Verduzco v. American Valet, 741 Ariz. Adv. Rep. 22 (App. Div. I, June 21, 2016) (J. Thumma)

NEGLIGENT ENTRUSTMENT CLAIM AGAINST VALET CO. PROPERLY PLED/VALET COS NOT EXEMPT FROM NEGLIGENT ENTRUSTMENT CLAIMS BASED ON PUBLIC POLICY/VALET COS HAVE NO GENERAL NEGLIGENCE DUTY TO THIRD PARTIES INJURED BY DRIVER TO WHOM THEY GIVE CAR

Plaintiffs' sued defendant valet company alleging as bailee it negligently gave a sports car in its charge to Morken, an unauthorized and intoxicated person who thereafter crashed the car into plaintiffs' car causing serious injury and death. Defendant moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. The trial court granted the motion on the grounds defendant owed no duty to the plaintiffs under a simple negligence theory and the failure to plead that defendant knew or reasonably should have known the driver was intoxicated or on drugs rendered the negligent entrustment claim deficient.  The Arizona Court of Appeals affirmed in part and reversed in part.

Plaintiffs' 20 page complaint alleged that the driver was “under the influence of drugs and extremely intoxicated and impaired” was “incompetent to drive safely” was “high on drugs and behaving erratically” and “under the circumstances [defendant] knew or should have known [Morken] had no right to drive off with the vehicle.” Under Arizona's notice pleading rules, defendant was put on adequate notice that it was being sued for negligent entrustment.

Defendant's argument that valet companies ought to be exempt from negligent entrustment claims as a matter of public policy also fails. Defendant cites only three cases outside Arizona to support this argument and in all three cases the valet company gave possession of the car to the rightful owner. Plaintiff's complaint alleges Morken was not the owner or an authorized user of the car. Further, defendant's control over the car before it was released to Morken whether transitory or not was adequate to support a negligent entrustment claim.

Finally, the trial court was correct in finding the defendant had no duty to these plaintiffs under a simple negligence theory. In so doing the court expressly rejected the opportunity to adopt Restatement Third of Torts, sec 7(a) “an actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.” The court ruled, “Moreover, [plaintiffs] have not shown that [defendant]owed a general negligence duty to them (and, in essence, the whole world) based on statute, special relationship, public policy or otherwise.”