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Ocotillo West Joint Venture v. Superior Court11/3/1992
VOSS, Judge
In this special action, the petitioners seek review of the trial court's order striking their notice of nonparty at fault. We previously entered an order accepting jurisdiction and granting relief with an opinion to follow. This is that opinion.
FACTS
We interpret the facts and all reasonable inferences to the benefit of petitioners, the parties aggrieved by the trial court's summary Disposition. Cf. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142, 639 P.2d 330, 332 (1982). In 1989 Joseph Zylka and William Easley played golf and consumed alcoholic beverages at the Ocotillo Golf Course ("Ocotillo") which is operated by the petitioners. Because Zylka appeared intoxicated, two Ocotillo employees took possession of Zylka's car keys. At that time, Easley stepped forward and offered to drive Zylka home. With that assurance, and observing Easley's apparent lack of impairment, the two employees gave Zylka's keys to Easley. Once in the parking lot, Easley returned the keys to Zylka. Zylka left the golf course in his own automobile and was involved in a one car accident. He subsequently died from his injuries.
The respondents brought a wrongful death action against the golf course alleging that Ocotillo's sale of alcohol to Zylka was the cause of the accident. The petitioners filed a notice of nonparty at fault, pursuant to Rule 26(b)(5), Arizona Rules of Civil Procedure, alleging that Easley was at least partially at fault because he volunteered to drive Zylka home and then gave the car keys back to Zylka. The respondents filed a motion for summary judgment asking the court to dismiss the petitioners' allegation of a nonparty at fault. The trial Judge treated the motion for summary judgment as a motion to strike the notice of nonparty at fault and granted it. The petitioners then brought this special action.
Our decision to grant special action relief is largely discretionary and it is the rare case where we will grant such relief where a later appeal is available. Here, we have that rare case and Justice requires that we grant special action relief. The issue presented is solely one of law and we agree with petitioners that there is no justification for the trial court's action. Cravens, Dargan & Co. v. Superior Court, 153 Ariz. 474, 477, 737 P.2d 1373, 1376 (1987).
Discussion
Rule 26(b)(5), Arizona Rules of Civil Procedure, provides that a defendant can give notice that a person or entity not a party to the action is allegedly wholly or partially at fault so that Ariz. Rev. Stat. Ann. ("A.R.S.") § 12-2506(B) (as amended) comes into play. When assessing the percentage of fault of each defendant, A.R.S. § 12-2506(B) (Supp. 1991) provides that the fact finder "shall consider the fault of all persons who contributed to the alleged injury . . . regardless of whether the person was, or could have been, named as a party to the suit."
Our supreme court recently interpreted A.R.S. § 12-2506(B) in Dietz v. General Elec. Co., 169 Ariz. 505, 821 P.2d 166 (1991). There the court held that the provisions of A.R.S. § 12-2506(B), requiring the assessment of nonparty fault regardless of whether the nonparty was or could be made a defendant to the action, prevail over the provision in A.R.S. § 12-2501(H) which prohibits such assessment against employers. Id. at 511, 821 P.2d at 172. Essentially, a defendant can name a nonparty at
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