 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Knoell v. Cerkvenik-Anderson Travel Inc.6/30/1994
VOSS, Judge
FACTS AND PROCEDURAL HISTORY
Cerkvenik-Anderson Travel, Incorporated ("Cerkvenik") is a travel agency headquartered in Phoenix. It arranges, promotes, and hosts tours to Mexico for recent high school graduates. In 1988, Cerkvenik arranged a trip to Mazatlan, Mexico. Timothy Knoell ("Timothy"), the decedent son of Mark Knoell and Vicki Knoell ("Knoells") reserved a spot on that trip. Timothy was eighteen years old when he purchased and participated in the trip. As part of the trip, Cerkvenik allegedly hosted parties in Mexico at which it furnished alcoholic beverages to trip participants, including Timothy. The legal drinking age in Mexico is eighteen. Cerkvenik did not have a liquor license from Arizona. On June 9, 1988, Timothy allegedly jumped or fell to his death from the balcony of his hotel room after having abused alcohol provided by Cerkvenik for three days. Thereafter, Knoells filed this wrongful death action against Cerkvenik, amending their complaint to allege the following theories of liability: Count I (misrepresentation), Count II (dram shop), Count III (negligence), and Count IV (outrage).
Cerkvenik filed a motion to dismiss the amended complaint pursuant to Rule 12(b)(6), Arizona Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. Cerkvenik argued that all four counts were based on the claim that it supplied or caused to be supplied alcohol to Timothy and that Timothy's death was the proximate result of his consumption of this alcohol. Accordingly, Cerkvenik contended that the four claims were barred by Arizona Revised Statutes Annotated ("A.R.S.") sections 4-301 and 4-312, which foreclose liability for anyone other than a liquor licensee for injuries resulting from the serving or furnishing of alcohol. Cerkvenik also argued that no cause of action for "outrage" exists in Arizona.
In response, Knoells contended that Cerkvenik should be held accountable under Arizona's dram shop laws as a de facto licensee. See A.R.S. ยงยง 4-301 and 4-312 (Supp. 1993). They also claimed that the legal drinking age of Arizona (twenty-one), not the legal drinking age of Mexico (eighteen), applies here. Therefore, they argued, even if Cerkvenik was a non-licensee, it was still liable under A.R.S. section 4-301 because it served liquor to an underage person--Timothy.
Knoells maintained that their claim for "outrage" stated a valid cause of action. They argued that the "tort of outrage" was set forth in the Restatement (Second) of Torts and should be recognized in Arizona. Alternatively, they argued that their claim of "outrage" states a claim for intentional infliction of emotional distress.
The trial court granted Cerkvenik's motion to dismiss, holding that the misrepresentation, dram shop, and negligence counts fail to state claims upon which relief can be granted because "all three Counts allege and flow from [Timothy's] consumption of alcohol, allegedly provided by, or encouraged by defendants." Thus, the court held that A.R.S. sections 4-301 and 4-312 foreclosed any liability. The court also dismissed the outrage claim of the amended complaint because it failed "to state a cause of action in the State of Arizona" because "the tort of 'outrage' has never been recognized in [this state]." Knoells timely filed this appeal.
The following issues are presented for review:
ISSUES
1. Are the claims contained in Knoells' amended complaint barred by A.R.S. sections 4-301 or
Page 1 2 3 4 5 6 7 8 9 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|