Lackey et al v. Walt Disney Company et al

Filing 79

ORDER that Defendants' 67 Motion for Summary Judgment is granted. The Clerk of Court shall enter judgment dismissing Plaintiffs' First Amended Complaint with prejudice. Signed by Judge H Russel Holland on 4/1/2015.(LFIG)

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

MICHAEL LACKEY and KALIN LACKEY,
husband and wife,

)
)
)
Plaintiffs,
)
)
vs.
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)
DISNEY VACATION DEVELOPMENT, INC., )
et al.,
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)
Defendants.
)
__________________________________________)

No. 2:13-cv-2074-HRH

ORDER
Motion for Summary Judgment
Defendants move for summary judgment.1 This motion is opposed.2 Oral argument
was requested and has been heard.
Facts
Plaintiffs are Michael and Kalin Lackey.

Defendants are Disney Vacation

Development, Inc. and Disney Vacation Club Hawaii Management Company, LLC.

1

Docket No. 67.

2

Docket No. 74.
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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 room, so we had to switch to whatever they had available to
fit our schedule.”3 Each time plaintiffs switched rooms, they packed their own bags and
handed them to the bellman for transfer to their new room.4 Plaintiffs never saw a spider
or any other bugs in any of the rooms in which they stayed.5 During their visit, plaintiffs
spent time off the Aulani property.
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.

3

Deposition of Kalin Lackey at 9:6-24, Exhibit 1, Defendants’ Amended Motion for
Summary Judgment, Docket No. 67.
4

Plaintiffs contend that their bags were placed in an outdoor storage area during the
transfers, but plaintiffs have provided no evidence to support this contention.
5

In fact, plaintiffs do not recall seeing a spider anywhere on the Aulani property.
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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.”6 The lab culture revealed that Mr. Lackey had a Staphylococcus aureus
infection.
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. Reese performed
a second “radical debridement of tissue that almost resulted in the loss of [Mr. Lackey’s]
right middle finger.”7 Dr. Reece opined that Mr. Lackey’s wound was “consistent with
what I’ve seen from brown recluse spider bites.”8 Dr. Reese also opined that Mr. Lackey’s

6

Deposition of Michael Lackey at 27:15-17, Exhibit 1, Plaintiffs’ Response to
Defendants’ Amended Motion for Summary Judgment, Docket No. 74.
7

March 15, 2013 Letter from Dr. Reece to Sal J. Riveria at 1, Exhibit 2, Plaintiffs’
Response to Defendants’ Amended Motion for Summary Judgment, Docket No. 74.
8

Deposition of Edward M. Reece, M.D., at 17:20-22, Exhibit 9, Defendants’ Amended
Motion for Summary Judgment, Docket No. 67. Plaintiffs now contend that Mr. Lackey
was bitten by a brown violin spider (also called the Mediterranean recluse spider), rather
(continued...)
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“Staph aureus infection ... was consistent with a spider bite as 90 percent of spider bites will
have a Staph aureus type contamination in their jaws.”9
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 assert a claim of negligence-premises liability, and Mrs. Lackey asserts
a loss of consortium claim. Plaintiffs allege that defendants owed them a duty to ensure
that the areas they occupied at the Aulani were free of dangerous spiders.10 Plaintiffs allege
that defendants breached this duty of care by, among other things, failing to inform them
of this dangerous condition, by failing to keep the premises free of dangerous spiders, and
by failing to have an adequate pest control program.

8

(...continued)
than a brown recluse spider. Although neither of these spiders are native to Hawaii, the
Mediterranean recluse spider is “present” in Hawaii. Deposition of Richard S. Vetter
(defendants’ spider expert) at 19:1-2, Exhibit 5, Plaintiffs’ Response to Defendants’
Amended Motion for Summary Judgment, Docket No. 74. Vetter testified that it is “safe
to say that ... both of these spiders are medically important and I would not be surprised
if the Mediterranean recluse was similar to the brown recluse in its venom capacity.” Id.
at 19:19-22.
9

May 15, 2013 letter from Dr. Reece to Sal J. Riveria at 1, Exhibit 2, Plaintiffs’
Response to Defendant’s Amended Motion for Summary Judgment, Docket No. 74.
10

First Amended Complaint at 4, ¶ 27, Docket No. 14.
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The Aulani’s pest control program includes quarterly treatment of guestrooms for
pests, including spiders.11 Tanya Peak Smith, referred to by plaintiffs as defendants’
internal pest control expert, acknowledged that this suggested that defendants “had an
understanding that there could be venomous and nonvenomous spiders in guest
rooms[.]”12 The guestrooms at the Aulani were treated on August 9 and August 23, 2011.13
The grounds of the Aulani are treated on a monthly basis for pests that may invade
the indoors, including spiders.14 Peak Smith testified that she has “seen spiders on the
Aulani property[.]”15 She testified that she saw “[g]arden spiders”, which are spiders that
“mostly live outside. They build big elaborate webs, catch insects.”16 Peak Smith testified
that garden spiders are the only type of spider she has ever seen on the Aulani property
and that unless “they were like on every single bush or something”, no particular treatment

11

Exhibit A to Ecolab Service Agreement, Exhibit 4 at DVD-LACKEY000044-45,
Defendants’ Amended Motion for Summary Judgment, Docket No. 67.
12

Deposition of Tanya Peak Smith at 37:13-21, Exhibit 4, Plaintiffs’ Response to
Defendants’ Amended Motion for Summary Judgment, Docket No. 74.
13

Ecolab Invoices, Exhibit 5, Defendants’ Amended Motion for Summary Judgment,
Docket No. 67.
14

Exhibit A to Ecolab Service Agreement, Exhibit 4 at DVD-LACKEY000044-45,
Defendants’ Amended Motion for Summary Judgment, Docket No. 67.
15

Peak Smith Deposition at 10:2-4, Exhibit 4, Plaintiffs’ Response to Defendants’
Amended Motion for Summary Judgment, Docket No. 74.
16

Id. at 10:5-9.
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would be done.17 She testified that “one or two, which is all that I ever saw, you know, is
not enough to do anything.”18 Peak Smith also testified that she had “read some papers”
about reports of the Mediterranean recluse spider being present in Hawaii but had “never
seen one or heard a complaint of one[.]”19
Housekeepers at the Aulani are trained to look for and report any pest activity they
might observe in a guestroom.20 Peak Smith was asked how one “inspects” for brown or
Mediterranean recluse spiders and she replied that “I guess it’s not something I think that
you would do in areas where they’re not, you know, common or not known, or if you
didn’t have a reason to inspect. Usually someone would see something and that would
cause you to look further.”21 She also testified that the pest control training that was
provided to housekeeping “was primarily bed bug training” and that housekeepers were
not taught specifically about spiders.22

Peak Smith testified that spiders, including

venomous spiders, can be brought into a room by a guest or might come in with the

17

Id. at 10:13-14 & 26:9-16.

18

Id. at 26:15-16.

19

Id. at 16:1-8.

20

Telephonic Deposition of Arlene Kalani at 15:23-16:9, Exhibit 6, Defendants’
Amended Motion for Summary Judgment, Docket No. 67.
21

Peak Smith Deposition at 26:23-27:5, Exhibit 4, Plaintiffs’ Response to Defendants’
Amended Motion for Summary Judgment, Docket No. 74.
22

Id. at 17:17-21.
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furniture and that she had no idea if there was a “comprehensive inspection of the
furniture in the guest rooms before the Aulani was opened to the public[.]”23 She also
testified that it is possible that spiders could enter a room from the outside by using trees
or shrubs that are next to the building.24 Defendants’ retained expert agreed that it was
“possible” that spiders could be brought into a guestroom via luggage or furniture.25
Guest complaints about pests are noted in the Aulani’s maintenance database called
“Maximo.”26 There were no reports of a spider in a guestroom from August 29, 2011
through October 23, 2011.27
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, 964 P.2d
484, 487 (Ariz. 1998).
23

Id. at 40:3-13.

24

Id. at 55:8-17.

25

Deposition of Richard S. Vetter at 24:5-26:17, Exhibit 5, Plaintiffs’ Response to
Defendants’ Amended Motion for Summary Judgment, Docket No. 74.
26

Telephonic Deposition of Ken Poynter at 19:24-20:17, Exhibit 2, Defendants’
Amended Motion for Summary Judgment, Docket No. 67.
27

Exhibit 7, Defendants’ Amended Motion for Summary Judgment, Docket No. 67.
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Discussion
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 (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 (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. “[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 damages.” McMurtry v. Weatherford Hotel, Inc., 293 P.3d 520, 528 (Ariz. Ct.
App. 2013). “Generally, a business owner ‘is not [the] insurer of [guests’] safety and is not

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required at his peril to keep the premises absolutely safe.’” Id. (quoting Burke v. Ariz.
Biltmore Hotel, Inc., 467 P.2d 781, 783 (Ariz. Ct. App. 1970)); see also, Preuss v. Sambo’s of
Ariz., Inc., 635 P.2d 1210, 1211 (Ariz. 1981)). “However, ‘a possessor of land is under an
affirmative duty to use reasonable care to make the premises safe for use by invitees.’”
McMurtry, 293 P.3d at 528 (quoting Markowitz v. Ariz. Parks Bd., 706 P.2d 364, 367 (Ariz.
1985)). “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.” Id. “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.’” Id. at 529 (quoting Markowitz, 706 P.2d at
369–70). “To establish a proprietor’s liability for injuries arising from a dangerous
condition of the premises, an invitee must prove either that the dangerous condition was
caused or permitted to develop by persons for whom the proprietor was responsible or that
the proprietor had actual or constructive knowledge of its existence.” McDonald v.
Smitty’s Super Valu, Inc., 757 P.2d 120, 122 (Ariz. Ct. App. 1988). see also, Andrews v.
Fry’s Food Stores of Ariz., 770 P.2d 397, 399 (Ariz. Ct. App. 1989) (“The plaintiff must prove
that the proprietor created the dangerous condition resulting in the fall, or that the
proprietor had actual or constructive notice of the dangerous condition.”).

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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.,
733 P.2d 283, 285 (Ariz. 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

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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.
As for constructive notice, “[o]ne of the most important questions that must be
answered ... is the length of time that a given [condition] has been present.” Walker v.
Montgomery Ward & Co., 511 P.2d 699, 702 (Ariz. Ct. App. 1973). Even assuming that
there was a venomous spider in plaintiffs’ room, plaintiffs have offered no evidence as to
how long that spider was there. Plaintiffs have also not offered any evidence that suggests
that there was an extensive problem with venomous spiders at the Aulani, either in its
guestrooms or on its grounds. The only evidence of any spiders being on the Aulani
property is Peak Smith’s testimony that she saw a couple of garden spiders on the grounds.
That testimony is not sufficient to suggest that defendants had constructive notice of a
venomous spider in plaintiffs’ room.
This case is similar to Rodgers v. La Quinta Motor Inn, 873 S.W.2d 551 (Ark. 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.

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The trial court granted the defendant’s motion for summary judgment and the Arkansas
Supreme Court affirmed. The court explained that
Rodgers failed to present evidence that La Quinta knew the
brown recluse spider was prevalent in the area where the
motor inn is located, and that La Quinta or its employees had
ever seen a brown recluse spider on the premises. Further,
Rodgers failed to show that either she or La Quinta employees
ever saw the spider that bit her. In addition, ... Rodgers was
unable to show that the spider which bit her was in her motel
room as the result of La Quinta’s negligence or whether it was
brought into the room by her.
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, 921 P.2d 710, 714 (Ariz. Ct. App. 1996) (quoting Cummings v.
Prater, 386 P.2d 27, 31 (Ariz. 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 landlordtenant liability, not premises liability. In order for defendants to be liable under a

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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 was bitten by a venomous spider and there is no dispute that Peak Smith saw
a couple of garden spiders on the Aulani grounds. There is also no dispute that defendants
had a general idea that there could possibly be spiders, both venomous and nonvenomous,
at the Aulani. But based on this evidence, no reasonable jury could conclude that
defendants had constructive notice of the specific dangerous condition at issue here.
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

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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., 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

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area around the Aulani. Plaintiffs have offered no such evidence. Without such evidence,
the mode-of-operation rule does not apply.
Conclusion
Based on the foregoing, defendants’ motion for summary judgment28 is granted.
The clerk of court shall enter judgment dismissing plaintiffs’first amended complaint with
prejudice.
DATED at Anchorage, Alaska, this 1st day of April, 2015.
/s/ H. Russel Holland
United States District Judge

28

Docket No. 67.
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