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Plaintiff,
MOTION TO DISMISS
COMPLAINT OF PLAINTIFFS
JOSE ADAME, AJERINO
RAMIREZ, KEE JOHN, MAGGIE
YAZZIE, AND ELIAS RAMIREZ
AND SUPPORTING
MEMORANDUM
REQUEST FOR HEARING
Civil No. 160300380
Judge Robert Adkins
Tier: 3
Peppermill asserted in the Complaint are barred under 41.1305 of the Nevada Revised Statutes.
Therefore, all claims should be dismissed with prejudice.
SUMMARY OF THE ALLEGED FACTS AGAINST PEPPERMILL
The following allegations are taken directly from the Complaint and are presumed to be
true only for purposes of this instant Motion.
2
1.
Complaint, 7.
2.
At all times pertinent, Peppermill owned and operated casinos in Wendover. See
id. at 10.
3.
Defendant Paul Mumford is an individual residing in the State of Utah. See id. at
5.
6.
7.
Mumford was apparently under the influence of alcohol or drugs. See id. at 14.
8.
Peppermills servers knew or should have known from the circumstances that
Mumford was under the influence of alcohol or drugs. See id. at 15.
9.
11.
Peppermill did nothing to prevent Mumford from leaving or driving his vehicle.
Mumford started driving eastbound on I-80 back to his home in Utah. See id. at
19.
13.
He crossed the interstate from the eastbound lanes into the westbound lanes. See
id. at 20.
14.
15.
At about the same time, Jose Adame was driving westbound on I-80 in the
Delphine Ramirez, Aniyah Adame and Delilah Ramirez were passengers in his
Mumford hit Jose and his family head-on. See id. at 24.
18.
The collision caused serious physical injuries to Jose, Delphine, Aniyah and
20.
Delphine, Aniyah and Delilah died of injuries they sustained. See id. at 26.
21.
surviving spouse of Delphine Ramirez and surviving natural father of Aniyah Adame. See id. at
1.
22.
Peppermill owed Jose and his family a duty of reasonable care in the operation of
Defendants breaches were a direct and proximate cause of injuries to Jose and his
family, death to Delphine, Aniyah and Delilah and Plaintiffs damages. See id. at 32.
25.
Peppermill, through its agents and employees, sold, gave, or otherwise provided
It did so even though (1) Mumford was apparently under the influence of
intoxicating alcoholic products or drugs; (2) Peppermill knew or should have known from the
circumstances that Mumford was under the influence of intoxicating alcoholic products or drugs;
or (3) Mumford was a known interdicted person. See id. at 37.
28.
29.
The injuries of Jose and his family, the deaths of Delphine, Aniyah and Delilah,
and the Plaintiffs damages were caused by Mumfords intoxication. See id. at 39.
30.
Peppermills employees were acting in the course and scope of their employment
when the incident occurred and when they were negligent. See id. at 41.
31.
Defendants were negligent and otherwise acted improperly. See id. at 44.
33.
Plaintiff Aljerino Ramirez is the surviving natural son of Delphine Ramirez and
Plaintiff Kee John is the surviving natural father of Delphine Ramirez and
Plaintiff Maggie Yazzie is the surviving natural mother of Delphine Ramirez and
Elias Ramirez is the surviving natural father of Delilah Ramirez. See id. at 5.
ARGUMENT
I.
STANDARD OF REVIEW.
This case involves a classic conflict of Utah and Nevada substantive law: Peppermills
allegedly tortious conduct occurred in the State of Nevada, while the purported injury occurred
in the State of Utah. Further, this conflict of law governs whether the Complaint may be
disposed on a motion to dismiss. Conflicts of law question may be resolved the substance of an
action on a motion to dismiss. See Waddoups v. Amalgamated Sugar Co., 2002 UT 69, 37, 54
P.3d 1054, 1065.
Despite the foregoing, a motion to dismiss is a procedural device, and the forum states
procedural rules govern such motions. See id. Accordingly, Utah procedural lawincluding the
standard of review on a motion to dismissgoverns the instant motion. See id ([T]he standard
of review is a matter of procedural, rather than substantive, law . . . .).
Under Utah law, a complaint should be dismissed under Utah Rule of Civil Procedure
12(b)(6) if it is clear that a party is not entitled to relief under any state of facts which could be
proved. Biedermann v. Wasatch Cty., 2015 UT App 274, 7. In evaluating a motion to dismiss
for failure to state a claim, Utah courts accept the factual allegations in the complaint as true
and interpret those facts and all inferences drawn from them in light most favorable to the
plaintiff as the non-moving party. Capri Sunshine, LLC v. E & C Fox Investments, LLC, 2015
UT App 231, 2 (emphasis added); but see Richardson v. Matador Steak House, Inc., 948 P.2d
347, 348 (Utah 1997) (noting that Utah courts are only required to accept as true well-pled
allegations of facts in the complaint and all reasonable inferences from those facts. (emphasis
added)). Utah courts are not required, however, to accept legal conclusions or opinion couched
as facts. Biedermann, 2015 UT App at 7.
II.
negligence; (2) dramshop liability, (3) vicarious liability; and (4) wrongful death.
See
Complaint, p. 4-6. It also includes a request for punitive damages. See Complaint, p. 7. As a
preliminary matter, vicarious liability and wrongful death are not causes of action independent
from Plaintiffs claims of negligence and dramshop liability for purposes of this Motion to
Dismiss.
Vicarious liability is a legal doctrinealso known as respondeat superiorwhereby
liability for tortuously caused injuries are assigned to a person who has not caused the injury but
who has a particular legal relationship to the tortfeasor, usually an agency or employment
relationship.
See LIABILITY, Blacks Law Dictionary (10th ed. 2014) (Liability that a
supervisory party (such as an employer) bears for the actionable conduct of a subordinate or
associate (such as an employee) based on the relationship between the two parties.); see also
Christensen v. Swenson, 874 P.2d 125, 127 (Utah 1994) (Under the doctrine of respondeat
superior, employers are vicariously liable for torts committed by employees while acting within
the scope of their employment.). Under the common law, vicarious liability is generally applied
in negligence cases. Similarly, Utahs Dramshop Act also expressly provides a recovery against
employers whose employees violate the statutes. See Utah Code Ann. 32B-15-202 (West)
([A]n employer is liable for the actions of its staff in violation of this chapter.). Accordingly,
because establishing negligence or dramshop liability is a necessary predicate to a finding of
vicarious liability, this Court need not consider the Plaintiffs cause of action for vicarious
liability on this Motion to Dismiss.
Similarly, claims of wrongful death are not independent theories of recovery.
wrongful death action is a lawsuit brought on behalf of a decedents survivors for their damages
resulting from a tortious injury that caused the decedents death.
WRONGFUL-DEATH
ACTION, Blacks Law Dictionary (10th ed. 2014). Under Utah statute, wrongful death provides
recovery for the heirs of a person whose death is caused by the wrongful acts or neglects of
another. See Utah Code Ann. 78B-3-106 (West). Utahs Dramshop Act expressly provides a
recovery for the heirs of one injured, damaged, or killed as a result of a violation of the statute.
See Utah Code Ann. 32B-15-201 (West). Thus, in order to recover for wrongful death, a
plaintiff must establish an underlying basis of liability, which in this case is either negligence or
dramshop liability.
Here, the Motion to Dismiss demonstrates that the Plaintiffs have failed to state a claim
for either negligence or dramshop liability. Accordingly, the two dependent causes of action for
vicarious liability and wrongful death are irrelevant to this analysis. Therefore, dismissing the
negligence and dramshop liability causes of action disposes of all potential liability against the
Peppermill. This discussion addresses each of these two (2) causes of action in turn.
A.
As a preliminary matter, [s]ince Utah is the forum state, Utahs choice of law rules
determine the outcome of the conflict. See Waddoups v. Amalgamated Sugar Co., supra, 2002
UT 69, 14, 54 P.3d at 1059. Under Utah law, a choice of law analysis is preceded by a
determination of whether there is a true conflict between the laws of those states that are
interested in the dispute. One Beacon Am. Ins. Co. v. Huntsman Polymers Corp., 2012 UT App
100, 276 P.3d 1156, 1165 n.10 (emphasis added).
explained the nature of a true conflict of laws in the negative by defining its opposite, the
false conflict of laws:
[F]alse conflict really means no conflict of laws. If the laws of
both states relevant to the set of facts are the same, or would
produce the same decision in the lawsuit, there is no real conflict
between them.
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 838 n.20 (1985) (emphasis added). As explained
in greater detail here, there is no true conflict of laws between Utah and Nevada law regarding
the Plaintiffs claim for negligence. Under the law of either state, the Plaintiffs negligence
cause of action must be dismissed against Peppermill.
B.
Applying Either Utah or Nevada Law, the Plaintiffs Failed to State a Claim
for Negligence.
As a preliminary matter, [s]ince Utah is the forum state, Utahs choice of law rules
determine the outcome of the conflict. See Waddoups v. Amalgamated Sugar Co., supra, 2002
UT 69, 14, 54 P.3d at 1059. Under Utah law, a choice of law analysis is preceded by a
determination of whether there is a true conflict between the laws of those states that are
interested in the dispute. One Beacon Am. Ins. Co. v. Huntsman Polymers Corp., 2012 UT App
100, 276 P.3d 1156, 1165 n.10 (emphasis added).
explained the nature of a true conflict of laws in the negative by defining its opposite, the
false conflict of laws:
[F]alse conflict really means no conflict of laws. If the laws of
both states relevant to the set of facts are the same, or would
produce the same decision in the lawsuit, there is no real conflict
between them.
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 838 n.20 (1985) (emphasis added). There is no
true conflict of laws between Utah and Nevada law regarding the Plaintiffs claim for
negligence. Under the law of either state, the Plaintiffs negligence cause of action must be
dismissed against the Peppermill.
1.
Under Nevada law, those who serve or sell alcoholic beverages to a person 21 year of age
or older are immune from civil liability by statute, which provides as follows:
A person who serves, sells or otherwise furnishes an alcoholic
beverage to another person who is 21 years of age or older is not
liable in a civil action for any damages caused by the person to
whom the alcoholic beverage was served, sold or furnished as a
result of the consumption of the alcoholic beverage.
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The Plaintiffs Also Fail to State a Claim for Negligence Under Utah
Law.
As noted above, the Utah Legislature enacted the Dramshop Act, which creates liability
for those who serve alcohol to patrons who then go on to injure third parties. See Utah Code
Ann. 32B-15-101, et seq. This statutory remedy is a deviation from the common law and Utah
precedent.
At common law, third parties did not generally have a cause of action against dramshops
that provided alcohol to another who became intoxicated and caused personal injury. Adkins v.
Uncle Barts, Inc., 2000 UT 14, 13, 1 P.3d 528, 532. Indeed, [p]rior to the enactment of the
Dramshop Act, Utah did not recognize a third-party cause of action against dramshops. Id. at
2000 UT 14 at 15, 1 P.3d at 532. As the Supreme Court of Utah explained:
In 1981, the Dramshop Act was enacted and created a statutory
cause of action, which did not exist at common law, against
dramshops. Our legislature, like those of other states, passed
dramshop legislation to abrogate the common law rule precluding
the liability of a party who sells or otherwise provides alcohol to a
person who is intoxicated and injures another. Dramshop acts are
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law. See Gilger v. Hernandez, 2000 UT 23, 13 (affirming 12(b)(6) dismissal of negligence
claim arising from serving of alcohol to minor at party because the common law of negligence
is preempted insofar as it may impose liability for acts that the Dramshop Act reaches).
Plaintiffs will likely argue that Peppermill is liable for the negligent employment, hiring,
retention, training, or supervision of its employees, and will likely further argue that such torts
may be asserted in addition to their claims under the Dramshop Act. See id. at 31; see, e.g.,
Retherford v. AT & T Commcns of Mountain States, Inc., 844 P.2d 949, 972-73 (Utah 1992)
(recognizing a negligent employment cause of action).
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3.
The Plaintiffs also include a request for punitive damages in their Complaint, but punitive
damages are not recoverable under the Dramshop Act. The Act makes a defendant liable for
any and all injury and damage, except punitive damages, up to the statutory ceiling, arising
from the wrongful serving of alcohol as set forth in the Act. Utah Code Ann. 32B-15201(1)(a). Therefore, the Plaintiffs request for punitive damages should be stricken from the
Complaint for failure to state a claim upon which relief can be granted.
In sum, there is no true conflict between Nevada and Utah law as to the Plaintiffs claims
of negligence. Accordingly, the Court need not conduct a conflict of laws analysis as to the
Plaintiffs negligence claims, because these claims must be dismissed under the law of either
state. The Court should grant this Motion to Dismiss on this basis.
C.
As noted above, a conflicts of law analysis requires a primary determination that there is
a true conflict between the laws of sister states. See, e.g., American Natl Fire Ins. Co. v.
Farmers Ins. Exch., supra, 927 P.2d at 188. Here, the Plaintiffs are asserting a cause of action
under the Dramshop Act against Peppermill. Under Nevada law, servers of alcohol are granted
immunity from civil liability for any damages caused by the person to whom the alcoholic
beverage was served, sold or furnished as a result of the consumption of the alcoholic beverage.
See Nev. Rev. Stat. Ann. 41.1305(1) (West). While under Utah law, the Dramshop Act creates
liability to third parties against servers of alcohol, as follows:
(1)(a) . . . a person described in Subsection (1)(b) is liable for:
(i) any and all injury and damage, except punitive damages to:
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two different results, this true conflict must be resolved by the forum states conflict of law
principles.
1.
Turning to the conflicts of law rules of the forum state, Utah has adopted the most
significant relationship approach to resolving the conflicts of law issues in tort cases from
Restatement (Second) of Conflict of Laws. See Waddoups v. Amalgamated Sugar Co., supra, 54
P.3d at 1060. Section 146 of the Second Restatement provides that
In an action for a personal injury, the local law of the state where
the injury occurred determines the rights and liabilities of the
parties, unless, with respect to the particular issue, some other
state has a more significant relationship under the principles
stated in 6 to the occurrence and the parties, in which event the
local law of the other state will be applied.
Restatement (Second) of Conflict of Laws 146 (1971) (emphasis added). Here, the automobile
collision and the injuries to Jose and his Family allegedly occurred in the State of Utah. See
Complaint, 9. Therefore, Utah law applies until Nevadathe only other state implicated in the
Complainthas a more significant relationship to the dispute in this case.
In determining whether Nevada has a more significant relationship to the disputes in this
case, the principles of Section 6 of the Second Restatement should be considered, which include
the following:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
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10-13. The Plaintiffs do not (and cannot) allege that Peppermills conduct occurred in any
state other than Nevada.
As for the residence of the parties, Jose is allegedly a resident of Utah, and Mumford is,
as well. See id. at 1, 6. However, Peppermill is a resident of Nevada. See id. at 7. The
Complaint does not allege Delphine, Aniyah and Delilahs state of residence. Furthermore, the
Complaint does not allege the state of residence of any of the Plaintiffs except Jose. See id. at
1-5. The relationships of the parties are centered in two different states. Peppermill allegedly
served Mumford alcohol in Nevada; Mumford allegedly injured Jose and his family in Utah.
Based upon these preliminary considerations, it is apparent that both Nevada and Utah
have interests in the dispute, which, because this is a personal injury case, would implicate Utah
law without taking into account public policy considerations implicated by Section 6 of the
Second Restatement.
Nevadas public policy favors protecting the hospitality and gaming industry from
ruinous exposure and opening the floodgates of litigation against servers of alcohol, such as
hotels and casinos. See Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 101, 450 P.2d 358, 359
(1969). The public policy of the State of Nevada finds it necessary to protect its vital gaming
and tourism industries. See Nev. Rev. Stat. Ann. 463.0129(1)(a) (West) (The Legislature
hereby finds, and declares to be the public policy of this state, that: . . . The gaming industry is
vitally important to the economy of the State and the general welfare of the inhabitants.).
Furthermore, Nevada public policy favors holding the consumer of alcohol responsible for
keeping roads and highways safe, not the server, which is in keeping with the common law. See
Hamm v. Carson City Nugget, Inc., supra, 85 Nev. at 101, 450 P.2d at 359. Peppermill, as a
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Nevada hotel and casino, is precisely the type of establishment that the Nevada Legislature
sought to protect when enacting Section 41.1305 of the Nevada Revised Statutes.
In contrast, Utah courts have clearly established that the policy rationale behind the
Dramshop Act is to provide innocent third parties with a remedy for injuries caused by
intoxicated individuals. See Adkins v. Uncle Barts, Inc., supra, 2000 UT 14 at 16, 1 P.3d at
532; Reeves v. Gentile, 813 P.2d 111, 116 (Utah 1991) overruled on other grounds by Red
Flame, Inc. v. Martinez, 2000 UT 22, 996 P.2d 540. Here, however, the Plaintiffs are not
precluded from recovering from Mumford; indeed, they have asserted claims against him in this
case. Moreover, there is no allegation that Mumford, his insurance carriers, or both, are unable
to provide a recovery to the Plaintiffs.
Here, Nevadas interest in protecting the gaming and tourism industry gives Nevada a
more significant relationship to the issues in this case, despite the presumption that the law of the
place of the injury should be applied. Utahs public interest in asserting dramshop liability
against Peppermill is ameliorated by the fact that the Plaintiffs can recover from Mumford and
his insurers.
Therefore,
Peppermill is immune from civil liability, and the Plaintiffs cause of action under the Dramshop
Act and all other causes of action should be dismissed with prejudice.
CONCLUSION
For the foregoing reasons, the Court should grant the Motion. The Complaint should be
dismissed in its entirety based upon the application of Nevada law. Should Utah law apply, the
causes of action for negligence, vicarious liability and wrongful death must be dismissed, as well
as the request for punitive damages.
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CERTIFICATE OF SERVICE
I hereby certify that on the 30th day of March, 2016, I served a copy of the foregoing
MOTION TO DISMISS COMPLAINT OF PLAINTIFFS JOSE ADAME, AJERINO
RAMIREZ,
KEE
JOHN,
MAGGIE
YAZZIE,
AND
ELIAS
RAMIREZ
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4840-9239-6847.v1
AND