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Bruce v. Chas Roberts Air Conditioning Inc.5/31/1990
Claudia and Norman Bruce and their children (collectively, Bruce) appeal from summary judgment for appellee Chas Roberts Air Conditioning, Inc. (Roberts) on the Bruce claims for negligence. Claudia and Norman Bruce were injured in a collision with a Roberts' employee, Michael Duarte, (Duarte). This appeal presents the following issues for our consideration:
(1) whether under Keckonen v. Robles, 146 Ariz. 268, 705 P.2d 945 (App.1985), Roberts had a duty to protect Bruce from injuries caused by Duarte;
(2) whether A.R.S. § 4-301 forecloses Roberts' liability;
(3) whether Roberts may be liable for Duarte's negligence under the doctrine of respondeat superior; and
(4) whether under the Restatement (Second) of Torts, § 317 (1965), Roberts may be liable for failing to control the conduct of Duarte.
FACTS
On appeal from summary judgment we view the record in the light most favorable to the party against whom judgment was taken. Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (1985). Roberts is an air conditioning contractor. Roberts was installing air conditioners for Del Webb in new homes in the Sun City West area. Near the job site, Roberts had exclusive use of an enclosed yard that measured about 100 feet by 150 feet. Fifteen or twenty installers worked for Roberts from that yard, including Duarte, who worked for Roberts since 1983.
Nick Arico, a subforeman for Roberts, testified in deposition that most of Roberts' workers usually came back to the yard at 1:30 or 2:00 p.m. (an installers work day normally began at 6:00 a.m.), but would sometimes return earlier, especially on Fridays. One reason employees returned to the yard was to retrieve their personal vehicles. It was not unusual for some of the workers to remain after work and socialize at the yard. Occasionally, the socialization included drinking pop and beer. At these gatherings Arico sometimes placed boxes around the yard for the disposal of trash, papers and beer cans.
Roberts' supervisors knew about the workers' occasional beer drinking at and around the yard. During such gatherings, if a Roberts' worker came to the yard from another job and asked for help, it was not
uncommon for other workers to leave the yard and supply the requested help. Roberts had a policy that if a worker finished a job early, (i.e. they finished an eight hour job in six hours), they got paid for the whole eight hour day.
In the early afternoon on Friday, October 18, 1985, most of the Roberts' workers finished their work and returned to the Sun City West yard. Among them was Duarte. Though Duarte finished his work in less than eight hours, he was paid for the full day. Duarte and his co-workers joined in a spur-of-the-moment volleyball game and picnic at the yard. At this picnic the workers drank beer, cooked hamburgers, and played volleyball. Two Roberts' supervisors, Chris Burkhardt and Nick Arico, were present.
After the picnic began, Duarte and other employees left to buy beer. Duarte purchased a six pack and returned. He left it in his pickup truck, which was parked outside the yard. Between noon and 3:00 p.m. Duarte periodically drank beer from the cooler in his pickup and continued to participate in the volleyball game and picnic. Duarte primarily drank his beer outside the fence during breaks between volleyball games, however, if another game started and he still had beer to drink, he would take it with him into the yard. As before, no one from Robert
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