McMurtry v. Weatherford Hotel, Inc.
231 Ariz. 244
| Ariz. Ct. App. | 2013Background
- Lucario stayed in Room 59 at the Weatherford Hotel, where the window opening is unprotected and adjacent to a balcony/railing with a three-story fall below.
- The window configuration leaves a roughly 12-inch opening that drops to a concrete surface, and the balcony/railing partially covers the window.
- Lucario drank at two hotel bars, became intoxicated, and a bartender refused further service around 1:00 a.m.; she was escorted to Room 59.
- Around 1:49 a.m. Lucario climbed out the window and fell to her death with a BAC of .263.
- McMurtry, as personal representative, sued the Hotel for premises and dram shop liability and sought an adverse inference for lost video footage.
- The trial court granted summary judgment to the Hotel on dram shop grounds after finding the video deletion not in bad faith and rejected an adverse inference; it also granted summary judgment on premises liability citing open/obvious danger, trespasser status, and lack of admissible expert testimony; this appeal follows to challenge those rulings and evidentiary decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Premises liability: did open/obvious danger bar liability? | Room 59 window/ledge created an unreasonably dangerous condition. | Open/obvious condition foreclosed duty and liability. | No; material facts exist on foreseeability and duty, so issue for jury. |
| Trespasser status: did Lucario become a trespasser upon exiting the window, relieving the Hotel of duty? | Hotel knew guests smoke on ledges; implied invitation extended to balcony area. | Escorting to Room 59 discharged duty once off premises. | Disputed facts remain; question for jury as to invitation scope and trespass status. |
| Open question of intervening/superseding cause: was Lucario’s act an unforeseeable superseding cause? | Hotel knew guests smoked on ledges; intoxication increases risk; foreseeability exists. | Lucario’s act was extraordinary and unforeseeable. | Question for jury; not as a matter of law. |
| Dram shop liability under § 4-311: did Hotel’s actions create liability by over-serving or failing to prevent harm? | Hotel served alcohol to obviously intoxicated Lucario; proximity to harm. | Escorting to room and removing alcohol satisfied duty under Patterson. | Material factual issues exist; summary judgment improper. |
| Admissibility of Lucario’s drinking history evidence: should it be allowed under Rule 403/404/401? | Context and defense relevance to capacity and warning. | Potential prejudice outweighs probative value. | Court abused by not balancing Rule 403; remand for proper balancing. |
| Adverse inference for lost video: should jurors be instructed to presume evidence would be unfavorable? | Video evidence could show intoxication; loss prejudices plaintiff. | Loss was inadvertent; sanctions unwarranted. | Not decided; remand for reconsideration of sanctions. |
Key Cases Cited
- Patterson v. Thunder Pass, Inc., 214 Ariz. 435 (App. 2007) (premises/dram shop duties; later over-service not automatic liability relief)
- Davolt, 207 Ariz. 191 (2004) (testimony admissibility; expertise weight goes to credibility)
- Flowers v. K-Mart Corp., 126 Ariz. 495 (App. 1980) (open and obvious condition discussed; duty not automatically negated)
- Wellhausen v. Univ. of Kansas, 189 P.3d 1181 (Kan. App. 2008) (dorm window danger; warning context considered comparatively)
- Markowitz v. Arizona Parks Bd., 146 Ariz. 352 (1985) (landowner duty to invitees includes warning of dangerous conditions)
- Nicoletti v. Westcor, Inc., 131 Ariz. 140 (1982) (scope of invitee duty and implied invitations on premises)
- Robles v. Severyn, 19 Ariz. App. 61 (1973) (depends on entrant status and invitation scope)