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Arizona (AZ) Court Decisions concerning slip and fall and premises liability:
Nancy P. CHIARA and Richard A. Chiara, wife and husband, Plaintiffs-Appellants,
FRY’S FOOD STORES OF ARIZONA, INC., a California corporation; and Fry’s Food Stores, Inc., a California corporation, Defendants-Appellees.
Excerpt from Chiara Slip and fall Decision:
“PROPRIETOR’S DUTY OF CARE
A business proprietor has an affirmative duty to make and keep his premises reasonably safe for customers. Preuss v. Sambo’s of Arizona, Inc., 130 Ariz. 288, 289, 635 P.2d 1210, 1211 (1981). However, a proprietor who is not directly responsible for a dangerous condition is not liable simply because an accidentoccurred on his property. Id.; Walker v. Montgomery Ward & Co., 20 Ariz. App. 255, 258, 511 P.2d 699, 702 (1973). If a third person, 400*400 another customer, produced the dangerous condition, the proprietor could not, without more, be said to have breached his duty to make his premises safe. A customer injured by a dangerous condition of unknown origin, therefore, would have difficulty establishing a breach of the proprietor’s duty.
The proprietor may be liable for a dangerous condition produced by a third party, though, if he had actual or constructive notice of the dangerous condition. Pruess,130 Ariz. at 289, 635 P.2d at 1211. Traditionally, a plaintiff can demonstrate that a breach occurred by proving that the
… defendant had actual knowledge or notice of the existence of the foreign substance or dangerous condition, or … [that] the condition existed for such a length of time that in the exercise of ordinary care the proprietor should have known of it and taken action to remedy it (i.e., constructive notice).
Walker, 20 Ariz. App. at 258, 511 P.2d at 702. The notice requirement, actual or constructive, is only satisfied if the proprietor has notice of the specific dangerous condition itself and not merely if the proprietor has general notice of conditions producing the dangerous condition. Id.; Koepke v. Carter Hawley Hale Stores, Inc.,140 Ariz. 420, 426, 682 P.2d 425, 431 (App. 1984). That is, under traditional negligence jurisprudence, a storeowner’s liability can not be premised simply upon a plaintiff’s proof that a storeowner had notice that a dangerous condition was a possibility.
The notice requirement adds to the substantial hurdles faced by plaintiffs injured by transitory hazardous conditions in a store. See, e.g., Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486, 488 (La. 1976) (injured customer has an “onerous evidentiary burden”); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 430, 221 A.2d 513, 515 (1966) (“unjust to saddle the plaintiff with the burden of isolating the precise failure [which produced an injury]”). A person injured in a supermarket fallwill rarely be able to trace the origins of the accident. No one in this case, for example, has any idea how the creme rinse fell to the floor.
THE MODE-OF-OPERATION RULE
Courts in Arizona and in other jurisdictions have mitigated this seeming inequity by developing the “mode-of-operation” rule. The “mode-of-operation” rule looks to a business’s choice of a particular mode of operation and not events surrounding the plaintiff’s accident. Under the rule, the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise. See Bloom v. Fry’s Food Stores, 130 Ariz. 447, 636 P.2d 1229 (App. 1981);Tom v. S.S. Kresge Co., 130 Ariz. 30, 633 P.2d 439 (App. 1981). In other words, a third person’s independent negligence is no longer the source of liability, and the plaintiff is freed from the burden of discovering and proving a third person’s actions. A plaintiff’s proof of a particular mode-of-operation simply substitutes for the traditional elements of a prima facie case — the existence of a dangerous condition and notice of a dangerous condition. This is neither a new nor radical principle. We have recognized, in other contexts, a businessman’s duty to anticipate the hazardous acts of others likely to occur on his property, e.g., Chernov v. St. Luke’s Hospital Medical Center, 123 Ariz. 521, 522-23, 601 P.2d 284, 285-86 (1979)(hospital not entitled to summary judgment when plaintiff alleged that accident in hospital parking lot was produced by hospital’s improper maintenance of traffic control signals); see also Restatement (Second) of Torts § 344 (“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons …, and by the failure of the possessor to exercise reasonable care to [protect the public]”).
The mode-of-operation rule is of limited application because nearly every business enterprise produces some risk of customer 401*401 interference. If the mode-of-operation rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law. A plaintiff could get to the jury in most cases simply by presenting proof that a store’s customer could have conceivably produced the hazardous condition.
For this reason, a particular mode of operation only falls within the mode-of-operation rule when a business can reasonably anticipate that hazardous conditions will regularly arise. Cf. Jamison v. Mark C. Bloome Co., 112 Cal. App.3d 570, 169 Cal. Rptr. 399, 401-02 (1980) (business not liable to persons injured on spilled oil because business has no reason to anticipate vandalism of oil drums); Overstreet v. Gibson Product Co., 558 S.W.2d 58, 61 (Tex. Civ.App. 1977) (grocery store owner not liable for customer bitten by a rattlesnake). A plaintiff must demonstrate the foreseeability of third-party interference before Arizona courts will dispense with traditional notice requirements. Many of the cases upholding the applicability of the mode-of-operation rule have accordingly involved open food displays. E.g., Bloom v. Fry’s Food Stores, Inc., supra (grapes); Tom v. S.S. Kresge Co., supra (soft drinks);Rhodes v. El Rancho Markets, 9 Ariz. App. 576, 454 P.2d 1016 (1969) (lettuce);Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972) (pizza sold by the slice); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La. 1976) (glass bottle of olive oil); Bozza v. Vornado, Inc., 42 N.J. 355, 200 A.2d 777 (1964) (self-service cafeteria); Ciminski v. Finn Corp., 13 Wash. App. 815, 537 P.2d 850 (1975) (self-service cafeteria).
APPLICATION OF THE MODE-OF-OPERATION RULE
No element of the mode-of-operation rule, however, limits its application to produce or pizza. The trial court, court of appeals, and parties to this dispute have focused too closely on the actual transitory hazardous condition producing the injury — the spilled creme rinse. The similarity between the creme rinse at issue here and the produce at issue in other cases is largely irrelevant. The only real issue is whether or not Fry’s could reasonably anticipate that creme rinse would be spilled on a regular basis.
The depositions of at least two employees indicated that spills regularly occurred in the store. For example, a courtesy clerk stated:
Let’s put it this way: I can’t say I remember it [the creme rinse Chiara slipped on] — cleaning up any exact one thing. There’s lots of things I have to clean up in the store. It’s not the cleanest place.
We think, therefore, that a jury should determine if Fry’s reasonably could have anticipated that sealed bottles regularly were opened and spilled. Of course, that conclusion alone would not support a finding of liability. If Fry’s exercised reasonable care under the circumstances, it will prevail at trial. We believe, then, that the grant of summary judgment was improper. See Wisener v. State, 123 Ariz. 148, 149, 598 P.2d 511, 512 (1979) (litigants entitled to a “trial when there is the slightest doubt as to the essential facts”); see also Chernov v. St. Luke’s Hospital Medical Center, supra, 123 Ariz. at 522, 601 P.2d at 285 (negligence cases can rarely be disposed of by summary judgment).”
Patrick 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,
WEATHERFORD HOTEL, INC.; Henry D. Taylor; Pamela S. Green-Taylor, Defendants/Appellees.
Excerpt from Premises Liability decision
“¶ 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 524*524 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 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, 525*525 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.
¶ 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.
A. Exclusion of McMurtry’s Expert
¶ 10 McMurtry asserts the trial court erred in excluding the testimony of his proffered expert, Del Marva. 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 services 526*526 specializing 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 opined that the window in Room 59 “clearly constitute[d] a dangerous condition.” Specifically, Del Marva believed that the window did not conform to industry standards for hotels and was “far too large.” He stated that generally, windows above ground floor should not open more than four inches and that a larger opening would pose a concern for “any public accommodation because guests must be assumed to be unfamiliar with the premises and their hazards.” He noted that the “bottom window pane raises without any guard or protection, resulting in a 39.5 inch vertical opening above an 8 inch windowsill.” Del Marva also explained that danger was exacerbated by the fact that “alcohol [was] served on premises as well as at taverns as close as directly across the street.”
¶ 13 Del Marva described the hazard as follows:
Outside Room 59, the Weatherford Hotel presented the further hazard of a completely unprotected drop of more than three stories down to a concrete walkway below street level. Room 59 has one window. It is approximately 41 inches wide, centered over a 45 inch wide ledge. Outside the window, the balcony for the Weatherford’s upstairs bar, the Zane Grey Ballroom, extends to the right along the north side of the building. Directly outside Room 59’s window, the Hotel erected a metal railing that extends across approximately the right 30 inches of the window, leaving an unprotected 12 inch opening from the railing to the end of the window ledge. Based on the video recorded by the camera outside the Zane Grey Ballroom, my understanding is that at approximately 1:49 AM on October 9, 2005, Ms. Lucario opened her window and stepped through the opening. Extending outside the bottom of the railing is 3 inches of boards, approximately the width of a shoe. I further understand that Ms. Lucario briefly stepped on these boards before plummeting to her death.
Del Marva opined further that no warning sign or notice would have been sufficient to overcome the inherent danger and that the signage that did exist, see supra ¶ 3, increased the danger. Based on those concerns, Del Marva concluded that the window/balcony configuration in Room 59 was the “most obviously unsafe window setup [he had] ever seen in a public accommodation” and even if Lucario was not severely intoxicated, “it was reasonably foreseeable that a sober guest could have fallen out of the window of Room 59.”
¶ 14 The Hotel argued that Del Marva’s opinions should be excluded because he was not qualified as an expert due to his lack of specialized knowledge or experience regarding hotel safety, fire and building code compliance, or the architectural design of historic hotels. The Hotel emphasized that Del Marva’s training and experience was limited to private investigation, hotel safety and security, the responsible service of alcohol, and the management of bars, lounges, restaurants, and catering facilities, and asked the court to prohibit him from offering his opinions at trial concerning the safety of Room 59.
¶ 15 The court granted the Hotel’s motion, recognizing that although Del Marva was familiar by experience with hotel security, such generalized knowledge “does not necessarily translate into the same knowledge or experience on the specific issue before the Court.” The court placed significant emphasis on the fact that Del Marva was not familiar with building or fire codes and had no experience in hotel design, architecture, or construction. Specifically, the court noted that Del Marva did not have the requisite training and experience “in regard to design 527*527 and code requirements for the window and balcony in question;” was “not familiar with building or fire codes;” had “no experience as an architect or builder of hotels;” and had “no formal training in the areas of premises liability or code compliance.”
¶ 16 Whether a person qualifies as an expert turns on “whether a jury can receive help on a particular subject from the witness.” Davolt, 207 Ariz. at 210, ¶ 70, 84 P.3d at 475; see also Pipher v. Loo, 221 Ariz. 399, 404, ¶ 17, 212 P.3d 91, 96 (App.2009). “The degree of qualification goes to the weight given the testimony, not its admissibility.” Davolt, 207 Ariz. at 210, ¶ 70, 84 P.3d at 475. Del Marva has relevant experience in the realm of hotel safety and could assist the jury in determining whether the Hotel breached its applicable duty of care. See infra ¶¶ 22-23. Del Marva’s background and familiarity with certain building regulations goes to the weight of his testimony, not its admissibility. See Seisinger v. Siebel, 220 Ariz. 85, 90, ¶ 16, 203 P.3d 483, 488 (2009) (“The degree of qualification goes to the weight given the testimony, not its admissibility.”) (citation omitted). Furthermore, whether the Hotel complied with the relevant building and fire codes is not, as the trial court appears to have believed, dispositive of McMurtry’s premises liability claim. SeePeterson v. Salt River Project Agr. Imp. & Power Dist., 96 Ariz. 1, 7-8, 391 P.2d 567, 571-72 (1964) (noting that “it is a jury question whether compliance with a statute is enough to meet the standard of due care which applies in actions for damages for negligence.”) On remand, the Hotel will have the opportunity to cross-examine Del Marva about his experience or knowledge on various topics that may or may not be persuasive as to whether the Hotel breached its duty to alleviate any alleged dangerous conditions or give adequate warning of their existence.
¶ 17 At the time the trial court excluded Del Marva’s testimony, the new version of Rule 702 was not in effect. We do not, however, believe the amendments to Rule 702 change the outcome on these facts. Under the new version, which is identical to the corresponding federal rule, “trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury’s determination of facts at issue.” See Ariz. R. Evid. 702, Comment to 2012 Amendment. However, the Comment also explains that the 2012 amendment was not intended to prevent expert testimony based on experience. Id. Del Marva’s proffered testimony flows from his years of experience in the hospitality industry dealing with safety and liability issues in public accommodations. Thus, his testimony should be allowed under either version of Rule 702. See id. (“The amendment is not intended to supplant traditional jury determinations of credibility and the weight to be afforded otherwise admissible testimony, nor is the amendment intended to permit a challenge to the testimony of 528*528 every expert, preclude the testimony of experience-based experts, or prohibit testimony based on competing methodologies within a field of expertise. The trial court’s gatekeeping function is not intended to replace the adversary system.”); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (noting that in the context of Rule 702, the essential inquiry is “whether particular expert testimony is reliable” and that trial courts should consider the Rule 702 factors “where they are reasonable measures of the reliability of expert testimony.”).
¶ 18 In sum, the trial court abused its discretion in excluding Del Marva’s testimony on the grounds that he was not qualified to testify as an expert under Rule 702.
B. Premises Liability
¶ 19 McMurtry argues the trial court erred in granting summary judgment on premises liability because a jury should determine (1) whether the window/balcony configuration was an unreasonably dangerous condition; (2) whether Lucario was a trespasser at the time of the fall; and (3) whether Lucario’s attempt to reach the balcony from the window was an intervening and superseding cause of her death.
¶ 20 Summary judgment is appropriate when “there is no genuine issue as to any material fact and  the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(c). We view the evidence in the light most favorable to McMurtry and determine de novo whether there are genuine issues of material fact and whether the trial court erred in its application of the law. Unique Equip. Co., Inc. v. TRW Vehicle Safety Sys., Inc., 197 Ariz. 50, 52, ¶ 5, 3 P.3d 970, 972 (App.1999).
¶ 21 The trial court properly recognized that the Hotel owed Lucario a duty of reasonable care to provide her with a safe room, which the Hotel does not dispute. The court nevertheless granted summary judgment on the premises liability claim primarily on the grounds that the window/balcony configuration was not an unreasonably dangerous condition because it was open and obvious, thus relieving the Hotel of any liability. The court also summarily found that the Hotel was relieved of liability because Lucario became a trespasser when she exited the window and because her decision to climb from her window to the balcony was an intervening, superseding cause of her death. Additionally, the court determined that McMurtry could not prevail on his premises liability claim, based on the lack of admissible expert testimony. We conclude that none of the reasons relied upon by the trial court justify granting summary judgment in favor of the Hotel.
¶ 22 In response to the Hotel’s motion for summary judgment, McMurtry had the burden of establishing actionable negligence, which requires proof of (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. See Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). Generally, a business owner “is not [the] insurer of [guests’] safety and is not required at his peril to keep the premises absolutely safe.” Burke v. Ariz. Biltmore Hotel, Inc., 12 Ariz.App. 69, 71, 467 P.2d 781, 783 (1970). However, “a possessor of land `is under an affirmative duty’ to use reasonable care to make the premises safe for use by invitees.” Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985) (quoting Tribe v. Shell Oil Co., 133 Ariz. 517, 519, 652 P.2d 1040, 1042 (1982)).
¶ 23 Because Lucario was the Hotel’s business invitee, the Hotel owed her a duty of reasonable care to make its premises safe for her use. See Woodty v. Weston’s Lamplighter Motels, 171 Ariz. 265, 268, 830 P.2d 477, 480 (App.1992) (recognizing that the “status of a paying guest of a hotel … is that of an invitee.”). 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. See Markowitz, 146 Ariz. at 355, 706 P.2d at 367; Revised Arizona Jury Instructions (“RAJI”) (Civil) 4th, Premises Liability 1, Notice of Unreasonably 529*529 Dangerous Condition, 98 (2005) (the owner of a business has a duty “to warn of or safeguard an unreasonably dangerous condition of which the [business] had notice.”). “A reasonably foreseeable event is one that might `reasonably be expected to occur now and then, and would be recognized as not highly unlikely if it did suggest itself to the actor’s mind.'” Tellez v. Saban, 188 Ariz. 165, 172, 933 P.2d 1233, 1240 (App.1996) (citation omitted). 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.” Markowitz,146 Ariz. at 357-58, 706 P.2d at 369-70.
1. Open and Obvious Condition
¶ 24 Notwithstanding the existence of a duty, a landowner can be relieved of liability if the injury was caused by an open and obvious condition. See, e.g., Daugherty v. Montgomery Ward, 102 Ariz. 267, 270, 428 P.2d 419, 422 (1967) (“If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight.”) (citation omitted); see alsoRestatement (Second) of Torts § 343A (1965) (“Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.”). Nonetheless, “although the open and obvious nature of a defect or hazard is one factor to be considered in determining whether a defendant was negligent, it is not necessarily determinative.” Udy v. Calvary Corp., 162 Ariz. 7, 14, 780 P.2d 1055, 1062 (App.1989); see also Tribe, 133 Ariz. at 519, 652 P.2d at 1042 (“Whether the step was dangerous, open and obvious, or whether appellees should have anticipated the harm if open and obvious are issues to be decided by a jury in its capacity as triers of fact.”). Instead, whether a landowner “acted in accordance with its duty … is a question that must be answered within the context of all of the facts and circumstances of [the] case[.]” Udy, 162 Ariz. at 14, 780 P.2d at 1062.
¶ 25 McMurtry argues the window/balcony configuration in Lucario’s room was unreasonably dangerous because it opened 39.5 inches vertically, the twelve-inch opening was unprotected, led to a drop of more than three stories to a concrete walkway below street level, and was adjacent to the railing of the Hotel’s upstairs balcony. McMurtry also asserts that because of the window’s size and location, as well as the Hotel’s invitation for guests to “step out onto the balcony” to smoke, Lucario could have reasonably believed that the window was a means of access to the balcony. It is undisputed that Lucario had been smoking outside the front door of the Hotel at least twice on the evening she died and that the Hotel had notice of the unprotected opening located adjacent to the window. The Hotel asserts nonetheless it was relieved from liability based on the “open and obvious” nature of the window and balcony.
¶ 26 We question whether the window/balcony configuration, as depicted in photographs in the record and as described by Del Marva, was so “open and obvious” that the Hotel had no liability as a matter of law. In any event, McMurtry offered evidence demonstrating that material facts exist as to whether the Hotel should have anticipated the potential harm to a guest opening the 530*530 unsecured window in Room 59 and attempting to access the balcony located immediately adjacent to it, whether or not that guest was intoxicated. See Murphy v. El Dorado Bowl, Inc., 2 Ariz.App. 341, 343, 409 P.2d 57, 59 (1965) (“the bare fact that a condition is `open and obvious’ does not necessarily mean that it is not unreasonably dangerous.” (quoting Cummings v. Prater, 95 Ariz. 20, 26, 386 P.2d 27, 31 (1963))). According to Del Marva, the window was too large because it could be opened enough for an adult to climb out of it, as Lucario did. The balcony and railing wrapping around the Hotel extended across more than two feet of the window’s opening, but left a gap of approximately twelve inches from which a person could fall. Additionally, the Hotel was aware that its guests occasionally sat on the window ledges to smoke cigarettes, that Lucario had smoked earlier in the evening, and that guests were encouraged to “step out onto the balcony” to smoke. According to Del Marva, the window/balcony configuration constituted a dangerous condition that could have been remedied at a minimal cost. Thus, whether this condition was “unreasonably dangerous” is a jury question.
¶ 27 In reaching its ultimate conclusion that the window was an open and obvious danger relieving the Hotel of liability, the trial court relied primarily on Goodman v. Staples Office Store, LLC, 2009 WL 4827204 (D.Ariz.2009), Flowers v. K-Mart Corp., 126 Ariz. 495, 616 P.2d 955 (App.1980), and Wellhausen v. University of Kansas, 40 Kan. App.2d 102, 189 P.3d 1181 (2008). We are not persuaded by these authorities for several reasons.
¶ 28 First, the trial court relied on Goodman in concluding the open and obvious nature of a condition may, standing alone, relieve a landowner of liability. But, after the court’s ruling in this case, the Ninth Circuit Court of Appeals reversed the district court’s decision in Goodman. The district court had granted summary judgment for a retail store, the landowner, finding it did not owe the plaintiff a duty to warn of an open and obvious condition. Goodman, 2009 WL 4827204 at *4. The Ninth Circuit explained that even if the dangerous condition “were open and obvious, its open and obvious nature does not automatically preclude liability.” Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 823 (9th Cir.2011) (citing Tribe, 133 Ariz. at 519, 652 P.2d at 1042). The court explained that “[i]f the proprietor should anticipate the harm from the condition despite its obviousness, he may be liable for physical injury caused by that condition.” Id. Ultimately, the court concluded the district court “erred in concluding as a matter of law that no unreasonably dangerous condition existed at the time of [the injury].” Id. at 824.
¶ 29 The trial court relied on Flowers for the proposition that a landowner has “no duty to warn against the obvious.” In Flowers, a car struck a customer in a K-Mart parking lot; the customer then sued K-Mart for failing to provide a crosswalk.Flowers, 126 Ariz. at 496-97, 616 P.2d at 956-57. K-Mart argued the “layout of its parking lot and the traffic therein was an open and obvious condition, and thus it did not breach its duty to the appellants by failing to provide a crosswalk for their use.”Id. at 497, 616 P.2d at 957. We determined that the plaintiffs had “failed to affirmatively and specifically show that K-Mart breached any duty … under the undisputed facts presented.” Id. at 498, 616 P.2d at 958. In reaching that conclusion, we emphasized the plaintiffs had not offered any evidence of past accidents at that or any other K-Mart under similar circumstances and that K-Mart had no reason to anticipate harm under those circumstances. Id. Unlike Flowers, McMurtry presented evidence sufficient to create material issues of fact as to whether the Hotel could reasonably anticipate harm to its guests who stayed in Room 59. Furthermore,Flowers does not support the trial 531*531 court’s conclusion that there is “no duty to warn against the obvious.”
¶ 30 Finally, the trial court relied on Wellhausen to support its conclusion that the Hotel did not breach the duty of care it owed Lucario. In that case, a University of Kansas student removed the screen from his dormitory window, climbed onto a ledge below the window to smoke a cigarette, and then fell to his death. Wellhausen,189 P.3d at 1182. Noting that the student had signed a housing policy contract under which he agreed to abide by student handbook policies that prohibited removing window screens, exiting the windows, or being on window ledges, and that a warning posted in his dormitory room directed students not to remove the window screen or exit through the window, the Court of Appeals of Kansas ruled as a matter of law that the danger presented by the window ledge was a known and obvious danger about which the university was not required to warn. Id. at 1184.
¶ 31 We do not find Wellhausen persuasive. The university specifically warned the student about removing the window screen and the student agreed not to do so. Here, Room 59’s window was three feet wide, opened to 39.5 inches vertically (more than twice that of the dorm room windows in Wellhausen), and had no safety screen. Unlike the university, the Hotel did not provide any notices or warnings regarding opening of windows or accessing the balcony. To the contrary, the Hotel posted a permanent notice on the door in Lucario’s room inviting her to go to the balcony to smoke. Finally, unlike the situation in Wellhausen, Lucario was served alcohol at the two bars located within the Hotel.
¶ 32 In sum, McMurtry presented evidence to the trial court from which a reasonable jury could conclude the Hotel had created or was aware of an unreasonably dangerous condition and had failed to take reasonable steps to warn of the condition or correct it. Thus, we hold that the trial court erred in concluding that the Hotel did not breach its duty of care to Lucario.
2. Trespasser Status
¶ 33 The Hotel argues that any duty it owed Lucario was discharged when she became a “trespasser” by deciding “to voluntarily engage in an unpermitted activity which took place beyond the area to which she was invited by the Hotel.” The trial court agreed with the Hotel, finding that Lucario became a trespasser when she climbed out the window of her room, thereby relieving the Hotel of liability.
¶ 34 Landowners have a duty to invitees to maintain their property in a reasonably safe manner. See Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142, 639 P.2d 330, 332 (1982). The particular duty owed to the entrant on the land is defined by the entrant’s status. Robles v. Severyn, 19 Ariz. App. 61, 63, 504 P.2d 1284, 1286 (1973). The special obligation towards invitees exists only while the visitor is upon the part of the premises which the occupier has held open to him for the purpose that makes him an invitee. See Nicoletti, 131 Ariz. at 143, 639 P.2d at 333. This area of invitation will vary with the circumstances of the case and “extends to all parts of the premises to which the purpose may reasonably be expected to take him, and to those which are so arranged as to lead him reasonably to think that they are open to him.” Id. (quoting W. Prosser, Law of Torts § 61 at 391-92 (4th ed. 1971)).
¶ 35 On the factual record here, whether the allegedly hazardous window/balcony configuration constituted an unreasonably dangerous condition is a jury question. The Hotel’s argument — that the distance between the hotel window and the balcony partially covering the window somehow converted the invitee to a trespasser — simply ignores the obvious. When Lucario checked into the hotel earlier in the day, the front desk clerk explained to her that guests were invited to use the balcony to smoke. Signage in Room 59 invited hotel guests to smoke on the balcony, which extended partially across the width of the window of Lucario’s room. As such, there is no factual or legal support for the Hotel’s implicit argument that Lucario became a trespasser as soon as she climbed out of the window, particularly 532*532 when the Hotel invited her to be present in her room and on the balcony.
¶ 36 Furthermore, when a landowner is aware that unpermitted areas are used by patrons but does not object or take action preventing such use, an implied invitation has occurred and the landowner’s duty to maintain safe premises extends to those areas. M.G.A. Theaters, Inc. v. Montgomery, 83 Ariz. 339, 341, 321 P.2d 1009, 1010 (1958) (holding that when a landowner “knows, or in the exercise of ordinary care should have known, that areas of his premises not originally intended for the use of patrons are being so used, he extends to them implied invitation for such use.”); cf.Nicoletti, 131 Ariz. at 144, 639 P.2d at 334 (declining to find that an implied invitation extended to unpermitted areas when the landowner gave a strict warning on the few occasions when an invitee went into uninvited areas). The record here establishes that the Hotel knew of previous instances where guests had been seen smoking while sitting on the ledges of the windows of guest rooms with the windows open. Thus, to the extent the area beyond the window could properly be classified as an unpermitted area, a material question of fact would still exist as to whether Lucario exceeded the scope of her invitation and thus became a trespasser.
3. Intervening and Superseding Event
¶ 37 The Hotel argues Lucario’s act was unforeseeable and extraordinary because (1) there has never been a similar incident in the Hotel’s history; (2) Lucario’s decision to climb out the window was “ridiculous;” and (3) the Hotel could not have foreseen that Lucario would engage “in such a death-defying act.” Thus, according to the Hotel, it has no liability because Lucario’s actions constituted an intervening and superseding cause of her death.
¶ 38 Whether proximate cause exists is usually a question for the jury, unless reasonable people could not differ. Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546, 789 P.2d 1040, 1047 (1990). “The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred.” Id.An original actor may be relieved from liability for “the final result when, and only when, an intervening act of another was unforeseeable by a reasonable person in the position of the original actor and when, looking backward, after the event, the intervening act appears extraordinary.” Ontiveros v. Borak, 136 Ariz. 500, 506, 667 P.2d 200, 206 (1983). The determination of whether an event was extraordinary requires consideration of all the facts, including those about which the defendant knew nothing at the time of the event. Restatement (Second) Torts § 435, comment d.
¶ 39 Consistent with our determination that material issues of fact exist as to whether the window/balcony configuration constituted an unreasonable condition, we cannot say that Lucario’s decision to open the window and step out on the ledge was an event so extraordinary that the Hotel should be absolved of liability as a matter of law. The Hotel had knowledge that many of its guests sat on its window ledges to smoke, that Lucario had smoked earlier in the evening, and that the Hotel provided signage instructing guests to step outside on the balcony to smoke. Furthermore, as noted by Del Marva, windows like the one in Lucario’s room are “a particular concern where alcohol is served on premises … for the obvious reason that intoxication affects guest inhibitions, judgment, reactions, and coordination, among other issues.” For purposes of the summary judgment proceedings, the Hotel did not contest that it had served alcohol to Lucario while she was “obviously intoxicated.” On this record, material issues of fact exist as to whether the Hotel should have foreseen that any guest, much less a guest who is obviously intoxicated, might attempt to access the balcony via the relatively large 533*533 window in Room 59. Thus, the court erred in finding that Lucario’s decision to exit the window was an intervening, superseding cause of her death.”
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