Dupray v. JAI Dining
Arizona Court of Appeals, November 15, 2018

Written By: Eileen GilBride

The Arizona Court of Appeals today reversed an $8 million dram shop case against the owner of a gentlemen’s club due to the trial court’s failure to instruct the jury on “superseding, intervening cause.”

Pedro Panameno was drinking with friends. Pedro’s friend then drove them to the club, where Pedro drank 11 or 12 bottles of beer over the next three hours, becoming intoxicated. Pedro’s friend then drove them back to his house. A few minutes later, Pedro drove to his girlfriend’s house. His girlfriend argued with him, told him he should not be driving, and tried to take his keys away. Pedro became angry and drove off again. A short distance away, Pedro, traveling about 45 m.p.h., rear-ended plaintiff who was on a Vespa-type scooter.

Plaintiff sued Pedro and the club owner for overserving Pedro. It was determined that his BAC at the time of the accident was between .210 and .274. A toxicologist testified that Pedro would have reached .10 BAC at the club. Another expert testified that Pedro was obviously intoxicated at the club and the club was negligent in failing to monitor him or preventing him from injuring others.  The jury found for plaintiff, awarding $3.5 million in compensatory damages and allocating 60% fault to Pedro and 40% to the club owner. The jury also awarded punitive damages of $400,000 against Pedro and $4 million against the club owner. The club owner appealed.

The court first rejected the club’s argument that it did not breach its duty because Pedro had left the club safely. There was evidence of breach because club personnel did nothing to see that Pedro reached home safely, and were not even aware of Pedro’s presence there. The fact that a friend drove Pedro to and away from the club did not absolve the club of liability for failing to exercise reasonable care in serving him. The court also rejected the club’s argument that its conduct did not proximately cause the accident. There was evidence that Pedro became intoxicated at the club and rear-ended plaintiff driving 45 m.p.h. The court said that the fact that Pedro was not driving when he arrived or left the club, and voluntarily drove from his friend’s house to his girlfriend’s house and then away again until he collided with the plaintiff, did not relieve the club of liability as a matter of law.

The court reversed the verdict, however, because the trial court had failed to instruct the jury on the concept of intervening, superseding cause. An intervening cause is an independent event that contributes to an injury independent of the original cause and for which the defendant is not responsible. A superseding cause is one that is unforeseeable by a reasonable person in the position of the original actor and “looking backward, after the event, the intervening act appears extraordinary.” The court ruled that the jury could find Pedro’s independent decisions to leave the friend’s house and drive to his girlfriend’s house, and then leave his girlfriend’s house after being warned not to drive, were intervening, superseding causes that could break the causal chain. The failure to provide the instruction to address the concept of intervening and superseding cause hampered the club owner in arguing that it was not liable for plaintiff’s injuries and hampered the jury in properly determining whether the owner was liable. The court remanded the case back to the trial court.

click here to read the full opinion