324 P.3d 855
Ariz. Ct. App.2014Background
- In Dec. 2011 Carol Timmons tripped and fell on a curb/step connecting a parking lot and an elevated area immediately in front of a Ross Dress For Less store; she sued Ross and the property owner (1031 Solutions) for negligent maintenance and unsafe ingress/egress.
- Ross was the sole tenant; the area where Timmons fell was used exclusively by Ross invitees, but Ross was neither owner nor lessee of the parking lot/curb area and held only a non‑exclusive easement for access.
- The lease allocated maintenance responsibility to the landlord (common areas) but gave Ross an express contractual right to require the landlord to keep the easement in "first class" and "safe" condition; Ross also agreed to pay for some maintenance, insurance, and taxes related to the easement.
- At the trial court Ross moved for judgment (treated as summary judgment); the court concluded Ross had no possession/control of the area, owed no duty, granted summary judgment for Ross, and denied Timmons’ motion to amend to add a negligence per se claim as futile.
- On appeal the Court of Appeals reviewed possession/control and scope‑of‑duty principles and considered whether Ross’s easement rights and contractual maintenance obligations could give rise to a duty to invitees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ross owed a duty to maintain the easement/common area where Timmons fell | Timmons: Ross held and used an easement for ingress/egress and had contractual maintenance obligations and therefore had sufficient control/possession to owe invitees a duty to keep the area reasonably safe | Ross: It did not own or control the area; lease assigns maintenance to landlord, so Ross owed no duty | Court: Reversed — Ross owed a duty to invitees insofar as the injury occurred within the scope of Ross’s use of the easement and Ross’s contractual/maintenance obligations supplied sufficient control to support a duty |
| Whether Kiser (lessee not liable where lessor responsible for maintenance) bars Timmons’ claim | Timmons: Kiser is distinguishable because she asserts duty based on Ross’s easement and contractual control/participation in maintenance/construction | Ross: Kiser controls and negates any duty because the lease placed maintenance on the landlord | Court: Kiser is distinguishable; cannot be read to nullify duty where easement/contractual rights confer control; duty to invitees is non‑delegable in this context |
| Whether trial court abused discretion by denying motion to amend (negligent construction/negligence per se) | Timmons: Amendment not futile — even if Ross lacked maintenance-duty, it retained control over design/construction and could be liable for negligent construction | Ross: Amendment would be futile given lack of duty | Court: Abuse of discretion to deny amendment — factual allegations could support a duty in construction and a reasonable jury could find liability |
Key Cases Cited
- Clark v. New Magma Irrigation & Drainage District, 208 Ariz. 246 (App. 2004) (easement holder's duty is tied to scope of easement use)
- Kiser v. A.J. Bayless Markets, Inc., 9 Ariz. App. 103 (App. 1969) (lessee not liable for parking lot maintenance when lease assigns that duty to lessor)
- Ft. Lowell‑NSS Ltd. P’ship v. Kelly, 166 Ariz. 96 (1990) (possessor of land owes nondelegable duty to invitees)
- Gipson v. Kasey, 214 Ariz. 141 (2007) (duty defined as legal obligation to conform to standard of conduct)
- Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474 (2001) (summary judgment improper where reasonable jury could find for nonmoving party)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for summary judgment review)