Del E. Webb Corp. v. Superior Court of Arizona Maricopa County

• Decision Date: 17 September 1986
• Docket Number: No. CV-86-0165-SA,CV-86-0165-SA
• Citation: 726 P.2d 580,151 Ariz. 164
• Parties: , 55 USLW 2185 DEL E. WEBB CORPORATION, Armex Land Corporation, et al., Petitioners, v. The SUPERIOR COURT OF ARIZONA for MARICOPA COUNTY, The Honorable John Foreman, Division 45, Respondent, and Harbans Kaur DOMAN, et al., Respondent Real Parties in Interest.
• Court: Arizona Supreme Court

Page 580

726 P.2d 580

151 Ariz. 164, 55 USLW 2185

DEL E. WEBB CORPORATION, Armex Land Corporation, et al., Petitioners, v. The SUPERIOR COURT OF ARIZONA for MARICOPA COUNTY, The Honorable John Foreman, Division 45, Respondent and Harbans Kaur DOMAN, et al., Respondent Real Parties in Interest.

No. CV-86-0165-SA.

Supreme Court of Arizona, In Banc.

Sept. 17, 1986.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix by Richard J. Woods, Nicholas J. Wallwork, for petitioners.

Langerman, Begam, Lewis and Marks, Phoenix by Richard W. Langerman, Amy G. Langerman, for respondents and real parties in interest.

FELDMAN, Justice.

Petitioner, defendant in the action below, brings this special action ¹ asking us to reverse a superior court ruling that the affirmative defenses of contributory negligence and assumption of the risk are unavailable to defendants in dram shop litigation. Because petitioner has no equally plain, speedy, or adequate remedy by appeal, we granted review. Rule 3, Ariz.R.P.Spec.Act., 17A A.R.S. We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

FACTS

On June 1, 1978 Mr. Gurdial S. Doman (Doman) was found drowned in the swimming pool of defendant's Mountain Shadows Resort. The evening before, Doman purchased six drinks at the resort before dinner, one during dinner, and five more after dinner, before leaving the resort's lounge at 1:00 a.m. closing time. Security guards on their rounds at 2:20 a.m., 4:45 a.m., and 5:00 a.m. did not see Doman at the swimming pool, which was lit both internally and externally; nevertheless, his body was found in the pool at 6:00 a.m. with his trousers rolled up to his calf. His shoes had been placed next to the pool, socks tucked inside.

The autopsy report revealed that Doman had a blood alcohol content of .27 percent at the time of his death. The Medical Examiner found that his body had been in the pool between two and five hours. The parties predictably argue over a number of questions: whether Doman was a chronic alcoholic; whether the bartender should have known that he was intoxicated; the nature of the resort's practice in dealing with intoxicated patrons; whether Doman consumed more alcohol after he left the lounge; and what Doman's blood alcohol level would have been had he not consumed any more alcohol after leaving the lounge. We do not, of course, attempt to resolve these factual issues.

Doman's widow (plaintiff) filed a wrongful death action on behalf of herself and the surviving children on May 30, 1980. Defendant raised the affirmative defenses of contributory negligence and assumption of the risk. ² On October 5, 1982, applying existing law, the trial court granted defendant's motion for summary judgment, holding that the seller of intoxicating liquor was not liable for negligently serving intoxicated customers.

While plaintiff's appeal was pending, this court issued the companion decisions of Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d 213 (1983) and Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983), both of which had retroactive application. We held that sellers of intoxicating liquor could be held liable for negligence. As a result, plaintiffs moved the court of appeals to suspend their appeal and revest jurisdiction in the superior court to reconsider its judgment in light of Brannigan and Ontiveros. After the motion was granted, the trial court, relying on Brannigan, vacated the summary judgment in favor of defendant. It also granted plaintiff's motion for partial summary judgment, holding that the defenses of contributory negligence and assumption of the risk were legally unavailable even if factually supported.

Defendant filed a petition for special action claiming that the trial court had abused its discretion. We accepted review and granted a temporary stay of the trial court proceedings to determine whether the defenses of contributory negligence and assumption of the risk are legally available in so-called dram shop cases. Rule 3, Ariz.R.P.Spec.Act., 17A A.R.S.

COMMON LAW OR STATUTORY DUTIES OF CARE AND

COMMON LAW AFFIRMATIVE DEFENSES

A. Background

Traditionally, a plaintiff's recovery for injuries caused by a defendant's breach of a duty of care has depended on the plaintiff's total lack of contributory fault. W. PROSSER & W. KEETON, HANDBOOK ON THE LAW OF TORTS § 65, at 461 (5th ed. 1984). Assumption of the risk rests upon plaintiff's knowledge of the risk of harm posed by defendant's conduct and his consent to accept that risk. McGriff v. McGriff, 114 Ariz. 323, 325, 560 P.2d 1230, 1232 (1977); W. PROSSER & W. KEETON, § 68, at 489. Under traditional principles of tort law, assumption of the risk was also a complete bar to recovery. W. PROSSER & W. KEETON, § 68, at 481. The defenses were ordinarily available whether defendant's conduct breached a duty established by either common law or statute. Restatement (Second) of Torts § 483 (1965); ³ W. PROSSER & W. KEETON, § 65, at 461.

Both Ontiveros and Brannigan imposed a common law duty ⁴ on licensed liquor vendors to take affirmative measures to control or avoid increasing the danger posed by the conduct of their patrons. Ontiveros, 136 Ariz. at 508-09, 667 P.2d at 208-09. Sellers must exercise reasonable care not to serve persons already intoxicated. Id. at 509, 667 P.2d at 209. Also, violation of the statutory prohibition against selling liquor to intoxicated persons was held to be negligence per se, unless the defendant could show the violation was excusable. Brannigan, 136 Ariz. at 518, 667 P.2d at 218.

Plaintiff argues that permitting defendant to raise either contributory negligence or assumption of the risk would nullify Brannigan and Ontiveros because, by definition, in every case in which the tavern owner had breached his duty there would also be fault on the patron's part. Therefore, the tavern owner would be immunized from liability and the duty of care imposed on him made illusory. This question was left open in Brannigan, 136 Ariz. at 518 n. 2, 667 P.2d at 218 n. 2. In examining this argument, we turn first to its statutory basis.

B. "Exceptional Statutes "

Some statutes create a duty or impose a standard of conduct; breach of the statute is equated with negligence. Ontiveros, 136 Ariz. at 510, 667 P.2d at 210; Orlando v. Northcutt, 103 Ariz. 298, 300, 441 P.2d 58, 60 (1968); Mercer v. Vinson, 85 Ariz. 280, 284, 336 P.2d 854, 857 (1959); Restatement § 285 comment b, § 286; see also W. PROSSER & W. KEETON, § 36. Arizona has long recognized that violation of such statutes is negligence per se. Brannigan, 136 Ariz. at 517, 667 P.2d at 217; Salt River Valley Water Users' Ass'n. v. Compton, 39 Ariz. 491, 496, 8 P.2d 249, 251 (1932); Young v. Campbell, 20 Ariz. 71, 75, 177 P. 19, 21 (1918).

Included in the class of statutes that impose a standard of conduct of the kind which creates civil liability is a narrow subclass called "exceptional statutes." Restatement § 483 comment c. The violation of an exceptional statute not only gives the injured party a private cause of action and establishes defendant's negligence per se, but, in addition, denies the defendant the affirmative defenses of contributory negligence and assumption of the risk. This is a form of absolute liability for breach of statutory duty. W. PROSSER & W. KEETON § 65, at 461-62; Restatement § 483. Assertion of the traditional defenses is precluded because permitting plaintiff's fault to be raised as a bar to his recovery would defeat the fundamental purpose of a statute specifically enacted to protect the plaintiff against his inability to protect himself. Id.

In general, courts will bar these defenses only when they find a clear legislative purpose to impose absolute liability for statutory violation. W. PROSSER & W. KEETON § 65, at 461. Thus, an initial distinction must be drawn between statutes intended for the protection of the general public and those "exceptional" in the sense that they were intended to protect a particular class of plaintiffs against their own acts. The former are unlikely to qualify as exceptional statutes. Compare Dart v. Pure Oil Co., 223 Minn. 526, 27 N.W.2d 555 (1947) (statute on handling of volatile oils is for protection of public, not special class) with Zerby v. Warren, 297 Minn. 134, 210 N.W.2d 58 (1973) (statute prohibiting sale of glue to minors is an exceptional statute). See generally Prosser, Contributory Negligence as Defense to Violation of Statute, 32 MINN.L.REV. 105 (1948). Thus, general safety statutes merely establish a duty of ordinary care for the protection of the public against an unreasonable risk; the plaintiff's own negligent conduct may bar his recovery, just as with a breach of a common law duty. W. PROSSER & W. KEETON § 65, at 461.

Statutes intended to protect people from the consequences of their own conduct primarily are those applicable to specific groups deemed incapable of protecting themselves, Restatement § 483 comment c, such as the mentally deficient and children. Children, for instance, will not be barred from recovery by their own conduct if their injury was the result of a violation of a statute expressly aimed at protecting them from a particular harm. Child labor laws are a typical example of statutes intended to place all responsibility on the employer. Prosser, supra, 32 MINN.L.REV., at 119. See also Tamiami Gun Shop v. Klein, 116 So.2d 421 (Fla.1959) (statute prohibiting firearm sales to minors). But see Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125 (1945) (parent of minor who purchased liquor not protected).

In Tamiami, defendant sold a rifle to the 16-year-old plaintiff, who represented himself as "over 18." Plaintiff was injured when the car in which he was riding went over a bump and the gun discharged. The court held that a statute prohibiting sales of arms to minors was intended to protect the minor from the carelessness to be expected of children and...