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McMurtry v. Weatherford Hotel, Inc. - 1/10/2013

Arizona Court of Appeals Division One Holds That (1) Testimony of Premise Liability Expert Is Admissible Under Rule of Evidence 702, (2) The “Open and Obvious” Nature Of A Danger Is One Factor In Determining Negligence, and (3) Escorting A Person From Premises Does Not Necessarily Absolve Dram Shop Liability.


In October 2005, Toni Lucario fell to her death from the third floor of the Weatherford Hotel where Ms. Lucario was staying as a guest.  The evening prior to her death, Ms. Lucario had become intoxicated at the hotel’s bar.  A bartender escorted her to her room.  She later climbed out of her window, possibly to smoke on a ledge, and fell. 

Plaintiff, the personal representative of Ms. Lucario’s estate, filed suit against the hotel on claims for premise liability and dram shop liability.  Plaintiff alleged that the hotel served Ms. Lucario alcohol when she was obviously intoxicated and that it failed to protect her or warn her about the danger of the window / balcony in her room.

The trial court granted the hotel’s motion for summary judgment, finding for the hotel on several grounds.  On the premise liability claim, the trial court found that Plaintiff’s premise liability expert was not qualified to testify under Arizona Rule of Evidence 702 and, consequently, Plaintiff had no expert testimony with which to support the claim.  In addition, the trial court concluded that the hotel was relieved of its duty of care because the dangerous window / balcony configuration was an open and obvious hazard.  On the dram shop liability claim, the trial court held that the hotel discharged any duty owed by escorting Ms. Lucario back to her room at the hotel.  Plaintiff appealed. 

On the premise liability claim, the Court of Appeals vacated both grounds upon which the trial court had ruled for the hotel.  First, the Court of Appeals found the trial court had abused its discretion by excluding the testimony of Plaintiff’s expert.  Arizona Rule of Evidence 702 governs the admissibility of evidence.  A former version of the Rule was in effect at the time of the trial court’s ruling in this case, it provided: “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.”  Whether an expert qualifies under the Rule turns on “whether a jury can receive help on a particular subject” from the expert.  His qualifications go only to the weight given his testimony and not the admissibility.  The Court of Appeals found that in this case the expert’s testimony could be helpful to a jury.  The Court’s conclusion would be the same even under the new Rule 702.

Second, the Court of Appeals found that the trial court erred by ruling as a matter of law that the hotel could be relieved of the duty of care it owed Ms. Lucario by the “open and obvious” nature of the danger.  In some circumstances, the hotel can be relieved of liability if injury is caused by an open and obvious condition.  But this is just one factor in determining negligence. The Court of Appeals concluded that in this particular case whether the hotel acted in accordance with its duty of reasonable care was a question of fact to be decided by a jury.

Likewise, on the premise liability claim, the Court of Appeals concluded that whether Ms. Lucario was a trespasser and whether Ms. Lucario’s action was an intervening and superseding event that relieves the hotel’s liability could not be decided as a matter of law.

On the dram shop liability claim, the Court of Appeals also vacated the trial court’s ruling.  Bars have a duty to exercise reasonable care in serving alcohol.  Dram shop liability turns on whether the bar fulfilled “its duty to exercise affirmative, reasonable care in serving intoxicants to patrons who might later injure themselves or an innocent third party, on or off the premises.”  The Court of Appeals found that there was a factual issue as to whether the hotel bar exercised reasonable care escorting Ms. Lucario back to her room given the hazard posed by the window / balcony.  Accordingly, the trial court erred by concluding as a matter of law that the hotel was absolved of liability by merely escorting Ms. Lucario to her room.

The Court of Appeals remanded the case for further proceedings, instructing the trial court to also reconsider on remand its ruling on the admission of Ms. Lucario’s drinking history under Rule of Evidence 403 and its ruling on an adverse jury instruction.

Judge Brown authored the opinion; Judges Norris and Hall concurred.

Posted by: Grace Rebling

Posted On: 1/28/2013