Pat Murphy, The Daily Record Newswire
An Arizona hotel thought it was off the hook for the death of a severely intoxicated guest who plunged three stories after climbing out of the window of her room.
But as puzzling as it may seem, a state court decided last week that a jury should decide whether the hotel breached a duty of care.
On Oct. 8, 2005, Toni Lucario checked into the historic Weatherford Hotel in downtown Flagstaff. Ironically, Lucario was in town to attend an alcohol awareness class as a consequence of being cited for DUI.
Lucario stayed in Room 59 on the third floor. Given Lucario’s apparent problems with alcohol, her room was situated unfortunately close to the hotel’s upstairs bar. Room 59 has a single window that is approximately three feet wide and 39.5 inches high. The windowsill is eight inches above the room’s floor, making it easy to step through the window. Outside the window is a narrow ledge.
The hotel’s upstairs bar opens onto a balcony which is bordered by a railing. The balcony partially wraps around the exterior of the building, extending across the right thirty inches of Room 59’s window and leaving an unprotected twelve-inch opening. Below the unprotected twelve-inch opening is a three-story drop to concrete pavement.
After checking into the hotel, Lucario had drinks at both of the hotel’s bars. At approximately 1 a.m., a bartender saw that Lucario was intoxicated and refused her further service. Doing the right thing, the bartender had another employee escort Lucario to her room.
But all the hotel’s efforts to deliver Lucario safely to her room came to naught. At 1:49 a.m., Lucario climbed out of the window of Room 59 and fell to her death. She had a blood alcohol level of .263 at the time of her fall.
It is conjectured that Lucario was attempting to climb over the railing outside her window to have a smoke on the balcony of the bar. All the rooms in the hotel were non-smoking rooms, but the hotel invited guests to smoke on the balcony.
Lucario’s estate sued the Weatherford Hotel for premises and dram shop liability. The estate’s main contention in the state court action was that the hotel had created an unsafe condition by having the wrap-around balcony outside a large window that provided a guest with a relatively easy means of exiting her room.
The trial court granted the hotel’s motion for summary judgment after the hotel contended that the window was an open and obvious danger, Lucario was a trespasser at the time she exited the window, and her conduct was an intervening and superseding cause of her death.
Last week, the Arizona Court of Appeals reversed the lower court, giving new life to the estate’s lawsuit.
Regarding the hotel’s claim that the danger posed by the window was open and obvious, the appellate court said:
We question whether the window/balcony configuration, as depicted in photographs in the record and as described by [the estate’s expert], was so “open and obvious” that the Hotel had no liability as a matter of law. In any event, [the estate] offered evidence demonstrating that material facts exist as to whether the Hotel should have anticipated the potential harm to a guest opening the unsecured window in Room 59 and attempting to access the balcony located immediately adjacent to it, whether or not that guest was intoxicated.
The court also turned aside the hotel’s contention that Lucario was a trespasser at the time of her death, explaining:
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.
In addressing the hotel’s argument that it had no liability because Lucario’s actions constituted an intervening and superseding cause of her death, the court concluded, “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.” (McMurtry v. Weatherford Hotel)
So a jury will have a chance to decide whether the hotel is liable. Here’s hoping jurors will exhibit a bit more common sense and conclude that only Lucario is responsible for her tragic end.
