                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                 KATHLEEN SHAFER, Plaintiff/Appellant,

                                        v.

  WALGREEN ARIZONA DRUG COMPANY, an Arizona corporation,
                   Defendant/Appellee.

                             No. 1 CA-CV 17-0243
                               FILED 6-5-2018


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-002127
             The Honorable Christopher T. Whitten, Judge

                                  AFFIRMED


                                   COUNSEL

Law Office of Donald Smith PLLC, Glendale
By Donald H. Smith
Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli PLC, Phoenix
By Douglas R. Cullins, Jennifer B. Anderson, Kenneth L. Moskow
Counsel for Defendant/Appellee
                         SHAFER v. WALGREEN
                          Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.


P E R K I N S, Judge:

¶1           Kathleen Shafer challenges the trial court’s entry of summary
judgment in favor of Walgreen Arizona Drug Company (“Walgreen”) on
her premises liability claim for negligence. For the following reasons, we
affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2              While shopping at a Walgreen store, Shafer picked up a glass
air freshener refill from a shelf and the product fell out from the bottom of
the package. The glass container dropped onto Shafer’s foot, lacerating her
left big toe. Shafer had not noticed anything wrong with the package before
she picked it up. Shafer suffered damages as a result of her injury.

¶3         Shafer sued Walgreen, alleging negligence. The trial court
granted Walgreen’s motion for summary judgment. Shafer timely
appealed.

                              DISCUSSION

¶4            We review a grant of summary judgment de novo to determine
whether any issue of material fact exists and whether the trial court
correctly applied the law. Cannon v. Hirsch Law Office, P.C., 222 Ariz. 171,
174, ¶ 7 (App. 2009). Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Ariz. R. Civ. P. 56(a). In our review of summary
judgment, we view evidence and reasonable inferences in the light most
favorable to the non-moving party. Wells Fargo Bank v. Ariz. Laborers Local
No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13 (2002).

¶5            Shafer argues the trial court erred in granting summary
judgment on her theories of mode of operation and res ipsa loquitur. She also
argues the court erred in denying her request for a spoliation instruction.
For the following reasons, we affirm the trial court’s judgment.



                                     2
                           SHAFER v. WALGREEN
                            Decision of the Court

I.     The Mode of Operation Rule Is Inapplicable.

¶6              “A business proprietor has an affirmative duty to make and
keep [its] premises reasonably safe for customers. However, a proprietor
who is not directly responsible for a dangerous condition is not liable
simply because an accident occurred on [its] property.” Chiara v. Fry’s Food
Stores of Ariz., Inc., 152 Ariz. 398, 399 (1987) (citation omitted).

¶7              A plaintiff suing a place of business for negligence
traditionally must show the proprietor failed to act reasonably after having
notice of a dangerous condition. Id. at 400. Under the mode of operation
rule, however, “the plaintiff is not required to prove notice if the proprietor
could reasonably anticipate that hazardous conditions would regularly
arise.” Id. Under this theory, liability may attach if there is a “likelihood that
certain hazardous conditions will recur as a result of the particular method
of doing business.” Bloom v. Fry’s Food Stores, Inc., 130 Ariz. 447, 451 (App.
1981); see also Contreras v. Walgreens Drug Store No. 3837, 214 Ariz. 137, 139,
¶ 9 (App. 2006) (“It is insufficient . . . to demonstrate that spills of some kind
regularly occur; the business must be able to reasonably anticipate that a
condition hazardous to customers will regularly occur.”). Thus, Shafer did
not have to prove that Walgreen had notice of the particular hazard that
injured her if she could show Walgreen could reasonably anticipate that
hazardous conditions would regularly arise from its method of doing
business.

¶8              In Chiara, the Arizona Supreme Court examined the mode of
operation rule in the context of hazards caused by the customers of a
business, and determined that the rule “is of limited application because
nearly every business enterprise produces some risk of customer
interference.” Chiara, 152 Ariz. at 400–01. The Chiara court noted that if the
mode of operation rule applied “whenever customer interference was
conceivable, the rule would engulf the remainder of negligence law” and
“[a] plaintiff could get to the jury in most cases simply by presenting proof
that a store’s customer could have conceivably produced the hazardous
condition.” Id. at 401. Thus, the rule applies only “when a business can
reasonably anticipate that hazardous conditions will regularly arise.” Id. at
401.

¶9           Shafer argues she offered evidence that Walgreen employees
knew customers opened products and put them back on the shelves,
thereby creating a hazardous condition for other customers, including
Shafer.




                                        3
                           SHAFER v. WALGREEN
                            Decision of the Court

¶10           In Contreras, the plaintiff slipped on liquid on the floor of a
store, and the store manager testified that liquid spills occurred “a couple”
of times per week. Contreras, 214 Ariz. at 139, ¶9. The Contreras court held
that the evidence presented was insufficient to demonstrate spills regularly
occurred in a manner that enabled the business to “reasonably anticipate
that a condition hazardous to customers will regularly occur.” Id. at 139–
40, ¶9, ¶12.

¶11             Here, as Shafer asserts, Walgreen employees testified that
customers regularly opened products and put them back on the shelves.
However, as in Contreras, the record lacks evidence that Walgreen could
reasonably anticipate that a hazardous condition would regularly occur as
a result. Id. at 139, ¶9. In fact, Walgreen employees testified that other than
Shafer’s injury, the only other known injuries in the store occurred during
two unrelated events, one when a customer tripped over a rug coming
through the front door and another when a child had a seizure. The mere
fact that customers open products and put them back on the shelves is not
sufficient for a reasonable jury to conclude that a hazardous condition
would regularly occur. Id. at 140, ¶12. Thus, the trial court correctly
determined that the mode of operation theory is inapplicable.

II.    Res Ipsa Loquitur Does Not Apply.

¶12            Shafer contends res ipsa loquitur applies and defeats summary
judgment. As an initial matter, Shafer argues that the trial court’s failure to
specifically address her res ipsa loquitur argument in its ruling requires this
Court to remand the matter. We disagree. We will affirm entry of summary
judgment if correct for any reason supported by the record, “even if not
explicitly considered by the superior court.” KB Home Tucson, Inc. v. Charter
Oak Fire Ins., 236 Ariz. 326, 329, ¶ 14 (App. 2014) (citation omitted).

¶13             Res ipsa loquitur allows the trier of fact to infer negligence if an
accident occurs that does not normally occur when due care is exercised.
Brookover v. Roberts Enterprises, Inc., 215 Ariz. 52, 57, ¶ 19 (App. 2007). The
doctrine requires a plaintiff to demonstrate (1) the accident is of a kind that
ordinarily does not occur in the absence of negligence, (2) the accident was
caused by an agency or instrumentality subject to the control of the
defendant, and (3) the plaintiff is not in a position to show the
circumstances that caused the agency or instrumentality to operate to its
injury. Id. at 57–58, ¶ 19. The trial court may grant summary judgment to
the defendant if any one of these three elements is not present. Ward v.
Mount Calvary Lutheran Church, 178 Ariz. 350, 354 (App. 1994).




                                         4
                          SHAFER v. WALGREEN
                           Decision of the Court

¶14            We focus on the first element, under which the plaintiff must
show through common knowledge or expert testimony that the
probabilities weigh heavily in favor of negligence causing the incident.
Brookover, 215 Ariz. at 58, ¶ 20; see also Capps v. Am. Airlines, Inc., 81 Ariz.
232, 234 (1956) (“The doctrine applies only where the physical cause of the
injury and the attendant circumstances indicate such an unusual occurrence
that in their very nature they carry a strong inherent probability of
negligence . . . .”). Shafer argues that because Walgreen checked the entire
store for damaged products only in the evening, it was highly probable
Walgreen’s negligence caused her injury. But there was no evidence that
the purpose of Walgreen’s nightly inspections was to prevent injuries like
the one that occurred here, or that opened packages through which heavy
items could fall was a known danger that could have been averted through
more frequent inspections. Further, there was no evidence that opened
packages generally result in injury to customers, or that a store owner acts
negligently by not inspecting packages more frequently. Res ipsa loquitur
therefore does not apply. See Faris v. Doctors Hosp., Inc., 18 Ariz. App. 264,
270 (1972) (res ipsa loquitur does not apply “where there is no evidence that
a negligent act of the appellees is more likely to cause the injury than any
other possible cause”). We thus conclude that the trial court properly
granted summary judgment to Walgreen.

III.   The Issue of a Spoliation Instruction is Not Relevant at Summary
       Judgment.

¶15            Shafer argues the trial court erred in declining to give a
spoliation instruction as a result of Walgreen’s failure to produce the air
freshener packaging. Shafer fails to cite any legal authority and includes
only a single citation to the record in support of her spoliation arguments,
in clear violation of Arizona Rule of Civil Appellate Procedure (“ARCAP”)
13(a)(7). Failure to include references to the record and citation to legal
authority is, as a general matter, insufficient to preserve an issue on appeal.
Flood Control Dist. Of Maricopa Cty. v. Conlin, 148 Ariz. 66, 68 (App. 1985);
Joel Erik Thompson, Ltd. v. Holder, 192 Ariz. 348, 351, ¶ 20 (App. 1998). As
such, Shafer has not properly preserved her spoliation claim.

¶16           Even assuming Shafer properly preserved this claim, it is
unclear how Shafer’s argument is relevant in the context of summary
judgment. She does not argue that alleged spoliation alters the parties’
summary judgment burdens. In any event, the issue of spoliation of
evidence does not go to whether Walgreen was aware that a dangerous
condition regularly occurred. Accordingly, Walgreen’s failure to produce
the air freshener packaging does not provide a basis for relief.


                                       5
                     SHAFER v. WALGREEN
                      Decision of the Court

                          CONCLUSION

¶17            We affirm summary judgment and award Walgreen its
taxable costs incurred on appeal upon compliance with ARCAP 21.




                     AMY M. WOOD • Clerk of the Court
                     FILED: AA




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