JSH Reporter JSH Reporter - Fall 2017 - Page 7

CASES OF NOTE 07 CASES OF NOTE: TRIAL COURT DECISIONS Sosa v. La Casa Del Mariachi, LLC Steven Lane v. State of Arizona, et al Mike Hensley and John Lierman recently obtained summary judgment on all claims in Maricopa County Superior Court for two police officers and a client restaurant, all of which had been sued for negligence after the Plaintiff was shot in the chest by another restaurant patron. The Plaintiff alleged that the restaurant and the two police officers, who were working at the restaurant as off-duty officers, were negligent in allowing the Plaintiff’s assailant to have a gun inside the establishment. The Plaintiff argued that the restaurant’s “no guns” policy, and its provision of security measures at the front entrance on the night in question, as well as an off-duty officer detail, constituted an undertaking to keep the premises free of guns, such that the presence of the gun alone was evidence of negligence. John DiCaro and Justin Ackerman recently obtained summary judgment on a premises liability and fraudulent transfer lawsuit filed against Gavilan Peak, LLC. On November 4, 2013, Steven Lane was seriously injured from an unidentified explosive device while assisting acquaintances with removing a piece of property owned by Gavilan Peak, LLC. Unbeknownst to Gavilan Peak, the previous property owner used the site for explosives manufacturing and military and law enforcement training. In 1999, the federal and state governments made efforts to remediate the property due to safety concerns. After the state remediation was complete, the Governor’s office announced that the remediation was a success and that “the hazardous materials are gone and the residents are safe.” During the sale of the property, the former owner allegedly told a representative of Gavilan Peak that the property was entirely safe as a result of these remediation efforts. July 14, 2016 Maricopa County Superior Court Michael Hensley & John Lierman The JSH attorneys moved for summary judgment, arguing that the two off-duty officers owed no duty to the Plaintiff as proprietors of land. Rather, they were independent contractors with duties set forth in standing orders of the Police Department, under which they were not responsible for security - only for law enforcement. Indeed, under the Fourth Amendment, the officers could not take part in any security measures, but were strictly limited to enforcement of the law, not affirmative provision of private security measures. The same motion for summary judgment recognized that the restaurant had a duty of care to keep customers safe, but that the evidence of patdowns of male patrons and bag searches of female patrons on the night in question was prima facie evidence of reasonable measures for security to fulfill that duty. It was further argued that the reasonableness of a restaurant security plan is an issue beyond the knowledge of the layman, and the Plaintiff had no expert opinion to explain to the jury what more a reasonable restaurant owner should have done to secure the premises. The court found that the restaurant completed all security measures it had undertaken, and the Plaintiff had failed to offer any competent evidence that something more should have been done. The court therefore granted summary judgment on all claims and the costs of litigation to the Defendants. January 11, 2017 Maricopa County Superior Court John DiCaro & Justin Ackerman Mr. Lane’s lawsuit alleged that Gavilan Peak breached its duty of care because Gavilan Peak failed to warn him of the dangerous condition on the property. Gavilan Peak argued in part, that the undisputed knowledge of the Plaintiff’s acquaintances that the property was dangerous released Gavilan Peak’s duty to Mr. Lane, pursuant to Restatement (Second) of Torts § 358. In addition, given the utter lack of evidence regarding Mr. Lane’s fraudulent transfer claim, Gavilan Peak argued it was entitled to summary judgment. The Court agreed, adopting Gavilin Peak’s argument, dismissing Mr. Lane’s premises liability claims under Restatement § 358 and his fraudulent transfer claims for lack of evidence. After the Court’s ruling, the parties stipulated that Plaintiff’s remaining claim against Gavilan Peak involving “false light invasion of privacy” would be dismissed with prejudice. Plaintiff subsequently moved for a new trial on the premises liability and fraudulent transfer claims, which was denied.