Lackey v. Disney Vacation Dev., Inc.
| Citation | 101 F.Supp.3d 849 |
| Decision Date | 01 April 2015 |
| Docket Number | No. 2:13–cv–2074–HRH.,2:13–cv–2074–HRH. |
| Parties | Michael LACKEY and Kalin Lackey, husband and wife, Plaintiffs, v. DISNEY VACATION DEVELOPMENT, INC., et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Sal James Rivera, Rivera Law Group PC, Phoenix, AZ, for Plaintiffs.
Amanda Christine Sheridan, Snell & Wilmer LLP, Warren E. Platt, Snell & Wilmer LLP, Phoenix, AZ, for Defendants.
Defendants move for summary judgment.1This motion is opposed.2Oral argument was requested and has been heard.
Plaintiffs are Michael and Kalin Lackey. Defendants are Disney Vacation Development, Inc. and Disney Vacation Club Hawaii Management Company, LLC.
On October 15, 2011, plaintiffs flew from Arizona to Portland, Oregon, where they stayed overnight at the Ramada Airport Hotel. The next day, on October 16, 2011, plaintiffs flew to Honolulu, Hawaii. Upon arrival in Honolulu, plaintiffs checked in to the Aulani, a Disney Resort and Spa, which had opened on August 29, 2011.
Plaintiffs stayed at the Aulani until October 21, 2011. While there, plaintiffs changed rooms three different times because, as Mrs. Lackey explained, the Aulani “didn't have openings continually in one room, so we had to switch to whatever they had available to fit our schedule.”3Each time plaintiffs switched rooms, they packed their own bags and handed them to the bellman for transfer to their new room.4Plaintiffs never saw a spider or any other bugs in any of the rooms in which they stayed.5During their visit, plaintiffs spent time off the Aulani property.
On the morning of their departure, Mr. Lackey noticed a small red mark on his right middle finger, which felt like it was tingling. Plaintiffs thought it looked like a bug bite. Plaintiffs did not mention the mark to any employee of the Aulani.
On October 21, 2011, plaintiffs stayed overnight in Portland, Oregon and then flew home to Phoenix on October 22, 2011. Over the next two days, Mr. Lackey's finger began to swell and became redder. On Monday, October 24, 2011, Mr. Lackey saw his primary care provider, Dr. Deb Grischo. Mr. Lackey testified that Dr. Grischo told him that he had 6The lab culture revealed that Mr. Lackey had a Staphylococcus aureus infection
.
Over the course of the week, Mr. Lackey's finger worsened and on Friday, October 28, 2011, he went to the emergency room. He was transferred to a different hospital, where Dr. Reece, a hand surgeon, performed surgery (radical debridement
) to remove the infected tissue from Mr. Lackey's finger. Due to an infection that developed, Dr. Reece performed a second “radical debridementof tissue that almost resulted in the loss of [Mr. Lackey's] right middle finger.”7Dr. Reece opined that Mr. Lackey's woundwas “consistent with what I've seen from brown recluse spider bites.”8Dr. Reece also opined that Mr. Lackey's “Staph aureus infection ... was consistent with a spider bite as 90 percent of spider bites will have a Staph aureus type contamination in their jaws.”9
On August 28, 2013, plaintiffs commenced this action in state court. The action was subsequently removed to this court on the basis of diversity jurisdiction. In their amended complaint, plaintiffs assert a claim of negligence-premises liability, and Mrs. Lackey asserts a loss of consortium claim. Plaintiffs allege that defendants owed them a duty to ensure that the areas they occupied at the Aulani were free of dangerous spiders.10Plaintiffs allege that defendants breached this duty of care by, among other things, failing to inform them of this dangerous condition, by failing to keep the premises free of dangerous spiders, and by failing to have an adequate pest control program.
The Aulani's pest control program includes quarterly treatment of guestrooms for pests, including spiders.11Tanya Peak Smith, referred to by plaintiffs as defendants' internal pest control expert, acknowledged that this suggested that defendants “had an understanding that there could be venomous and nonvenomous spiders in guest rooms[.]”12The guestrooms at the Aulani were treated on August 9 and August 23, 2011.13
The grounds of the Aulani are treated on a monthly basis for pests that may invade the indoors, including spiders.14Peak Smith testified that she has “seen spiders on the Aulani property[.]”15She testified that she saw “[g]arden spiders”, which are spiders that 16Peak Smith testified that garden spiders are the only type of spider she has ever seen on the Aulani property and that unless “they were like on every single bush or something”, no particular treatment would be done.17She testified that “one or two, which is all that I ever saw, you know, is not enough to do anything.”18Peak Smith also testified that she had “read some papers” about reports of the Mediterranean recluse spider being present in Hawaii but had “never seen one or heard a complaint of one[.]”19
Housekeepers at the Aulani are trained to look for and report any pest activity they might observe in a guestroom.20Peak Smith was asked how one “inspects” for brown or Mediterranean recluse spiders and she replied that 21She also testified that the pest control training that was provided to housekeeping “was primarily bed bug training” and that housekeepers were not taught specifically about spiders.22Peak Smith testified that spiders, including venomous spiders, can be brought into a room by a guest or might come in with the furniture and that she had no idea if there was a “comprehensive inspection of the furniture in the guest rooms before the Aulani was opened to the public[.]”23She also testified that it is possible that spiders could enter a room from the outside by using trees or shrubs that are next to the building.24Defendants' retained expert agreed that it was “possible” that spiders could be brought into a guestroom via luggage or furniture.25
Guest complaints about pests are noted in the Aulani's maintenance database called “Maximo.”26There were no reports of a spider in a guestroom from August 29, 2011 through October 23, 2011.27
Defendants now move for summary judgment on plaintiffs' negligence claim. If defendants are entitled to summary judgment on plaintiffs' negligence claim, then defendants are also entitled to summary judgment on Mrs. Lackey's loss of consortium claim because “a loss of consortium is a derivative claim” and “all elements of the underlying cause must be proven before the claim can exist.” Barnes v. Outlaw,192 Ariz. 283, 964 P.2d 484, 487 (1998).
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to show that there is an absence of genuine issues of material fact. Celotex Corp. v. Catrett,477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing that there is a genuine issue for trial.Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are also to be drawn in its favor. Id.at 255, 106 S.Ct. 2505. “[T]he court's ultimate inquiry is to determine whether the ‘specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence.” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n,809 F.2d 626, 631 (9th Cir.1987).
In order to prevail on a negligence claim, a plaintiff must prove “(1) a duty requiring the defendant to conform to a certain standard of care; (2) the defendant's breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages.” McMurtry v. Weatherford Hotel, Inc.,231 Ariz. 244, 293 P.3d 520, 528 (Ariz.Ct.App.2013). “Generally, a business owner ‘is not [the] insurer of [guests'] safety and is not required at his peril to keep the premises absolutely safe.’ ” Id.(quoting Burke v. Ariz. Biltmore Hotel, Inc.,12 Ariz.App. 69, 467 P.2d 781, 783 (Ariz.Ct.App.1970); see also, Preuss v. Sambo's of Ariz., Inc.,130 Ariz. 288, 635 P.2d 1210, 1211 (1981)). “However, ‘a possessor of land is under an affirmative duty to use reasonable care to make the premises safe for use by invitees.’ ” McMurtry,293 P.3d at 528(quoting Markowitz v. Ariz. Parks Bd.,146 Ariz. 352, 706 P.2d 364, 367 (1985)). “The standard of reasonable care generally includes an obligation to discover and correct or warn of unreasonably dangerous conditions that the possessor of the premises should reasonably foresee might endanger an invitee.” Id.“Generally, ‘where reasonable people could differ as to whether the danger of some injury is foreseeable, the question of negligence is one of fact for a jury to decide.’ ” Id.at 529(quoting Markowitz,706 P.2d at 369–70). “To establish a proprietor's liability for injuries arising from a dangerous condition of the premises, an invitee must prove either that the dangerous condition was caused or permitted to develop by persons for whom the proprietor was responsible or that the proprietor had actual or constructive knowledge of its existence.” McDonald v. Smitty's Super Valu, Inc.,157 Ariz. 316, 757 P.2d 120, 122 (Ariz.Ct.App.1988). see also, Andrews v....
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