Вы находитесь на странице: 1из 21

JULIANNE P.

BLANCH, USB 6495


GRACE S. PUSAVAT, USB 15713
PARSONS BEHLE & LATIMER
201 South Main Street, Suite 1800
Salt Lake City, Utah 84111
Telephone: 801.532.1234
Facsimile: 801.536.6111
jblanch@parsonsbehle.com
Attorneys for Defendant Peppermill Casinos, Inc.

IN THE THIRD JUSICIAL DISTRICT COURT


TOOELE COUNTY, STATE OF UTAH

JOSE ADAME, personally, on behalf of the heirs of


and as personal representative of the estates of
Delphine Ramirez and Aniyah Adame; ALJERINO
RAMIREZ, personally, on behalf of the heirs of and
as personal representative of the estates of Delphine
Ramirez and Delilah Ramirez; KEE JOHN,
personally, on behalf of the heirs of and as personal
representative of the estates of Delphine Ramirez
and Delilah Ramirez; MAGGIE YAZZIE,
personally, on behalf of the heirs of and as personal
representative of the estates of Delphine Ramirez
and Delilah Ramirez; and ELIAS RAMIREZ,
personally, on behalf of the heirs of and as personal
representative of the estate of Delilah Ramirez,
vs.

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

PAUL MUMFORD and PEPPERMILL CASINOS,


INC.,
Defendants.

STATEMENT OF DEFENDANT PEPPERMILL CASINOS, INC.S PREFERRED


DISPOSITION AND GROUNDS FOR DISPOSITION
Pursuant to Utah Rule of Civil Procedure 12(b)(6), Defendant Peppermill Casinos, Inc.
(Peppermill) moves to dismiss the Complaint (Complaint) of Plaintiffs Jose Adame, Ajerino
Ramirez, Kee John, Maggie, Yazzie, and Elias Ramirez (collectively, the Plaintiffs).
The Complaint involves a very tragic and regrettable set of allegations. The Plaintiffs
allege that on or about July 4, 2014, Co-Defendant Paul Mumford (Mumford) consumed
alcohol at one or more of Peppermills hotel-casinos in West Wendover, Nevada. Thereafter,
Mumford had a head-on collision with a car driven by Plaintiff Jose Adame on Interstate 80 just
outside of West Wendover in Tooele County, Utah. The collision ended in severe injury to Jose
and the death of his three passengers.
The Complaint asserts negligence and liability under Utahs Dramshop Act against
Mumford and Peppermill. However, under the law of both Nevada and Utah, third-party claims
against servers of alcohol are barred. Accordingly, the Plaintiffs negligence claim against
Peppermill should be dismissed with prejudice.
Furthermore, given the State of Nevadas more significant relationship to the disputes in
this case, Nevadas substantive law is applicable here.

Accordingly, all claims against

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.

Peppermill is a company with its principal place of business in Nevada. See

Complaint, 7.
2.

At all times pertinent, Peppermill owned and operated casinos in Wendover. See

id. at 10.
3.

Peppermill commercially sells, serves and or distributes alcoholic beverages to its

patrons. See id. at 11.


4.

Defendant Paul Mumford is an individual residing in the State of Utah. See id. at

5.

On July 4, 2014, Paul Mumford was a patron at one or more of Peppermills

6.

casinos in West Wendover, Nevada. See id. at 12.


6.

Peppermill provided alcohol to Mumford. See id. at 13.

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.

Peppermills service of alcohol to Mumford caused him to become intoxicated.

See id. at 16.


10.

Mumford left Peppermills casino. See id. at 17.

11.

Peppermill did nothing to prevent Mumford from leaving or driving his vehicle.

See id. at 18.


12.

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.

He drove eastbound in the westbound lanes. See id. at 21.

15.

At about the same time, Jose Adame was driving westbound on I-80 in the

westbound lanes. See id. at 22.


16.

Delphine Ramirez, Aniyah Adame and Delilah Ramirez were passengers in his

vehicle. See id. at 23.


17.

Mumford hit Jose and his family head-on. See id. at 24.

18.

The collision caused serious physical injuries to Jose, Delphine, Aniyah and

Delilah (collectively Jose and his Family). See id. at 25.


19.

The collision occurred in Tooele County, State of Utah. See id. at 9.

20.

Delphine, Aniyah and Delilah died of injuries they sustained. See id. at 26.

21.

Plaintiff Jose Adame is an individual residing in the State of Utah. He is the

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

its business. See id. at 29.


23.

Peppermill breached its duty of care in the following respects:


a. improperly training its employees;
b. hiring, retaining and employing individuals who were unfit;
c. failing to offer or provide alternative transportation for Mumford;
d. failing to offer or provide Mumford lodging until he sobered;

e. failing to contact the police;


f. upon information and belief, ejecting Mumford when he was apparently under
the influence and likely to drive; and
g. such other nets of negligence yet to be discovered. See id. at 31.
24.

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

Mumford with alcoholic beverages. See id. at 35.


26.

It did so as part of the commercial sale, storage, service, manufacture,

distribution, or consumption of alcoholic products. See id. at 36.


27.

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.

Peppermills conduct caused the intoxication of Mumford. See id. at 38.

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.

Under the theory of respondeat superior, Peppermill is vicariously liable to

Plaintiffs for the negligence of its employees. See id. at 42.


32.

Defendants were negligent and otherwise acted improperly. See id. at 44.

33.

Defendants negligence and improper conduct wrongfully caused the deaths of

Delphine, Aniyah and Delilah. See id. at 45.


34.

Plaintiff Aljerino Ramirez is the surviving natural son of Delphine Ramirez and

surviving natural brother of Delilah Ramirez. See id. at 2.


35.

Plaintiff Kee John is the surviving natural father of Delphine Ramirez and

surviving natural grandfather of Delilah Ramirez. See id. at 3.


36.

Plaintiff Maggie Yazzie is the surviving natural mother of Delphine Ramirez and

surviving natural grandmother of Delilah Ramirez. See id. at 4.


37.

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.

CONFLICT OF LAW ANALYSIS


The Plaintiffs Complaint asserts four (4) causes of action against the Peppermill: (1)

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.

Utah Conflicts of Law Rules Apply in This Case.

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).

The United States Supreme Court has

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).

The United States Supreme Court has

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.

The Plaintiffs Fail to State a Claim for Negligence Under Nevada


Law.

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.
10

Nev. Rev. Stat. Ann. 41.1305(1) (West).


Here, the Plaintiffs basis for liability against Peppermill is grounded in Peppermill
allegedly furnishing Mumford alcoholic beverages. See Complaint at 13, 31. The Plaintiffs
do not (and cannot) allege that Mumford was under the age of 21 at the time he was served by
Peppermill on or about July 4, 2014. Therefore, there can be no civil liability in this case against
Peppermill for negligenceor any other civil claim for that matterunder Nevada law.
Therefore, if Nevada law applies, the Plaintiffs claim for negligence against Peppermill must be
dismissed with prejudice.
2.

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
11

enacted to fill the void that existed at common law by imposing a


form of strict liability on specific individuals who illegally provide
alcohol to certain classes of consumers. See Millross v. Plum
Hollow Golf Club, 429 Mich. 178, 413 N.W.2d 17 (1987). [T]he
legislature intended the Dramshop Act to be a complete and selfcontained solution to a social problem not adequately addressed at
common law. Browder v. International Fidelity Ins. Co., 413
Mich. 603, 321 N.W.2d 668, 675 (1982). We have held that the
legislative purpose of the Act was to compensate innocent third
parties by making dramshop owners strictly liable without regard to
the finding of fault, wrongful intent, or negligent conduct on their
part. Reeves v. Gentile, 813 P.2d 111, 116 (Utah 1991).
Id. at 2000 UT 14 at 16, 1 P.3d at 532. Based on this reasoning, the Court held that Utahs
Dramshop Act is the exclusive remedy against those who serve alcohol to persons who then
cause tortious injury third parties. See id. at 2000 UT 14 at 22, 43, 1 P.3d at 533, 537; see
also Miller v. U.S., 2004 UT 96, 3 (stating that Utah does not recognize a common law cause
of action in negligence for the sale of alcohol to persons who cause injury to third parties while
under the influence of alcohol.)
Here, the Plaintiffs assert a negligence claim based upon Peppermills alleged service of
alcohol to Mumford, which purportedly caused him to become intoxicated. See Complaint at
13, 16. Mumfords erratic driving eastbound on the westbound lanes of I-80 was caused, at
least in part, by Peppermills furnishing alcoholic beverages to Mumford. See id. at 20-22.
This led Mumfords vehicle to collide to with the vehicle driven by Jose, which seriously injured
Jose and his Family. See id. at 24-25. In short, Peppermills conduct caused the intoxication
of Mumford, and [t]he injuries of Jose and his Family, the deaths of Delphine, Aniyah and
Delilah and the damages of Plaintiffs were caused by Mumfords intoxication. See id. at 3839. Under these allegations, the Plaintiffs exclusive remedy under Utah law is the Dramshop
Act. Accordingly, the Plaintiffs negligence claim must be dismissed with prejudice under Utah
12

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).

Under Utah law, the elements of

negligent employment are as follows:


(i) [the employer] knew or should have known that its employees
posed a foreseeable risk of [harm] to third parties . . . ; (ii) the
employees did indeed inflict such harm; and (iii) the employers
negligence in hiring, supervising, or retaining the employees
proximately caused the injury.
Id. at 973. Under this theory, Peppermill would be liable if its employees posed a foreseeable
risk of harm to the Plaintiffs by serving Mumford alcohol. However, as noted above, the
Dramshop Act is contemplated as an injured third partys exclusive remedy regardless of the
theory of recovery. See Adkins v. Uncle Barts, Inc., supra, 2000 UT 14 at 22, 43, 1 P.3d at
533, 537 (rejecting common law negligence claim and claim based upon violation of regulatory
statute). Furthermore, the Dramshop Act contemplates that an employer is liable for the actions
of its employees. See Utah Code Ann. 32B-15-202 (West). Therefore, any attempt by the
Plaintiffs to artfully plead around the exclusivity of the Dramshop Act must be rejected.
Regardless of how the Plaintiffs plead negligence (or any other theory of recovery), such claims
must be dismissed with prejudice under Utah law.

13

3.

Punitive Damages are not Available under the Dramshop Act.

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.

Under Nevada Law, Peppermill Is Not Subject to Dramshop Liability,


Because Nevada Law Is Applies in This Case.

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:
14

(A) a third person; or


(B) the heir, as defined in Section 78B-3-105, of that third
person; or
(ii) the death of a third person.
(b) A person is liable under Subsection (1)(a) if:
(i) the person directly gives, sells, or otherwise provides an
alcoholic product:
(A) to a person described in Subsection (1)(b)(ii); and
(B) as part of the commercial sale, storage, service,
manufacture, distribution, or consumption of an alcoholic
product;
(ii) those actions cause the intoxication of:
(A) an individual under the age of 21 years;
(B) an individual who is apparently under the influence of
intoxicating alcoholic products or drugs;
(C) an individual whom the person furnishing the alcoholic
product knew or should have known from the
circumstances was under the influence of intoxicating
alcoholic products or drugs; or
(D) an individual who is a known interdicted person; and
(iii) the injury or death described in Subsection (1)(a) results
from the intoxication of the individual who is provided the
alcoholic product.
Utah Code Ann. 32B-15-201 (West).
In short, there is a true conflict of law in this case. Under Nevada law, the Plaintiffs are
precluded from asserting any possible civil action against Peppermill for the injuries caused by
Mumfords alleged intoxication on July 4, 2014. However, under Utah law, the Dramshop Act
provides a basis for recovery. Because the substantive law of Nevada and Utah would lead to

15

two different results, this true conflict must be resolved by the forum states conflict of law
principles.
1.

Nevada Law Applies, Because the State of Nevada Has a More


Significant Relationship to the Dispute in this Case.

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,

16

(e) the basic policies underlying the particular field of law,


(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be
applied.
Restatement (Second) of Conflict of Laws 6 (1971).
Also to be considered is Section 145 of the Second Restatement, which describes the
General Principle for choice of law in tort cases, confirming that [s]ituations do arise,
however, where the place of injury will not play an important role in the selection of the state of
the applicable law. Restatement (Second) of Conflict of Laws 145 cmt. e (1971). This will
be so, for example, when the place of injury can be said to be fortuitous or when for other
reasons it bears little relation to the occurrence and the parties with respect to the particular
issue. Id (emphasis). Contacts to be taken into account in applying the principles of 6 to
determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and
place of business of the parties, and
(d) the place where the relationship, if any, between the parties is
centered.
Restatement (Second) of Conflict of Laws 145(2) (1971). These contacts are to be evaluated
according to their relative importance with respect to the particular issue. See id.
Turning to each of the factors set forth in Section 145 of the Second Restatement, the
automobile collision and the injuries at issue occurred in the State of Utah. See Complaint, 9.
It is reasonably inferred from the allegations of the Complaint that Peppermills conductthe
service of alcohol to Mumfordtook place at one or more of its casinos in Nevada. See id. at
17

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

18

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.

Accordingly, Nevada substantive law should apply in this case.

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.

19

DATED this 30th day of March, 2016.


/s/ Julianne P. Blanch
JULIANNE P. BLANCH, USB 6495
GRACE S. PUSAVAT, USB 15713
PARSONS BEHLE & LATIMER
Attorneys for Defendant
Peppermill Casinos, Inc.

20

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

SUPPORTING MEMORANDUM, upon the following by the indicated filing method:


Via Electronic Filing:
Eric S. Olson
EISENBERG GILCHRIST & CUTT
900 Parkside Tower
215 South State Street
Salt Lake City, UT 84111
/s/ Candace Johns

21
4840-9239-6847.v1

AND