Opinion
No. 1 CA-CV 15-0477
12-06-2016
ALBERT RAY ROBERTS, an adult individual, Plaintiff/Appellant, v. JEREMY WILLS and JANE DOE WILLS, husband and wife; DEBRA WILLS and JOHN DOE WILLS, wife and husband, Defendants/Appellees.
COUNSEL Mick Levin, P.L.C., Phoenix By Mick Levin Counsel for Plaintiff/Appellant Jones, Skelton & Hochuli, PLC, Phoenix By Lori L. Voepel Counsel for Defendants/Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2012-003338
The Honorable Robert H. Oberbillig, Judge
DISMISSED IN PART AND AFFIRMED IN PART
COUNSEL Mick Levin, P.L.C., Phoenix
By Mick Levin
Counsel for Plaintiff/Appellant Jones, Skelton & Hochuli, PLC, Phoenix
By Lori L. Voepel
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Donn Kessler joined. HOWE, Judge:
¶1 Albert Ray Roberts appeals the trial court's granting summary judgment in favor of Debbie Wills and judgment as a matter of law in favor of Jeremy Wills. For the following reasons, we affirm the trial court's judgment in Jeremy's favor and dismiss the appeal from the judgment in Debbie's favor.
FACTS AND PROCEDURAL HISTORY
¶2 Jeremy Wills purchased a house in late March 2011. The house needed significant work, however, so Debbie—Jeremy's mother—suggested that Jeremy call Roberts—Debbie's cousin. Roberts agreed to help Jeremy with the handyman- and construction-related tasks and offered to have his own brother and nephew help him. All agreed that Jeremy would reimburse Roberts for the costs of any necessary materials Roberts purchased and to pay his helpers, without Roberts taking any pay for himself.
¶3 Each day over the following week, Roberts worked on the house with his family members' help as agreed. Roberts was often in and out of the house, going to purchase the necessary materials and returning to teach his brother and nephew how to do certain tasks. By the time Roberts got there most mornings, the garage door was already open, but had to be held up by a bungee cord. Jeremy and Debbie were also often in and out of the house because they were still packing up their belongings from their previous house and moving to the new one.
¶4 About one week into their work, Debbie called Roberts to tell him that she was not happy with the quality and speed of the work that his brother and nephew were doing on the house. Roberts went to the house and spoke with her and Jeremy, after which they all decided that everyone could continue working on the house if Roberts would participate more in the work. Having resolved the issue, Jeremy and Debbie left the house to do more packing and moving.
¶5 Roberts decided to stay behind and help his brother and nephew clean up around the house, including gathering up torn-off wall paper. He and his nephew then took out the collected trash through the garage, which Jeremy had not opened that morning. But the garage door did not rise when he pushed the garage button, so Roberts lifted the garage door manually. As he did so, the door's top panel came out of its tracks and started to fall down on him. Roberts held up the top panel and called for his nephew to help him try to put the door's wheels back in the tracks, but after unsuccessful attempts, Roberts told his nephew to call Roberts's brother, who was working inside the house. When his brother arrived, Roberts had him hold the door up while he tried again to get its wheels back in the tracks. But before he could, Roberts heard a loud pop and felt one of the garage door cables jerk his left hand into the track, slicing four fingers and breaking one.
¶6 Nine months later, Roberts sued Jeremy and Debbie for negligence and premises liability, alleging that they negligently failed to inspect the home, repair the garage door, or notify him of the "unreasonably hazardous condition posed by the malfunctioning garage door." Debbie moved for summary judgment, arguing that she had no ownership or possessory interest in the house at the time that Roberts was injured. The trial court agreed, finding that she was neither an owner nor tenant of the home at the time of the incident, nor did she have exclusive control of the home. Accordingly, the trial court entered judgment in Debbie's favor on all claims against her on December 6, 2012, which included the finality language provided in Arizona Rule of Civil Procedure 54(b), making the judgment final and appealable. Jeremy similarly moved for summary judgment on liability, arguing that Roberts was a social guest on his property and therefore entitled to a lower level of care than if he were a business invitee. He also argued that Roberts failed to show that Jeremy knew the cable would snap. But the trial court denied Jeremy's motion and the case proceeded to trial.
¶7 During trial, Roberts stated that Jeremy had not told him at any point before the incident that the garage door was broken. He also testified that although he noticed that the garage door had to be held up by a bungee cord, the garage door was always in its tracks and did not otherwise appear to have any issues. He further testified that he knew that the garage door was broken only when it came out of its tracks and stated that he was not yet injured when that occurred. Roberts admitted that he was "sure [he] probably did" have something to do with causing the cable to jerk because it occurred when he was trying to put the door back on its tracks. He further admitted that Jeremy probably did not know that the cable would snap the way it did to cause Roberts's injury and that Jeremy had done nothing in causing the door to come out of its tracks.
¶8 After Roberts rested his case-in-chief, Jeremy moved for judgment as a matter of law, arguing that Roberts failed to present any evidence that Jeremy had knowledge about potential dangers "superior" to Roberts's. Citing Preuss v. Sambo's of Ariz., Inc., 130 Ariz. 288, 635 P.2d 1210 (1981), Jeremy argued specifically that the evidence failed to establish that he had caused the dangerous condition or had actual or constructive notice of it. Jeremy further argued that the evidence merely showed that the door had to be manually opened, but not that that condition itself was unreasonably dangerous. The trial court denied the motion.
¶9 Jeremy then testified in his defense. He stated that he knew up to two months before Roberts's injury that the garage door had to be manually opened and admitted that he did not hire anyone to inspect it. He testified, however, that despite Roberts's claims to the contrary, the garage did not have any buttons that would open the door and that it always had to be manually opened. Finally, Jeremy testified that he did not do anything to cause the garage door to fall out of its tracks or to have the cable snap.
¶10 After Jeremy's testimony, the court concluded as a matter of law that Roberts was a business invitee on Jeremy's property and thus entitled to a higher level of care than if he were a social guest. Jeremy then renewed his motion for judgment as a matter of law on liability, again pointing the court to Preuss. Jeremy argued that the defect itself that caused Roberts's injury was the garage door's falling out of its tracks and the cable's snapping, but that Roberts presented no evidence that Jeremy knew of those specific conditions. Instead, he only produced evidence that Jeremy knew that the door did not open automatically. Roberts countered that a broken garage door is a dangerous condition, and that because Jeremy knew it did not work and had to be held up by a bungee cord, he had notice of the condition and had a duty to warn Roberts. The trial court disagreed with Roberts, granted Jeremy's motion, and entered judgment in his favor, concluding that, based on Preuss, the evidence failed to prove an unreasonably dangerous condition from which a jury could evaluate the quality of Jeremy's conduct.
¶11 Roberts moved for a new trial that same day, but the trial court denied the motion. Roberts then appealed "any and all Rulings of the Court."
DISCUSSION
1. Judgment in Debbie's Favor
¶12 Roberts first argues that the trial court erred by granting Debbie's motion for summary judgment. This Court has an independent duty to determine whether it has jurisdiction over an appeal, which is statutorily limited. Fields v. Oats, 230 Ariz. 411, 413 ¶ 7, 286 P.3d 160, 162 (App. 2012). Generally, the right to appeal is limited to final judgments that dispose of all claims in an action or to certain statutorily designated judgments. Sisemore v. Farmers, 161 Ariz. 564, 565, 779 P.2d 1303, 1304 (App. 1989). However, when multiple claims for relief or parties are involved, Arizona Rule of Civil Procedure 54(b) permits the trial court to "direct the entry of judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Rule 54(b) finality language makes the judgment appealable under A.R.S. § 12-2101(B). S. Cal. Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, 49-50 ¶ 7, 977 P.2d 769, 771-72 (1999). Appeals from a final judgment must be made within thirty days. Ariz. R. Civ. P. 9(a).
¶13 Here, the trial court entered its final judgment regarding claims against Debbie on December 6, 2012. That judgment included the specific finality language provided in Rule 54(b), making the judgment appealable pursuant to A.R.S. § 12-2101(B). Roberts does not argue that the trial court improperly certified the judgment in Debbie's favor pursuant to Rule 54(b). In fact, Roberts did not object to the inclusion of the Rule 54(b) language at any point during the litigation. Cf. Kim v. Mansoori, 214 Ariz. 457, 459 ¶ 6, 153 P.3d 1086, 1088 (App. 2007) (stating that this Court reviews Rule 54(b) certification for an abuse of discretion unless the issue is whether the judgment is not actually final). Roberts therefore had thirty days from that date within which to file a notice of appeal, but he did not do so. Thus, Roberts's appeal from that judgment is untimely and this Court lacks the requisite jurisdiction over the issue. Accordingly, we dismiss Roberts's appeal from the trial court's judgment in Debbie's favor.
2. Judgment in Jeremy's Favor
¶14 Roberts next argues that the trial court erred by granting Jeremy judgment as a matter of law because he presented sufficient evidence that Jeremy had actual or constructive notice of the dangerous condition that caused the injury. We review the trial court's ruling on a motion for judgment as a matter of law de novo. Dawson v. Withycombe, 216 Ariz. 84, 95 ¶ 25, 163 P.3d 1034, 1045 (App. 2007). We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Id. The trial court should grant a motion for judgment as a matter of law when the facts presented to support a claim have so little probative value that reasonable people could not find for the plaintiff. Johnson v. Pankratz, 196 Ariz. 621, 623 ¶ 4, 2 P.3d 1266, 1268 (App. 2000). Because Roberts did not present sufficient evidence to support his allegation that Jeremy had actual or constructive notice of the defect that caused Roberts's injury, the trial court did not err.
¶15 To establish a claim for negligence, a plaintiff must prove (1) the existence of a duty requiring the defendant to conform to a certain standard of care, (2) the defendant's breach of that duty, (3) the existence of 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). Generally, a landowner owes a duty of reasonable care to make its premises safe for use by a business invitee, McMurty v. Weatherford Hotel, Inc., 231 Ariz. 244, 252 ¶ 23, 293 P.3d 520, 528 (App. 2013), who is a person invited to enter on land for a purpose connected with business dealings with the possessor of the land, Stephens v. Bashas' Inc., 186 Ariz. 427, 430, 924 P.2d 117, 120 (App. 1996). To show a breach of that duty and liability for injuries arising from a dangerous condition on the premises, a plaintiff must prove that the owner caused a dangerous condition, permitted it to develop, or had actual or constructive notice of its existence. McDonald v. Smitty's Super Valu, Inc., 157 Ariz. 316, 318, 757 P.2d 120, 122 (App. 1988). Constructive notice can be established by showing that the condition existed long enough that the owner, in the exercise of ordinary care, should have discovered and corrected it. Id. In any case, notice must be of the defect itself that caused the injury, not merely of conditions naturally producing that defect and subsequently in fact producing it. Preuss, 130 Ariz. at 289, 635 P.2d at 1211.
¶16 Here, as the trial court found, Roberts was a business invitee because he was invited to Jeremy's house for the purpose connected to his agreement with Jeremy to make or supervise the making of improvements to the house. Roberts was required to—but did not—establish that Jeremy caused, permitted to develop, or had actual or constructive notice of the dangerous condition that caused Roberts's injury. Even in the light most favorable to Roberts as the non-moving party, the evidence presented established at most that Jeremy knew that the door needed to be manually lifted and then held up by a bungee cord. However, this condition did not cause the injury that Roberts suffered. Instead, the garage door's falling out of its tracks as Roberts lifted it and the cable's snapping as he attempted to put the door back into the track caused his injury. Roberts himself testified that he did not believe that Jeremy knew or could have known that the garage door could cause this. Nothing in the record shows that Jeremy, or anyone, knew or could have known that the garage door might slide out of its tracks as someone manually opened it or that one of its cables would snap. Further, Roberts testified that the injury did not occur when he opened the door or even when the door initially fell out of its tracks, but only when the cable snapped as he attempted to move the door's wheels back into the track.
¶17 Roberts counters that because the garage door was never functional during the time that Jeremy owned the home and therefore the dangerous condition was not transitory, but instead "continuously dangerous," Preuss does not apply. But this argument is, again, based on the faulty premise that the garage door's inability to automatically open and remain open was the dangerous condition that caused Roberts's injury. The dangerous condition in this case was the garage door's sliding out of its track and its cable snapping. See Preuss, 130 Ariz. at 290, 635 P.2d at 1212 ("Although the planter may have been a defective condition, defective conditions are not necessarily dangerous conditions.") (emphases added). Thus, this danger could not have been noticed until it materialized. This type of danger was precisely the type addressed in Preuss. See also Koepke v. Carter Hawley Stores, Inc., 140 Ariz. 420, 426, 682 P.2d 425, 431 (App. 1984) (finding that the store undergoing construction did not breach its duty of care to business invitee when it knew generally of the construction conditions, but the plaintiff failed to establish that it knew of the specific condition that caused her injury or that the condition existed for long enough that the store should have known and corrected it); cf. City of Phoenix v. Whiting, 10 Ariz. App. 189, 195, 457 P.2d 729, 735 (1969) (concluding that the evidence supported a finding that the City had notice of the dangerous condition of the tree that fell and injured someone when one City employee testified that other trees in the same area had broken limbs because of their age and that the tree had signs of rotting).
¶18 Roberts further counters that Jeremy had constructive notice of the dangerous condition because he testified that he knew for up to two months before the incident that the garage door did not work. To support his argument, Roberts states that testimony at trial established that Jeremy had access to the garage door and opened and closed it daily, and because of that should have known of the condition or should have taken reasonable care to ascertain the actual condition of the door. But this testimony further supports that Jeremy did not have notice of the condition that caused Roberts's injury; indeed, according to Ray's testimony, Jeremy opened and closed the door every day without incident and had no reason to believe the door would fall out of its tracks. Accordingly, because Roberts failed to prove notice, the trial court did not err.
3. Attorneys' Fees and Costs
¶19 Debbie requests attorneys' fees and costs pursuant to Arizona Rule of Civil Appellate Procedure 25 regarding the imposition of sanctions. In our discretion, we deny her request for fees, but award both her and Jeremy their taxable costs on appeal upon compliance with Arizona Rule of Appellate Civil Procedure 21.
CONCLUSION
¶20 For the foregoing reasons, we affirm the trial court's judgment in Jeremy's favor and dismiss Roberts's appeal from the judgment in Debbie's favor.