                               IN THE
             ARIZONA COURT OF APPEALS
                            DIVISION ONE


      TRENTON BARKHURST, a single person, Plaintiff/Appellant,

                                   v.

     THE KINGSMEN OF ROUTE 66, INC., an Arizona corporation,
                     Defendant/Appellee.

                        No. 1 CA-CV 13-0166
                         FILED 5-1-2014


          Appeal from the Superior Court in Mohave County
                       No. S8015CV201002151
             The Honorable Charles W. Gurtler, Judge

                             AFFIRMED


                             COUNSEL

Moriarity Badaruddin & Booke, L.L.C., Missoula, MT
By Bradley L. Booke
Counsel for Plaintiff/Appellant

Brownlee Law Firm, P.C., Phoenix
By Joseph L. Brownlee
Counsel for Defendant/Appellee
                      BARKHURST v. KINGSMEN
                         Opinion of the Court




                                  OPINION

Presiding Judge Donn Kessler delivered the opinion of the Court, in which
Judge Patricia K. Norris and Judge Maurice Portley joined.


K E S S L E R, Presiding Judge:

¶1             Trenton Barkhurst appeals the superior court‟s order
granting summary judgment to The Kingsmen of Route 66, Inc. („The
Kingsmen”). For the following reasons, we agree with the superior
court‟s conclusion that The Kingsmen owed no duty to Barkhurst. We
therefore affirm.

              FACTUAL AND PROCEDURAL HISTORY

¶2            The Kingsmen is a non-profit organization of local
volunteers that annually sponsors, organizes and conducts the Andy
Devine Rodeo Days (“Rodeo Days”), a two-day rodeo in Kingman that
occurs at the end of “Western Week.” Local businesses host specific
events during Western Week, and The Kingsmen assists in any way they
can. In 2009, the Dambar Steakhouse hosted a “Rodeo Dance” and “Best
Butt Contest” (collectively, the “Dambar Entertainment”) in the evening of
the rodeo‟s first day.

¶3              To encourage community involvement and tourism in
Kingman, The Kingsmen promoted the 2009 Rodeo Days and Western
Week on a website. The website listed the dates and times of the various
activities, including the Dambar Entertainment. The website also stated:

      The Andy Devine Days PRCA Rodeo is in its 25[th] year
      here in Kingman Arizona, brought to you by the
      KINGSMEN, a group of local businessmen dedicated to the
      preservation of our area‟s ranching and rodeo western
      heritage . . . .

      We invite you to enjoy all of the fun and entertainment
      brought to Kingman during Western Week, including the
      dances, parade, chili feed, and of course, the Rodeo!




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                      BARKHURST v. KINGSMEN
                         Opinion of the Court

¶4            Approximately two-and-one-half hours after the Dambar
Entertainment ended, two intoxicated patrons, Devore and Fancher,
assaulted Barkhurst in the Dambar parking lot. Devore was under
twenty-one years old. Barkhurst sustained serious injuries. At least one
member of The Kingsmen was at the Dambar acting as a judge during the
Dambar Entertainment wearing a Kingsmen shirt. The member called 911
when he was informed someone was injured in the fight, and he assisted
the security guard in a “backup capacity” by “making sure . . . [the fight]
had been defused and people were gone.”

¶5            Barkhurst filed a complaint for damages against several
parties including The Kingsmen, the Dambar and the security provider.
The allegations against The Kingsmen included statutory and common
law dram shop liability (“Claims 1 and 2”) and negligence claims (“Claim
5”).1 The Kingsmen successfully moved for summary judgment on all
claims against it. In dismissing Claims 1 and 2, the court found The
Kingsmen do not “fall within the dram shop provisions . . . [because] [t]he
allegations in [Barkhurst‟s] complaint do not even reference other than the
Dambar that any of the other defendants are licensees or that they have
sold or furnished alcohol.” Regarding the negligence claim, the court
concluded The Kingsmen owed no duty of care to Barkhurst.

¶6             Barkhurst timely appealed. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003) and -2101(A)(1) (Supp.
2013).

                             DISCUSSION

¶7         Barkhurst argues the court erred in granting The Kingsmen
summary judgment on the negligence claim. The sole issue is whether
The Kingsmen owed Barkhurst a duty of care.

¶8           Summary judgment is appropriate “if no genuine issues of
material fact exist and the moving party is entitled to judgment as a
matter of law.” Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement
Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 14, 38 P.3d


1      Barkhurst‟s complaint also raised claims of premises liability and
security liability, but not against The Kingsmen. Barkhurst also does not
appeal the dismissal of the dram shop claims.




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                       BARKHURST v. KINGSMEN
                          Opinion of the Court

12, 20 (2002). We review the grant of summary judgment de novo,
“viewing the evidence and reasonable inferences in the light most
favorable to” Barkhurst. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d
7, 11 (2003).

I.     DUTY OF CARE

¶9           A negligence claim requires proof of four elements: “(1) a
duty requiring the defendant to conform to a certain standard of care; (2) a
breach by the defendant of that standard; (3) a causal connection between
the defendant‟s conduct and the resulting injury; and (4) actual damages.”
Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). The
threshold issue regarding duty is a question of law determined by the
court, and:

       The existence of a duty of care is a distinct issue from
       whether the standard of care has been met in a particular
       case.   As a legal matter, the issue of duty involves
       generalizations about categories of cases. Duty is defined as
       an “obligation, recognized by law, which requires the
       defendant to conform to a particular standard of conduct in
       order to protect others against unreasonable risks of harm.”

Id. at ¶ 10 (quoting Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d
364, 366 (1985)).

¶10           Whether a defendant owes a plaintiff a duty of care does not
turn on the foreseeability of injury.2 Id. at 144, ¶¶ 15-17, 150 P.3d at 231.
“Duties of care may arise from special relationships based on contract,
family relations, or conduct undertaken by the defendant.” Id. at 145, ¶
18, 150 P.3d at 232. 3 The formation of a special relationship is often based
on some aspect of control. As a general matter, there is no duty to prevent


2       Barkhurst argues the court improperly applied the foreseeability
test rejected by Gipson. Our review of the record, however, indicates the
court did not base its no-duty conclusion on any inability by The
Kingsmen to foresee the risk posed by over-served patrons at the Dambar.
3       However, a court evaluating a relationship between parties for
purposes of determining the existence of a duty must not engage in a
“fact-specific analysis of the relationship,” because doing so “conflates the
issue with the concepts of breach and causation.” Gipson, 214 Ariz. at 145,
¶ 21, 150 P.3d at 232.



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                       BARKHURST v. KINGSMEN
                          Opinion of the Court

a third person from causing physical harm to another unless the
defendant stands in a special relationship with the third person or with
the victim that gives the victim a right to protection. Restatement
(Second) of Torts § 315 (1965); see also Gipson, 214 Ariz. at 145, ¶ 19, 150
P.3d at 232 (explaining that various categorical relationships can give rise
to a duty, including special relationships recognized by § 315 of the
Restatement (Second) of Torts “that create a duty to control the actions of
another”). For example, special relationships include a parent‟s duty to
control a child, a master‟s duty to control a servant, a landowner‟s duty to
control a licensee, and the duty of caretakers in charge of individuals with
dangerous propensities to control those individuals.              Restatement
(Second) of Torts §§ 316-19. “A special or direct relationship, however, is
not essential in order for there to be a duty of care.” Gipson, 214 Ariz. at
145, ¶ 18, 150 P.3d at 232. In the absence of a special or direct relationship,
public policy considerations may support the existence of a legal
obligation. Id. at ¶ 22.

¶11           In their summary judgment motion, the Kingsmen presented
evidence that it did not sponsor, control, host, organize, pay for, or
participate in the Dambar Entertainment except to help advertise the
Rodeo Days events and that any of its members who attended the Dambar
Entertainment did so in their individual capacity. The Kingsmen also
presented evidence that it did not provide security for the Dambar
Entertainment.      In promoting Rodeo Days, the Kingsmen sold
sponsorships for Rodeo Days and Dambar, as one of the paid sponsors,
was able to hang a Dambar banner at the rodeo. Barkhurst pointed out
that the Kingsmen advertised various businesses like the Dambar which
had paid for sponsorships for the Rodeo Days and that several Kingsmen
members had attended the Dambar dance dressed in Kingsmen shirts.
Barkhurst claimed in the superior court and argues on appeal that by
organizing the Rodeo Days and promoting the Dambar Entertainment
along with the other events during Rodeo Days, The Kingsmen was
legally obligated to undertake reasonable measures to ensure intoxicated
and underage patrons were not served alcohol at the Dambar. In other
words, Barkhurst argues that mere sponsorship and promotion of Rodeo
Days events by the Kingsmen were enough to create a duty by The
Kingsmen to protect people attending the Dambar Entertainment, even
without evidence that The Kingsmen had any control over the property,




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                       BARKHURST v. KINGSMEN
                          Opinion of the Court

event, or serving of alcohol at that event.4 Barkhurst relies on three
Arizona cases to support his argument. Each of those cases is
distinguishable from the issue here in which The Kingsmen did not
control the dance or contest at the Dambar or own or lease the property at
which those events took place.

¶12            Barkhurst primarily relies on Estate of Hernandez by
Hernandez-Wheeler for & on Behalf of Hernandez v. Arizona Board of Regents,
177 Ariz. 244, 866 P.2d 1330 (1994). In Hernandez, an underage college
student drank alcohol at a fraternity party before crashing his car into a
vehicle driven by Hernandez. Id. at 247, 866 P.2d at 1333. Hernandez
suffered severe physical injuries, and brought an action against several
parties, including the students, the fraternity, and the Arizona Board of
Regents, which owned the property where the party occurred and leased
it to the fraternity. Id. Hernandez alleged that the Board of Regents was
“negligent in continuing to lease the premises to the house corporation
when it knew that the fraternity served alcoholic beverages to persons
under the legal drinking age,” and was “liable both under the doctrine of
respondeat superior and for its negligent supervision of [the driver].”
Estate of Hernandez by Hernandez-Wheeler on Behalf of Hernandez v. Arizona
Bd. of Regents, 172 Ariz. 522, 526, 838 P.2d 1283, 1287 (App. 1991), vacated,
Hernandez, 177 Ariz. at 256, 866 P.2d at 1342. The superior court held that
the Board of Regents, as a social host, was statutorily immune from
liability for serving alcohol to a minor who became intoxicated and
injured a third party. Hernandez, 177 Ariz. at 247, 866 P.2d at 1333. This
court affirmed, but our supreme court reversed, concluding that statutory
immunity does not apply to non-licensees who furnish alcohol to
underage persons:

      We hold only that the so-called traditional rule—if ever
      there was one—of non-liability when a non-licensee serves
      alcohol to minors does not exist in Arizona. We do not, in
      this opinion, lay down any rule of absolute liability for
      serving alcohol to minors. . . . Arizona courts, therefore, will
      entertain an action for damages against a non-licensee who
      negligently furnishes alcohol to those under the legal
      drinking age when that act is a cause of injury to a third
      person.

4      In opposing summary judgment, Barkhurst conceded that the
Dambar, not The Kingsmen, provided security for the Dambar
Entertainment. .



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                        BARKHURST v. KINGSMEN
                           Opinion of the Court

Id. at 256, 866 P.2d at 1342.

¶13            Barkhurst points to the Arizona Supreme Court‟s following
statement in Hernandez: “We . . . conclude . . . Defendants had a duty of
care to avoid furnishing alcohol to underaged consumers.” Id. Barkhurst
argues that if the Board, a mere landowner, was deemed to have a duty in
Hernandez, then a fortiori The Kingsmen‟s promotion of the Dambar
Entertainment as part of its sponsorship of Rodeo Days should impose a
like duty here. We disagree.

¶14           The Board of Regents‟ potential liability in Hernandez
stemmed from the Board‟s ownership of the property and knowledge of
underage drinking at fraternity events.5 It is this aspect of control over the
property that helped develop a relationship between the parties. Here,
Barkhurst does not allege that The Kingsmen owned the Dambar and
leased it to an operator knowing that minors or intoxicated patrons were
regularly served alcohol on the premises. The Kingsmen had no
ownership or landlord control over the property, or any other relationship
with the Dambar that would give it authority and power to control the
Dambar Entertainment. Based on the differences in theories of liability
and facts present in Hernandez from those raised by Barkhurst, Hernandez
does not require a determination that The Kingsmen owed a duty to
Barkhurst.

¶15          Barkhurst also relies on Markowitz v. Arizona Parks Board, 146
Ariz. 352, 706 P.2d 364 (1985).          That case, however, is readily
distinguishable. There, the supreme court determined that the State, as
possessor of the land where a park visitor injured himself while cliff
diving, owed such invitees a duty of reasonable care to provide safe
premises. Markowitz, 146 Ariz. at 354, 355, 706 P.2d at 366, 367. Barkhurst
has not argued a premises liability theory here.

¶16          Barkhurst‟s reliance on Rudolph v. Arizona B.A.S.S. Federation,
182 Ariz. 622, 898 P.2d 1000 (App. 1995), is also misplaced. There, a
fishing contest participant injured a jet skier, and this Court determined


5      In addition, the plaintiff in Hernandez advanced theories of
respondeat superior and negligent supervision because the Board of Regents
had arranged to have a student acting as its agent at the party to prevent
underage drinking. Hernandez, 172 Ariz. at 526, 838 P.2d at 1287. Here,
Barkhurst contends The Kingsmen was directly liable for his injuries; he
does not argue respondeat superior, which is a derivative theory of liability.



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                       BARKHURST v. KINGSMEN
                          Opinion of the Court

that the sponsor of the contest owed a duty of due care to the skier.
Rudolph, 182 Ariz. at 623-24, 898 P.2d at 1001-02. However, in Rudolph,
unlike here, the fishing club not only sponsored the event, and designed
and conducted the tournament, but also assumed a duty of care over the
area by obtaining a government permit that specifically required the
sponsor to ensure the safety of persons around the lake: “[t]he permittee
shall assure that all participants operate boats in a safe and reasonable
manner without endangering the peace and safety of other persons in and
about the lake.” Id. at 623, 898 P.2d at 1001. Thus, the sponsor‟s control
over the property and the event helped develop a relationship between
the parties. Neither factor is present in this case.

¶17           Finally, Barkhurst relies on Weirum v. RKO General, Inc., 539
P.2d 36, 38, 40 (Cal. 1975), to support his duty argument. However, that
case is also distinguishable from the facts here.6 In Weirum, the court
found that a radio station owed a duty of care to a driver who was forced
off the road by youthful motorists racing to find a mobile disc jockey
giving away cash prizes. Id. In that case, however, the radio station was
in complete control of the event—it was responsible for the rules, the
format, and the execution of the contest. Such a level of control over the
event was not present in this case. Furthermore, the court found a duty
based on a finding of foreseeability which is no longer the proper
standard for determining duty in Arizona. See Gipson, 214 Ariz. at 144, ¶¶
15-17, 150 P.3d at 231.

¶18            Ultimately, The Kingsmen sponsorship of the Rodeo Days
did not create a special relationship between it and Barkhurst. Our
position is also supported by Vogel v. West Mountain Corp., which found
that mere sponsorship of an athletic event, absent control, was insufficient
to establish a duty to the participants:

6       In the superior court, Barkhurst also cited two cases from other
jurisdictions to support his duty argument. Both of those cases are also
distinguishable. See Marshall v. Burger King Corp., 856 N.E.2d 1048, 1058-
59 (Ill. 2006) (holding that owner and operator of restaurant had duty to
protect invitee from harm caused by driver of vehicle who lost control of
car in restaurant parking lot); Rodriguez v. Solar of Mich., Inc., 478 N.W.2d
914, 921-22 (Mich. Ct. App. 1992) (holding that sponsor of holiday party
who hired caterer to serve liquor and had control over serving of liquor to
underage persons and might have encouraged serving minors with liquor
had duty to third person injured by inebriated minor after leaving the
party).



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                       BARKHURST v. KINGSMEN
                          Opinion of the Court

       [S]ponsorship alone, absent “control over the design of the
       course, the supervision of the race, or the qualifications of
       entrants” was insufficient to impose liability for injuries
       sustained by a participant.

97 A.D.2d 46, 47-48 (N.Y. App. Div. 1983) (citation omitted). Here, as in
Vogel, because The Kingsmen neither owned nor controlled the operation
of the Dambar, and was not in a position to assume control, “the existence
of a duty has not been established.” Id. at 50.

¶19           Barkhurst also argues that even if the relationship it
contends existed between the parties did not give rise to a duty, public
policy supports finding a duty on the part of The Kingsmen to prevent the
serving of alcohol to underage minors. As we understand his argument,
Arizona‟s policy to prevent underage drinking should create a duty upon
persons who sponsor and promote events at which liquor is served to
prevent serving underage patrons.

¶20           In the context of this case, we disagree. As the Arizona
Supreme Court made clear in Gipson, the adoption of a no-duty rule
generally is based on “concerns that potential liability would chill socially
desirable conduct or otherwise have adverse effects.” 214 Ariz. at 146, ¶
29, 150 P.3d at 233. This chilling effect includes holding social hosts liable
for harm caused by guests to whom they served alcohol, which might
curb desirable social exchanges. Id.; see also Keckonen v. Robles, 146 Ariz.
268, 272, 705 P.2d 945, 949 (App. 1985) (“We do not believe that reasonable
persons would extend to the social host the liability imposed upon the
tavern keeper. The consequences of imposing such a duty are
economically and socially staggering.”); Vogel, 97 A.D.2d at 50 (“[T]o
extend legal liability over a sponsor of an athletic event would prove an
undue expansion of the sponsorship relationship, the net result of which
would be to discourage further participation.”). As a matter of public
policy, imposing a duty on a group which is not a social host but merely a
promoter of events, such as here, would chill socially desirable conduct
when the group is not controlling, organizing or supervising a specific
event held by third parties. In essence, any city, town or organization that
promoted or sponsored celebrations such as for the Fourth of July would
have a duty to protect persons attending events controlled by local
businesses holding related events simply because the businesses were
sponsors of the celebration.      Similarly, towns or organizers of major
professional or national collegiate sporting events in which local
businesses became sponsors would have a duty to protect persons
attending related events held by those businesses from underage


                                      9
                        BARKHURST v. KINGSMEN
                           Opinion of the Court

attendees served liquor by the businesses even if the city or organizer of
the umbrella event had no control over the serving of liquor.7 Such a duty
would chill the ability of the municipalities or promoters to hold general
holiday celebrations or a national sporting event. Nor would such a duty
advance the policy objectives behind restrictions imposed on serving
alcohol to intoxicated or underage patrons, which are sufficiently
addressed by dram shop liability imposed on tavern owners and other
licensees.

¶21          On this record, based on the absence of authority supporting
Barkhurst‟s argument regarding the existence of a duty under the
circumstances present in this case, and for public policy reasons, we hold
The Kingsmen, by merely sponsoring and promoting Rodeo Days without
any control or right to control the Dambar or the Dambar Entertainment,
did not owe a duty to Barkhurst to protect him from harm. Accordingly,
we affirm the dismissal of Barkhurst‟s claims against The Kingsmen.

II.    AGENCY

¶22           Barkhurst separately argues the Dambar was the apparent
agent of The Kingsmen, and consequently the latter is liable for the
Dambar‟s alleged violations that occurred in this case. Barkhurst did not
raise this argument in the superior court. We generally do not consider
arguments and legal issues on appeal that have not been specifically
presented to the superior court. See Trantor v. Fredrikson, 179 Ariz. 299,
300, 878 P.2d 657, 658 (1994) (stating that a party must have afforded the
superior court and opposing counsel the opportunity to correct any
asserted defects in order to contest on appeal); see also Schoenfelder v. Ariz.
Bank, 165 Ariz. 79, 88, 796 P.2d 881, 890 (1990) (noting that a party waives
on appeal any argument not properly presented in the superior court);
Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, 109-10, ¶ 17,
158 P.3d 232, 238-39 (App. 2007) (party waives argument raised for first
time on appeal when the superior court had no opportunity to address the




7      Because The Kingsmen did not provide the liquor at the Dambar
Entertainment, we do not need to address whether a social host has a duty
to prevent serving underage patrons based on public policy. See Gipson,
214 Ariz. at 146, ¶ 28, 150 P.3d at 233.



                                       10
                      BARKHURST v. KINGSMEN
                         Opinion of the Court

issue on its merits). Consequently, Barkhurst has waived this argument,
and we do not address it. 8

III.   ATTORNEYS‟ FEES ON APPEAL

¶23            The Kingsmen request attorneys‟ fees on appeal pursuant to
A.R.S. §§ 12-341.01 (Supp. 2013) and -349 (Supp. 2013). We deny the fee
request under A.R.S. § 12-341.01 because this case does not arise out of
contract. With respect to the other basis for their fee request, The
Kingsmen essentially contend this appeal is “without substantial
justification.” A.R.S. § 12-349(A)(1). Nothing in the record indicates the
appeal was not pursued in good faith. See A.R.S. § 12-349(F) (providing
that “„without substantial justification‟ means that the claim or defense is
groundless and is not made in good faith.” (emphasis added)). We
therefore deny the request for fees on this basis.

                             CONCLUSION

¶24          For the foregoing reasons, we affirm the judgment
dismissing Barkhurst‟s negligence claim against The Kingsmen.




                                 :MJT




8      In his reply brief, Barkhurst points to statements he made at the
hearing on the summary judgment motion that he contends illustrate an
“apparent agency” argument properly made in superior court, and
thereby preserving the issue. Read in context, however, the statements
made in superior court did not go to any apparent agency issue; rather,
Barkhurst made the statements to illustrate The Kingsmen “sponsored all
of the events that are associated with . . . rodeo week.”



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