United States District Court, D. New Hampshire
Demi Thrasher, Nichole Delaney, Michael Delaney, and Vickie Delaney, Plaintiffs
Bright Hospitality, LLC, d/b/a Cabot Inn and Suites, Defendant
C. Nixon, Esq.
M. Burt, Esq.
J. McAuliffe United States District Judge
Demi Thrasher, Nichole Delaney, Michael Delaney and Vickie
Delaney, were guests at defendant Bright Hospitality, LLC,
d/b/a Cabot Inn and Suites' property on August 27, 2016,
when Thrasher, Nichole and Michael Delaney fell into an
unguarded approximately ten-foot deep cement walkout on the
hotel property, which was part of the loading dock leading to
a storage area in the basement of the building. Plaintiffs
subsequently filed suit, asserting claims of negligence and
loss of consortium against the defendant. Defendant asserted
an affirmative defense of comparative fault. Plaintiff now
moves for summary judgment with respect to that affirmative
defense. Defendant objects.
ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most
favorable to the nonmoving party, and to draw all reasonable
inferences in the nonmoving party's favor.”
Block Island Fishing, Inc. v. Rogers, 844 F.3d 358,
360 (1st Cir. 2016) (citation omitted). Summary judgment is
appropriate when the record reveals “no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
context, a factual dispute “is ‘genuine' if
the evidence of record permits a rational factfinder to
resolve it in favor of either party, and ‘material'
if its existence or nonexistence has the potential to change
the outcome of the suit.” Rando v. Leonard,
826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).
Consequently, “[a]s to issues on which the party
opposing summary judgment would bear the burden of proof at
trial, that party may not simply rely on the absence of
evidence but, rather, must point to definite and competent
evidence showing the existence of a genuine issue of material
fact.” Perez v. Lorraine Enters., 769 F.3d 23,
29-30 (1st Cir. 2014). In other words, if the nonmoving
party's “evidence is merely colorable, or is not
significantly probative, ” no genuine dispute as to a
material fact has been proved, and summary judgment may be
granted. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986) (citations omitted).
defeat a properly supported motion for summary judgment, the
non-movant must support his or her factual claims with
evidence that conflicts with that proffered by the moving
party. See generally Fed.R.Civ.P. 56(c). It naturally follows
that while a reviewing court must take into account all
properly documented facts, it may ignore a party's bald
assertions, speculation, and unsupported conclusions. See
Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir.
1997). See also Scott v. Harris, 550 U.S. 372, 380
(2007) (“When opposing parties tell two different
stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.”).
property, located in Lancaster, New Hampshire, is comprised
of two buildings, a main building (“Building
One”), and a smaller building across the road
(“Building Two”). See Def.'s Obj. to Mot. for
Summary Judgment, Exh. 12. Plaintiffs, in town for the
wedding of a relative, were staying at defendant's
property. Nichole Delaney and her parents, Michael and
Vickie, were staying in Building One. See id., Exh. 1 at
16:1-17; Exh. 9 at 13:15-18. Nichole's cousin, Demi
Thrasher, and her mother, Tammy, were staying across the road
in Building Two, along with Tammy's dog. See id., Exh. 1
at 17:10-16; Exh. 3 at 11:13-16. Behind Building Two was an
unguarded below-ground-level walkout with concrete retaining
walls. See Pls.' Mot. for Summary Judgment, Exh. 1.
the wedding reception, Demi and Nichole, along with their
mothers, took a shuttle bus back to the hotel. See Def.'s
Obj. to Mot. for Summary Judgment, Exh. 1 at 30:19-31:3. The
bus dropped them off in front of Building One. See id., Exh.
3, 16:15-21. Demi, Nichole and Demi's mother went to the
Delaney's hotel room. See Id. at 16:22-17:4.
Demi and Nichole then decided to walk over to Building Two to
find Tammy Thrasher, who they believed was walking her dog.
Delaney had left the reception a bit earlier, and driven
himself back to the Cabot Inn. See Def.'s Obj. to Mot.
for Summary Judgment, Exh. 9 at 17:10-16. He returned to his
hotel room, and made himself a cocktail. See Id. at
20:11-17. However, he did not get to drink it because, once
his wife returned to the room, he learned she had left her
purse at the wedding reception site. See Id. at
21:15-22:1. He promptly drove back to the reception site to
retrieve the purse. See Id. at 22:2-21.
Demi and Nichole walked to Building Two, and, while searching
for Tammy around the building in the dark, fell approximately
ten-feet into the walkout onto a cement floor. See Def. Obj.
to Mot. for Summary Judgment, Exh. 1 at 34:5-40:6. Both Demi
and Nichole were injured from the fall, and Demi was
unconscious. See Id. at Exh. 6 at 1, 4. Nichole
called her father, Michael (now driving back from the
reception site), on her cell phone for assistance. See id.,
Exh. 1 at 43:9-23; Exh. 9 at 22:22-12. He drove into the
parking lot in front of Building Two. See id., Exh. 9 at
25:1-9. It was dark, and he could not see anyone, but heard
screaming. See Id. at 25:19-23. He ran toward the
screaming, and he also fell into the walkout, suffering
injuries. Id. at 25:23-27:13; see also id., Exh. 10
Nichole and Demi have admitted to drinking at the wedding
reception. See Def.'s Obj. to Summary Judgment, Exh. 9 at
18:14-17; Exh. 3 at 15:10-16:4; Exh. 1 at 23:9-11. A sample
of Demi's blood was drawn at the hospital following the
incident that indicated a blood alcohol concentration of
0.232 grams per deciliter (g/dL). See Id. at Exh. 4
at 3. Nichole admitted to the Lancaster Fire Department
personnel responding to the accident scene that she had been
drinking alcohol and was drunk, and similarly informed the
emergency room physician. See Id. Exh. 6 at 1; Exh.
7 at 1. While Michael does not dispute that he had been
drinking at the wedding reception, he does dispute the No. of
drinks consumed. Michael told the Lancaster Fire Department
that he had “several glasses of liquor while at a
wedding, ” and advised the emergency room physician
that he had consumed “six beers over the last several
hours prior.” Id., Exh. 10 at 1; Exh. 11 at 1.
He now says that, while he “remember[s] having a
couple, ” he does not believe he had as many as six
beers because he “wasn't intoxicated. [He] was
driving.” Id., Exh. 9 at 18:14-19:9.
argue that they are entitled to summary judgment on
defendant's affirmative defense because defendant cannot
meet its burden of proving comparative negligence. In
response, defendant (who takes the position that, by walking
in the dark in an unfamiliar area while intoxicated,
plaintiffs were at least comparatively negligent) argues that
genuinely disputed material issues of fact preclude summary
judgment at this time. Defendant argues that intoxication
impaired plaintiffs' judgment, perception, and ability to
exercise due care, resulting in an increased risk of harm. In
support of that position, defendant relies upon the expert
report of two toxicologists who relate the “effect of
intoxication with regard to coordination, decreased
inhibition, judgment, confusion, motor impairment,
observation, and reaction time.” Def. Mem. in Supp. of
Objection to Summ. Judgment at 7. Defendant further disputes
plaintiff's contentions that the area where plaintiffs
fell was open to the public, or completely dark “such
that nothing could be seen.” Id. at 7-8.
plaintiff asserts that defendant “has offered no
evidence that the plaintiffs' intoxication caused them to
fall into the pit” (pls.'s mem. in supp. of mot.
for summary judgment at 4), that statement is not consistent
with the record before the court. Indeed, defendant's
experts directly opine that the plaintiffs' level of
intoxication increased their odds of falling quite
significantly. See Def.'s Obj. to Summary Judgment, Exh.
4 at 11. Accordingly, it does appear that material issues of
fact preclude summary judgment on defendant's affirmative
defense, specifically whether and to what extent