Nyerges v. Hillstone Rest. Grp.

Helen Nyerges, et al., Plaintiffs, v. Hillstone Restaurant Group Incorporated, Defendant.

No. CV-19-02376-PHX-DWL

United States District Court, D. Arizona

August 2, 2021

ORDER

DOMINIC W. LANZA UNITED STALES DISTRICT JUDGE

This is a dram-shop liability action arising out of the death of Lewis Nyerges (“Nyerges”). On the evening in question, Nyerges and a group of companions consumed food and drinks at Bandera, a Scottsdale restaurant operated by Hillstone Restaurant Group Incorporated (“Hillstone”). Around 10:00 p.m., Nyerges choked while eating his meal, collapsed, and was rushed to the hospital, where he later died. Although Nyerges's formal cause of death was asphyxiation due to choking on a piece of meat, his blood alcohol concentration (“BAC”) was measured at .422 at the hospital.

Now pending before the Court are (1) a motion for Rule 37 sanctions filed by Helen Nyerges, Nyerges's wrongful death statutory beneficiary, and Warren Nyerges Nyerges's estate's representative (collectively “Plaintiffs”) (Doc. 89); and (2) Hillstone's motion for summary judgment (Doc. 96).^[1] For the following reasons, each motion is granted in part and denied in part.

BACKGROUND

I. Factual Background

The following facts, which are relevant to both motions, are derived from the documents attached to the parties' summary judgment briefing. These facts are undisputed unless otherwise noted.

On January 20, 2018, Nyerges joined four friends at Bandera for dinner and drinks. (Doc. 96-1 at 10-12.) One of the friends, Michael Christley (“Christley”), had known Nyerges for over 20 years. (Id. at 6.) Nyerges lived in Ohio, but it was customary for him to visit Arizona in January for work, and Nyerges and Christley would often meet up during these visits. (Id. at 11.) Christley describes Nyerges as “a really funny guy” who “kind of commands the room” and “a very frequent . . . heavy drinker.” (Id. at 8, 13, 18.) Christley testified that Nyerges's social and alcohol habits were related to his work in sales, because Nyerges “had to entertain customers and clients all the time, ” often going to “dinners, ” “golfing events, ” and “sporting events.” (Id. at 7.) Christley recalls that Nyerges “was one of those guys that started drinking at noon” and that when Nyerges visited Arizona, he would typically start drinking earlier in the day, such that by the time Christley and Nyerges would meet in the evening, Nyerges ordinarily “was already fairly well into the drinking exercise.” (Id. at 8.) Christley also perceived Nyerges as having “a high tolerance for alcohol.” (Id. at 9.)

On the night in question, Nyerges was scheduled to meet with Christley; Christley's wife, Stephanie Christley, who was acquainted with Nyerges; and another couple, Jay and Michelle Littlefield (collectively, the “Littlefields”), who had not met Nyerges before. (Id. at 11-12, 55; Doc. 112-1 at 28, 33.)

The Christleys and the Littlefields booked a 7:30 p.m. reservation at Bandera. (Doc. 96-1 at 11.) Before going to Bandera, the four friends met at the Christley house and drank approximately one cocktail each, although Stephanie Christley likely did not partake at that time or had perhaps “a couple sips.” (Doc. 112-1 at 17-18, 32, 50.) Next, they went to Bandera before their reservation to enjoy drinks at the bar. (Doc. 96-1 at 30-31, 74.) Nyerges arrived approximately 30-45 minutes late, and in the meantime the four friends waited at the bar where they each had one to three drinks. (Id. at 31, 74, ; Doc. 112-1 at 18, 32-33, 51.) The Christleys and the Littlefields don't know why Nyerges was late or how he had spent his time earlier in the day. (Doc. 112-1 at 6-7.) The restaurant was busy and noisy that Saturday night. (Doc. 96-1 at 13, 16, 49, 60.)

Nyerges arrived at approximately 8:00 or 8:15, making what Christley calls a “grand entrance.” (Id. at 13.) Based on his experiences with Nyerges, Christley expected that Nyerges had been drinking before he arrived at the restaurant. (Id. at 14-15.) Raina Banuelos (“Banuelos”), a bartender at Bandera who worked that evening, recalled Nyerges being “very loud and boisterous” when he entered. (Doc. 112-1 at 54-55.) Stephanie Christley, on the other hand, did not recall anything out of the ordinary about Nyerges's arrival. (Id. at 34.) At any rate, Christley proceeded to introduce Nyerges to the Littlefields. (Doc. 96-1 at 45.) The Littlefields described their first impressions of Nyerges as “an outgoing personality, ” “very friendly, “talkative right out the bat, ” and “genuine.” (Id. at 45-46, 58.)

Nyerges then ordered five shots of tequila for the group and a vodka soda for himself. (Id. at 31, 48; Doc. 112-1 at 51.) As discussed in more detail below in relation to the pending motions, the question of who took Nyerges's drink order, made the drinks, and/or served the drinks is disputed (and the subject of alleged discovery violations).

After approximately 15-20 additional minutes at the bar-around 8:30 or 8:45-the group was seated in the dining area. (Doc. 96-1 at 24, 31, 59.) Before going to the table, Nyerges stayed at the bar to pay his drink tab. (Doc. 112-1 at 12-13.) He had some difficulty tallying the bill and tip. (Id. at 13.) Christley stayed behind to help him. (Id.) Bandera's records show that a bill had to be printed at least four times before Nyerges left the correct amount. (Doc. 112-2 at 11; Doc. 112-3 at 3, 6, 9, 11.) Christley provided two explanations for Nyerges's difficulty, recalling that “it's fairly dark” in Bandera (Doc. 112-1 at 13) and that Nyerges may not have been able to “comprehend the total” because “he was inebriated.” (Id. at 19.) Christley testified that Nyerges had experienced bill-totaling issues in the past, usually when intoxicated. (Id. at 22.)

The group brought their drinks from the bar to the dining area. (Doc. 96-1 at 66.) Bandera manager Kayla Gard (“Gard”) showed the party to their table. (Id. at 65.) Megan Waldo (“Waldo”) was the server assigned to the party's table. (Doc. 96-2 at 7, 12.)

As discussed in more detail below in relation to the two pending motions, Bandera staff and the four friends give conflicting accounts both as to what Nyerges and the party ordered at the dinner table and whether Nyerges appeared to be “obviously intoxicated.”

Waldo testified that the party “did not order drinks; I did not serve them” and that she doesn't “believe” they ordered any drinks at the table from any other Bandera personnel. (Id. at 12-14.)

Gard, by contrast, testified that at some point in the evening, the party ordered a bottle of wine from her and she told Waldo about the order, because it would have been Waldo's responsibility to serve the wine. (Doc. 112-1 at 61.) She believes this bottle of wine never made it to the table. (Id. at 61.)

An audit report copy of the party's bill states that an order for five cocktails was placed with Waldo at 8:56 p.m. (Doc. 112-3 at 4.) There is limited witness testimony regarding these drinks, ^[2] but they appear to be distinct from the drinks ordered earlier at the bar that the group brought with them to the table. (Compare Doc. 112-3 at 4 [records of drinks ordered with “MEGAN W.”] with Doc. 112-3 at 3, 6 [records of drinks ordered with “RAINA B.”].) These same five drinks appear in a check receipt that apparently was printed later in the evening. (Doc. 112-3 at 7.)

Christley observed Nyerges drink only the vodka soda and tequila shot he ordered upon arrival. (Doc. 112-1 at 10-11.) Christley recalled, however, that each of the other four members of the group ordered a glass of wine shortly after being seated, and especially that he ordered one glass of wine for himself. (Id. at 14, 21.) Christley also recalled that Nyerges repeatedly asked for a wine list, which was never brought to the table. (Id. at 14-15.) Christley's “impression” was that the servers did not bring Nyerges the wine list because they decided Nyerges should not be served any more alcohol. (Id. at 15-16.)

Stephanie Christley similarly testified that Nyerges asked for a wine list but she had the impression that the waitress did not want to bring it, because the waitress “picked up on something. She wouldn't give him a wine - any wine.” (Id. at 29.) Stephanie Christley further recalls that everybody other than Nyerges “got drinks” at the table. (Id. at 37.)

Jay Littlefield recalls that he and Christley ordered another round of drinks at the table but is not sure about the two women or Nyerges. (Id. at 44.) He also remembers Nyerges asking for a wine list. (Id.) He does not remember anybody stating that Nyerges would not or could not be served any more alcohol. (Id. at 45.)

In any event, the record demonstrates that the group ordered food at around 9:20 p.m., one entrée for each person. (Doc. 96-2 at 7.) Nyerges ordered prime rib. (Doc. 96-1 at 19.) The food arrived at around 9:40 p.m. (Doc. 112-1 at 29.) Christley recalls that he, Nyerges, and Jay Littlefield were conversing and laughing around this time. (Doc. 96-1 at 18.) Jay Littlefield, too, remembers sitting beside Nyerges and that Nyerges was “very talkative.” (Id. at 44.) Michelle Littlefield recalls that Nyerges was carrying on a normal conversation at the dinner table. (Id. at 56.) Stephanie Christley recalls Nyerges eating quickly and taking “[u]nusual big bites” of meat while talking with the four friends. (Id. at 37; Doc. 112-1 at 30.)

At approximately 9:50, Nyerges wordlessly arose from the table and walked toward the restroom. (Doc. 96-1 at 19-20, 56; Doc. 112-1 at 23, 29, 41, 49.) None of the four friends noticed anything amiss as Nyerges left the table, other than his not saying anything as he did so. (Doc. 96-1 at 20-22.)

Several Bandera personnel were gathered in the “expo” area between the table and the...