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Del E. Webb Corp. v. Superior Court of Arizona for Maricopa County9/17/1986
Petitioner, defendant in the action below, brings this special action 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. 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 L
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