## Facts

- Joseph Zylka and William Easley played golf at Ocotillo Golf Course and consumed alcoholic beverages.
- Ocotillo employees took Zylka’s car keys after he appeared intoxicated.
- Easley offered to drive Zylka home; employees, relying on Easley’s apparent lack of impairment, gave the keys to Easley.
- In the parking lot, Easley returned the keys to Zylka, who drove away, crashed in a single-car accident, and later died.
- Zylka’s survivors sued the Ocotillo entities for wrongful death, alleging Ocotillo’s alcohol service caused the accident.
- Defendants filed a Rule 26(b)(5) notice naming Easley as a nonparty at fault based on his offer to drive and return of the keys.
- The superior court treated plaintiffs’ summary-judgment motion as a motion to strike the notice and granted it, removing Easley from fault allocation.
- Defendants sought special action relief in the court of appeals.

## Issues

1. Whether the superior court erred by striking a Rule 26(b)(5) notice of nonparty at fault on the theory that the nonparty owed no duty to the decedent.
2. Whether A.R.S. § 12-2506(B) requires the trier of fact to consider the fault of an identified nonparty alleged to have contributed to the injury.
3. Whether the defendants’ allegations that Easley undertook to drive and then returned the keys presented at least a triable negligence theory sufficient to keep the nonparty-at-fault notice in place.

## Decision

- The court of appeals accepted special action jurisdiction.
- The court vacated the order striking the notice of nonparty at fault and granted relief to defendants.
- The court held that A.R.S. § 12-2506(B) requires consideration of fault of all persons who contributed to the injury, regardless of whether they were or could have been named as parties.
- The court concluded the superior court improperly eliminated Easley from comparative fault at the threshold stage; duty and breach based on a voluntary undertaking could not be rejected categorically on the record presented.

## Legal Principles

- Under A.R.S. § 12-2506(B), the fact finder must consider the fault of all persons who contributed to an alleged injury, even if they are not parties to the suit.
- Rule 26(b)(5) provides the procedural method for defendants to identify a nonparty at fault so that comparative-fault allocation under A.R.S. § 12-2506(B) can occur.
- A defendant may name a nonparty at fault even when the plaintiff is prohibited from suing or recovering from that person directly.
- In reviewing a summary disposition striking a nonparty-at-fault notice, courts construe facts and reasonable inferences in favor of the party aggrieved by the disposition.
- A voluntary undertaking may support a negligence theory; whether conduct created and violated a duty may present factual questions not suited for categorical resolution when striking a nonparty-at-fault notice.

## Conclusion

The court of appeals required reinstatement of the nonparty-at-fault notice, holding that Arizona’s comparative-fault scheme mandates consideration of alleged fault by all contributors and that the superior court prematurely excluded Easley based on a duty determination better left for adjudication on an appropriate evidentiary record.


Ocotillo W. Joint Venture v. Superior Court, 173 Ariz. 486, 844 P.2d 653 (Ct. App. 1992)