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Verduzco v. Valet

Court of Appeals of Arizona, First Division

June 21, 2016

MARIA THERESA VERDUZCO and GUSTAVO MENDOZA, individually and as guardians ad litem on behalf of their injured children EDWIN MENDOZA, GUSTAVO MENDOZA, JR., GISSELL MENDOZA; JAVIER VELASQUEZ and DORA VERDUZCO, as successors in interest to their deceased son, EDGAR VELASQUEZ, Plaintiffs/Appellants,
v.
AMERICAN VALET, an Arizona business entity; DANIEL CASEY, an individual as an employee of AMERICAN VALET; 7277 SCOTTSDALE HOTEL, LLC, an Arizona limited liability company, Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV2014-008756 The Honorable Robert H. Oberbillig, Judge

          Knapp & Roberts, P.C, Scottsdale By David L. Abney Co-Counsel for Plaintiffs/Appellants

          Law Offices of Larry H. Parker PC, Phoenix By Kathleen McCaffrey Co-Counsel for Plaintiffs/Appellants

          Robinson Calcagnie Robinson Shapiro Davis Inc., Newport Beach, CA By Scot D. Wilson Co-Counsel for Plaintiffs/Appellants

          Jones, Skelton & Hochuli, P.L.C., Phoenix By Michael A. Ludwig, Jennifer B. Anderson, Brandi C. Blair, Lori L. Voepel Counsel for Defendants/Appellees

          Arent Fox LLP, Washington, DC By Michael L. Stevens, Melissa A. Meister Counsel for Amicus Curiae National Parking Association

          Burke Panzarella Rich, Phoenix By Elizabeth L. Fleming Counsel for Amicus Curiae Arizona Association of Defense Counsel

          Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge Maurice Portley and Judge John C. Gemmill joined.

          OPINION

          THUMMA, Judge

         ¶1 The narrow dispositive issue in this appeal is whether, as a pleading matter, plaintiffs properly alleged Arizona common law negligent entrustment and negligence claims against defendants. Plaintiffs claim that defendants, while in possession of a sports car as a bailee for its owner, gave the car to an individual who was not the owner and did not have permission to take the car, and who defendants should have known was impaired by drugs and alcohol and incompetent to drive. That same individual then crashed the car into plaintiffs' vehicle, killing one occupant and seriously injuring the others. For the reasons that follow, the dismissal of the negligent entrustment claim is reversed and remanded for further proceedings. The dismissal of plaintiffs' negligence claim, however, is affirmed.

         FACTS AND PROCEDURAL HISTORY

         ¶2 As alleged in the complaint, one day in November 2012, the owner of a racing edition Porsche Carrera parked the car with appellee American Valet while visiting a resort in Scottsdale. In return, an American Valet employee gave the owner a claim ticket for the Porsche.

         ¶3 Later that day, John Morken approached American Valet employee Daniel Casey. Morken had not parked the Porsche with American Valet, did not have a claim ticket for the car, did not know the owner of the car and did not have permission to take the car. Morken, however, told Casey "Give me the Porsche, man!" Casey responded, "What's your name?" Morken replied, "Give me the Porsche man, let's go!" Although Morken did not provide Casey a claim ticket, identification, or his name, and "was high on drugs and behaving erratically, " Casey gave him the keys to the Porsche. Morken then sped away in the Porsche.

         ¶4 Still later that day, while driving the Porsche at a high rate of speed on Interstate 10, Morken crashed into a Chevrolet Suburban driven by Maria Verduzco. The Suburban had five passengers: Maria's husband Gustavo Mendoza and family members Edwin Mendoza, Gustavo Mendoza Jr., Gissell Mendoza and Edgar Velasquez. Edgar was killed in the crash; Gissell suffered catastrophic brain injuries and the other occupants were seriously injured. As a result, Morken pled guilty to second degree murder and other offenses and is now serving a 16-year prison term.

         ¶5 Maria and Gustavo Mendoza, individually and as guardians ad litem on behalf of their children Edwin, Gustavo Jr. and Gissell, and Javier Velasquez and Dora Verduzco, as successors in interest to their deceased son Edgar (collectively Appellants) sued American Valet, 7277 Scottsdale Hotel, LLC, and Daniel Casey (collectively Appellees)[1] alleging, as relevant here, Arizona common law negligent entrustment and general negligence claims, and corresponding wrongful death claims. Appellees moved to dismiss for failure to state a claim upon which relief could be granted, arguing Appellants failed to properly plead a claim for negligent entrustment and that the general negligence claim failed on duty grounds.[2] After briefing and oral argument, the superior court granted the motion to dismiss. On the negligent entrustment claim, the court held Appellants failed to plead that Appellees knew or should have known that Morken was under the influence of drugs or alcohol. For the general negligence claim, the court held Appellees owed Appellants no duty. The court also dismissed the wrongful death claim, which was based on these negligent entrustment and general negligence claims.

         ¶6 After entry of a final judgment, Appellants filed this timely appeal. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes sections 12-2101(A)(1) and -120.21(A)(1) (2016).[3]

         DISCUSSION

         I. Standard Of Review.

         ¶7 In reviewing the grant of a motion to dismiss for failure to state a claim, this court assumes the truth of all well-pled facts alleged in the complaint, Fidelity Sec. Life Ins. Co. v. State,191 Ariz. 222, 224 ¶ 4 (1998), and will "indulge all reasonable inferences therefrom, " Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 420 ¶ 7 (2008). To prevail on a motion to dismiss for failure to state a claim, the moving party must establish that the claimant would not be entitled to relief under any set of facts susceptible of proof. Fidelity Sec. Life Ins. ...


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