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Riddle v. Arizona Oncology Services Inc.3/6/1996
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 "having exercised its authority and control over Sutton by the affirmative act of ordering her from the premises under the circumstances described herein, had a duty to act reasonably to protect third parties such as the Plaintiff from the foreseeable risk of harm." 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) , 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 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 ris
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