Verduzco v. Am. Valet

• Decision Date: 21 June 2016
• Docket Number: No. 1 CA–CV 15–0138,1 CA–CV 15–0138
• Citation: 377 P.3d 1016,240 Ariz. 221
• Parties: Maria Theresa Verduzco and Gustavo Mendoza, individually and as guardians ad litem on behalf of their injured children Edwin Mendoza, Gustavo Mendoza, Jr., Gissell Mendoza; Javier Velasquez and Dora Verduzco, as successors in interest to their deceased son, Edgar Velasquez, Plaintiffs/Appellants, v. American Valet, an Arizona business entity; Daniel Casey, an individual as an employee of American Valet; 7277 Scottsdale Hotel, LLC, an Arizona limited liability company, Defendants/Appellees.
• Court: Arizona Court of Appeals

240 Ariz. 221

377 P.3d 1016

Maria Theresa Verduzco and Gustavo Mendoza, individually and as guardians ad litem on behalf of their injured children Edwin Mendoza, Gustavo Mendoza, Jr., Gissell Mendoza; Javier Velasquez and Dora Verduzco, as successors in interest to their deceased son, Edgar Velasquez, Plaintiffs/Appellants

v.American Valet, an Arizona business entity; Daniel Casey, an individual as an employee of American Valet; 7277 Scottsdale Hotel, LLC, an Arizona limited liability company, Defendants/Appellees.

No. 1 CA–CV 15–0138

Court of Appeals of Arizona, Division 1.

FILED June 21, 2016

Knapp & Roberts, P.C., Scottsdale, By David L. Abney, Co–Counsel for Plaintiffs/Appellants.

Law Offices of Larry H. Parker PC, Phoenix, By Kathleen McCaffrey, Co–Counsel for Plaintiffs/Appellants.

Robinson Calcagnie Robinson Shapiro Davis Inc., Newport Beach, CA, By Scot D. Wilson, Co–Counsel for Plaintiffs/Appellants.

Jones, Skelton & Hochuli, P.L.C., Phoenix, By Michael A. Ludwig, Jennifer B. Anderson, Brandi C. Blair, Lori L. Voepel, Counsel for Defendants/Appellees.

Arent Fox LLP, Washington, DC, By Michael L. Stevens, Melissa A. Meister, Counsel for Amicus Curiae National Parking Association.

Burke Panzarella Rich, Phoenix, By Elizabeth L. Fleming, Counsel for Amicus Curiae Arizona Association of Defense Counsel.

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge Maurice Portley and Judge John C. Gemmill joined.

OPINION

THUMMA, Judge:

¶ 1 The narrow dispositive issue in this appeal is whether, as a pleading matter, plaintiffs properly alleged Arizona common law negligent entrustment and negligence claims against defendants. Plaintiffs claim that defendants, while in possession of a sports car as a bailee for its owner, gave the car to an individual who was not the owner and did not have permission to take the car, and who defendants should have known was impaired by drugs and alcohol and incompetent to drive. That same individual then crashed the car into plaintiffs' vehicle, killing one occupant and seriously injuring the others. For the reasons that follow, the dismissal of the negligent entrustment claim is reversed and remanded for further proceedings. The dismissal of plaintiffs' negligence claim, however, is affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2 As alleged in the complaint, one day in November 2012, the owner of a racing edition Porsche Carrera parked the car with appellee American Valet while visiting a resort in Scottsdale. In return, an American Valet employee gave the owner a claim ticket for the Porsche.

¶ 3 Later that day, John Morken approached American Valet employee Daniel Casey. Morken had not parked the Porsche with American Valet, did not have a claim ticket for the car, did not know the owner of the car and did not have permission to take the car. Morken, however, told Casey “Give me the Porsche, man!” Casey responded, “What's your name?” Morken replied, “Give me the Porsche man, let's go!” Although Morken did not provide Casey a claim ticket, identification, or his name, and “was high on drugs and behaving erratically,” Casey gave him the keys to the Porsche. Morken then sped away in the Porsche.

¶ 4 Still later that day, while driving the Porsche at a high rate of speed on Interstate 10, Morken crashed into a Chevrolet Suburban driven by Maria Verduzco. The Suburban had five passengers: Maria's husband Gustavo Mendoza and family members Edwin Mendoza, Gustavo Mendoza Jr., Gissell Mendoza and Edgar Velasquez. Edgar was killed in the crash; Gissell suffered catastrophic brain injuries and the other occupants were seriously injured. As a result, Morken pled guilty to second degree murder and other offenses and is now serving a 16–year prison term.

¶ 5 Maria and Gustavo Mendoza, individually and as guardians ad litem on behalf of their children Edwin, Gustavo Jr. and Gissell, and Javier Velasquez and Dora Verduzco, as successors in interest to their deceased son Edgar (collectively Appellants) sued American Valet, 7277 Scottsdale Hotel, LLC, and Daniel Casey (collectively Appellees)¹ alleging, as relevant here, Arizona common law negligent entrustment and general negligence claims, and corresponding wrongful death claims. Appellees moved to dismiss for failure to state a claim upon which relief could be granted, arguing Appellants failed to properly plead a claim for negligent entrustment and that the general negligence claim failed on duty grounds.² After briefing and oral argument, the superior court granted the motion to dismiss. On the negligent entrustment claim, the court held Appellants failed to plead that Appellees knew or should have known that Morken was under the influence of drugs or alcohol. For the general negligence claim, the court held Appellees owed Appellants no duty. The court also dismissed the wrongful death claim, which was based on these negligent entrustment and general negligence claims.

¶ 6 After entry of a final judgment, Appellants filed this timely appeal. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes sections 12–2101(A)(1) and –120.21(A)(1) (2016).³

DISCUSSION

I. Standard Of Review.

¶ 7 In reviewing the grant of a motion to dismiss for failure to state a claim, this court assumes the truth of all well-pled facts alleged in the complaint, Fidelity Sec. Life Ins. Co. v. State , 191 Ariz. 222, 224 ¶ 4, 954 P.2d 580, 582 (1998), and will “indulge all reasonable inferences therefrom,” Cullen v. Auto–Owners Ins. Co. , 218 Ariz. 417, 420 ¶ 7, 189 P.3d 344, 347 (2008). To prevail on a motion to dismiss for failure to state a claim, the moving party must establish that the claimant would not be entitled to relief under any set of facts susceptible of proof. Fidelity Sec. Life Ins. Co. , 191 Ariz. at 224 ¶ 4, 954 P.2d at 582. This court reviews an order granting such a motion de novo. Coleman v. City of Mesa , 230 Ariz. 352, 355 ¶ 7, 284 P.3d 863, 866 (2012).

II. Appellants Adequately Pled Negligent Entrustment.

¶ 8 Arizona recognizes a cause of action for negligent entrustment as set forth in Restatement (Second) of Torts (Restatement Second) § 390 (1965), which provides:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

See also Tissicino v. Peterson , 211 Ariz. 416, 419 ¶ 7, 121 P.3d 1286, 1289 (App. 2005) ; Brannigan v. Raybuck , 136 Ariz. 513, 516, 667 P.2d 213, 216 (1983). As applicable here, the elements of an Arizona common law negligent entrustment claim are:

(1) “that Defendant owned or controlled a vehicle”; (2) “Defendant gave the driver permission to operate a vehicle”; (3) “the driver, by virtue of his physical or mental condition, was incompetent to drive safely”; (4) “the Defendant knew or should have known that the driver, by virtue of his physical or mental condition, was incompetent to drive safely”; (5) “causation”; and (6) “damages.”

Acuna v. Kroack , 212 Ariz. 104, 110 ¶ 22, 128 P.3d 221, 227 (App. 2006) (citing Powell v. Langford , 58 Ariz. 281, 285, 119 P.2d 230, 234 (1941) ). Appellees argue Appellants failed to adequately allege that they knew or should have known Morken was incompetent to drive safely. Appellees also argue Appellants' complaint failed to state a claim because, as a matter of public policy, Arizona should exempt valet parking services from claims of negligent entrustment.⁴

A. Appellants Adequately Pled Facts That Appellees Knew Or Should Have Known Morken Was Incompetent To Drive.

¶ 9 To satisfy the “incompetent to drive” element of a negligent entrustment claim, Appellants were required to adequately plead facts that Appellees “knew or should have known that the driver, by virtue of his physical or mental condition, was incompetent to drive safely.”

Acuna , 212 Ariz. at 109 ¶ 17, 128 P.3d at 226 (citing Powell , 58 Ariz. at 285, 119 P.2d at 234). Under Arizona's notice pleading rules, “it is not necessary to allege the evidentiary details of plaintiff's claim for relief.” Daniel J. McAuliffe & Shirley J. McAuliffe, Arizona Civil Rules Handbook at 21 (2015 ed.). Instead, “[a] short and plain statement of the claim showing that the pleader is entitled to relief” suffices. Ariz. R. Civ. P. 8(a)(2). In addition, “knowledge, and other condition of mind of a person may be averred generally.” Ariz. R. Civ. P. 9(b). “The test is whether enough is stated to entitle the pleader to relief on some theory of law susceptible of proof under the allegations made.” McAuliffe & McAuliffe, supra , at 144.

¶ 10 Appellants' 20–page complaint alleges “Morken was under the influence of drugs and extremely intoxicated and impaired” and “by virtue of his physical or mental condition (e.g., intoxication and drug use) was incompetent to drive safely.” The complaint elsewhere alleges that “[a]t the time of the incident, Morken was high on drugs and behaving erratically.” The complaint also alleges that, “under the circumstances, [Appellees] knew or should have known [Morken] had no right to drive off with the vehicle and [Morken] posed a significant threat to the safety of others because of his being under the influence of drugs.” The complaint further alleges Appellees “should have known that ... Morken, by virtue of his physical or mental condition, was incompetent to drive safely” and “should have known of ... Morken's incompetence to drive when [they] permitted him to do so.” Notwithstanding these allegations, Appellees argue the complaint alleged no facts supporting the assertion that Appellees knew or should have known Morken was intoxicated and high on drugs and therefore incompetent to drive safely.

¶ 11...