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Knoell v. Cerkvenik-Anderson Travel Inc.5/14/1996
En Banc
MARTONE, Justice.
This is a wrongful death action brought by parents against a travel agency for the death of their 18-year-old son in Mexico. The trial court dismissed the complaint for failure to state a claim under Rule 12(b) (6), Ariz.R.Civ.P., on the basis of social host immunity under A.R.S. § 4-301. The court of appeals reinstated portions of the complaint, but affirmed the dismissal of the alcohol-related claims. Knoell v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 394, 891 P.2d 861 (App. 1994). Because important questions of law are raised, including the constitutionality of A.R.S. § 4-301 (social host immunity), we granted review. Rule 23(c) (4), Ariz.R.Civ.App.P.
1. The Allegations of the Complaint
Because the complaint was dismissed for failure to state a claim, we assume for the purposes of this opinion all the well-pleaded allegations of the complaint.
Mark and Vicki Knoell lived in Tempe with their son, Timothy, a recent high school graduate. Cerkvenik-Anderson Travel, Inc., was engaged in the business of promoting, hosting, and supervising vacations to Mazatlan, Mexico for new high school graduates. Timothy bought one of their tours and went to Mazatlan. Cerkvenik represented that the tour included adequate supervision for the safety and behavior of the students, including their use of alcohol while in Mexico. They represented that if they discovered abuse, they would send the student home and end his participation in the tour.
As it turned out, Cerkvenik did not supervise the students. There had been injuries and deaths on past tours, and Cerkvenik failed to disclose this to the Knoells. Timothy's tour began on June 6, 1988, and after three full days of heavy drinking, he lost his balance, fell from the balcony of his hotel, and died.
Count 1 of the complaint alleges fraud. Count 2 alleges that Cerkvenik negligently supplied an 18-year-old with alcohol. Count 3 alleges that Cerkvenik negligently supplied Knoell with a hotel room with an unsafe balcony railing and that Cerkvenik negligently supervised the students, including their use of alcohol. Count 4 alleges that Cerkvenik engaged in outrageous conduct that caused severe emotional distress.
2. Prior Proceedings
Cerkvenik moved to dismiss the complaint under Rule 12 (b) (6), Ariz.R.Civ.P., for failure to state a claim upon which relief can be granted. It argued that Timothy was 18-years-old at the time of his death and that the legal drinking age in Mexico was 18. Cerkvenik relied upon the immunity afforded by A.R.S. § 4-301 for social hosts, and alternatively, the immunity provided by A.R.S. § 4-312 for liquor licensees. Cerkvenik also argued that the fraud claim should be dismissed for lack of privity and that the tort of outrage does not exist in Arizona.
The trial court granted Cerkvenik's motion to dismiss Counts 1, 2, and 3, concluding that they were barred by A.R.S. § 4-301, social host dram shop immunity. The court dismissed Count 4, concluding that "outrage" is not a tort in Arizona.
The court of appeals affirmed in part and reversed in part. It concluded that Count 1 and Part of Count 3 stated claims because they were unrelated to dram shop liability. Treating Count 4 as a claim for the intentional infliction of emotional distress, which is acknowledged in Arizona, the court of appeals concluded that the allegations were insufficient and affirmed its dismissal. The court of appeals affirmed the dismissal of Count 2 and part of Count 3 (the liquor counts) because it concluded that Knoell was of the legal drinking age in Mexico, and therefore the immunity afforded by A.R.S. § 4-30
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