Perez v. Circle K Convenience Stores, Inc.

547 P.3d 390

Roxanne PEREZ, Plaintiff/Appellant,

v.CIRCLE K CONVENIENCE STORES, INC., Defendant/Appellee.

No. 1 CA-CV 22-0425

Court of Appeals of Arizona, Division 1.

Filed April 9, 2024

Appeal from the Superior Court in Maricopa County, No. CV2020-010129, The Honorable Joan M. Sinclair, Judge. AFFIRMED

Ahwatukee Legal Office, P.C., Phoenix, By David L. Abney, Co-Counsel for Plaintiff/Appellant

Phillips Law Group, P.C., Phoenix, By Timothy G. Tonkin, Nasser Abujbarah, Kevin Valdez, Co-Counsel for Plaintiff/Appellant

The Sorenson Law Firm, LLC, Tempe, By Wade R. Causey, Counsel for Defendant/Appellee

Judge Anni Hill Foster delivered the opinion of the Court, in which Presiding Judge Samuel A Thumma joined. Vice Chief Judge Randall M. Howe specially concurred.

OPINION

FOSTER, Judge:

¶1 The question of duty for an Arizona common law claim is an issue of law for courts to decide, whereas factual issues such as breach and causation are issues of fact typically resolved by a jury. In this case, summary judgment was granted in favor of defendant Circle K Convenience Stores, Inc. ("Circle K") on the basis that no duty existed. Plaintiff Roxanne Perez appeals that order. For the following reasons, the ruling is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 On March 13, 2020, Perez went to a Circle K store in Phoenix to buy some ice cream. She was familiar with the store, having been there 25 to 30 times before. Perez walked down the first aisle and grabbed ice cream from a freezer. She took a few steps to go to the next aisle but tripped and fell over a case of water at the end of the aisle (the "end cap"). Perez admitted she did not look down after she grabbed the ice cream and turned around. Perez admitted that, if she had looked down, she would have seen the case of water. She also admitted that there was plenty of light in the store and she had seen end cap displays at other stores before the incident.

¶3 As a result of the fall, Perez suffered significant injuries to her elbow, neck, and back. Perez subsequently filed this negligence and premises liability action against Circle K.

¶4 Circle K later moved for summary judgment, and after full briefing and oral argument, the superior court granted the motion. The superior court concluded that no evidence showed that the case of water created an unreasonably dangerous condition. "[W]hile the case of water may have created a dangerous condition, it did not create an unreasonably dangerous condition," adding Perez "could have seen the case of water had she looked down," suggesting "that the condition was open and obvious."

¶5 Perez timely appealed from the resulting final judgment. This Court has jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶6 When there is no genuine issue of "material fact and the moving party is entitled to judgment as a matter of law," this Court will affirm a grant of summary judgment. Ariz. R. Civ. P. 56(a); Thompson v. Pima Cnty., 226 Ariz. 42, 44, ¶ 5, 243 P.3d 1024, 1026 (App. 2010). A grant of summary judgment is reviewed de novo, viewing the facts in a light most favorably to Perez. See Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003).

I. THE SUPERIOR COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT TO CIRCLE K.

A. The issue of duty is a legal question to be addressed by the courts.

[1–4] ¶7 Perez must, among other things, plead and be able to prove that Circle K owed her a duty under Arizona law. See, e.g., Quiroz v. ALCOA Inc., 243 Ariz. 560, 563-64, ¶ 7, 416 P.3d 824, 827-28 (2018) (citing cases). More specifically, Perez must plead and be able to prove Circle K owed a duty "to conform to a particular standard of conduct to protect her against unreasonable risks of harm." Dinsmoor v. City of Phoenix, 251 Ariz. 370, 373, ¶14, 492 P.3d 313, 316 (2021) (citing Gipson v. Kasey, 214 Ariz. 141, 143, ¶¶ 9–10, 150 P.3d 228, 230 (2007)). Whether she has done so is a threshold issue that is determined as a matter of law. Gipson, 214 Ariz. at 143, ¶¶ 9, 11, 150 P.3d at 230. Absent such a duty, Circle K cannot be liable to her. See, e.g., id. at 143-44, ¶ 11, 150 P.3d at 230 (Absent some duty, "defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct."); Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985) ("[A] negligence action may be maintained only if there is a duty or obligation[.]"). Unlike the other elements of common law torts, the court alone determines the existence and scope of any claimed duty. See Dinsmoor, 251 Ariz. at 373-74, ¶¶ 14-17, 492 P.3d at 316-17.

[5] ¶8 To support her claim, Perez argues that she was a business invitee, meaning Circle K owed " ‘an affirmative duty’ to use reasonable care to make the premises safe for [her] use." Markowitz, 146 Ariz. at 355, 706 P.2d at 367 (quoting Tribe v. Shell Oil Co., Inc., 133 Ariz. 517, 519, 652 P.2d 1040, 1042 (1982)). Thus far, Perez correctly states the law. But when determining whether duty exists, a court cannot resolve the issue without examining the scope of the duty, including what it is not.

[6] ¶9 For generations, our supreme court has noted that a business owner like Circle K "is not an insurer of the safety of" a business invitee like Perez. See Berne v. Greyhound Parks of Ariz., Inc., 104 Ariz. 38, 41, 448 P.2d 388, 391 (1968) (citing cases). Similarly, a business owner like Circle K "is not required … to keep the premises absolutely safe." Id. (citing cases).

¶10 More recently, the supreme court noted that duty also cannot be based on foreseeability. Gipson, 214 Ariz. at 144, ¶ 15, 150 P.3d at 231 ("[F]oreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in prior opinions."); accord Cal-Am Props. Inc. v. Edais Eng’g Inc., 253 Ariz. 78, 81, ¶ 7, 509 P.3d 386, 389 (2022).

[7] ¶11 Collectively, these cases hold that the question of the scope of the common law duty presented here is neither forward looking (through foreseeability) nor backward looking (what a defendant should have done). Instead, the scope of the duty is an issue of law the court determines based on the relationship and reasonableness of the circumstances. See Dawson v. Wiihycombe, 216 Ariz. 84, 107, ¶ 71 n.21, 163 P.3d 1034, 1057, n.21 (App. 2007) (noting, in analogous circumstance, that "the scope of [a party’s] fiduciary duty is a question of law").

B. The scope of duty requires a court to determine whether a condition is "unreasonably dangerous."

[8] ¶12 Perez argues that, when determining the legal question of duty, this Court cannot consider the facts of this case, which she claims are properly determined by the jury in addressing breach, causation and damages. See Moore v. Sw. Sash & Door Co., 71 Ariz. 418, 423, 228 P.2d 993 (1951); Ariz: Const. art. 18, § 5. But, when answering the legal question of duty, courts may "consider facts to determine whether a duty exists based on the presence of an unreasonable risk of harm that arose within the scope of a special relationship." Dinsmoor, 251 Ariz. at 376, ¶ 27, 492 P.3d at 319 (emphasis added).

¶13 The supreme court has unambiguously allowed for factual analysis in evaluating the only question before this court, which is the duty owed by Circle K. See id. at 376-77, ¶ 27, 492 P.3d at 319-20.¹ To determine whether a condition is unreasonably dangerous the supreme court has continually stated:

If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. Of course, the bare fact that a condition is ‘open and obvious’ does not necessarily mean that it is not unreasonably dangerous. The open and obvious condition is merely a factor to be taken into consideration in determining whether the condition was unreasonably dangerous.

Cummings v. Prater, 95 Ariz. 20, 27, 386 P.2d 27 (1963) (quoting 2 Fowler V. Harper and Fleming James, Jr., The Law of Torts § 27.13 (1956)) (internal citations omitted); Daugherty v. Montgomery Ward, 102 Ariz. 267, 269-70, 428 P.2d 419, 421-22 (1967); McFarland v. Kahn, 123 Ariz. 62, 62-63, 597 P.2d 544, 544-45 (1979); Smedberg v. Simons, 129 Ariz. 375, 378, 631 P.2d 530, 533 (1981). Perez contends that the superior court determined the standard of care and "violated the principle that courts decide duty and juries decide standard of care and breach." This argument, though, misconstrues the superior court’s ruling which properly addressed the legal issue of duty—not breach—because the scope of determining duty includes a determination of reasonableness. See Burke v. Ariz. Biltmore Hotel, Inc., 12 Ariz. App. 69, 72, 467 P.2d 781 (1970) (determining that "as a matter of law, the condition was not unreasonably dangerous").

¶14 Citing Markowitz, the Concurrence reasons that the majority’s analysis is one of factual breach, rather than the legal question of duty and its scope. Markowitz stated that

[t]he question of duty is decided by the court. The question is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff. If the answer is no, the defendant is not liable even though he may have acted negligently in light of the foreseeable risk.

146 Ariz. at 356, 706 P.2d at 368. But this is not the standard that has been consistently adopted by the supreme court. See Gipson, 214 Ariz. at 143, ¶ 10, 150 P.3d at 230 ("Duty is defined as an ‘obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.’ "); Dinsmoor, 251 Ariz. at 373, ¶ 14, 492 P.3d at 316 (noting plaintiff must establish that defendant "owed a duty to [the plaintiff] to conform to a particular standard of conduct to protect her against...