New AZ Ct App Decision Regarding Premises Liablity/Dram Shop/Expert Qualifications/Spoilation

Torts-Premises Liability-Dram Shop Liability-Expert Witness Qualifications-Lost Evidence McMurtry v. Weatherford Hotel, Inc., 651 Ariz. Adv. Rep. 13 (App. Div. I, January 10, 2013) (J. Brown) QUESTION OF FACT FOR JURY AS TO WHETHER HOTEL IS LIABLE UNDER PREMISES LIABILTY AND DRAMSHOP LIABILITY FOR OVERSERVING PLAINTIFF'S DECEDENT BEFORE SHE STEPPED OUT OF WINDOW IN HOTEL ROOM AND FELL TO HER DEATH

Defendant hotel is historic. Plaintiff's decedent Lucario checked into the hotel and proceeded to consume alcohol in the two hotel bars. Ultimately, the bartender in the second bar cut her off her off at 1 a.m. and had another employee escort her to her room. She returned to her room, opened her window apparently to step outside onto a balcony to smoke and fell three stories to her death. She had a blood alcohol content of .263. The hotel had signs in the lobby and in her room stating all rooms were nonsmoking and that patrons should use the bar or outdoor balcony to smoke. The balcony was found outside the bar on the third floor and extended across to cover all but 12 inches of the area outside the room Lucario was staying in. The window she stepped out of was 39.5 inches high, three feet wide and extended down to eight inches from the floor. The hotel was aware that patrons frequently sat on their window sills to smoke. The hotel destroyed its videotape which showed Lucario's pre-death behavior. The trial court denied plaintiff's motion for judgment as a matter of law and request for an adverse inference instruction due to the spoliation finding the hotel had mistakenly thought the police had made a copy of the video before the hotel destroyed it. Instead the trial court granted defendant summary judgment on the dram shop claim because an employee had escorted Lucario to her room. The court found Lucario stepping out of her window was an intervening superseding cause. The trial court further granted defendant summary judgment on the premises liability theory based on a finding plaintiffs' expert was not qualified and based upon a finding the hotel had no duty to Lucario because the window condition was open and obvious. The court found Lucario to be a trespasser when she stepped out of the window. The Arizona Court of Appeals vacated and remanded.

The court of appeals found that although the plaintiffs' expert was not familiar with local building and fire codes he was still qualified to testify concerning the premises claim and industry safety standards based upon 50 years in the hospitality, bar and hotel safety business. Further, whether or not building or fire codes were violated would not be dispositive of the tort liability issue. Lack of knowledge of these codes goes to the weight of the testimony and not its admissibility. The court also noted that while the "Daubert" amendment to Rule 702 of the Arizona Rules of Evidence had not been enacted at the time the trial court ruled, the expert would have qualified even under the amendment. The amendment preserves the ability of an expert to be qualified based upon experience alone and does not require precluding an expert from testifying based solely upon the basis that different experts use of competing methodologies. "The court's gatekeeper function is not to replace the adversarial system."

On the subject of premises liability the court found Lucario to be an invitee and not a trespasser. A landowner has a duty to exercise reasonable care to make its premises safe, discover and correct unreasonably dangerous conditions or warn about them. As long as reasonable people could disagree as to whether a plaintiff's injury or death was foreseeable or a condition was open and obvious it is a question of fact for the jury. Further, even an open and obvious condition can be unreasonably dangerous and create liability. Invitee status only applies when a visitor is on a portion of the premises the landowner holds open to her-within the scope of the invitation. Where the hotel told her in writing to use the balcony for smoking and the balcony extended to at least a portion of her window she was not a trespasser. Even if she exceeded the invitation, where the landowner knows visitors are using an area beyond the invitation and doesn't object, his duty extends to that area. The fact the hotel allowed guests to smoke on window ledges constituted an implied invitation.

In light of the design of the balcony and the fact the hotel allowed guests to smoke on their window ledges, Lucario's conduct was not "unforeseeable and extraordinary" and therefore was not a superseding and intervening cause.

Ariz Rev. Stat. sec. 4-311 states a licensee is liable when it 1) sells alcohol to an obviously intoxicated individual, 2)the individual consumes the alcohol and 3) the consumption is the proximate cause of injury or death. While the court of appeals held in Patterson v. Thunder Pass, Inc., 214 Ariz. 435, 153 P.3d 1064 (App. 2007) that a bar met its duty by driving an intoxicated patron home, the trial court's reliance on this case in granting summary judgment was misplaced. Here, unlike in Patterson, the hotel delivered the intoxicated guest to what a jury could conclude was an unreasonably dangerous room.

Plaintiffs also appealed the trial court's denial of their motion in limine to preclude evidence that the plaintiff had a history of excessive drinking, had received a prior DUI and was at the hotel to attend an alcohol awareness class. While the court of appeals found this evidence might be relevant to prove Lucario's knowledge of the dangers of excessive consumption, the trial court was required to apply rule 403 of the rules of evidence and determine if the prejudicial effect of this evidence outweighed its probative value.

The hotel had video cameras everywhere. Video showed Lucario being escorted to her room and the actual fall. Owners of the hotel viewed the video as did the police. The police made a copy of only the portion of the video that showed the fall. The hotel allowed its overwriting program to erase and tape over all the footage after 14 days. The court of appeals acknowledged that while Arizona does not recognize a tort for spoliation of evidence, parties are required to preserve evidence. It is within the "substantial discretion" of the trial court, however, to inform the jury of the destruction of evidence and instruct the jury that they may make a negative inference against the party destroying evidence. The court appropriately considers any bad faith by the party in the destruction of evidence. Here the defendant knew there was a high likelihood of a lawsuit and that this evidence would be important. While plaintiffs' experts could hypothesize how Lucario was behaving in the bar and on the way to her room with a .263 BAC clearly the videotape was much better evidence of this. The trial court is directed to reconsider its denial of the motion in limine with this in mind.

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