MARK H. DUPRAY, et al., Plaintiffs/Appellees,
v.
JAI DINING SERVICES (PHOENIX), INC., Defendant/Appellant.
Appeal
from the Superior Court in Maricopa County No. CV2014-007697
The Honorable Daniel G. Martin, Judge
Knapp
& Roberts, P.C., Scottsdale By Craig A. Knapp, David S.
Friedman Counsel for Plaintiffs/Appellees
Schneider & Onofry, P.C., Phoenix By Timothy O'Connor
Co-Counsel for Defendant/Appellant
Osborn
Maledon, P.A., Phoenix By Kimberly A. Demarchi Co-Counsel for
Defendant/Appellant
Presiding Judge Randall M. Howe delivered the opinion of the
Court, in which Judge Jon W. Thompson and Judge Diane M.
Johnsen joined.
OPINION
HOWE,
JUDGE.
¶1
JAI Dining Services (Phoenix), Inc. ("JAI") appeals
a jury verdict finding it liable for negligently overserving
alcohol to a patron who later drove while intoxicated and
caused a collision that seriously injured Mark Dupray. JAI
claims that the trial court erred in denying its motion for
judgment as a matter of law ("JMOL") because it did
not breach its duty of care to Dupray, and even if it did
overserve the patron, the patron's decisions to drive
while intoxicated after safely leaving JAI's
establishment were intervening and superseding causes that
absolved JAI of liability for Dupray's injuries. JAI also
claims that the trial court abused its discretion in
rejecting a proposed jury instruction on intervening and
superseding cause.
¶2
We vacate the jury's verdict. The trial court correctly
denied the motion for JMOL because the jury was presented
with sufficient evidence to support the verdict. But the
court erred in failing to give JAI's proposed instruction
on intervening and superseding cause. The instruction
properly stated the law on the issue and the issue was
critical to the jury's determination of liability.
FACTS
AND PROCEDURAL HISTORY
¶3
Pedro Panameno, who had been living in his car, spent the
morning of August 5, 2013, at his girlfriend's house, the
house he considered his "home." At 2:30 p.m.,
Panameno drove his girlfriend's brother to see their
mutual friend, who lived about thirty minutes away. They
stayed at the friend's house until 4:00 p.m., when the
friend drove them to the mall in his car. On the way, they
went to a drive-through liquor store and purchased a fifth of
bourbon and two 16-ounce alcoholic energy drinks. Panameno
had not yet drunk any alcohol that day. By the time they
reached the mall, however, Panameno had drunk both alcoholic
energy drinks and about half of the bourbon; his friend had
one "swig" of the bourbon.
¶4
After a short stay at the mall, the friend drove them to
Jaguars, a gentlemen's club JAI operated. On the way,
Panameno drank the rest of the bourbon. Arriving around 5:00
p.m., the men ordered three or four buckets of beers, each
containing eight 12-ounce bottles. Panameno drank eleven or
twelve bottles of beer over the next three hours. Panameno
became intoxicated and, by his own admission at trial, was in
his "own little world."
¶5
The group left the club around 8:00 p.m. By that time,
according to Panameno, "[e]verybody was probably pretty
much toasted at that moment[, ]" and "[e]verybody
had more than their share, especially me."
Panameno's friend drove them back to his house, about
eight to ten minutes away. Panameno and his girlfriend's
brother stayed at the friend's house for fifteen to
twenty minutes, and then Panameno drove the brother back to
his girlfriend's house. When they arrived at the house
twenty to twenty-five minutes later, Panameno's
girlfriend began arguing with him for bringing her brother
home later than she had expected. She told Panameno that he
looked intoxicated and should not be driving and tried to
take his car key from him. Panameno became angry and drove
off "a little aggressively]."
¶6
A short distance away, Dupray was stopped at a red light on
his "Vespa-type scooter." Panameno, traveling about
forty-five miles per hour, rear-ended Dupray, severely
injuring him. A police officer responding to the collision
found three 12-packs of beer in Panameno's car, with two
bottles missing or broken. When the police interviewed
Panameno at the hospital, they observed signs of
intoxication, including slurred speech, bloodshot and watery
eyes, and a strong odor of alcohol on his breath. An officer
drew Panameno's blood a few hours after the collision,
and an analysis showed that his blood alcohol concentration
at the time of the collision was between 0.210 and 0.274.
¶7
Dupray and his wife sued (1) Panameno for negligence and
negligence per se for causing the collision and (2) JAI for
"common law dram shop negligence" and negligence
per se for overserving Panameno to the point of intoxication.
JAI moved for summary judgment, asserting that it had met the
standard of care as a matter of law and that Panameno's
decisions to drive were intervening and superseding causes
that relieved JAI of all liability as a matter of law. The
trial court denied JAI's motion, and the matter proceeded
to trial.
¶8
After the jury heard the evidence, JAI moved for JMOL under
Arizona Rule of Civil Procedure 50. JAI argued that the
Duprays had not presented sufficient evidence from which a
jury could find that it breached its duty to the Duprays. JAI
also claimed that Panameno's decisions to drive after
returning to his friend's house and again after reaching
his girlfriend's house were ...