Robertson v. Sixpence Inns of America, Inc.

• Decision Date: 08 March 1990
• Docket Number: No. CV-89-0170-PR,CV-89-0170-PR
• Citation: 163 Ariz. 539,789 P.2d 1040
• Parties: Evorah Faye ROBERTSON, Plaintiff/Appellant, v. SIXPENCE INNS OF AMERICA, INC., a foreign corporation, Defendant/Appellee.
• Court: Arizona Supreme Court

Page 1040

789 P.2d 1040

163 Ariz. 539

Evorah Faye ROBERTSON, Plaintiff/Appellant, v. SIXPENCE INNS OF AMERICA, INC., a foreign corporation, Defendant/Appellee.

No. CV-89-0170-PR.

Supreme Court of Arizona, In Banc.

March 8, 1990.

Reconsideration Denied May 1, 1990.

Rabinovitz & Associates, P.C. by Bernard I. Rabinovitz and Gary M. Israel, Tucson, for plaintiff/appellant.

Lewis and Roca by Merton E. Marks, Susan M. Freeman, R. Todd Lundmark and James K. Kloss, Phoenix, for defendant/appellee.

GORDON, Chief Justice.

Police officer John A. Robertson was shot and killed by an armed robber while working as an off-duty security guard at the Sixpence Inns in Phoenix, Arizona. His Plaintiff petitioned this court for review of the court of appeals decision affirming both the summary judgment and directed verdict. We granted review on only the directed verdict. See Rule 23(f), Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3).

[163 Ariz. 541] wife, Evorah Faye Robertson (plaintiff), sought damages from Sixpence Inns (defendant) for its alleged negligence. The trial court granted partial summary judgment in favor of defendant on all but one claim, and granted a directed verdict on the remaining claim of negligent failure to warn. The court of appeals affirmed the trial court in a memorandum decision.

Because plaintiff presented sufficient evidence of negligent failure to warn to take the issue to the jury, we vacate the court of appeals decision and reverse and remand to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

The granting of a directed verdict indicates that the court believed reasonable minds could not differ on the outcome of the case on the evidence presented. See Chambers v. Western Arizona CATV, 130 Ariz. 605, 607, 638 P.2d 219, 221 (1981). Because we disagree with the courts below and believe reasonable minds could reach different inferences and conclusions on the evidence presented in this case, we set out that evidence in some detail.

John A. Robertson was a full-time police officer who also worked part-time as an off-duty security guard for Sixpence Inns. The security guard duty was assigned through his precinct and Robertson was equipped with his full Phoenix police uniform, weapon, and hand-held two-way radio when working at the motel.

On the night of November 17, 1984, while working at Sixpence Inns, Officer Robertson stopped Randy J. Harris on suspicion of trespass. After asking for identification, the officer used his radio to request a warrant check on Harris. Before Robertson received a reply, however, someone from the motel yelled to him that the man he stopped had just robbed a motel guest. Robertson told Harris not to leave and turned toward the voice. When Robertson turned his back, Harris shot him in the neck, fatally wounding him.

Officer Robertson's widow and children filed a workers' compensation claim for death benefits against the City of Phoenix and Sixpence Inns. In the Industrial Commission hearing, all parties stipulated that Robertson was killed in the line of duty as a Phoenix police officer. That status arose just before the shooting, when the person called to the officer about the robbery. The administrative law judge also determined that when Robertson was not acting as a police officer, he was an independent contractor of Sixpence Inns. The City of Phoenix, therefore, was found liable for the entire workers' compensation claim. The employment status findings were affirmed in City of Phoenix v. Industrial Comm'n, 154 Ariz. 324, 742 P.2d 825 (App.1987).

Plaintiff then sued defendant Sixpence Inns, alleging negligence in failing to furnish a safe place to work and in failing to warn Robertson of the armed robber on the premises. The court granted partial summary judgment to defendant, but preserved the issue of failure to warn for trial. ¹

At trial, motel manager Clifford Kaiser testified to the events leading up to the shooting. At some undisclosed time in the Kaiser testified that upon hearing of the robbery, he ran to the victims' room, where he learned that the robber was armed and had threatened one victim with a gun. After noticing that the phone was ripped from the wall, Kaiser went to the room next door and used the phone to call the desk clerk, before returning briefly to the victims' room. Although the desk clerk assured Kaiser that she had already called the police, she apparently had not done so. According to the testimony of a communications supervisor for the Phoenix police department, the police first heard about the robbery when the motel clerk phoned in information about Robertson's shooting.

[163 Ariz. 542] evening of November 17, 1984, a man, later identified as Randy J. Harris, entered Room 220 of the Sixpence Inns and robbed two men at gunpoint. Harris stripped the men, bound them, and threatened one of them by placing a gun in the victim's mouth. He also tore the telephone off the wall before leaving the room. Some time later, the victims freed themselves and reported the robbery to the desk clerk in the motel office. The clerk then reported the robbery to Kaiser. Because neither the motel clerk nor the victims testified at trial, no evidence was presented establishing the length of time between the robbery and the report to Kaiser.

Conflicting testimony was presented about Kaiser's actions after he left the victims' room the second time. Kaiser testified at trial that after viewing the room where the robbery occurred, he ran outside to the west and north sides of the motel looking for Robertson. He stated that when he could not find Robertson, he returned to his apartment and watched television for a moment until he heard a shot. In a pretrial deposition used at trial, however, Kaiser gave no indication that he conducted a search for Officer Robertson before returning to his apartment.

Plaintiff's security expert, Kevin Parsons, Ph.D., testified that, in his opinion, the motel owed a duty to warn Robertson immediately of the armed robbery and the failure to warn fell below the required standard of conduct. He stated that Robertson would have been informed of the robbery almost immediately if the motel had called the police promptly. Moreover, had Robertson been forewarned of an armed robber on the premises, he would have reacted differently when he encountered Harris. The testimony of two of Robertson's police coworkers supported the expert's opinions. They stated that if Robertson had been forewarned he would not have approached Harris as he did and that he likely would have taken additional steps to protect himself.

At the close of plaintiff's evidence, the trial judge granted defendant's motion for directed verdict, finding that plaintiff failed to present sufficient evidence of defendant's negligence to present the issue to the jury.

The court of appeals affirmed both the summary judgment and the directed verdict. With respect to the directed verdict, the court noted that the only duty defendant owed to Robertson was the duty to warn of known perils on the premises. The court found that plaintiff presented no evidence that defendant knew or had reason to know that the robber remained on the premises. It found important the lack of evidence with respect to the time delay between the robbery and the notification of Kaiser. Relying on an estimated time delay, the court found that "common sense alone dictates that the likelihood of an armed robber remaining at the site diminishes significantly with every tick of the clock." Robertson v. Sixpence Inns of America, Inc., No. 2 CA-CV 88-0364, slip op. at 4 (February 16, 1989). Thus, the court held, plaintiff failed to establish that defendant owed any duty to warn Officer Robertson. In addition, the court stated that, on the whole, plaintiff failed to establish a prima facie case of negligence.

DISCUSSION

A. Standard for Directed Verdict

The issue before us is whether the trial court correctly granted defendant's motion for directed verdict. See Rule 50(a), Ariz.R.Civ.P., 16 A.R.S. When considering a motion for directed verdict, a trial court

                [163 Ariz. 543] must decide, as a matter of law, whether the moving party's evidence is sufficient.  2 C. Smith, Arizona Practice:  Civil Trial Practice § 510 (1986).  A motion for directed verdict admits the truth of the evidence offered by the opposing party, Chambers, 130 Ariz. at 607, 638 P.2d at 221, and cannot be granted if reasonable minds can differ as to the inferences or conclusions drawn from the evidence.  Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 383, 710 P.2d 1025, 1038 (1985);  Chambers, 130 Ariz. at 607, 638 P.2d at 221.   Moreover, it is the jury's function to select which of the conflicting inferences or conclusions is the most reasonable.  Wagenseller, 147 Ariz. at 383, 710 P.2d at 1038;  see also P. Keeton, Prosser & Keeton on the Law of Torts § 37 (5th ed.1984)
                

B. Prima Facie Case of Negligence

The trial judge listed five reasons for granting defendant's motion for directed verdict: (1) no evidence of negligence by the motel clerk or Kaiser; (2) no evidence that defendant knew the armed robber was still on the premises; (3) no evidence that the failure to warn Robertson was the cause of his death; (4) the conduct of Harris was an intervening superseding cause; and (5) any increased alertness that plaintiff postulated would have resulted from a warning did in fact exist because Robertson was informed of the robbery and requested a warrant check. The first four reasons and a reading of the record indicate that the trial court believed plaintiff failed to prove the elements of duty, breach of duty, and causation as required to establish a prima facie case of negligence. The rationale behind the fifth reason is unclear, although the statement appears to imply that the trial court viewed Officer Robertson's own actions...