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Callender v. Transpacific Hotel Corp.12/30/1993
ESPINOSA, Presiding Judge.
Plaintiffs/appellants John Scott Callender and Marilyn Wolfsen appeal from an adverse jury verdict in their negligence action against defendant/appellee Transpacific Hotel Corporation, and the trial court's denial of their motion for new trial. On appeal, Callender contends that the trial court erred in refusing his jury instructions on negligence per se based on the statutory prohibition against delivery of more than two spirituous liquor beverages to one person at one time by a liquor licensee, and on the common law duties of a licensee. Callender further argues that he is entitled to a new trial because Transpacific's counsel "might have gained an unfair advantage" by referring to an appellate memorandum decision, in violation of Ariz. R. Civ. App. P. 28, 17B A.R.S. Lastly, Callender argues that the trial court erred in denying his motion for new trial because the jury's verdict was contrary to the weight of the evidence. We affirm.
Facts and Procedural History
On appeal from a judgment entered on a jury verdict, we view the evidence, and all reasonable inferences arising therefrom, in a light most favorable to the prevailing party. Hallmark v. Allied Products Corp., 132 Ariz. 434, 646 P.2d 319 (App. 1982). On March 25, 1988, Callender and two friends, Dan Carvalho and Mitch Lantow, hitched Carvalho's boat to Lantow's truck and drove to Lake Havasu for the weekend. They left Santa Ana, California late that night, and arrived at the lake early the next morning. After breakfast, Callender and Carvalho launched the boat and headed for Copper Canyon, a popular gathering place. Lantow stayed behind. At Copper Canyon, Callender "jumped from boat to boat," drinking beer and "acting loud and obnoxious." Shortly before noon, Lantow arrived in another boat and Callender went with him. Two teenage girls joined them and later that afternoon they left Copper Canyon for the Nautical Inn, a resort owned by Transpacific.
The boat docked at the Nautical Inn, and Lantow went to the outdoor bar and bought a "bucket" of Mai Tais. The Mai Tai "bucket" was an 80-ounce container filled with ice, fruit juice, four shots of 80-proof rum, and two shots of 151-proof rum. Lantow returned to the boat with the drink, and Callender, the girls, and the owner of the boat proceeded to drink it. Callender then went to the bar, bought another "bucket," and returned to the boat. Carvalho had joined the group at about four o'clock, and they subsequently left for the campground where the girls were staying. En route, Callender and the girls drank the second "bucket." The girls were dropped off on the beach in order to retrieve their inflatable raft and Callender got in the shallow water to push the boat off. When the girls had problems rowing their raft, Callender dove off the boat to help them. Lantow noticed him floating face down in the water, and Carvalho jumped off the back of the boat, swam to him, turned him over, and moved him into shallower water. Callender had fractured his neck in the dive, resulting in quadriplegia.
Callender sought damages from Transpacific, contending that Transpacific's negligence "in selling, serving, furnishing, allowing to be served, or not preventing the service of, alcohol to John Scott Callender when he was intoxicated and/or in an amount that would foreseeably impair his judgment and reactions, was a cause of, or contributed to, the injuries suffered." After a nine-day trial, the jury returned a verdict in favor of Transpacific. Callender's motion for new trial was denied, and this appeal followed.
Jury Instructions
Callender argu
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