Dupray v. JAI Dining Services (Phoenix), Inc.

          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 ...