Moore v. Parham ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
BRYAN MOORE, a married man, Plaintiff/Appellant,
v.
JOE PARHAM, et al., Defendants/Appellees.
No. 1 CA-CV 15-0603
FILED 10-4-2016
Appeal from the Superior Court in Mohave County
No. S8015CV201300175
The Honorable Derek C. Carlisle, Judge
REVERSED AND REMANDED
COUNSEL
Breyer Law Offices, P.C., Phoenix
By Mark P. Breyer, Brian C. Fawber
Counsel for Plaintiff/Appellant
Pywowarczuk Law, P.L.L.C., Tempe
By Kristina L. Pywowarczuk, Katherine E. Hay
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.
MOORE v. PARHAM, et al.
Decision of the Court
W I N T H R O P, Judge:
¶1 Plaintiff/appellant Brian Moore appeals the superior court’s
summary judgment for defendants/appellees Joe Parham, individually
and as trustee for the Joe Parham Revocable Living Trust (collectively,
“Parham”). Because we determine that a question of fact exists regarding
whether Parham breached the duty of care he owed Moore, we reverse and
remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 Parham owned a residential property in Lake Havasu that he
leased to Mel Allen. In June 2012, Moore, an employee of satellite television
provider Dish Network, came to the property to install a satellite dish for
Allen. Moore was injured when he attempted to access the roof by climbing
on a shade structure attached to the house.
¶3 Moore filed a complaint against Parham, as the owner of the
house, alleging that Parham negligently failed to correct, or warn Moore
about, the “unreasonably dangerous” condition of the shade structure.
Parham moved for summary judgment, arguing that the shade structure
was not unreasonably dangerous and Moore had exceeded the scope of his
invitation on the property by climbing on it. In response, Moore offered
evidence that Allen directed him to access the roof by climbing on the shade
structure.1
¶4 The superior court granted summary judgment for Parham,
ruling as a matter of law that the shade structure was not unreasonably
dangerous for its intended use. The court noted that, even if it accepted
Moore’s evidence that Allen directed him to use the shade structure to
access the roof, there was no evidence that Parham authorized Allen to
make such a statement, and, therefore, Moore’s activity was impliedly
beyond the scope of his invitation.2
1 Allen’s account of his conversation with Moore differed
significantly, but in reviewing summary judgment, we view the evidence
in the light most favorable to the non-moving party. Nat'l Bank of Ariz. v.
Thruston, 218 Ariz. 112, 116, ¶ 17, 180 P.3d 977, 981 (App. 2008).
2 The superior court certified the judgment as immediately appealable
pursuant to Arizona Rule of Civil Procedure 54(b); however, because all
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MOORE v. PARHAM, et al.
Decision of the Court
¶5 Moore timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1) (2016).
ANALYSIS
¶6 Moore argues the superior court erred by granting summary
judgment in favor of Parham because genuine issues of material fact
precluded judgment as a matter of law.
¶7 The superior court shall grant summary judgment when
“there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). Summary
judgment “should be granted if the facts produced in support of the claim
or defense have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves,
166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). If the evidence would allow
a jury to resolve a material issue in favor of either party, summary judgment
is improper. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012,
1016 (App. 1990).
¶8 To establish negligence, a plaintiff must show a duty
requiring the defendant to conform to a certain standard of care, a breach
of that standard that causes injury, and actual damages. Gipson v. Kasey,
214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). The question whether a
duty exists is generally a matter of law for the court to decide. Id. (citing
Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985),
superseded on other grounds by A.R.S. § 33-1551 (Supp. 2015)).
¶9 Arizona law imposes a duty on a possessor of land to use
reasonable care to make the premises safe for invitees. McMurtry v.
Weatherford Hotel, Inc., 231 Ariz. 244, 252, ¶ 22, 293 P.3d 520, 528 (App. 2013)
(citing Markowitz, 146 Ariz. at 355, 706 P.2d at 367); see also Piccola v. Woodall,
186 Ariz. 307, 310, 921 P.2d 710, 713 (App. 1996) (holding that a landlord
has a duty to exercise reasonable care for the safety of tenants and others).3
claims against all parties had been resolved, it appears the superior court
intended to reference Rule 54(c), Ariz. R. Civ. P.
3 Leasing the premises does not relieve a landlord from responsibility
under all circumstances, see Piccola, 186 Ariz. at 312-13, 921 P.2d at 715-16(holding that the landlord’s duty to warn about or remedy an unreasonably
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MOORE v. PARHAM, et al.
Decision of the Court
The standard of reasonable care generally includes an obligation to discover
and correct or warn of unreasonably dangerous conditions that the
possessor of the premises should reasonably foresee could endanger an
invitee. Markowitz, 146 Ariz. at 355, 706 P.2d at 367; accord McMurtry, 231
Ariz. at 252, ¶ 23, 293 P.3d at 528.
¶10 Parham argues the shade structure was not unreasonably
dangerous because there is no evidence it would have collapsed if Moore
had not climbed on it. Nevertheless, a jury could find that Parham violated
the standard of care if it determines he should have reasonably foreseen
that an invitee, including Moore, would climb on the structure. See
McMurtry, 231 Ariz. at 252, ¶ 23, 293 P.3d at 528. “A reasonably foreseeable
event is one that might ‘reasonably be expected to occur now and then, and
would be recognized as not highly unlikely if it did suggest itself to the
actor’s mind.’” Id. at 253, ¶ 23, 293 P.3d at 529 (quoting Tellez v. Saban, 188
Ariz. 165, 172, 933 P.2d 1233, 1240 (App. 1996)). If reasonable people could
differ about whether a danger is foreseeable, the question of negligence is
one of fact for a jury to decide. Markowitz, 146 Ariz. at 357-58, 706 P.2d at
369-70; accord McMurtry, 231 Ariz. at 253, ¶ 23, 293 P.3d at 529.
¶11 According to Moore, Allen told him that others had accessed
the roof from the shade structure and directed him to do the same, the
structure appeared sturdy, and he tested its stability when he first stepped
on it.4 Given this evidence, we cannot say as a matter of law that the shade
structure was not unreasonably dangerous because no person could
reasonably foresee that an invitee might climb on the structure. See
Markowitz, 146 Ariz. at 358, 706 P.2d at 370. Accordingly, and because it is
undisputed that Parham did not correct the structure or warn Moore about
it, the superior court erred in ruling as a matter of law that Parham did not
breach his duty to Moore. Whether Parham acted within his duty is a
question that must be answered by the jury within the context of the facts
dangerous condition continued until the tenant had a reasonable
opportunity to discover the condition and take precautions), and Parham
does not argue that he was relieved of his duty of care when he leased the
premises to Allen.
4 We do not impute Allen’s statements to Parham under an agency
theory, as Parham contends. Allen’s statements are relevant to whether it
was reasonably foreseeable that an invitee would attempt to access the roof
by climbing on the shade structure.
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MOORE v. PARHAM, et al.
Decision of the Court
and circumstances of the case. See McMurtry, 231 Ariz. at 253, ¶ 24, 293 P.3d
at 529.5
CONCLUSION
¶12 For the foregoing reasons, we reverse and remand for further
proceedings consistent with this decision. We award taxable costs to Moore
upon his compliance with Arizona Rule of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
5 Our decision is largely compelled by our supreme court’s decision
in Markowitz. Under Markowitz, once a duty exists, questions of negligence
on the part of a defendant—and a plaintiff—must be answered by a jury.
See 146 Ariz. at 356-59, 706 P.2d at 368-71.
5