UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Demi Thrasher, Nichole Delaney, Michael Delaney, and Vickie Delaney, Plaintiffs

v. Case No. 17-cv-216-SM Opinion No.

Bright Hospitality, LLC, d/b/a Cabot Inn and Suites, Defendant

O R D E R

Plaintiffs, 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.

When 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,

(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).

In this 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,

(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.,

, 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.,

(1986) (citations omitted).

2 So, to 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,

(1st Cir. 1997). See

also Scott v. Harris,

(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.”).

Defendant’s 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

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

Exh. 1 at 17:10-16; Exh.

3 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.

Following 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

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. Id.

Michael 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.

Meanwhile, Demi and Nichole walked to Building Two, and,

while searching for Tammy around the building in the dark, fell

4 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

at 1.

Michael, 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

5 the number 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.

Plaintiffs 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

6 disputes plaintiffs’ 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.

While 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

plaintiffs’ intoxication may have caused or contributed to the

cause of their injury. Defendant’s evidence is sufficient, at

this juncture, to raise a question of fact for the jury.

Because the court concludes that the existence of a

genuinely disputed material facts preclude the entry of summary

7 judgment on plaintiffs’ motion, plaintiffs' motion (document no.

14) is DENIED.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 24, 2018

cc: Leslie C. Nixon, Esq. Gary M. Burt, Esq.

8