Phoenix Team Obtains Appellate Win Affirming Dismissal of Wrongful Death Action Against Senior Living Facility

Phoenix, Ariz. (February 12, 2025) - Phoenix Partners Kevin Nicholas and Jay Rademacher recently obtained a decision from the Arizona Court of Appeals that affirmed the dismissal of a wrongful death lawsuit against their senior living facility client.

Background: The Arizona Court of Appeals ruled that the Peoria-based senior living facility was not liable for the death of the plaintiff, who was struck by a scooter driven by another resident. The appeals court found that the facility could not have foreseen the accident, as the scooter driver had not informed the facility she would be using it. The court stated that the "dangerous condition" was not the facility's tolerance of scooters, but the resident’s operation of her husband's scooter.

The incident in question occurred in May 2022. While driving the scooter, the resident did not release the hand throttle to stop it, instead trying to press a nonexistent brake pedal with her foot, according to the lower court opinion issued on Feb. 6, 2024. The plaintiff struck her head on the side of the front desk and later died from her injuries. The resident was not charged criminally in connection with the incident. In October 2022, the plaintiff’s daughter filed a lawsuit against the facility, the resident, and her husband, alleging negligence and wrongful death. The Maricopa County Superior Court ruled in favor of the facility on summary judgment, and the plaintiff appealed. The plaintiff subsequently settled out of court with the resident and her husband in March 2024.

Appellate Ruling: The Arizona Court of Appeals' decision, written by Judge Jennifer Perkins and joined by Judges David Weinzweig and Steven Williams, found that the death could not be attributed to the facility. The court ruled that the company that manages the senior living facility could not have known the resident would be operating a scooter that day. The resident had borrowed the scooter from her husband and had not informed the facility she would be riding it, nor had she signed a motorized cart agreement, Judge Perkins wrote. Thus, the dangerous condition that caused the injury was the resident on her husband’s scooter, not the facility’s general tolerance of motorized scooters in its lobby. The Court found no dispute of material fact that the facility could not have foreseen or prevented the accident.

Mr. Rademacher’s oral argument was instrumental in securing the affirmation of the trial court’s decision. His ability to clearly and persuasively present the case ensured that the Arizona Court of Appeals upheld the summary judgment dismissal. Mr. Nicholas, Partner Bruce Smith and Paralegal Tawnya Wresh also played a crucial role in strategic guidance to obtain this successful outcome.