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Ocotillo West Joint Venture v. Superior Court11/3/1992
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Although the trial Judge focused on § 324 in his order, we find that both sections of the Restatement are applicable to the facts of this case. The only difference between the two sections is the particular feature of § 324 that the plaintiff is in a helpless position. Section 323 has no such requirement. In either event, we believe the good samaritan doctrine applies when an actor, otherwise without any duty to do so, voluntarily takes charge of an intoxicated person who is attempting to drive a vehicle and, because of the actor's failure to exercise reasonable care, has changed the other's position for the worse. Restatement § 323 and § 324 cmts. b and c. The rule applies to this situation because if Easley had not said that he would see that Zylka got home safely, the petitioners might have taken steps that would have avoided the accident.
The respondents argue that Easley did not have a duty to Zylka because it was the petitioners who first provided Zylka with the alcohol that rendered him too drunk to drive. They contend that the duty of care the petitioners owed to Zylka as a patron in their bar is not one that can be delegated. We agree that petitioners' duty cannot be delegated. The petitioners, however, are not trying to delegate their dramshop responsibilities to Easley. The petitioners argue, and we agree, that the duties owed by the petitioners and Easley are independent of each other.
The respondents also argue that even if Easley had provided the alcohol to Zylka, as a social host he has no duty of care when providing guests with alcohol. We agree with this statement of the law, however, there is no evidence in the record that Easley provided Zylka with alcohol. Easley's responsibility derives from the good samaritan doctrine. The immunity of the social host does not come into play.
The respondents further argue that the good samaritan doctrine only applies when the actor is a government entity which otherwise had duties in regard to the voluntary undertaking or when there was some commercial relationship between the parties. We disagree. The good samaritan doctrine arises wholly apart from a consideration of whether the volunteer is a governmental or private entity. Barnum v. Rural Fire Protection Company, 24 Ariz. App. 233, 237, 537 P.2d 618, 622 (1975).
When Easley took charge of Zylka for reasons of safety he thereby assumed a duty to use reasonable care. Zylka was too drunk to drive. Under one version of the facts Ocotillo's employees had taken charge of Zylka and effectively stopped him from driving. Easley's offer deterred the employees from their efforts to keep Zylka out of his automobile. Rather than use reasonable care to drive Zylka home or make alternative arrangements, Easley discontinued his assistance and put Zylka in a worse position than he was in when Ocotillo's employees had possession of his keys. A reasonable fact finder could conclude that Easley's actions contributed to Zylka's death, rendering Easley wholly or partially at fault.
We conclude that the trial court erred in striking Easley as a nonparty at fault and therefore reverse and remand for further proceedings.
EDWARD C. VOSS, Judge
CONCURRING:
EINO M. JACOBSON,
Presiding Judge, Department B
THOMAS C. KLEINSCHMIDT, Judge
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