*1 P.2d Bruce, Claudia BRUCE and Norman D. wife; Bruce,

husband Norman D.

individually and as father and next best

friend of the minor children of Claudia

Bruce; Bruce, Nancy Lee Carol Dea Bruce; Cynthia Davis;

Anne L. Bruce; Bruce, by

Norman Claudia

through duly appointed her conserva

tor, Elliston, Nancy Plaintiffs-Appel

lants, CONDITIONING,

CHAS ROBERTS AIR

INC., corporation, an Arizona

Defendant-Appellee.

1No. CA-CV 88-261. Arizona, Appeals

Court

Division

Department B.

May 31, 1990.

Review Denied Dec. 1990.*

* Feldman, V.C.J., Court, A, grant C and voted to review on Issues D.

(1) Robles, under whether Keckonen v. (App. P.2d 1985), protect had a to Roberts by Bruce from Duarte; (2) whether A.R.S. 4-301 forecloses liability; Roberts’ (3) may whether Roberts be liable for negligence Duarte’s under the doc- respondeat superior; trine of (4) (Sec- whether under the Restatement Torts, ond) Roberts failing may liable for control the conduct Duarte.

FACTS summary judgment from we appeal On light most view record favorable party against judgment was whom Wagenseller taken. Memori- v. Scottsdale Hospital, 147 al Ariz. conditioning is an con- Roberts air installing condi- tractor. Roberts was air in the tioners for Del Webb in new homes site, City job Near the Sun West area. Roberts had use of an enclosed exclusive by yard that measured 100 feet about twenty feet. Fifteen installers worked yard, including from for Roberts Duarte, since worked for Roberts who Roberts, Arico, Nick for subforeman deposition testified in that most of Roberts’ usually yard at workers came back Friedman, Calvin, M. Dain K. Steven (an day p.m. installers work 1:30 2:00 Phoenix, plaintiffs-appellants. for a.m.), normally began 6:00 but would Thomas, Benjamin Holloway & P.C. earlier, Fri- especially on sometimes return Phoenix, Thomas, Phillips, for Craig C. W. days. reason returned One defendant-appellee. yard personal to retrieve their was It not unusual for some vehicles. OPINION so- to remain after work and workers yard. Occasionally, the so- VOSS, cialize at the Judge. drinking pop and beer. cialization included and their Claudia and Norman Bruce Arico gatherings At sometimes these Bruce) appeal from (collectively, children yard for the dis- placed boxes around the judgment appellee Rob- summary for Chas trash, papers beer cans. posal of (Roberts) Inc. on the Conditioning, erts Air ' supervisors knew Roberts’ about negligence. Claudia and Bruce claims drinking at collision workers’ occasional beer injured in a Norman were gatherings, During such Duarte, yard. around the employee, with Roberts’ Michael yard (Duarte). if a Roberts’ worker came appeal presents This the follow- help, and asked for it was job another ing consideration: issues our uncommon for other workers to leave the home he collided head-on ve- with Bruce’s yard supply requested help. Rob- hicle. policy erts had a worker finished a granted Roberts moved for and was sum- *3 (i.e.

job they early, an eight finished hour mary judgment. job hours), in they got paid six the for eight

whole day. hour ANALYSIS OF ISSUES ON APPEAL early In the Friday, afternoon on October Applicability a. Keckonen. of 18, 1985, most of the Roberts’ workers rely sides on Division Both Two’s finished their work and returned to the Sun Keckonen, in support decision in of their City yard. Among West them was Duarte. respective positions appeal. on re Bruce Though Duarte finished his work in less lies on footnote 3 in number Keckonen hours, eight paid than he was for the full which reads as follows: day. joined his Duarte and co-workers in a purposes opinion For the this of we have spur-of-the-moment game volleyball and assumed but have decided that there picnic yard. at the At picnic this the work- liability could been some on part have the beer, ers hamburgers, drank cooked and premises of Neil’s as the of owner the played volleyball. supervi- Two Roberts’ and have further assumed but not decid- sors, Arico, Chris Burkhardt and Nick were proof ed there that was sufficient that present. Robles was intoxicated he his left picnic began, After the Duarte other and employer’s premises go Rusty to the buy pur- left to beer. Duarte Nail Tavern. pack six chased a and left returned. He it Id. 146 Ariz. at 272 n. n. P.2d truck, in pickup parked which was out- argues 3. Bruce that footnote means yard. p.m. side the Between noon and 3:00 duty protect that an is under a periodically Duarte drank beer from persons third from an cooler in his and pickup partic- continued to the employer’s who leaves busi- ipate volleyball game picnic. and day ness at the end of work primarily Duarte drank his beer outside incapacitated urges an condition. Roberts during volleyball fence breaks between that Keckonen’s facts are similar to those however, games, if game another started us, interprets before and to re- Keckonen drink, and still he had beer to he would quire holding that Roberts owed no before, yard. take it with him into the As liability to Bruce on which be found- could no one from Roberts told Duarte not to ed. We with Roberts. picnic. drink beer at The workers Keckonen, Robles, employ- James stopped drinking would have beer at the Diesel, Inc., partici- ee Neil's Detroit picnic the supervisors requested. Rob- pated gathering prem- in a social on Neil’s provide any erts did not beer at the working participants, ises after hours. The picnic. including manager branch branch manager, collectively bought service yard Duarte left 3:00 Robert’s between gathering. drank a case of beer at the p.m. pickup and 3:15 in his truck. In the leaving party, After the work Robles drank opinion Haag, expert, of Lucien Bruce’s Thereafter, more at a beer bar. Robles Duarte’s blood-alcohol content would have oncoming collided two cars. The with p.m., been between at 3:00 .27% .29% for plaintiffs negligence. sued Neil’s On unimpaired person and to an he have would appeal grant summary judgment visibly been intoxicated. truck Duarte’s Neil’s, for Division Two affirmed. gas driving ran out of as he was He home. spent walking some time home on The toward court Keckonen stated that Avenue, appeal 67th return to his but decided to sole issue on whether try negligently providing liquor truck prime the carburetor. He for an intox- successfully, person, supreme did so and continued home at icated to which the court liquor approximately p.m. subjected While licensed 6:00 sellers On- Borak, persons. egregious here are Ariz. facts less tiveros v. persons super- should extended as than those Keckonen Roberts’ liquor.1 other than licensed sellers purchase any did not of the beer at visors categories to all of nonlicen court referred Therefore, holding picnic. applying considering as hosts. After sees social Roberts, nonlicensee, Keckonen, as applicable noting except law actions. liable Duarte’s Jersey,2 New all the state the state of question of courts that have considered the b. A.R.S. § 4-301. nonlicensee, extending the host, so, do social had declined to 4-301 argues A.R.S. § *4 held: court Keckonen apply liability does not to foreclose because per- do reasonable not believe that only and the statute addresses social host social the sons would extend to the host Alternatively, liability. not liability upon keeper. imposed the tavern if we find the Bruce maintains that do imposing consequences The such a of that it applicable, statute must also find we duty economically socially stag- are Ari of the is unconstitutional as violative public gering. Considering the and so- 18, Constitution, art. 6. Roberts zona § consequences cial of requirements, urges apply does to bar statute extending liability, reasons agree that the liability. We with Roberts in extending not it mentioned the cases legislature liability. has to bar its acted in previously which have cited and we by the article DeMoulin Whitcomb pro- 4-301 Arizona Revised Statutes § (except proximate argu- for the cause vides: ment), decline extend to we to or an than a licensee person A other host. social during the of a licensee 272, 146 705 P.2d at 949. Ariz. working hours in connec- employee's or argu Bruce’s We do not with employment liable tion with such is not 3 in Keckonen holds ment that footnote injured, damages any person to who is in duty legal pro has that an killed, any person or to survivors by persons injuries tect third is al- damage property, which or for who leaves in in or leged to have caused whole been day end in an business at the of a work part furnishing or serv- by reasons of incapacitated condition. Keckonen ing spirituous liquor person nonlicensees the court declined to extend to drinking age. legal did duty in Ontiveros. court created 4-101(22) added.) in A.R.S. (Emphasis § not, suggests, as foreclose person” in its definition “a cludes only for the social host. The context of asso corporation, partnership or company, Two footnote makes clear that Division legislature, by adopting Thus the pur ciation. only meant that it had assumed for 4-301, any liability for Neil’s was the foreclosed poses discussion that A.R.S. § “host” Neil’s owned or her one, because than a licensee and his other question not that an could be resulting from the employees, 3,n. P.2d 949 n. 3. liable. at 272 705 Id. De serving furnishing of alcohol. See Co., Ariz.App. 16 Magma Copper v. witt support proposition does Keckonen (fundamental 305, (App.1972) 492 P.2d 1243 nonlicensee, in this case as Kecko- that a interpreting a statute is to ascertain it rule is not liable when employer, nen an intent). legislature’s give effect to the liquor to intoxicated serves or furnishes persons; nonlicen- expanded did not address recently we Ontiveros but toxicated 1. We have liability. suggests. In Carrillo v. El in the direction Bruce social see—or host— 364, Roadhouse, Mirage 121 164 Ariz. held that articulated we 538, Gwinnett, A.2d Kelly 96 N.J. 476 v. See enough to include an indirect Ontiveros is broad 1219 selling, serving furnishing, of alcohol to in-

225 The reference to “social host” in the the amount shall recovered not be sub- heading section of A.R.S. 4-301 does not ject any statutory § limitation. change First, interpretation. our section 18, only rights recog- Article applies § headings part do constitute of the law. nized common at the time the Ari- law headings A.R.S. 1-212. The can be used § adopted. zona Constitution was Boswell v. to aid interpretation ambiguity ex Inc., 9, Newspapers, Phoenix 152 Ariz. ists. Neurology Arizona Foundation for (1986); Cigna P.2d 186 Schoenrock v. Siernerth, Psychiatry Ariz.App. Arizona, Inc., Health Plan 148 Ariz. 472, (1970). Here, 477 P.2d 758 no ambi (App.1985). P.2d Arizona’s guity clearly exists. A.R.S. 4-301 limits law, common which includes the rule of liquor liability Second, to licensees. owners, nonliability logically for tavern term social host is not a restrictive term. employers.3 also includes social hosts and It all categories persons refers to as Ontiveros, See 4-101(22) enumerated in A.R.S. who are (where acknowledged the court providers nonlicensed of alcohol. law a common tavern owner was not lia- present case is less remarkable than ble). Keckonen, 271-72, 146 Ariz. at *5 that contemplated by legislature in 948-49; Stamatis, P.2d at v. Collier 63 Here, A.R.S. 4-301. Roberts did not fur- § 285, (1945); Ariz. 162 P.2d 125 Pratt v. nish or beer serve to Duarte. If the stat- 535, Daly, (1940). 55 Ariz. 104 P.2d 147 ute liability person” forecloses “a for Therefore, owner, since the tavern social they alcohol, certainly furnish or serve host, and were not at com- liable there liability cannot be for Roberts who mon law A.R.S. 4-301 is constitutional. § only his employees observed but did not furnish, serve, provide any way. in beer Furthermore, as this in court stated Keckonen: argues if we find A.R.S. liability, 4-301 bars Roberts’ then § [Sjince the Twenty- ratification of the we must also find that the statute is uncon first Amendment to the States United stitutional because it violates the Arizona virtually every aspect Constitution of the Constitution, 18, art. disagree. 6. We § manufacture, sale and of al- distribution We legislative will not declare a act uncon beverages coholic regulated by has been stitutional unless we beyond are satisfied a legislature any policy modifica- unconstitutionality. reasonable doubt of its designed tions are encompass which Court, Superior Chevron Chemical Co. v. potential providers social 431, (1982). 131 Ariz. 641 P.2d 1275 This intoxicating beverages left should be court uphold will strive to statutes as con legislature. to the sound discretion of the stitutional. Superior State v. Court of 270, 146 Ariz. 705 P.2d at To 947. 403, Pima 155 County, Ariz. 747 P.2d 564 here, legislature facts spoken.4 has (App.1986), approved 408, Ariz. 155 747 (1987). P.2d 569 Although 4-301 dispositive, A.R.S. is § 18, provides: Article appropriate § we feel it is to meet Bruce’s issues, right remaining damages of action to recover the resolutions of which injuries for abrogated, shall never liability. be also foreclose Roberts’ off-premises by The Arizona in Court Schwab v. Mat liable for sustained 421, ley, (1990), 164 Ariz. in dicta persons third as a of the intoxi result acts of an stated that even before it Ontiveros had been the though patron, cated even the tavern owner’s common law rule in that a Arizona tavern own patron negligence serving was a contribu negligence principles. er could be liable under ting cause of the accident.” right remedy damage If a common law to a civil owners, arguably existed for tavern social Ontiveros, 4. Like court in we have chosen to employers, constitutionality hosts or then the legislative follow In intent. Ontiveros the court However, suspect. adopting A.R.S. 4-301 is liability partly found civil based on A.R.S. Ontiveros, language supreme of the court in 4-244(14). Here find no we civil sound, constitutionally we find the statute "at A.R.S. § based on 4-301. law, however, common a tavern owner is not Respondeat

c. superior. employed conduct for which Roberts driving home was Duarte. While Duarte is Bruce contends Roberts liable subject right not to Roberts’ control negligence Duarte’s under the doctrine of activity control and the was actuated superior. respondeat Division Two has part by purpose even in a to serve Roberts. stated: Furthermore, the accident occurred three of a is conduct servant within the yard. after Duarte left the hours (a) employment if only it is the (b) he employed perform; purpose kind is it the dual ex also find substantially ception going inap coming occurs within the autho- to the rule limits; (c) when, space plicable only rized it it applies time and because actuated, part, by merely a purpose commuting, employ at least addition to performs serve the master. ee a concurrent service for have necessitated that would Gobea, 277, Ariz.App. Anderson v. trip commuting another Robarge P.2d 453 In v. Bechtel perform able it. had not been 283, 280, Corp., Power 640 P.2d Nothing in this case. like occurred (App.1982), we stated: occurred, When the accident Duarte specific present facts must be [C]ertain performing home and was injury at the time of order to hold an concurrent service for Roberts. employer vicariously negli- liable (1) Edwards, gent employee: of his the em- 105 Wash.2d acts Dickinson ployee subject must to the on which Bruce (2) control; relies, right Washington Supreme control or the em- Court ployee adopted unique, fact-specific reformula- must be furtherance *6 employer’s respondeat superi- tion the the business. of doctrine of may a plaintiff or. The court held that employee going The conduct of an who is banquet-hosting employer from a recover coming place from his of or work is proven: following prima the facie case is generally scope the of his em- not within at a employee The consumed alcohol Inc., Jelco, ployment. 122 Ariz. Faul v. party employer hosted the which was 490, (App.1979). 595 P.2d 1035 the employer’s held to further interest acknowledges gener that way employee’s the some and which by employees ally hazards encountered presence requested impliedly or or was coming going while to and from work are required by employer. the expressly employment. How scope not within the of employee negligently 2. The consumed ever, they argue special that hazards the point alcohol the of intoxication exception coming going the rule he he knew or should have known would Comm’n, recognized in Kerr v. Industrial operate public on some need to vehicle 106, P.2d 1139 Ariz.App. banquet. highway upon leaving the purpose exception to the rule dis the dual employee 3. The caused the accident apply in the cussed Anderson Faul driving banquet. from the while spe present agree. case. We do accident, proximate 4. The of the cause ap rule in Kerr is cial hazards discussed intoxication, the time the the occurred at only determining applied propriately negligently consumed the alco- employee injury by a commut whether an suffered hol. eligible him for work ing employee renders banquet 5. Since this was beneficial compensation generally er’s benefits. See expressly impliedly who or 280, P.2d 211. In Robarge, 131 Ariz. attendance, the employee’s required event, of apply does not on the facts any it employee negligently consumed this alco- conduct, negligent this case. Duarte’s during employment. scope hol of his liable which Bruce seeks to hold Roberts is, therefore, vicariously respondeat superior, the doctrine of under respondeat superior on liable under his a motor vehicle while was proximate ground cause of that driving was not the kind drunk. Drunk employee presence accident occurred while stood to benefit scope within the of his em- Duarte and his fellow at the ployment. This action does not affect picnic, there is no evidence that Duarte or “going coming” rule since it as- any presence other employee’s was “re- proximate serts that cause of the quested impliedly expressly required” banquet, accident occurred at the before by Roberts. We find a distinct difference attempted even to drive requiring employees between to attend a away. party employer supplies where the all the alcohol, 468-69, employees in observing an im- Wash.2d at 716 P.2d at 820. promptu picnic. setting application Instead of forth a new of the doctrine respondeat superior, Employer’s independent duty d. care. promulgated Dickinson court a new and qualitatively principle different of vicarious that, urges Bruce also under the Restate- liability. following por- We with 317, (Second) ment Roberts had Torts § of Justice tion Durham’s dissent: pre- to exercise reasonable care to Respondeat superior agency theory is an leaving vent Duarte from imposes that on the master for while intoxicated and that for breach of the tort of his servant committed in the duty, that may indepen- Roberts held “scope (Citations employment”. omit- dently resulting injuries. liable for the ted.) Although have used we different follow the only will restate wording to articulate when a ment absent case to the contrary. law within the employment, we have Jackson, Keck v. 122 Ariz. always required nexus exist be- (1979); Perkins, MacNeil v. tween the employee’s activity and the Keckonen holds imposed interest before we negli is not liable for the (Cita- employer.

vicarious on an gent employee occurring acts of an off the omitted.) tions consistently haveWe re- employer’s property though the em even quired that the nexus exist at the time ployee became on employ intoxicated that act that in injury results occurs. *7 property employer er’s and the knew the (Citations omitted.) majority aban- employee was when he left intoxicated his dons this requirement by fundamental Therefore, property. we conclude that it is finding prior the nexus to this time. inappropriate apply 317 as it to is con § In finding, majority so holds an trary to Arizona case law. employer negligent liable for the acts of Even if inappli- we considered it is § employee, though his employ- even no here. states: cable Section 317 relationship ment existed when the act upon Duty of Master predicated which is to Control Conduct of oc- curred. Servant. duty A master is under a to exercise 491-92,

105 Wash.2d at 716 P.2d at 832. reasonable care so control his servant rejection Our of Dickinson notwithstand- while outside the of his em- ing, apply its rule does not here. Unlike ployment prevent as him from inten- Dickinson, banquet Roberts did host a tionally harming or from so others con- provide to honor its nor did it ducting himself as to create unreason- the alcohol Duarte. consumed The com- them, able risk bodily harm to imposing liquor mon thrust of the decisions (a) the servant liability is furnishing alcohol when a (i) upon premises possession is person reasonable not. That con- would upon of the which the master or servant duct is the described in Keck- misfeasance privileged only servant, is to enter as his present and onen Ontiveros. In case or purchased Duarte his own alcoholic bever- (ii) master,

ages yard. using and is of the drank the beer outside the a chattel Furthermore, though may Roberts have relies,

(b) distinguishable. In the master which Bruce are employ- forced his (i) Robertson or has reason to know that knows servant, ability straight he has the to control his ee to work 27 hours without an rest, opportunity permitted him and then (ii) driving knows or should know of the neces- himself home. While home drive sity opportunity exercising such asleep employee apparently fell at the control. injured wheel and an accident that caused plaintiff. Reversing a directed verdict 317 states: Comment b § that, employer, for the the court stated particu- master as such is under no [T]he present, is “when such affirmative action duty lar to control the conduct of his liability may imposed regardless servant he is outside of the mas- of the while premises, ter’s unless the servant relationship the de- existence of a between using him the time a chattel entrusted to injured by the inca- party fendant and the as servant. pacitated at 569. individual.” 301 S.E.2d Nothing in the record here indicates that drinking case Duarte’s excessive this any supervisors engaged Roberts or of its not in and of itself create an unreason- did anything approaching the affirmative bodily others. What able risk of harm to the court based its hold- did so was Duarte’s conduct conduct on which pickup truck while intoxicated. That con- ing in Robertson. place away duct took from Roberts’ busi- Similarly in court Engineering, Otis three hours later. ness and some employee’s held the liable for an 317 to exer- Roberts had no under § actions because the took control in any cise care to control Duarte’s conduct employee by escorting of an intoxicated respect picnic once he left the and headed allowing him to his him to drive car for home.5 later, away. Thirty minutes are of two cases from other We aware an auto accident. 668 S.W.2d at arguably expose an em-

jurisdictions which Engi- 311. Unlike situation Otis those ployer to on similar facts to neering, there is no evidence that Roberts principle here under the 317. See charge any supervisors of its took of or Otterloo, Mich.App. Romeo v. Van otherwise exercised control over Duarte (1982),on which Bruce 323 N.W.2d 693 meaning adopted by rule within the of the relies, Co., Gariup Inc. Construction (Sec- Engineering. See Restatement Otis Foster, (Ind.1988). We 519 N.E.2d ond) also note Torts particularly well rea- find neither decision justices of the Texas that four convincing. We also note that the soned strongly Engineer- Court dissented Otis Michigan Supreme recently Court over- *8 employer duty no stating that an has ing, Plum Hollow ruled Romeo Millross v. off-duty employ- an to exercise control over 178, 196, Club, 413 N.W.2d 429 Mich. Golf ee, partly employer the lacks the because 17, (1987), stating: 25 leqal riqht control. 668 S.W.2d to exercise relationship special that the hold [W]e at 314. employee not employer and does between require employer protect the of itself agree decisions like instead with parties off-premises injuries, third 76, Christie, N.Y.2d 524 D’Amico v. 71 supervising consumption by either (1987). 1, In that 518 N.E.2d 896 N.Y.S.2d transporta- alternate providing alcohol or of Monroe Tube was employee case an tion. premises told to leave the fired and Mich, 196, 413 N.W.2d at 25. 429 at alcohol on his breath. his foreman smelled home, employee, The while Clark, Corp. v. Engineering Otis reject- appeal the court injury. a fatal On (Tex.1983), Robertson v. S.W.2d argument that the em- (W.Va.1983), plaintiffs’ on ed the LeMaster, 301 S.E.2d right legal to assert Roberts would have had Additionally, has failed to call to our 5. control, we are aware of none. any authority supporting such the view that attention ployment relationship imposed duty plaintiff on The sued both Edwards and Kai- ser, Monroe Tube under 317. The court held granted summary and the trial court by that the described 317 “limited judgment in Supreme favor of Kaiser. The by employees to torts committed on the Washington Court of reversed. It ruled employer’s premises employer’s or with the proximate cause of the accident chattels, unavailing and ... would be employee’s negligent was the overcon- plaintiffs because the accident occurred off sumption of party alcohol at a hosted employer’s premises and did not involve employer employer’s to further the in- employer’s property.” Id. 71 N.Y.2d at terests, employee’s presence and if the 82, 7, 524 N.Y.S.2d at 518 N.E.2d at 902. requested impliedly expressly re- Pilgrim Co., Accord Drilling Fortune quired by employer, employer Inc., 982, (5th Cir.1981); 653 F.2d Mey Dickinson, would be liable. 105 Wash.2d 716, Grubaugh, ers v. 242 Kan. 468-69, 716 P.2d at 820. It found the (1988). employer vicariously liable under the doc- respondeat superior trine of Affirmed. because the proximate cause of the accident—the over- CONTRERAS, P.J., concurs. consumption of alcohol—occurred while the banquet acting was at the within KLEINSCHMIDT, Judge, dissenting. employment. of his Id. respectfully I dissent. Distilled to their majority agrees with the dissent in essence, employer, the facts are that the Dickinson, which observed that the con- Inc., Conditioning, Chas Roberts Air al- employer’s nection between interest employees its lowed to drink beer on its employee’s activity and the which caused premises in furtherance company busi- injury must exist at the time the act— ness and that an employee engaged so left meaning inju- the accident—that results premises under the influ- ry. 491-492, Id. at 716 P.2d at I do ence of consequently alcohol and became agree drinking with this because has a gave involved the accident which rise to prolonged effect. An who this lawsuit. Or so a trier of fact could drinks, banquet whether at a or on the find.6 employer’s premises waiting while for a I do not holding with the in Kecko assignment, may work leave and cause an Robles, nen v. 705 P.2d 945 accident some time later. (App.1985). I do not see the majority distinguishes also Dickin- Here, this case as a “social host.” by observing son that the in the employer used alcohol to further his busi sponsor case before did us an event and purpose. case, ness being That I think did not furnish the beer its principle apply the correct is the one Here, however, drank. bene- adopted by Washing Court of allowing drinking fitted from the beer Edwards, ton in on Dickinson v. 105 Wash.2d its activity kept because that em- In that case the ployees performing employer, Aluminum, available for additional put Kaiser on a ban quet might work as the need I long-time employees. to honor its Al arise. see no conceptual difference banquet, asking cohol was served at the between em- *9 employee, Edwards, ployees banquet Ersel had a to attend a work-related number of served, banquet, drinks. After he left alcohol suffering Ed where is wards was involved in an them employer’s automobile acci to drink alcohol on the plaintiff injured. premises dent which the they so that remain on hand will brief, however, they Response employer, expressly dispute 6. In their as did in their does not inference, Summary Judgment, plain- majority opinion the Motion for this and the as- employer supported by tiffs assert that benefited from sumes that the inference is I, allowing drinking kept the beer because it em- evidence. So do I since do there is no ployees employer’s yard per- explore employer available at the for need to in detail whether the forming supports respect, by additional work. The record benefited in some other such as only by fostering employee good this conclusion a thin inference. The will. situations, statute, posed In results in an anom- for further work. both with this employer using aly. employer, is alcohol to further his An like the one Dickin- purposes. liquor actually business who furnishes would son liable, employer suf- not be while an which I think that the Court of also employee drink in furtherance of fers its Washington’s rationale Dickinson bears may responsible for purpose, a business interpretation on the Restatement activity. The reso- caused (Second) Torts section 317 Un- anomaly problem lution this is a section, employer an has a der that day. another employee outside control his who employment employ- of his if the an conducting ee is himself so as to create to others and if

unreasonable risk harm premis- employee employer’s is on the majority points in the

es. The out employee

case us the was not on the before premises at the time of the acci- employer’s True, the rationale of dent. but under In re the Matter of the CONSERVATOR in the case before Dickinson OF John W. SHIP/GUARDIANSHIP us was on the at the HILL, Adult, Incapacitated and Pro act, did the or more time tected Person. acts, that precisely did one of the 2No. CA-CV 90-0014. Roberts Air Condition- the accident. Chas employ- ing, every right Inc. had to tell its Arizona, Appeals Court Duarte, ee, Michael not to drink beer on its 2, Department A. Division short, I with the premises. do June 1990. majority’s conclusion that could not be liable under Restatement Denied Dec. Review section 317. the Restatement

The difference between course, is, of that under the

and Dickinson would not be

Restatement

vicariously Where the liable. conduct, employee’s I from the

benefits in Dickin-

believe that the rule laid down apply. should

son

Finally, ignore I cannot A.R.S. section provides:

4-301. It a licensee or an person

A other than acting during the

employee of a licensee working in connec-

employee’s hours or employment such is not liable

tion with injured, or

damages any person who is killed, any person

to the survivors of alleged damage property, which is part or in been caused whole

to have furnishing serving

by reason of the legal person of the

spirituous liquor to a

drinking age. employer in this case did

Since *10 employee, the statute liquor to the

furnish not, terms, apply. I acknowl- by its

does it, interpret juxta-

edge the law as I