Burke v. Arizona Biltmore Hotel, Inc.

• Decision Date: 13 April 1970
• Docket Number: CA-CIV,No. 1,1
• Citation: 467 P.2d 781,12 Ariz.App. 69
• Parties: Lawrence J. BURKE and Marie Burke, his wife, Appellants, v. ARIZONA BILTMORE HOTEL, INC., a Delaware corporation, Appellee. 1111.
• Court: Arizona Court of Appeals

Page 781

467 P.2d 781

12 Ariz.App. 69

Lawrence J. BURKE and Marie Burke, his wife, Appellants, v. ARIZONA BILTMORE HOTEL, INC., a Delaware corporation, Appellee.

No. 1 CA-CIV 1111.

Court of Appeals of Arizona, Division 1, Department B.

April 13, 1970.

Fennemore, Craig, von Amon & Udall, by Philip F. Schneider, Jr., Phoenix, for appellants.

Moore, Romley, Kaplan, Robbins & Green, by Craig R. Kepner, Phoenix, for appellee.

JACOBSON, Judge.

Plaintiffs-appellants, Lawrence J. Burke and Marie Burke, his wife, brought an action in negligence against defendant-appellee Arizona Biltmore Hotel, Inc., to recover damages for personal injuries sustained by Mrs. Burke when she fell on a stairway in the defendant-hotel. Defendant's motion for summary judgment was granted and this appeal followed.

Mrs. Burke, aged 70, while a guest at the defendant-hotel, and while walking up the stairs from the hotel lobby to the raised dining room, fell and was injured. It is plaintiffs' contention that Mrs. Burke's fall resulted from the negligence of the defendant-hotel in allowing a dangerously deceptive condition to exist at the top of the stairway.

The stairway consists of approximately a half dozen steps which are relatively broad from front to back as compared with relatively short risers between the steps. All of the steps, except the top one, and all of the risers were carpeted with a light grey carpet. A black strip of carpet of approximately the width of one step had been installed on the top step, that is, on the level of the dining room floor. Beyond the black strip of carpet, and on the same level with it, was a predominantly red patterned carpet which extended on into the dining room.

There is some dispute as to the quality of the lighting in the stairway area at the time of the accident, but due to our determination in this matter we do not deem this factual dispute to be material. Mrs. Burke was watching where she was walking and was aware of the black strip of carpeting at the top of the stairs. In her affidavit Mrs. Burke stated that as she reached the top step she became confused, misjudged the stairway, and fell 'because of the black strip of carpeting which, located as it was on the top step, created a deceptive appearance.'

In her deposition Mrs. Burke testified more specifically as to the exact sequence of events immediately prior to her fall:

'Q Now, when you fell had you already reached a point where your left foot was on the black carpeting and you were in the process of stepping with your right foot?

'A Yes.

'Q When you stepped with your right foot did you catch your foot or strike--

'A It slipped. As I stepped up, that one slipped. That's the way I remember it.

'Q Your right foot slipped?

'A No. My left.

'Q Your left foot slipped?

'A Yes. That's how I lost my balance.'

'Q Prior to the time that you fell did you observe any foreign substance or any debris or anything spilled on the floor in the area where you fell?

'A No.'

'Q You didn't see any?

'A No, I didn't.

'Q Your recollection is that you stepped down with your left foot on this area of black carpeting and you had the sensation that as you were bringing your right foot up your left foot slipped, is that correct?

'A Yes.'

'Q In any event, you put your weight on you left foot, which was on the black carpet, and lifted your right foot up, and while you were in the process of bringing your right foot up to the level of the top step your left foot slipped and you fell, is that correct?

'A Yes.'

Plaintiffs and defendant agree that the issue on appeal is whether, based on the record, reasonable men could differ as to whether the stairway on which Mrs. Burke fell was unreasonably dangerous because of a deceptive appearance.

It is plaintiffs' position that the design of the stairway and the soft lighting in that area combined to create an optical illusion making it difficult to determine whether the black strip was a separate step or whether it was on the level of the light grey carpet below or the red carpet of the dining room. Plaintiffs urge that this deceptive appearance constituted a defective condition which was unreasonably dangerous.

Three color photographs of the stairway area in question were properly presented to the trial court and this court may consider them on an appeal from summary judgment. Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27 (1963). We agree with plaintiff that, as a general proposition, a deceptive appearance causing an optical illusion my, in a proper case, constitute a defective condition which may be unreasonably dangerous. Sherman v. Arno,94 Ariz. 284, 383 P.2d 741 (1963). However, we have examined the photographs carefully and conclude that the color scheme...