Baca v. Necaise
Superior Court of State of Arizona, Apache County   |   July 28, 2020

JSH Attorneys: Michael E. Hensley and John D. Lierman

Summary of Case: Attorneys Mike Hensley and John Lierman obtained summary judgment for their client, husband and wife restaurant owners, in a case involving personal injury following a serious traffic incident in August 2017.

The case arose from an August 9, 2017 traffic incident in Show Low, Arizona when Defendant Necaise lost control of his pickup traveling 45-50 miles per hour. The vehicle left the roadway at a turn, hitting a street light and knocking it from its pedestal, then colliding with a car driven by Plaintiff Baca, who was stopped at a stop sign.  After the collision, Necaise’s passenger, a woman released from prison earlier that day, tumbled out of his truck obviously intoxicated, apparently unharmed, and totally naked.  Necaise was clothed, but also obviously intoxicated.  Upon arrival, police found numerous open containers of alcohol in Necaise’s truck and on the ground around his truck.  Police arrested both the passenger and Necaise, who was found to have a BAC of 0.22 two hours after the accident.

Our client is the owner/operator of a popular family-style restaurant, Sal & Teresa’s Mexican Restaurant, located in Show Low for 35 years.  The restaurant serves breakfast, lunch and dinner, and closes at 8:00 p.m. every day but Sunday, when it is closed.

The accident involving Defendant Necaise and Plaintiff Baca occurred at approximately 6:30 p.m.  At the time, Necaise was actually traveling toward Sal & Teresa’s Mexican Restaurant, not away from it. During police interrogation, Necaise’s passenger said that she and Necaise had lunch at Sal & Teresa’s earlier that day and consumed alcohol.  According to the police report, when Necaise was asked if he had been drinking at Sal & Teresa’s earlier, he said no.  After being questioned and released by police, Necaise left the state and his passenger, who gave police a Phoenix homeless shelter as her address, disappeared.

Plaintiff Baca brought suit, alleging that Defendant Necaise was overserved alcohol by Sal & Teresa’s Mexican Restaurant and therefore Sal & Teresa’s Mexican Restaurant bore fault in the accident.  After the deadline to disclose experts had passed, JSH moved for summary judgment, arguing that Plaintiff Baca had no admissible evidence for a prima facie case against our client, owner/operators of Sal & Teresa’s Mexican Restaurant.  Sales records from the restaurant showed a typical day at the family-style restaurant, with guests enjoying Mexican food and sometimes drinks with their meals.  There was no evidence that anyone, including Defendant Necaise, was overserved.  Further, there was no admissible evidence that Necaise was even present at Sal & Teresa’s that day because his passenger’s statement was hearsay.  Ultimately, Plaintiff had no evidence proving any alcohol allegedly served by Sal & Teresa’s had anything to do with the accident.

Plaintiff initially opposed our motion with a Rule 56(d) motion to be allowed more discovery.  The court denied the motion for two reasons — Plaintiff’s deadline to disclose an expert had already passed and there was no evidence offered that any additional discovery would support Plaintiff’s case.  Plaintiff responded to our motion, arguing that the statement made by Necaise’s passenger qualified for an exception for hearsay, most plausibly as an “excited utterance.”

We argued that the passenger’s statement did not qualify for a hearsay exception and that with no evidence to show the alcohol in Necaise’s system at the time of the accident was from Sal & Teresa’s Mexican Restaurant, Plaintiff could never make out a case for causation.  The court agreed and granted summary judgment in our client’s favor.

Mike Hensley focuses his practice on general civil litigation and all types of insurance defense litigation, including life, health, disability, and ERISA claims litigation, bad faith defense, professional liability defense, employment law, employee benefits law, and government and public entities.

John Lierman represents clients primarily in the retail and hospitality, light industry, insurance, and education fields. His defense practice focuses in the areas of premises liability, personal injury and general civil litigation.