H. RUSSEL HOLLAND, District Judge.
Defendants move for summary judgment.
Plaintiffs are Michael and Kalin Lackey. Defendants are Disney Vacation Development, Inc. and Disney Vacation Club Hawaii Management Company, LLC.
On October 15, 2011, plaintiffs flew from Arizona to Portland, Oregon, where they stayed overnight at the Ramada Airport Hotel. The next day, on October 16, 2011, plaintiffs flew to Honolulu, Hawaii. Upon arrival in Honolulu, plaintiffs checked in to the Aulani, a Disney Resort and Spa, which had opened on August 29, 2011.
Plaintiffs stayed at the Aulani until October 21, 2011. While there, plaintiffs changed rooms three different times because, as Mrs. Lackey explained, the Aulani "didn't have openings continually in one
On the morning of their departure, Mr. Lackey noticed a small red mark on his right middle finger, which felt like it was tingling. Plaintiffs thought it looked like a bug bite. Plaintiffs did not mention the mark to any employee of the Aulani.
On October 21, 2011, plaintiffs stayed overnight in Portland, Oregon and then flew home to Phoenix on October 22, 2011. Over the next two days, Mr. Lackey's finger began to swell and became redder. On Monday, October 24, 2011, Mr. Lackey saw his primary care provider, Dr. Deb Grischo. Mr. Lackey testified that Dr. Grischo told him that he had "some kind of a bite, it could be a possible infection. She took a culture of it and put me on some antibiotics."
Over the course of the week, Mr. Lackey's finger worsened and on Friday, October 28, 2011, he went to the emergency room. He was transferred to a different hospital, where Dr. Reece, a hand surgeon, performed surgery (radical debridement) to remove the infected tissue from Mr. Lackey's finger. Due to an infection that developed, Dr. Reece performed a second "radical debridement of tissue that almost resulted in the loss of [Mr. Lackey's] right middle finger."
On August 28, 2013, plaintiffs commenced this action in state court. The action was subsequently removed to this court on the basis of diversity jurisdiction. In their amended complaint, plaintiffs
The Aulani's pest control program includes quarterly treatment of guestrooms for pests, including spiders.
The grounds of the Aulani are treated on a monthly basis for pests that may invade the indoors, including spiders.
Housekeepers at the Aulani are trained to look for and report any pest activity they might observe in a guestroom.
Guest complaints about pests are noted in the Aulani's maintenance database called "Maximo."
Defendants now move for summary judgment on plaintiffs' negligence claim. If defendants are entitled to summary judgment on plaintiffs' negligence claim, then defendants are also entitled to summary judgment on Mrs. Lackey's loss of consortium claim because "a loss of consortium is a derivative claim" and "all elements of the underlying cause must be proven before the claim can exist." Barnes v. Outlaw, 192 Ariz. 283, 964 P.2d 484, 487 (1998).
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The initial burden is on the moving party to show that there is an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are also to be drawn in its favor. Id. at 255, 106 S.Ct. 2505. "[T]he court's ultimate inquiry is to determine whether the `specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence." T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.1987).
In order to prevail on a negligence claim, a plaintiff must prove "(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
There is no dispute that defendants did not create the dangerous condition at issue here. The dispute here focuses on whether defendant had actual or constructive notice of the dangerous condition at issue.
Plaintiffs argue that there are questions of fact as to whether defendants had actual notice of the presence of venomous spiders in the Aulani guestrooms. Plaintiffs contend that the evidence shows that defendants knew there were brown recluse and Mediterranean recluse spiders in Hawaii and that defendants knew there were spiders on the Aulani property. From these facts, plaintiffs argue that a reasonable jury could conclude that defendants knew that venomous spiders could be in the guestrooms and that defendants' response to this known danger was insufficient.
"The [actual] notice requirement... 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." Chiara v. Fry's Food Stores of Ariz., Inc., 152 Ariz. 398, 733 P.2d 283, 285 (1987). Peak Smith's testimony that she knew that Mediterranean recluse spiders were present in Hawaii and that she saw a couple nonvenomous spiders on the Aulani property at best suggests general notice. The same is true of her testimony that because defendants had a pest control program, they understood that there could be spiders, either venomous or nonvenomous, in the guestrooms of the Aulani. This testimony suggests general notice, but it does not suggest that defendants had actual notice of the specific dangerous condition, namely the presence of venomous spiders in guestrooms at the Aulani. Viewing Smith Peak's testimony in the light most favorable to plaintiffs, the court concludes that no reasonable jury could find that defendants had actual notice.
This case is similar to Rodgers v. La Quinta Motor Inn, 316 Ark. 644, 873 S.W.2d 551 (1994). There, while Rodgers was a guest at the defendant's motel, she "felt pain in her lower leg. Rodgers was treated and later underwent surgery for her injury which she was told was probably due to a bite from a brown recluse spider. No spider was ever found." Id. at 551. The trial court granted the defendant's motion for summary judgment and the Arkansas Supreme Court affirmed. The court explained that
Id. at 552. Similarly here, plaintiffs have offered no evidence that venomous spiders were prevalent in the area where the Aulani was located; they have offered no evidence that any employee of defendants ever saw a venomous spider on the premises; and they have offered no evidence that anyone saw the spider that bit Mr. Lackey.
Plaintiffs suggest that defendants' knowledge that it was possible that venomous spiders could be in guestrooms somehow required defendants to properly inspect guestrooms for such spiders, which, plaintiffs contend, defendants failed to do. See Piccola ex rel. Piccola v. Woodall, 186 Ariz. 307, 921 P.2d 710, 714 (Ariz.Ct.App. 1996) (quoting Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27, 31 (1963)) ("Actual knowledge of the dangerous condition is not required. The duty to inspect arises when the landlord `has reason to suspect' a defect."). Plaintiffs' reliance on Piccola is, however, misplaced because that case involved landlord-tenant liability, not premises liability. In order for defendants to be liable under a constructive notice theory of premises liability, plaintiffs must have some evidence that the dangerous condition at issue here, the presence of venomous spiders in the Aulani's guestrooms, existed for a sufficient length of time that defendants, in the exercise of reasonable care, should have known about it and taken appropriate action. Plaintiffs have offered no such evidence. In order to create a genuine issue of material fact as to constructive notice, plaintiffs had to offer some evidence that venomous spiders were a regular problem on the grounds of the Aulani or evidence that venomous spiders had previously been found in Aulani guestrooms. There is no evidence that anyone has ever seen a venomous spider on the grounds or in the guestrooms of the Aulani and there is no evidence that venomous spiders were prevalent in the area. There may be little doubt that Mr. Lackey
But even if defendants did not have actual or constructive notice of venomous spiders in the guestrooms at the Aulani, which they did not, plaintiffs argue that defendants are still not entitled to summary judgment because such notice is not required under 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." Chiara, 733 P.2d at 285. "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." Id.
Under the mode-of-operation rule, the question in this case would be whether defendants could have reasonably anticipated that venomous spiders would regularly be found in guestrooms at the Aulani. "Regularly" has been defined as "`[c]ustomary, usual, or normal'" for purposes of the mode-of-operation rule. Borota v. Univ. Med. Ctr., 176 Ariz. 394, 861 P.2d 679, 681 (Ariz.Ct.App.1993) (citation omitted). Plaintiffs appear to argue that Peak Smith's testimony that there were spiders on the Aulani property creates an issue of fact as to whether defendants could have reasonably anticipated that venomous spiders would regularly be found in the Aulani guestrooms.
This argument is unavailing. There is no evidence that suggests that defendants could have reasonably anticipated that venomous spiders would regularly be found in guestrooms. In order for the mode-of-operation rule to have any application here, there would have to be some evidence that employees or guests had regularly seen venomous spiders in the guestrooms or that venomous spiders could be found in large numbers in the area around the Aulani. Plaintiffs have offered no such evidence. Without such evidence, the mode-of-operation rule does not apply.
Based on the foregoing, defendants' motion for summary judgment