Wesley v. State

Decision Date04 October 1977
Docket NumberNo. 1,CA-CIV,1
Citation571 P.2d 1057,117 Ariz. 261
PartiesEdmund WESLEY, Appellant, v. STATE of Arizona, Appellee. 3369.
CourtArizona Court of Appeals

FROEB, Chief Judge.

The complaint in this action states that Vernon Wesley was killed by gunfire at the Roadside Bar located on U. S. 70 immediately east of the San Carlos Apache Indian Reservation in Graham County. Edmund Wesley, Vernon Wesley's father, brought this wrongful death action against the State of Arizona for the Department of Liquor Licenses and Control's failure to revoke or suspend the license of the bar when it had official information of violence taking place at the bar on various occasions prior to the shooting.

Based upon the pleadings, the trial court granted the State's motion for summary judgment. In view of this it is appropriate that we elaborate upon the allegations of the complaint. It alleges that Vernon Wesley was shot and killed by Donald Eugene Mayfield at the Roadside Bar on March 16, 1974. It appears that Mayfield operated the bar but that the licensee was John L. Roberds. The complaint recites a history of incidents involving both Mayfield and Roberds. It states that Roberds shot Delbert Key on March 15, 1972; broke Rosene Stanley's arm on November 21, 1972; broke Arthur Longstreet's arm on October 25, 1972; broke Don Goseyun's arm on November 5, 1972, all such incidents apparently occurring on the bar premises. It also states that Mayfield threatened several people on September 21, 1973; beat up Steve Craig on November 1, 1973; shot Irving Bush on November 3, 1973 and conducted illegal pawning and credit activities. It alleges that the incidents were reported to the Liquor Department but that the only action taken was that the Liquor Department fined Roberds, the licensee, $200 for failure to report the incidents in which he was involved. The complaint alleges that the Liquor Department was guilty of malfeasance because it did not take action to revoke the license and close the bar. There is also an allegation that the Department failed to act "because it applied a different standard of conduct to bars which serve reservation Indians than it applies to bars that operate in a middle-class urban environment." The complaint then alleges that "the maintenance of this double standard constituted malfeasance which directly resulted in Vernon Wesley's death."

The issue in the case is whether the State, through the Liquor Department, owed a legal duty to Vernon Wesley. We hold that it did not and that the trial court correctly granted summary judgment for the State.

The abrogation of sovereign immunity in Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963) opened the way to tort liability against the State and its instrumentalities. Nevertheless, the removal of the defense of sovereign immunity did not create any new liability for a public body. Barnum v. Rural Fire Protection Company, 24 Ariz.App. 233, 537 P.2d 618 (1975). Liability to an individual for damages will not arise where the public body owes a duty to the general public as a whole unless it is shown that it owes a specific duty to the individual. Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969).

Simply stated, there are situations where a government, or agency thereof, can by its conduct, narrow an obligation owing to the general public into a special duty to an individual, for the breach of which it is responsive in damages. Id. at 523, 456 P.2d at 381.

This rule has been explained and applied during recent years in Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973); Delarosa v. State, 21 Ariz.App. 263, 518 P.2d 582 (1974); and Ivicevic v. City of Glendale, 26 Ariz.App. 460, 549 P.2d 240 (1976). Most recently the Arizona Supreme Court reaffirmed the doctrine of the Massengill case in Grimm v. Arizona Board of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977) which we will later discuss and distinguish.

Can it be said under the facts of this case that the Liquor Department owed a duty to protect from harm the unfortunate victim of the shooting? We think not. At most the Liquor Department owed a duty to the general public to investigate license violations occurring on the premises of a licensee and, where appropriate, to suspend or revoke the license or impose authorized sanctions. See A.R.S. § 4-210. The decision to suspend or revoke a license for violation of the law is quasi-judicial and is based upon the exercise of discretion. Cf. Him Poy Lim v. Duncan, 65 Ariz. 370, 181 P.2d 357 (1947). In other words, the enforcement of liquor laws and regulations is not unlike law enforcement generally and is thus not subject to mandamus by a court for its performance. Cf. State ex rel. Arizona State Board of Pardons and Paroles v. Superior Court, 12 Ariz.App. 77, 467 P.2d 917 (1970) and City of Phoenix v. Superior Court, 6 Ariz.App. 327, 432 P.2d 471 (1967).

The duty, then, to patrol liquor licenses is certainly no greater than the duty of the sheriff in Massengill to enforce laws relating to the operation of motor vehicles. In both instances the duty is to the general public and...

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7 cases
  • Dunbar v. United Steelworkers of America
    • United States
    • Idaho Supreme Court
    • September 13, 1979
    ...immunity, but the parole board is hardly one of these." 564 P.2d at 1237. See, however, the later Arizona cases of Wesley v. State, 117 Ariz. 216, 571 P.2d 1057 (1977), wherein it was held that the Department of Liquor Licenses had no duty to protect a patron of a bar, although the board ha......
  • State v. Superior Court of Maricopa County
    • United States
    • Arizona Supreme Court
    • June 18, 1979
    ...Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); McGeorge v. City of Phoenix,117 Ariz. 272, 572 P.2d 100 (App.1977); Wesley v. State, 117 Ariz. 261, 571 P.2d 1057 (App.1977); Besserman v. Town of Paradise Valley, 116 Ariz. 471, 569 P.2d 1369 (App.1977); Ivicevic v. City of Glendale, 26 Ariz......
  • State v. Old West Bonding Co., No. 1 CA-CV 01-0436
    • United States
    • Arizona Court of Appeals
    • September 26, 2002
  • Sensing v. Harris
    • United States
    • Arizona Court of Appeals
    • December 20, 2007
    ...Ariz. 293, 296, 43 P.2d 194, 195 (1935) (declining to order county attorney to file a complaint for perjury); Wesley v. State, 117 Ariz. 261, 263, 571 P.2d 1057, 1059 (App.1977) (noting that "the enforcement of liquor laws and regulations is not unlike law enforcement generally and is thus ......
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