Shaver v. Circle K
1 CA-CV 20-0574
| Ariz. Ct. App. | Oct 5, 2021Background
- Plaintiff Brian Shaver tripped stepping off a six-inch concrete pad outside a Circle K; a yellow stripe was painted on the pad's far edge near the entrance.
- Shaver testified he did not see the stripe because the sun was in his eyes and other patrons distracted him; his expert said sun glare commonly obscures vision.
- Shaver sued for negligence, alleging the pad was unreasonably dangerous and Circle K failed to warn or remove it.
- Circle K moved for summary judgment, arguing the painted yellow stripe was a legally sufficient warning.
- The superior court granted summary judgment for Circle K; Shaver appealed and the appellate court reviewed the grant de novo.
- The appellate court affirmed, concluding Circle K satisfied its duty as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of warning (yellow stripe) | Stripe insufficient because patrons may be distracted or glare may obscure it | Stripe provided reasonable warning; no evidence Circle K should have expected distraction or glare issues | Held: Stripe adequate as a matter of law; summary judgment for Circle K |
| Foreseeability of distraction (duty to anticipate distracted invitees) | Circle K should have foreseen distraction from other patrons/sun and provided better warning | No evidence that sun glare or crowding regularly impaired visibility; no reason Circle K should expect distraction | Held: No evidence of notice/foreseeability; adequacy can be decided by court, not jury, here |
| Obligation to remove the pad vs. warn | If stripe inadequate, Circle K should have removed pad | Warning was sufficient; removal not required where warning reasonable | Held: Because warning sufficient, Circle K had no duty to remove pad |
| Whether open-and-obvious nature creates jury question | Plaintiff argued typical issues of notice and obviousness are for a jury | Defendant relied on reasonableness of warning making matter appropriate for summary judgment | Held: Court did not need to reach open-and-obvious argument once warning was held reasonable |
Key Cases Cited
- Andrews v. Blake, 205 Ariz. 236 (2003) (summary judgment standard and de novo review)
- Markowitz v. Arizona Parks Bd., 146 Ariz. 352 (1985) (landowner must make premises reasonably safe)
- Walker v. Montgomery Ward & Co., 20 Ariz. App. 255 (1973) (duty to warn business invitees of known dangerous conditions)
- Pruess v. Sambo's of Ariz. Inc., 130 Ariz. 288 (1981) (a fall alone does not prove negligence)
- Silvas v. Speros Const. Co., 122 Ariz. 333 (App. 1979) (adequacy of warning may be for a jury when distraction is foreseeable)
- Coburn v. City of Tucson, 143 Ariz. 50 (1984) (possessor required only to make premises reasonably safe, not perfect)
- Tribe v. Shell Oil Co., 133 Ariz. 517 (1982) (contrasting paint may be inadequate where the hazard is irregular or unusually configured)