Appeals court upholds judgment against Tucson hotel in fatal fall - Ahwatukee Foothills News: Valley And State

Appeals court upholds judgment against Tucson hotel in fatal fall

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Posted: Sunday, October 16, 2011 5:30 am | Updated: 5:27 pm, Fri Oct 21, 2011.

The state Court of Appeals has upheld a $2.4 million verdict against a Tucson hotel where a woman tripped, fell down the stairs and died.

In a unanimous ruling, the judges rejected arguments by the owners of the Viscount Hotel that evidence of subsequent injuries is irrelevant to whether the business was negligent in this specific incident. They also brushed aside claims by the attorneys for the hotel that such evidence was prejudicial and would unfairly sway jurors against the business.

Court records show that 78-year-old Harriet Volner was at the hotel in 2007 to have breakfast with friends when she fell at the stairs leading into the hotel’s atrium. She hit her head, went into a coma and died five days later after being taken off life support.

Her four children sued. A jury issued a $3 million judgment. But jurors concluded that Volner was 20 percent liable for her own injuries, reducing the verdict to $2.4 million.

This appeal followed.

An expert for the family testified that construction plans for the hotel, as well as its floor plan, depicted a center handrail where Volner fell. The expert also said that based on the intended use and width of the stairway, as well as applicable city building codes, a center handrail was required.

He also testified that the pattern on the carpet “camouflaged’’ the stairs, exacerbating the dangerous condition created by the lack of a handrail.

A former hotel employee said there had been a center handrail but it had been removed and the carpeting changed. And an expert witness hired by the hotel agreed that the building code required a center handrail and it was a violation to have removed it.

There also was testimony that others had fallen down the stairs, both before and after Volner’s fall.

An attorney for the hotel argued to the appellate court that the jurors should not have heard about people who fell after Volner. He argued it was irrelevant or, at the very least, that anything jurors might learn from those accidents was outweighed by the risk it would prejudice them against the hotel.

Appellate Judge William Brammer, writing for the unanimous court, said evidence is “relevant’’ when it can help jurors decide whether a specific fact is more likely to be true.

“Evidence of similar accidents at or near the same place at a time not too remote from the accident in question is admissible where the conditions were substantially similar to those resulted in the accident at issue because the evidence tends to prove the existence of a dangerous condition,’’ the judge wrote.

Brammer also said the hotel is not arguing that the conditions under which the subsequent falls occurred is any different than what was in place the day Volner was injured.

“The evidence was relevant as tending to show a dangerous condition, and the trial court did not err in refusing to exclude it on this basis,’’ he wrote.

Brammer acknowledged that even relevant evidence can be excluded if its value to jurors is “substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury.’’

He pointed out, however, that the hotel is not arguing that the jury’s verdict was formed on an improper basis like emotion, sympathy or horror, but simply that jurors might assume that the Viscount was negligent in this case because of the other accidents. That, Brammer said, is quite different.

“The jury is allowed to make reasonable inferences based on the evidence,’’ the judge wrote. “The jury may draw a proper inference that a dangerous condition existed based, at least in part, on similar incidents.’’

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