Free Motion for Summary Judgment - District Court of Arizona - Arizona

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Matthew D. Kleifield ­ 011564 Chad C. Baker ­ 023083 Julie R. Barton ­ 022814 KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902 (602) 331-4600 [email protected] [email protected] [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT COURT OF ARIZONA MARVIN SAPIRO SAPIRO, his wife, and GLORIA No. CIV03-1555 PHX SRB DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested)

Plaintiffs, v. SUNSTONE HOTELS INVESTORS, L.L.C., SUNSTONE HOTEL INVESTORS, L.P. Defendant.

Defendants Sunstone Hotels Investors, L.L.C. and Sunstone Hotels Investors, L.P. ("Sunstone"), by and through undersigned counsel, pursuant to Rule 56, Federal Rules of Civil Procedure, hereby request that the Court grant Summary Judgment in their favor on Marvin and Gloria Sapiro's (the "plaintiffs") entire Complaint. Plaintiffs cannot establish that Sunstone breached any duty owed to the plaintiffs or that any alleged breached caused the plaintiffs' harm.

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Document 141

Filed 12/07/2005

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This Motion is supported by the following Memorandum of Points and Authorities and Separate Statement of Facts filed contemporaneously with this motion. MEMORANDUM OF POINTS AND AUTHORITIES NATURE OF THE CASE. On February 6, 2003, the plaintiffs, residents of Boca Raton, Florida, checked in as guests at the Sheraton San Marcos Golf Resort and Conference Center (the "hotel" or "Sheraton San Marcos") in Chandler, Arizona. (SSOF ¶ 2). The plaintiffs checked out of the hotel on February 11, 2003 and returned to Florida. (SSOF ¶ 2). Upon their return to Florida, Mr. Sapiro began to demonstrate flu-like symptoms. (SSOF ¶ 3). He was admitted to the Delray Medical Center in Delray Beach, Florida on February 16, 2003. (SSOF ¶ 4). Mr. Sapiro was ultimately diagnosed with Legionnaire's Disease. (SSOF ¶ 1). In their Complaint, the plaintiffs allege that Sunstone was negligent, thereby causing Mr. Sapiro to be exposed to the Legionella bacteria during his stay at the Sheraton San Marcos. (SSOF ¶ 5). II. PLAINTIFFS CANNOT ESTABLISH THAT SUNSTONE WAS NEGLIGENT IN THE OPERATION AND MAINTENACE OF THE HOTEL. Summary judgment is appropriate if "the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 57 (1993); see Fed. R. Civ. P. 56(c). In fact, Rule 56(c), Federal Rules of Civil Procedure, mandates the entry of summary judgment against a party who fails to adequately establish the existence of an element essential to the claim after a sufficient amount of time for -2Case 2:03-cv-01555-SRB Document 141 Filed 12/07/2005 Page 2 of 11

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discovery has passed. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); see Fed. R. Civ. P. 56(c). To establish a claim for negligence, the plaintiffs must show that (1) Sunstone owed them a duty with an obligation to conform to a standard of conduct; (2) that Sunstone breached that duty; (3) that there exists a causal connection between the breach and the injuries; and (4) damages. Piccola v. Woodall, 186 Ariz. 307, 309, 921 P.2d 710, 712 (App. 1996); Smith v. Johnson, 183 Ariz. 38, 41, 899 P.2d 199, 202 (App. 1995). In this case, the plaintiffs have failed to present sufficient evidence to demonstrate that Sunstone's acts or omissions constituted a breach of a duty of care constituting negligence or that the negligence caused Mr. Sapiro's illness. A. The Duty Owed By a Landowner to Its Business Invitee. In order for Sunstone to be found negligent, the plaintiffs must first prove that they had a special relationship with Sunstone, such that a legal obligation was imposed on one for the benefit of the other. Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 543, 789 P.2d 1040, 1044 (1990). It is well-established that, "[i]n Arizona, a business owner has a duty to maintain its premises in a reasonably safe condition for invitees." Stephens v. Bashas' Inc., 186 Ariz. 427, 924 P.2d 117 (App. 1996). "A business visitor or invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Stephens, 186 Ariz. at 430, 924 P.2d at 120 (quoting McDonald v. Smitty's Super Valu, Inc., 157 Ariz. 316, 318, 757 P.2d 120, 122 (App. 1988)). A paying guest at a motel or other place of temporary lodging is classified as an invitee. Woodty v. -3Case 2:03-cv-01555-SRB Document 141 Filed 12/07/2005 Page 3 of 11

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Weston's Lamplighter Motels, 171 Ariz. 265, 268, 830 P.2d 477, 480 (App. 1992); Wagner v. Coronet Hotel, 10 Ariz.App. 296, 301, 458 P.2d 390, 395 (1969). The duty of a business owner to an invitee is to maintain its premises in a reasonably safe condition. Stephens v. Bashas' Inc., 186 Ariz. at 430, 924 P.2d at 120; Martinez v. Woodmar IV Condos. Homeowners Ass'n, Inc., 187 Ariz. 408, 410, 930 P.2d 485, 487 (App. 1996) (stating that a business owner owes an invitee a duty to warn of unreasonably dangerous conditions which it knows or should know of and which the invitee is unaware and is unlikely to discover). The business owner is not the insurer of the invitee's safety, but must only exercise reasonable care. Tom v. S.S. Kresge Co., 130 Ariz. 30, 31, 633 P.2d 439, 440 (App. 1981) (emphasis added). Specifically, Arizona Courts have recognized that a landowner is only subject to

liability for injuries caused to his invitees if he knows that a condition on the land poses "an unreasonable risk of harm" to the invitees that they will probably not discover and he fails to make reasonable attempts to protect them. Restatement (Second) of Torts § 343 (1965). B. Sunstone Did Not Breach Any Duty Owed to the Plaintiffs. In support of their argument that Sunstone breached its duty to exercise reasonable care, the plaintiffs' rely on the testimony of an "expert" witness, Mr. Matthew Freije, who made several suggestions that he claims may have prevented Mr. Sapiro's illness, including (1) that Sunstone should have regularly tested the domestic water system for the presence of Legionella bacteria, and (2) that Sunstone should have periodically drained the water storage tanks.1 (SSOF

Sunstone contends that Mr. Freije, a "self taught expert" on Legionairres Disease, is not qualified to render opinions regarding the applicable standard of care or breach thereof. Thus, Sunstone contends Mr. Frieje's testimony and opinions are properly excluded and not thus not properly before this court on this motion, but provide plaintiffs position in this respect

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¶ 6). He readily admits, however, that those suggestions are not required by law or any other governmental agency and have not been adopted by the hotel industry. (SSOF ¶ 7). Mr. Freije also testified in his deposition, in support of his opinion that Sunstone should have tested the water, that various Occupational Safety and Health Administration ("OSHA") guidelines require testing water for bacteria.2 (SSOF ¶ 8). -- Testing for Legionella Mr. Frieje contends that Sunstone should have periodically tested its domestic water system for Legionella in order to manage the risk presented by Legionella, despite the fact that such testing has not been adopted as a hospitality industry standard. (See Sunstone's motion in Liminie No. 1 regarding Matthew Frieje). He also conceded that in light of the fact that Legionella can "spike" rather rapidly, there is no means by which he could conclude that testing at one point in time would demonstrate the presence of Legionella such that the property owner could preclude development and promulgation of Legionella shortly thereafter. (SSOF ¶ 20). -- Draining Storage Tanks Mr. Freije also suggested that Sunstone should have been draining its water storage tanks one to four times each year, but recognized that he did not have a verifiable source to support his suggestion. (SSOF ¶ 12). He conceded that there was no law or other requirement that the hotel perform this task. (SSOF ¶ 13). The plaintiffs have not produced any evidence to show that the tanks were or were not cleaned in the twelve months prior to the Sapiros' stay at the hotel. Even
pending the court's ruling on Defendats' Motion in Liminie No. 1 regarding Mr. Frieje. (See Sunstone's separate motion in limine regarding Matthew Freije). 2 Sunstone contends that OSHA regulations, which concern employee workplace safety, are inapplicable to the facts of this case. (See Sunstone's separate motion in limine regarding OSHA).

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if the tanks had been cleaned, Mr. Freije stated that "the tanks were so old that the cleaning would have been ineffective [and] . . . would have not guaranteed Legionella control." (SSOF ¶ 14). Thus, considering Mr. Freije's testimony as a whole, he concedes that had the Sheraton San Marcos drained and cleaned the storage tanks as he suggested, it would not have prevented this alleged Legionella exposure. -- The OSHA Guidelines The OSHA guidelines when read as a whole do not require analysis of water samples unless there is a reason to suspect contamination. The OSHA Technical Manual reads, in pertinent part, "Water. Analysis of water samples from a source suspected of being

contaminated with L.pneumophila is a valuable means of identifying potential sources of the disease." (SSOF ¶ 9). Mr. Freije acknowledged that the OSHA guidelines do not require random water analysis, but only advocate for the analysis of water samples during an investigation after a potential bacterial disease has been identified. (SSOF ¶ 10). Notice of Mr. Sapiro's illness was the first time that the hotel or hotel employee was aware of any allegation of Legionella contamination. (SSOF ¶ 11). Thus, the OSHA regulations, by their terms, did not require Sunstone to conduct analysis of water samples prior to Mr. Sapiro's stay on the property. -- The San Marcos Practices and Procedures The plaintiffs also rely on Mr. Freije's testimony regarding the San Marcos' Engineering Standard Operating Procedures Manual as evidence that Sunstone breached its duty owed to the plaintiffs. Jeff Hammermeister, the General Manager of the property, and Robert Marrs, the

Director of Engineering of the property, stated that the Sheraton San Marcos was regularly -6Case 2:03-cv-01555-SRB Document 141 Filed 12/07/2005 Page 6 of 11

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inspected to ensure the safety of the hotel guests: (1) the Health Department conducted property inspections several times each year; (2) Mr. Phil Dignan, a vice-president at Sunstone, traveled monthly to the hotel to ensure that its operation was satisfactory; (3) Mr. Hammermeister did a daily walk-through of the property; (4) Mr. Marrs implemented a preventative maintenance program on the equipment at the hotel; and (5) Mr. Marrs conducted a regular inspection of the rooms, and, specifically, checked the temperature of the domestic water approximately every two weeks. (SSOF ¶ 15). The plaintiffs have provided no evidence to establish that the hotel industry sets forth a particular standard of care with regard to bacterial testing or that Sunstone failed to satisfy that standard of care. To the contrary, the evidence presented only demonstrates that the hotel and hotel employees took ample measures to ensure that the hotel was reasonably safe for its guests. In fact, Mr. Marrs testified that in his long professional history in the hospitality industry he had been instructed that the domestic hot water temperature needed to be at least 121 degrees for the control of Legionella bacteria, and that such training was received while working for the Hilton hotel chain. (SSOF ¶ 21). During his tenure at the Sheraton San Marcos and during the time that the plaintiffs were guests of the hotel, the domestic hot water temperature remained at 130 degrees. (SSOF ¶ 22). This evidence confirms that the only potential industry standard (as adopted by the Hilton chain) was followed and, therefore, the plaintiffs cannot show that Sunstone breached its duty of care to the plaintiffs. The plaintiffs have not presented evidence showing that Sunstone created the condition by failing to do something it was required to do, knew of the condition and did not properly -7Case 2:03-cv-01555-SRB Document 141 Filed 12/07/2005 Page 7 of 11

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remedy the condition, or that it would have discovered the condition by exercising any other standards in satisfying its duty of care. C. The Plaintiffs Cannot Establish that Sunstone's Alleged Negligence was the Proximate Cause of Mr. Sapiro's Illness. Assuming, arguendo, that Sunstone breached its duty of care, the plaintiffs must establish that proximate cause existed. "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." McDowell v. Davis, 104 Ariz. 69, 71, 448 P.2d 869, 871 (1968). The plaintiffs rely on measurable amounts of Legionella bacteria found in the hotel water to prove causation, however, they have not established that Sunstone's failure to sample the water or drain the water storage tanks, as recommended by Mr. Freije, would have eliminated the bacteria and thus prevented Mr. Sapiro's illness. Mr. Freije willingly admits that the hotel was not required to test the water for the presence of Legionella bacteria or drain the water storage tanks. (SSOF ¶ 17). The plaintiffs also cannot establish that the bacteria was detectable at pathogenic levels at the time that the plaintiffs stayed on the property. Although Mr. Sapiro stayed at the hotel in February, the plaintiffs did not perform tests on the water until May. (SSOF ¶ 18). They did not and cannot perform regression analysis to determine what the bacteria levels were at the time that the plaintiffs were guests of the hotel. (SSOF ¶ 19). In addition, Mr. Freije said that levels of Legionella bacteria can spike quickly, so it may be unusually high one day even though it was not a measurable amount shortly before that analysis. (SSOF ¶ 20). -8Case 2:03-cv-01555-SRB Document 141 Filed 12/07/2005 Page 8 of 11

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Based on the evidence, the plaintiffs cannot establish that Sunstone's alleged breach was the proximate cause of Mr. Sapiro's illness. Without demonstrable evidence that Sunstone's acts or omissions would have otherwise prevented the condition which allegedly caused his illness, the plaintiffs cannot meet an essential element of their negligence claim. D. Mr. Freije's testimony is properly excluded. In the absence of Mr. Freije's testimony, the discussion provided above is unnecessary. In considering the information provided above with that set forth in Sunstone's Motion in Liminie No. 1 regarding Mr. Frieje, it becomes abundantly clear that plaintiffs' efforts to create a question of fact fall far short of the mark and fail to demonstrate that Sunstone failed to do something it was required to do, or did something it should not have done, and thereby caused Mr. Sapiro's illness. Thus, although Sunstone contends there is insufficient evidence taken as a whole to demonstrate that it breached any duty owed to plaintiffs or that any alleged breach has been proven to be the cause of plaintiffs injuries, in properly excluding Mr. Freije's testimony it becomes overwhelmingly clear that plaintiffs have failed to sustain their burden of proof as set forth above. III. CONCLUSION.

The plaintiffs have not established that Sunstone breached a duty of care and they cannot present evidence to establish that the absence of any alleged breach would have otherwise prevented Mr. Sapiro's illness. For the foregoing reasons, Sunstone respectfully requests that this Court grant summary judgment on the plaintiffs' Complaint. -9Case 2:03-cv-01555-SRB Document 141 Filed 12/07/2005 Page 9 of 11

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DATED this __7th__ day of December, 2005.

KUNZ PLITT HYLAND DEMLONG & KLEIFIELD A Professional Corporation

By

s/Julie Barton Matthew D. Kleifield Chad C. Baker Julie R. Barton 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902 Attorneys for Defendants

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COPY of the foregoing day of mailed this 7th December, 2005, to: Steven W. Davis, Esq. Boies, Schiller & Flexner, L.L.P. Bank of America Tower, Suite 2800 100 S.E. Second Street Miami, Florida 33131 Attorneys for Plaintiffs By s/L. Bower

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