Alcombrack v. Ciccarelli
363 P.3d 698
Ariz. Ct. App.2015Background
- In 2008 Robert and Dixie Ciccarelli leased a Phoenix house to Jeffrey Harrison; they defaulted on the mortgage in early 2009 and did not notify Harrison.
- Beneficiaries of the deed of trust hired LPS Field Services to inspect the property; LPS retained Sentinel, which sent locksmith Kyle Alcombrack to change the locks.
- Harrison, believing an intruder was breaking in when Alcombrack drilled the front lock, shot and severely injured Alcombrack.
- Alcombrack sued the Ciccarellis (and others), alleging they created a dangerous condition by failing to notify Harrison of the foreclosure and the possible lock change.
- The superior court granted summary judgment for the Ciccarellis, finding no cognizable duty owed to Alcombrack; Alcombrack appealed after settling with the other defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ciccarellis owed Alcombrack a duty as landowners/licensees/invitees | Ciccarelli were responsible as landowners whose default empowered entry; landowner duties apply | Landlord not in possession owes no premises duty to third-party entrants once tenant in possession | No duty under landowner-licensee/invitee principles; summary judgment affirmed |
| Whether a duty arises from conduct that created the risk (Restatement-based duty) | Duty exists because default empowered lender to enter and change locks, creating foreseeable risk (relied on Restatement §321/§7/§39) | Arizona has not adopted broad Restatement Third §7 or §39 or Restatement Second §321 for such claims; policy and precedent limit duty | Court declined to adopt Restatement Third §7/§39 or Second §321 here; no duty shown |
| Whether La Raia / Restatement Second §322 impose a duty | Plaintiff invoked La Raia/Maldonado as authority for post-act duties to prevent harm | Those authorities apply to duty to mitigate further harm after one has caused actual physical injury or helplessness, not to pre-injury duties alleged here | La Raia/§322 inapplicable because they address post-injury mitigation, not pre-injury duty; claim fails on that basis |
| Whether departure from Arizona duty doctrine is warranted (public policy / Restatement adoption) | Permit adoption of broader duty doctrines (§7/§39/§321) to hold Ciccarellis accountable | Adopting Restatement Third would substantially change Arizona duty law and should be left to the Supreme Court; foreseeability-alone approaches conflict with Gipson and precedent | Court refused to expand duty doctrine; left such fundamental change to Arizona Supreme Court; affirmed summary judgment |
Key Cases Cited
- Gipson v. Kasey, 214 Ariz. 141 (Ariz. 2007) (duty is a question of law; special relationships or undertaken conduct may create duty; courts should not treat foreseeability as sole duty test)
- La Raia v. Superior Court, 150 Ariz. 118 (Ariz. 1986) (adopted Restatement Second §322: duty to mitigate further harm after actor caused bodily injury or helplessness)
- Maldonado v. Southern Pacific Transp. Co., 129 Ariz. 165 (App. 1981) (applied Restatement Second §322 to impose duty where defendant’s instrumentality caused plaintiff’s injury and defendant refused aid)
- Ontiveros v. Borak, 136 Ariz. 500 (Ariz. 1983) (abolished common-law tavern-immunity rule for off-premises third-party injuries; discussed duty to avoid creating dangerous situations)
- Delci v. Gutierrez Trucking Co., 229 Ariz. 333 (App. 2012) (declined to adopt Restatement Third §7; warned adoption would alter Arizona’s duty framework and reduce court’s gatekeeping role)
- Rendall v. Pioneer Hotel, 71 Ariz. 10 (Ariz. 1950) (landlord generally not liable to third persons on premises after lessee has possession)
- Clarke v. Edging, 20 Ariz.App. 267 (App. 1973) (landlord generally not regarded as possessor for premises-liability purposes)
- Parish v. Truman, 124 Ariz. 228 (App. 1979) (summary judgment appropriate where defendant owed no duty to protect plaintiff from assault by strangers)