of whether the risk of harm in renting a vehicle to an unlicensed driver is an unreasonable one. Restatement (Second) of Torts ("Restatement") § 286 cmt. d (1965).

We note at the outset, however, that had the legislature intended to establish A.R.S. section 28-477(B) as a standard of conduct in a negligence action, it could have easily done so. Since the legislature did not so provide, the question is whether this court in Christy properly adopted the statute as the standard of conduct for a reasonable person. Restatement § 286 cmt. d. Therefore, we begin with some observations about the relationship between common law negligence and negligence arising from the violation of a statute.

"[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." Id. § 282, at 9. The standard of conduct required of a reasonable person "may be (a) established by a legislative enactment ... which so provides, or (b) adopted by the court from a legislative enactment ... which does not so provide...." Id. § 285, at 20. A court may adopt a statute as the relevant standard of care if it first determines that the statute's purpose is in part to protect a class of persons that includes the plaintiff and the specific interest at issue from the type of harm that occurred and against the particular action that caused the harm. Id. § 286, at 25. Violation of the statute thus stamps the defendant's conduct as negligence per se, id., but will not render the defendant liable to the plaintiff unless the violation is the legal cause of the plaintiff's injury and no other defenses negate liability. Id. § 288B cmt. b, at 38.

Not all statutes establish a standard of conduct applicable in a negligence action. We cannot say that A.R.S. section 28-477 was intended to protect any particular individual or class of persons from harm. Rather, it was intended to further the state's interest in requiring that all persons who operate motor vehicles on public highways are licensed. See Restatement § 288 cmt. b (statutes intended for the protection of public at large rather than an individual or class of persons do not create the standard of conduct required of a reasonable person). Therefore, we find no reason to allow the breach of this statute, which the legislature punishes with a fine, to create a cause of action in tort for Tellez. Sabans' violation of section 28-477(B) is not negligence per se, and their conduct must be measured by the common law standard of conduct of a reasonable and prudent owner of rental vehicles. This conclusion, however, does not dispose of Sabans' potential liability. We will return to that question after a brief summary of Christy v. Baker.

Defendants cite Christy v. Baker as dispositive of their liability to Tellez. In that case, Baker, a passenger in a rented car driven by Walter Walk, was injured in a one-car accident. 7 Ariz.App. at 354, 439 P.2d at 517. She sued Marshall Christy, the owner of a rental car company from whom Walk had rented cars on three prior occasions. On the fourth occasion, when Christy's employee asked to see Walk's driver's license, Walk said that he had one but did not produce it. The employee gave Walk the keys and completed the rental application from company records. Id. at 355, 439 P.2d at 518.

The evidence established that Walk was a competent driver, that his driver's license had been seized because he had inadvertently failed to appear at a hearing on a prior conviction for driving while intoxicated, and that had he appeared, he would have kept his license. Id. at 355, 357, 439 P.2d at 518, 520. This court relied on Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975 (1931), to conclude that lack of a driver's license was not contrary evidence of Walk's incompetence. 7 Ariz.App. at 357, 439 P.2d at 520.

Christy's liability thus hinged solely on a violation of A.R.S. section 28-477(B). Although

Page 1238

[188 Ariz. 170] the jury returned a verdict for the plaintiff, this court reversed. The court assumed that the statute was intended to protect the public safety, and because Christy admitted its violation, that Christy was guilty of negligence per se. Id. at 355, 439 P.2d at 518. Had Christy rented Walk the car knowing that he was incompetent, the court conceded that proximate cause...

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