Opinion
No. 1 CA-CV 11-0289
02-16-2012
SARA HILL, individually as surviving spouse of John Robert Hill, deceased, and as Personal Representative of the Estate of John Robert Hill, deceased, on behalf of Linda L. Hill and Donald Gardiner Hill, surviving children of John Robert Hill, Plaintiff/Appellant, v. HENRY GREENWOOD and DAPHNE GREENWOOD, husband and wife, Defendants/Appellees.
Michael C. Sheedy PLLC By Michael C. Sheedy and Hunton & Williams LLP By Samuel A. Danon, pro hac vice Paulo R. Lima, pro hac vice Attorneys for Plaintiff/Appellant Hill & Hill PLC By R. Corey Hill Ginette M. Hill and Ehmann DeCiancio, PLLC By Christopher Robbins Attorneys for Defendants/Appellees
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2009-026692
The Honorable Linda H. Miles, Judge
AFFIRMED
Michael C. Sheedy PLLC By Michael C. Sheedy and
Phoenix
Hunton & Williams LLP By Samuel A. Danon, pro hac vice Paulo R. Lima, pro hac vice Attorneys for Plaintiff/Appellant
Miami, FL
Hill & Hill PLC By R. Corey Hill Ginette M. Hill
Phoenix
and Ehmann DeCiancio, PLLC By Christopher Robbins Attorneys for Defendants/Appellees
Phoenix JOHNSEN, Judge
¶1 Sara Hill appeals the summary judgment entered in favor of Henry and Daphne Greenwood on Mrs. Hill's claim that the Greenwoods negligently caused the death of her husband, John Robert Hill. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The Greenwoods own a house in Sun City, which they rent to others during periods when they are in their other home in Michigan. Mr. Hill was the leasing agent for the Greenwoods' Sun City house. In May 2008, the Greenwoods left Arizona for Michigan. While they were gone, their house was listed for rent on the Multiple Listing Service. Real estate agents could enter the house to show it using a key located in a lock box.
¶3 In August 2008, Mr. Hill called a plumber to meet him at the house to repair a leak. The plumber arrived first and parked behind the house. While the plumber was waiting, he heard a rattling noise, then saw Mr. Hill lying injured on the floor just inside a sliding glass door at the back of the house. A roll-down metal security door protected the sliding glass door. Although the plumber did not see Mr. Hill fall, after the fact he noticed that the metal door was lowered part-way, partially obstructing the passageway. Mr. Hill died two months later from a subdural hematoma as a result of a head injury he sustained in the fall.
¶4 Mrs. Hill's complaint alleged a single claim for negligence. She alleged the Greenwoods had a duty to maintain their premises in a safe manner, the improperly lowered metal door constituted a dangerous condition and this condition caused her husband's death. As noted, the superior court granted the Greenwoods' motion for summary judgment. Mrs. Hill timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (2012).
Absent material revisions after the pertinent date, we cite a statute's current Westlaw version.
DISCUSSION
A. Standard of Review.
¶5 We review a summary judgment de novo, viewing the facts and inferences to be drawn from those facts in the light most favorable to the non-moving party. Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55, ¶ 8, 156 P.3d 1157, 1160 (App. 2007) . Summary judgment may be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c) . A court should grant summary judgment "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).
B. The Greenwoods Owed a Duty of Care to Mr. Hill as an Invitee.
¶6 A claim for negligence requires proof of four elements: "(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). There is no dispute that Mr. Hill was an invitee on the Greenwoods' property and that, as a result, the Greenwoods owed him a duty to maintain their home in a reasonably safe manner. See Nicoletti v. Westcor, Inc. , 131 Ariz. 140, 142, 639 P.2d 330, 332 (1982). This duty required the Greenwoods "to discover and correct or warn of hazards which the possessor should reasonably foresee as endangering an invitee." Robertson v. Sixpence Inns of Am., Inc. , 163 Ariz. 539, 544, 789 P.2d 1040, 1045 (1990) (quotation omitted); see also Restatement (Second) of Torts § 343 (1965).
C. There Is No Evidence the Greenwoods Had Constructive Notice of the Dangerous Condition on Their Premises.
¶7 In response to the Greenwoods' motion for summary judgment, Mrs. Hill argued Mr. Hill was fatally injured when he hit his head on the metal shield that was partially covering the glass door. We assume without deciding that the partially lowered metal door constituted a "dangerous condition" on the Greenwoods' property. For a landowner to be liable for injuries suffered by an invitee as the result of a "dangerous condition" on the premises, a plaintiff must establish:
1) that the . . . dangerous condition is the result of defendant's acts or the acts of his servants, or 2) that defendant had actual knowledge or notice of the existence of the . . . dangerous condition, or 3) that the condition existed for such a length of time that in the exercise of ordinary care the proprietor should have known of it and taken action to remedy it (I.e., constructive notice).Walker v. Montgomery Ward & Co. , 20 Ariz. App. 255, 258, 511 P.2d 699, 702 (1973). On appeal, Mrs. Hill argues the Greenwoods were liable pursuant to the third clause of the cited language because they had constructive notice of the improperly lowered door that allegedly caused the fatal accident.
¶8 To show constructive notice of a dangerous condition, a plaintiff must demonstrate that the condition existed long enough for a reasonable landowner to discover it and take proper remedial measures. Id. at 258-59, 511 P.2d at 702-03. In McGuire v. Valley National Bank, 94 Ariz. 50, 381 P.2d 588 (1963), a man was injured after slipping on a "pebble-like substance" on a stairway in an office building. Id. at 52, 381 P.2d at 589. The stairway was being used by construction workers, who sometimes tracked in "dust, grit and dirt." Id. at 52-53, 381 P.2d at 589-90. A janitor had cleaned the stairway two hours before, but there was no evidence of when, after that time, the pebble came to be on the stairs. Id. at 53, 381 P.2d at 590. The superior court entered a directed verdict against the plaintiff, ruling there was insufficient evidence to show the defendant was negligent. Id. at 52-53, 381 P.2d at 589-90. Our supreme court affirmed this judgment:
The pebble could have been deposited ten seconds before the plaintiff fell, or ten minutes, or two hours and ten minutes. There is no evidence from which the jury could infer that one period of time was more reasonable than any other. Only if it had been there for a sufficient length of time for the defendant, in the exercise of reasonable care, to find and remove it, could the defendant be found negligent. Submission of these facts to the jury would require the jury to guess whether the pebble had been on the stairway for a sufficient length of time. This cannot be permitted.Id. at 53-54, 381 P.2d at 590; see Walker, 20 Ariz. App. at 258, 511 P.2d at 702 ("One of the most important questions that must be answered in establishing constructive notice of a dangerous condition is the length of time that a given foreign substance has been present.").
¶9 With their motion for summary judgment, the Greenwoods offered evidence that the door was completely lowered when they left for Michigan in May. In her response, Mrs. Hill offered no evidence of when, after the Greenwoods' departure, the metal door was opened or left improperly closed. Accordingly, as in McGuire, there is no evidence as to when the allegedly dangerous condition arose. The door could have been improperly closed minutes, days, or weeks before the accident. As in McGuire, without evidence of when the dangerous condition arose, it is impossible for a finder of fact to determine that it existed "for such a length of time that in the exercise of ordinary care [the Greenwoods] should have known of it and taken action to remedy it." Walker, 20 Ariz. App. at 258, 511 P.2d at 702.
¶10 Mrs. Hill contends, however, that by leaving the unoccupied home accessible to real estate agents and prospective tenants, the Greenwoods should have anticipated that someone might improperly close or open the metal door, thereby creating the dangerous condition. It is not enough, however, that a landowner knows of general activities on his or her property that might create a dangerous condition. The court dispensed with a similar argument in McGuire, holding that evidence the defendant knew construction activities could produce a dangerous condition on the stairs was not sufficient to establish negligence. McGuire, 94 Ariz. at 54, 381 P.2d at 591. To be liable, a landowner must have notice "of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it." Id. (quotation omitted); see also Preuss v. Sambo's of Ariz., Inc., 130 Ariz. 288, 290, 635 P.2d 1210, 1212 (1981) ("[T]he notice requirement must be of the defect itself and not of the conditions producing the defect."); Koepke v. Carter Hawley Hale Stores, Inc., 140 Ariz. 420, 426, 682 P.2d 425, 431 (App. 1984) ("[Defendant] must have actual or constructive notice of the specific defect which caused the injury . . . and not merely knowledge of conditions naturally productive of that defect."); Spelbring v. Pinal County, 135 Ariz. 493, 495, 662 P.2d 458, 460 (App. 1983).
¶11 Mrs. Hill argues Safeway Stores, Inc. v. Cone, 2 Ariz. App. 151, 406 P.2d 869 (1965), supports her contention that the Greenwoods had constructive knowledge of the dangerous condition. In Safeway, the plaintiff slipped on a puddle just inside the entrance of a grocery store and was injured. Id. at 152, 406 P.2d at 870. There was evidence it had been raining for an hour and a half, the puddle was in a highly visible, high traffic area and there was a significant amount of water on the store's floor. Id. at 153-54, 406 P.2d at 871-72. This court upheld a jury verdict in favor of the plaintiff, concluding that even though there was no direct evidence of how long the puddle had been there, there was "circumstantial evidence that the puddle had been there a sufficient length of time to impose notice" on the owner of the store. Id.
¶12 The facts in Safeway were significantly different from those here. The dangerous puddle there was six feet from the front door, a high traffic area for carry-out employees, and visible from the check-out stations. The location of the puddle, combined with the heavy rain outside and the quantity of water on the floor, was sufficient to provide the store with constructive notice of the hazardous condition. As the court put it in that case, "The fact of rain puts you on notice not of any particular puddle but of a condition that is likely to create a potential danger." Id. at 154, 406 P.2d at 872.
¶13 By contrast, the partially lowered metal door in this case did not necessarily follow from the anticipated presence of others in the house during the Greenwoods' absence. Here, the mere possibility that real estate agents and their clients would enter the Greenwoods' home, raise the metal door and fail to lower it completely was not sufficient to create a genuine issue of material fact that the Greenwoods were on constructive notice of an improperly closed door.
CONCLUSION
¶14 For the reasons set forth above, we affirm the judgment of dismissal.
On our own motion, we have modified the caption on appeal to correct the spelling of Daphne Greenwood's name.
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______________________
DIANE M. JOHNSEN, Presiding Judge
CONCURRING:
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DONN KESSLER, Judge
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MARGARET H. DOWNIE, Judge