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Morris v. Giant Four Corners, Inc.

United States District Court, D. New Mexico

March 6, 2018

FRANKLIN J. MORRIS, as Personal Representative of the Wrongful Death Estate of MARCELLINO MORRIS, JR. Deceased, Plaintiff,
GIANT FOUR COURNERS, INC. d/b/a GIANT #7251, Defendant.


          Judith C. Herrera, United States District Court Judge.

         THIS MATTER comes before the Court on Plaintiff's Motion for Partial Summary Judgment on Negligent Entrustment. [Doc. 43] After careful consideration of the parties' pleadings, evidence, and applicable law, the Court concludes that the motion should be denied.


         The following facts are either undisputed or are relevant facts, established by admissible evidence, that most favor Defendant Giant Four Corners, Inc.

         On the evening of December 29, 2011, Andy Denny drove to a high school basketball tournament in Window Rock, Arizona, which was about an hour and fifteen minutes away from his home. [Doc. 48-1, p. 2 at 18:11-18] Around 8:00 P.M, after watching about 40 or 45 minutes of a basketball game, Denny drove to Gallup, New Mexico, where he stopped to purchase beer at a grocery store. [Id. p. 6 at 46:8-10; 46:13-19] Denny drank three or four beers before heading to a bar in Gallup. [Id. p. 6 at 47:3-8] Denny remained at the bar until it closed around 2:00 A.M. [Id. p. 6 at 47:23-25] Denny testified at a later deposition that he consumed five more beers and two shots of hard liquor in the five hours he was at the bar. [Id. p. 6 at 47:14-48:5]

         Later, in the early morning hours of December 30, 2011, before the accident, Denny went to Tohatchi to pick up his friend Cecilia Yazzie. [Id. p. 3 at 27:3-21] Although Yazzie could not remember if Denny appeared intoxicated at that time, she testified that she was not scared to get in the car with him. [Doc. 48-2, p. 8 at 50:16-20; p. 11 at 69:22-25] Denny and Yazzie provide conflicting testimony about who then drove Denny's vehicle-Denny stated that Yazzie drove throughout the time they were together, while Yazzie explained that Denny drove at all times she was with him. [Id. p. 8 at 50:7-25 - 51:1; p. 11 at 67:18-22; p. 9 at 63:17-25 - 64:1-4] At approximately 5:00 A.M., Denny's car ran out of gas. [Doc. 43-1, p. 3 at 28:20-23] Denny and Yazzie walked approximately one mile to the nearest gas station, the Tohatchi Giant gas station. [Doc. 43-2, p. 2 at 19:14-25-20:1-2; p. 5 at 52:1-8] During the walk to the gas station, Denny drank two more beers. [Id. p. 2 at 20:14-22; 21:2-4] Yazzie testified that Denny walked to the gas station without problems and that she had no trouble understanding his speech. [Doc. 48-2, p. 8 at 52:25-53:1-14] At the gas station, Yazzie was intoxicated, and believed that Denny was too. [Id. p. 4 at 22:4-16] However, Yazzie could not remember whether Denny displayed manifestations of intoxication, such as slurred speech or difficulty walking, though she recalls his breath smelling like alcohol. [Id. p. 2 at 8:16-25; 9:1-5]

         The Giant gas station did not have any gasoline cans available for purchase, so Yazzie suggested they buy a liter of soda and use the bottle to carry gasoline back to Denny's car. [Id. p. 9 at 58:3-12; Doc. 43-2, p. 6 at 56:2-3] Yazzie stated that the clerk, Gloria Pine, refused to sell anything to her and believed that was because Pine knew Yazzie was intoxicated. [Doc. 48-2, p. 4 at 22:1-3] She also testified that when she asked whether they could purchase the soda bottle and use it for gas, Pine responded “no” and “both of you look intoxicated.” [Id. p. 9 at 58:13-15] However, there is no evidence in the record that Pine initially refused to sell anything to Denny, and, Pine did sell Denny a gallon of water and a gallon of gasoline at approximately 5:20 A.M. [Doc. 43-p. 3');">2 p. 3 at 25:6-8; p. 7 at 60:20-25 - 61:1-5; Doc. 43-5]. Denny and Yazzie then went to a gas pump, dumped the jug's contents, and Yazzie held the gallon jug while Denny pumped gas into it. [Doc. 48-2, p. 5 at 26:1-4] Denny and Yazzie then returned to Denny's vehicle on foot. [Id. p. 10 at 62:10-12] Yazzie testified that on the return trip Denny again walked without problems. [Id. p. 10 at 63:18-22] They deposited the gallon of gasoline into the car, and returned to the gas station about twenty minutes later. [Doc. 43-2, p. 4 at 28:11-14] Denny went into the store, and around 5:40 A.M., Pine sold Denny an additional nine gallons of gasoline, a pack of cigarettes, and a soda. [Id. p. 4 at 29:5-14; Doc. 43-5]

         After dropping Yazzie off at her house, at about 6:40 A.M., Denny, alone in his car, drove his vehicle across the center line on U.S. Highway 491 and collided with Marcellino Morris's vehicle. [Doc. 48-2 p. 5 at 29:23-25; Doc. 43-6] Denny survived the collision but Mr. Morris died as a result of the crash. [Doc. 43-6, p. 3] Officer Daniel Kalleco was the first officer to arrive to the scene of the collision and reported that he observed signs of intoxication when he spoke to Denny. [Doc. 43-7, p. 2 at 21:17-21] More than three hours after the crash, Denny's blood alcohol level was .176. [Doc. 43-3, p. 2 at 32:7-8] Expert toxicologist, Dr. Paul Goldstein, later calculated that Denny's blood alcohol level would have been approximately .21 at the time he purchased the gasoline. [Doc. 43-8, p. 2]

         The Tohatchi Giant store did not sell alcohol. [Doc.48-3, p. 5 at 97:18-20] Criminal Investigator Christopher Reyes Tsosie testified that in his experience, gas stations in the area sell gasoline to intoxicated persons. [Id. p. 7 at 109:21-24] And both Tsosie and Kalleco testified that they did not know of a gas station that would refuse to sell gasoline to an intoxicated person. [Id. p. 4 at 93:15-25; Doc. 48-4, p. 3 at 42:3-6] Pine had discretion to refuse a sale of gasoline to an intoxicated person, and she received training to identify the signs of intoxication in a person. [Doc. 43-4, p. 2 at 28:12-25 - 29:1-8; p. 3 at 38:1-10] However, Pine testified to having no memory of her work shift on December 30, 2011. [Id. p. 3 at 40:4-7]

         In a later deposition Denny described himself as an alcoholic at the time of the crash. [Doc. 48-1, p. 10 at 68:7-24] He admitted to driving while drunk before, and would sometimes drink to the point of “blackout.” [Id. p. 11 at 70:10-21] Both parties agree that Denny consumed at least ten beers and two shots of hard liquor from the time he starting drinking around 8:00 P.M. until the time he encountered Pine around 5:20 A.M. the next day, but the parties disagree about his level of intoxication at the time he purchased gasoline and what effect the alcohol had on his appearance when he encountered Pine.


         Plaintiff originally filed suit in the District Court of the Navajo Nation in Crownpoint, New Mexico. [Doc. 38-1] That court granted Defendant's motion for summary judgment on the basis that Plaintiff's suit was filed after the two-year statute of limitations for personal injury claims under the Navajo Nation Code. See 7 N. N.C. § 602(A)(1). [Doc. 38-5] Plaintiff has appealed the decision to the Navajo Nation Supreme Court and is currently awaiting a ruling on that appeal.

         Before the District Court of the Navajo Nation issued a decision on the summary judgment motion, Plaintiff filed a wrongful death complaint alleging vicarious liability for negligent entrustment of a chattel and direct liability for negligent hiring, training, and supervision in New Mexico state district court, [Doc. 1-1], which Defendant removed to this Court. [Doc. 1] On November 5, 2015, Defendant filed motion to dismiss under Fed.R.Civ.P. 12(b)(6), or, in the alternative to stay the case pending Plaintiff's exhaustion of tribal court remedies, arguing the case should be precluded under the doctrine of res judicata. [Doc. 38] This Court denied Defendant's motion to dismiss, concluding that the tribal court's dismissal on statute of limitations grounds had no preclusive effect on the current proceedings. [Doc. 64]

         III. ...

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