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Dupray v. JAI Dining Servs. (Phx.), Inc. - 11/15/2018

Arizona Court of Appeals Division One holds that in some negligence cases, a specific jury instruction on intervening and superseding cause is required.


A gentlemen’s club served a patron a lot of beer.  He became intoxicated.  A friend drove him to a nearby house.  From there, he drove himself to his girlfriend’s house, where his girlfriend warned him that he was intoxicated and should not be driving.  He ignored her advice, drove off, and ended up injuring a motorist.

The motorist sued the club for negligently overserving the patron.  At trial, the club argued that it was not liable because the patron’s decision to drive, after safely leaving the club, was an intervening and superseding cause of the motorist’s injury that broke the chain of causation.  The club requested a jury instruction on intervening and superseding cause, but the court instead gave only a general instruction on causation for negligence cases.  The jury found the club liable.

The Court of Appeals vacated the verdict and remanded.  A trial court must give a requested jury instruction if (1) the instruction is proper under the law, (2) the evidence supports the instruction, and (3) the instruction pertains to an important issue and the gist of the instruction is not given elsewhere.  These conditions were met here.  First, the requested instruction properly explained that an event is an intervening and superseding cause of injury if it occurred after, and was independent of, the original negligent act and was extraordinary and unforeseeable from the standpoint of the original actor.  Second, the evidence supported an inference that the patron’s decision to drive after safely leaving the club was an intervening and superseding cause of the motorist’s injury.  Third, the instruction pertained to a critical issue in the case and was not addressed by the trial court’s general causation instruction.

In reaching this result, the Court distinguished its previous decision that a general causation instruction was adequate in a medical malpractice case.  Ritchie v. Krasner, 221 Ariz. 288, 299–300 ¶ 32 (App. 2009).  The Ritchie decision, according to the Court, held only that an intervening and superseding cause instruction was unnecessary “under the facts of that case.”  Here, the concept of intervening and superseding cause was “critical” to correctly resolving the case.

Presiding Judge Howe delivered the opinion.  Judge Thompson and Judge Johnsen joined.

Posted by: Josh Whitaker.

Disclosure:  Osborn Maledon attorneys were involved with this case.

Posted On: 11/21/2018