The 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.