Barkhurst v. Kingsmen of Route 66, Inc.
323 P.3d 753
Ariz. Ct. App.2014Background
- The Kingsmen sponsor Rodeo Days and promote related events, including the Dambar Entertainment.
- Barkhurst was assaulted in the Dambar parking lot by intoxicated patrons two-and-a-half hours after the Dambar Entertainment ended.
- The Kingsmen did not own, lease, control, or substantially participate in the Dambar or its events, and any attendance byKingsmen members was in an individual capacity.
- Barkhurst alleged dram shop and negligence theories, arguing The Kingsmen had a duty to prevent intoxicated or underage service.
- The superior court granted summary judgment to The Kingsmen on all claims; Barkhurst appeals the negligence duty ruling.
- Barkhurst separately argued the Dambar was an apparent agent of The Kingsmen, which the court declined to address on appeal as not preserved
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty of care owed by sponsor to Barkhurst | Barkhurst contends Kingsmen’s sponsorship created a duty to protect attendees | Kingsmen argues no control or special relationship; no duty arises | No duty; sponsorship without control does not create a duty |
| Apparent agency argument preserved on appeal | Barkhurst argues Dambar acted as Kingsmen’s apparent agent | Argument not preserved in superior court | Waived; not addressed on appeal |
Key Cases Cited
- Gipson v. Kasey, 214 Ariz. 141 (2007) (duty is a matter of law; no duty foreseability focus)
- Markowitz v. Arizona Parks Bd., 146 Ariz. 352 (1985) (premises-liability-style duty for landowners; distinguishable)
- Estate of Hernandez by Hernandez-Wheeler on Behalf of Hernandez v. Arizona Bd. of Regents, 172 Ariz. 522 (1991) (Board’s control of property contributed to duty; distinguishable)
- Estate of Hernandez by Hernandez-Wheeler on Behalf of Hernandez v. Arizona Bd. of Regents, 838 P.2d 1283 (1991) ((same))
- Estate of Hernandez by Hernandez-Wheeler on Behalf of Hernandez v. Arizona Bd. of Regents, 177 Ariz. 244 (1994) (superseding ruling; underage drinking duty context discussed)
- Rudolph v. Arizona B.A.S.S. Federation, 182 Ariz. 622 (1995) (sponsor duty under certain control circumstances; distinguishable)
- Weirum v. RKO General, Inc., 539 P.2d 36 (Cal. 1975) (control of event; foreseeability standard; distinguishable)
- Vogel v. West Mountain Corp., 97 A.D.2d 46 (N.Y. App. Div. 1983) (sponsorship without control insufficient for liability)