Perez v. Palace
1 CA-CV 15-0735
| Ariz. Ct. App. | Jan 12, 2017Background
- In May 2011 Francisco Fragoso Eretza (an HVAC technician) was found fatally electrocuted on the roof of Babylon Banquet Hall while inspecting a vandalized rooftop HVAC unit (Unit 1).
- Unit 1 had been vandalized and inoperable for about a week or two; Babylon had not turned off the power to Unit 1 and had asked Eretza to see whether a compressor from a vandalized unit could be used to repair a separate nonworking unit.
- No one witnessed the electrocution; police and investigative reports indicate contact between Eretza’s right hand and a live wire near Unit 1 and note Babylon’s owner said the power to Unit 1 had not been manually shut off.
- Plaintiff Reyna Perez (surviving spouse) brought a wrongful death premises-liability claim alleging Babylon failed to warn or correct a dangerous condition; Babylon moved for summary judgment arguing the hazard was open and obvious and it had warned Eretza.
- The superior court granted summary judgment for Babylon; Perez appealed. The Court of Appeals vacated summary judgment and remanded, finding genuine factual disputes precluded resolution as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Babylon owed a duty to Eretza | Perez: as a business invitee Eretza was owed a duty to discover/correct or warn of hazards | Babylon: does not dispute duty but frames issues around open-and-obvious danger/warnings | Court: Babylon owed duty as to invitee (no dispute) — issue is whether breach shown for jury |
| Whether the hazard (Unit 1) was open and obvious | Perez: there are factual disputes (vandalized unit, power status unknown to Eretza) so open-and-obvious is for jury | Babylon: HVAC units are always energized and photos/wiring show an obvious danger, so claim fails as a matter of law | Court: Whether Unit 1 was open and obvious is a question of fact for the jury; summary judgment improper |
| Whether Babylon adequately warned Eretza | Perez: Babylon did not expressly warn that Unit 1 remained energized and failed to communicate critical danger | Babylon: representative toured roof with Eretza, pointed out vandalism, breakers, and hazards — thus warned him | Court: Whether Babylon gave a sufficient warning (that lines were hot) is disputed and for the jury, not summary judgment |
| Whether precedent required summary judgment | Perez: prior cases show similar disputes of fact preclude summary judgment | Babylon: analogizes powerline and other cases where plaintiffs knew lines were hot, so summary judgment appropriate | Court: Cases Babylon relies on are distinguishable; cited authority supports that factual disputes should go to a jury — summary judgment vacated |
Key Cases Cited
- Markowitz v. Arizona Parks Bd., 146 Ariz. 352 (1985) (landowner must warn invitees of dangers it knows or should know; open-and-obvious nature not always dispositive)
- Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539 (1990) (sufficient evidence of failure-to-warn can preclude directed verdict/summary judgment)
- Tribe v. Shell Oil Co., Inc., 133 Ariz. 517 (1982) (open-and-obvious issue generally for jury)
- Mason v. Arizona Pub. Serv. Co., 127 Ariz. 546 (1980) (powerline case where plaintiff knew lines were energized; supports reversal when knowledge undisputed)
- Orme School v. Reeves, 166 Ariz. 301 (1990) (summary judgment standard — probative value and quantum of evidence)
- Andrews v. Blake, 205 Ariz. 236 (2003) (summary judgment review and construing facts/inferences in plaintiff’s favor)