McMurtry v. Weatherford Hotel, Inc.

Citation231 Ariz. 244,293 P.3d 520,651 Ariz. Adv. Rep. 13
Decision Date10 January 2013
Docket NumberNo. 1 CA–CV 10–0863.,1 CA–CV 10–0863.
PartiesPatrick McMURTRY, as personal representative of the Estate of Toni L. Lucario, and as the natural parent of and on behalf of Teal McMurtry; Quinn McMurtry; and Jake McMurtry, surviving children of Toni L. Lucario, Plaintiffs/Appellants, v. WEATHERFORD HOTEL, INC.; Henry D. Taylor; Pamela S. Green–Taylor, Defendants/Appellees.
CourtCourt of Appeals of Arizona

OPINION TEXT STARTS HERE

Adelman Law Group, PLLC By Steven A. Adelman, Scottsdale, and Melinda K. Cekander, Attorney at Law By Melinda K. Cekander, Flagstaff, Attorneys for Plaintiffs/Appellants.

Garrey Woner Hoffmaster & Peshek, PC By D. Reid Garrey and Erin M. Evans, Scottsdale, Attorneys for Defendants/Appellees.

OPINION

BROWN, Judge.

¶ 1 Patrick McMurtry, as personal representative of the estate of Toni Lucario and on behalf of her surviving children, appeals the trial court's orders granting summary judgment in favor of the Weatherford Hotel, Inc., (Hotel) on his claims for premises and dram shop liability arising out of Lucario's death. McMurtry also challenges the court's evidentiary rulings regarding an expert witness and Lucario's prior alcohol use, as well as the court's denial of an adverse inference instruction based on lost evidence. For the following reasons, we vacate the court's orders and rulings at issue here and remand for further proceedings.

BACKGROUND

¶ 2 In October 2005, Lucario was a guest at the Weatherford Hotel, a historic building located in downtown Flagstaff. Lucario stayed in Room 59, located on the third floor near the Hotel's upstairs bar. Room 59 contains a single window that is approximately three feet wide, 39.5 inches high, and has a windowsill eight inches above the room floor. Outside the window is a narrow ledge. The Hotel's upstairs bar opens onto a balcony which is bordered by a railing. The balcony and its railing partially wrap around the exterior of the Hotel building and extend across the right thirty inches of Room 59's window, leaving an unprotected twelve-inch opening measured from the side of the balcony and railing to the far side of the window. Below the unprotected twelve-inch opening is a three-story drop to a concrete surface.

¶ 3 When Lucario arrived at the Hotel, she was informed of the “House Rules,” which were orally described to every hotel guest upon check-in. The Hotel also posted signage describing the rules in its rooms, which include the following message:

All of our rooms are non-smoking rooms. You are welcome to step out onto the balconies or visit one of the hotel bars to smoke.

On the evening of October 8, after checking into the Hotel, Lucario consumed alcohol in both of the Hotel's bars and became intoxicated. At approximately 1:00 a.m., a Hotel bartender saw that Lucario was intoxicated, refused her further service, and requested that another Hotel employee ensure Lucario was escorted to Room 59. At 1:49 a.m., Lucario climbed 1 out of the window and fell to her death. She had a blood alcohol level of .263 at the time of the fall.

¶ 4 McMurtry sued the Hotel, alleging dram shop liability resulting from the Hotel's furnishing of alcohol to Lucario when she was obviously intoxicated and premises liability based on the Hotel's failure to protect Lucario from or warn her about Room 59's window/balcony configuration. 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.”

¶ 5 McMurtry further alleged that (1) the Hotel had a duty to warn hotel guests of dangerous conditions and breached that duty “by giving no warning that the area outside part of the width of her window was an unprotected sheer drop to a concrete path several stories below;” (2) the danger presented by the window opening and balcony was not “open and obvious” at night as the area lacked either warning signs or exterior lighting sufficient to identify the danger; (3) signage inviting guests to use the balcony to smoke led Lucario to believe it was safe for her to do so; and (4) the absence of reasonable warnings about the dangers presented were a direct and proximate cause of Lucario's death.

¶ 6 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, 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.

¶ 8 After the parties submitted supplemental briefing addressing whether Del Marva was a qualified expert for the premises liability claim, the Hotel filed a second motion for summary judgment on that claim. The Hotel reasserted that Del Marva should not be permitted to testify as an expert for purposes of establishing a prima facie case of premises liability and that summary judgment was appropriate even if he were allowed to testify. According to the Hotel, the window was an open and obvious danger requiring no warnings; Lucario was a trespasser at the time she exited the window; and her conduct was an intervening and superseding cause of her death.2

¶ 9 The court ruled in favor of the Hotel on the premises liability claim, concluding the Hotel had not breached any duty it owed to Lucario on several grounds. As an additional basis, the court ruled that Del Marva was not qualified to testify as an expert witness regarding premises liability under Arizona Rule of Evidence 702 and therefore the Hotel was entitled to summary judgment because McMurtry had failed to support his claim with expert testimony. McMurtry timely appealed.

DISCUSSION
A. Exclusion of McMurtry's Expert

¶ 10 McMurtry asserts the trial court erred in excluding the testimony of his proffered expert, Del Marva.3 We review the trial court's decision to permit or exclude expert testimony for an abuse of discretion. State v. Davolt, 207 Ariz. 191, 210, ¶ 69, 84 P.3d 456, 475 (2004). Arizona Rule of Evidence 702 governs the admissibility of expert testimony. At the time the trial court issued its ruling, Rule 702 provided as follows: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

¶ 11 McMurtry retained Del Marva as an expert in response to the trial court's ruling that expert testimony was necessary for both the dram shop and premises liability claims. According to his affidavit, Del Marva has been in the hospitality industry for over fifty years. He has owned and operated bars and lounges, and through that experience has gained significant knowledge of “acceptable industry principles and methods needed to insure a safe and secure environment.” Del Marva is the owner of Food and Beverage Investigation, which has been operating since 1985 and is “retained by its clients to ensure that their property and staff are complying with and adhering to company policies, procedures, and industry standards.” Del Marva is also the president of Del Marva Corporation, “a hotel and leisure time industry consulting firm providing a variety of servicesspecializing in Quality Assurance Surveys, Safety and Security Inspections, Risk Management Workshops, Policy & Procedure Development, and Foreseeability Planning for Liability Exposure.” Additionally, Del Marva has twenty-three years of experience as a liability consultant specializing in “premises liability, premises security and liquor liability/[dram shop] litigation.” He has been retained as an expert in more than 800 cases, including 300 dram shop liability cases, and has been “qualified to render trial expert testimony approximately forty times in fifteen jurisdictions.”

¶ 12 Based on his experience, Del Marva...

To continue reading

Request your trial
70 cases
  • Sandretto v. Payson Healthcare Mgmt., Inc.
    • United States
    • Court of Appeals of Arizona
    • March 11, 2014
    ...“is not intended to ... preclude the testimony of experience-based experts.” Ariz. R. Evid. 702 cmt.; see also McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, ¶ 17, 293 P.3d 520, 527 (App.2013). The advisory committee note to Federal Rule 702—from which Arizona's 2012 comment is derived......
  • Glazer v. State
    • United States
    • Court of Appeals of Arizona
    • April 3, 2014
    ...reviews a fact-based “decision to permit or exclude expert testimony for an abuse of discretion,” McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 249, ¶ 10, 293 P.3d 520, 525 (App.2013). As the proponent of the evidence, Glazer had the burden to show by a preponderance of the evidence t......
  • State v. Buccheri-Bianca
    • United States
    • Court of Appeals of Arizona
    • October 30, 2013
    ...702 is “ ‘not intended to prevent expert testimony based on experience.’ ” 232 Ariz. 256, ¶ 18, 304 P.3d at 549,quoting McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, ¶ 17, 293 P.3d 520, 527 (App.2013). We observed that Daubert, which announced the standards that formed the basis of Ru......
  • State v. Salazar-Mercado
    • United States
    • Court of Appeals of Arizona
    • June 20, 2013
    ...court rules de novo.”).a. Rule 702(d), Ariz. R. Evid. ¶ 5 The admission of expert testimony is governed by Rule 702, Ariz. R. Evid. McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, ¶ 10, 293 P.3d 520, 525 (App.2013). The Arizona Supreme Court amended Rule 702 in September 2011, effective......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT