Ontiveros v. Borak
667 P.2d 200, 1983 Ariz. LEXIS 214, 136 Ariz. 500 (1983)
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Rule of Law:
A tavern owner has a duty of care to third parties and may be held liable for negligence when they sell liquor to an intoxicated patron or customer under circumstances where the licensee knows or should know that such conduct creates an unreasonable risk of harm to others.
Facts:
- On May 22, 1975, Reuben Flores went to Max’s Terminal Buffet, a tavern owned by Peter Borak, Sr., after his workday.
- Flores consumed a large quantity of beer at Borak's establishment, left briefly for another bar, and then returned to Borak's.
- Flores remained at Borak's tavern until closing time at approximately 8:00 p.m., having consumed about 30 beers in total over five to six hours.
- Flores left the tavern, got into his car which was in the bar's parking lot, and began to drive home.
- A few blocks from the tavern, Flores drove erratically, striking a fire hydrant before swerving and hitting the plaintiff, a pedestrian.
- A police breathalyzer test administered after the accident revealed Flores had a blood-alcohol level of .33.
- The plaintiff suffered severe, life-altering injuries, including a fractured skull, partial paralysis, and mental retardation.
Procedural Posture:
- Plaintiff sued Peter Borak, Sr. (tavern owner) and Reuben Flores (driver) in an Arizona trial court for damages.
- Borak filed a motion for summary judgment, arguing that Arizona common law did not recognize tavern owner liability.
- The trial court granted Borak's motion for summary judgment and entered a final judgment in his favor.
- The plaintiff appealed the trial court's judgment to the Arizona Court of Appeals.
- Before the Court of Appeals could rule, the Chief Judge of that court petitioned to transfer the case to the Arizona Supreme Court.
- The Arizona Supreme Court granted the petition for transfer to resolve the issue.
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Issue:
Is a tavern owner who negligently serves alcohol to an intoxicated patron liable for injuries subsequently caused to a third party by that patron?
Opinions:
Majority - Feldman, Justice
Yes. A tavern owner who negligently serves alcohol to an intoxicated patron is liable for injuries subsequently caused to a third party by that patron. The common law doctrine of tavern owner nonliability is abolished in Arizona as it is an anachronistic rule based on a flawed causation analysis. The court reasoned that both the furnishing and the consumption of alcohol are part of the chain of causation, and a patron's subsequent drunk driving is a foreseeable, not a superseding, cause of injury. The duty of care arises from both general common law negligence principles—recognizing the foreseeable risk of harm—and from the public safety purpose of A.R.S. § 4-244(14), which prohibits licensees from serving intoxicated persons. To continue to immunize tavern owners from the consequences of their negligence would be bad law and bad public policy, contrary to the modern trend of holding individuals accountable for their tortious conduct.
Concurring - Holohan, Chief Justice
Yes. While concurring in the judgment to hold the tavern owner liable, the duty is governed solely by statute. Any discussion of a common law duty is irrelevant, as the legislature has established the standard of conduct for tavern owners by making it illegal to serve an intoxicated person.
Analysis:
This decision represents a landmark shift in Arizona tort law, abolishing the long-standing, judge-made rule of nonliability for tavern owners (dram shop immunity). By doing so, the court created a new cause of action in negligence against commercial vendors of alcohol, holding them to the same standards of reasonable care as other actors in society. The court's dual reliance on common law foreseeability and statutory purpose provides a robust foundation for future dram shop liability cases. This opinion signals the court's commitment to eliminating special immunities and adapting common law principles to reflect modern societal realities and dangers, such as drunk driving.
