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Law 12-cslos

Page history last edited by abogado 4 years, 6 months ago

cslos cases


McMurtry v Weatherford Hotel  293 P. 3d 520 (2013)



Statement #1

Specific to the premises liability claim, McMurtry alleged that (1) the Hotel owed Lucario a "duty of care to protect [her] from conditions that made the premises unreasonably dangerous for [her] intended and reasonabl[e] foreseeable uses;" (2) the Hotel breached its duty of care by "having no guard or stop on the window of guest room 59 which would have prevented a hotel guest from stepping through the opening to the partial balcony on the other side" and by constructing a balcony that ended only part of the way across the width of the window; and (3) the absence of any mechanism to stop the window from opening wide enough to permit an adult from stepping through it and the unreasonably dangerous condition outside the window "were direct and proximate causes of [Lucario's] death."


Statement #2

The Hotel moved for summary judgment on both claims, alleging McMurtry had failed to provide expert testimony. McMurtry contended under Arizona law he was not required to present expert testimony in support of a negligence action. The trial court agreed with the Hotel and concluded McMurtry was required to present expert testimony to "establish the appropriate standard of care and any breach of the [Hotel's] duty." The court then granted McMurtry an extension of time to find a relevant expert. McMurtry disclosed Fred Del Marva and his preliminary opinions in support of both claims. McMurtry also moved for judgment as a matter of law on his dram shop liability claim, asserting that because the Hotel had deleted video footage of the night of the accident, the court should enter judgment in his favor as a sanction. Alternatively, 525*525 McMurtry requested an adverse inference jury instruction.

¶ 7 The court denied McMurtry's motion, reasoning that the Hotel did not destroy the video footage with an "evil mind" or in violation of a court order, but rather innocently deleted it under a mistaken belief that the police had made a copy of the entire recording. The court also denied the request for an adverse inference jury instruction. Relying on Patterson v. Thunder Pass, Inc., 214 Ariz. 435, 153 P.3d 1064 (App.2007),the court granted summary judgment to the Hotel on McMurtry's dram shop liability claim, finding the Hotel had discharged any duty it owed to Lucario by escorting her safely back to her room. The court further determined Lucario's climbing out of the window was a superseding and intervening event that negated any possible dram shop liability of the Hotel.


Statement #3

16 Whether a person qualifies as an expert turns on "whether a jury can receive help on a particular subject from the witness." Davolt, 207 Ariz. at 210, ¶ 70, 84 P.3d at 475;see also Pipher v. Loo, 221 Ariz. 399, 404, ¶ 17, 212 P.3d 91, 96 (App.2009). "The degree of qualification goes to the weight given the testimony, not its admissibility."Davolt, 207 Ariz. at 210, ¶ 70, 84 P.3d at 475. Del Marva has relevant experience in the realm of hotel safety and could assist the jury in determining whether the Hotel breached its applicable duty of care. See infra ¶¶ 22-23. Del Marva's background and familiarity with certain building regulations goes to the weight of his testimony, not its admissibility.[4]See Seisinger v. Siebel, 220 Ariz. 85, 90, ¶ 16, 203 P.3d 483, 488 (2009) ("The degree of qualification goes to the weight given the testimony, not its admissibility.") (citation omitted). Furthermore, whether the Hotel complied with the relevant building and fire codes is not, as the trial court appears to have believed, dispositive of McMurtry's premises liability claim. See Peterson v. Salt River Project Agr. Imp. & Power Dist., 96 Ariz. 1, 7-8, 391 P.2d 567, 571-72 (1964) (noting that "it is a jury question whether compliance with a statute is enough to meet the standard of due care which applies in actions for damages for negligence.") On remand, the Hotel will have the opportunity to cross-examine Del Marva about his experience or knowledge on various topics that may or may not be persuasive as to whether the Hotel breached its duty to alleviate any alleged dangerous conditions or give adequate warning of their existence


Statement #4

We do not find Wellhausen persuasive. The university specifically warned the student about removing the window screen and the student agreed not to do so. Here, Room 59's window was three feet wide, opened to 39.5 inches vertically (more than twice that of the dorm room windows in Wellhausen), and had no safety screen. Unlike the university, the Hotel did not provide any notices or warnings regarding opening of windows or accessing the balcony. To the contrary, the Hotel posted a permanent notice on the door in Lucario's room inviting her to go to the balcony to smoke. Finally, unlike the situation in Wellhausen, Lucario was served alcohol at the two bars located withinthe Hotel.

¶ 32 In sum, McMurtry presented evidence to the trial court from which a reasonable jury could conclude the Hotel had created or was aware of an unreasonably dangerous condition and had failed to take reasonable steps to warn of the condition or correct it. Thus, we hold that the trial court erred in concluding that the Hotel did not breach its duty of care to Lucario.

Explain -

who won/why - state name of person who won (not appellant, etc.) and why 


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