                     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        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


REYNA PEREZ, wrongful death statutory beneficiary, for and on behalf of
 herself and survivors of her husband, Decedent FRANCISCO FRAGOSO
                        ERETZA, Plaintiff/Appellant,

                                        v.

  PALACE BANQUETS & EVENTS, LLC, a limited liability corporation
 doing business in the State of Arizona as BABYLON BANQUET HALL;
 RICARDO VALDEZ and GRACIA LUNA TORRES, husband and wife,
                           Defendants/Appellees.

                             No. 1 CA-CV 15-0735
                               FILED 1-12-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-005043
                 The Honorable James T. Blomo, Judge

                       VACATED AND REMANDED


                                   COUNSEL

Treon & Shook PLLC, Phoenix
By Douglas G. Shook
Counsel for Plaintiff/Appellant

Sanders & Parks PC, Phoenix
By J. Steven Sparks, Shanks Leonhardt
Counsel for Defendants/Appellees
                            PEREZ v. PALACE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined.


T H U M M A, Judge:

¶1            Plaintiff Reyna Perez appeals from the entry of summary
judgment in favor of defendants Palace Banquets & Events, LLC, dba
Babylon Banquet Hall, Ricardo Valdez and Gracia Luna Torres
(collectively Babylon) in this wrongful death case. For the reasons that
follow, the entry of summary judgment is vacated and this matter is
remanded for further proceedings consistent with this decision.

                FACTS AND PROCEDURAL HISTORY

¶2            This case arises out of the May 2011 electrocution death of
Francisco Fragoso Eretza. At that time, Eretza owned Cool Busters Air
Conditioning & Refrigeration, LLC, an air conditioning repair business,
and worked under a Class K-39 license (air conditioning and
refrigeration).

¶3            Construing the facts and reasonable inferences in a light
most favorable to Perez, Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003),
Babylon called Eretza when a roof-top heating, ventilation and air
conditioning (HVAC) unit (the “Big Unit”) at a banquet hall operated by
Babylon failed late one Friday night. Eretza arrived the next morning by
8:00 a.m. and was on the roof until his body was found later that morning.
Eretza was electrocuted while inspecting an HVAC unit (Unit 1). Unit 1
was one of several roof-top HVAC units that previously had been
vandalized. Babylon asked Eretza to determine whether a compressor
from a vandalized HVAC unit could be used to replace the compressor in
the Big Unit that had stopped working the night before.

¶4             Unit 1 had been vandalized and inoperable for “a week or
two” before Babylon called Eretza. Although the power to Unit 1 could be
shut off at the main circuit breaker inside the hall, Babylon apparently had
not turned the power off to Unit 1 after it was vandalized. As a result, the
power to Unit 1 was still on when Eretza was on the roof.




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                            PEREZ v. PALACE
                           Decision of the Court

¶5            There were no witnesses who saw how Eretza was
electrocuted. Shortly after 10:00 a.m., however, Eretza was found dead in
front of Unit 1, his sunglasses lying nearby; his tool belt, tools and a water
bottle were found near the open doors of the Big Unit. An investigation
determined that Eretza’s right hand likely contacted a live electrical wire
coming from a junction box on Unit 1.

¶6             Perez filed a wrongful death claim as Eretza’s surviving
spouse, for and on behalf of herself, their minor son and Eretza’s parents,
based on premises liability. See Ariz. Rev. Stat. (A.R.S.) § 12-612 (2016).1
Babylon moved for summary judgment, arguing that as a matter of law,
Perez could not show, among other things, that Eretza “was killed by a
concealed hazardous condition” and “did not receive a reasonable
warning regarding the hazardous condition.” After briefing and oral
argument, the superior court granted the motion. The resulting minute
entry found “no evidence that . . . [Eretza’s] death was caused by a hidden
or concealed danger” and Eretza “had actual knowledge of the vandalized
condition” of the HVAC units and “was more than aware of electricity
required to operate the units and the location of and the need to shut off
the power to the units.” Perez unsuccessfully sought reconsideration.
Following entry of final judgment, see Ariz. R. Civ. P. 54(c), Perez timely
appealed. This court has appellate jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -
2010(A)(1).

                               DISCUSSION

¶7             Summary judgment is appropriate “if the moving party
shows that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.
56(a). Summary judgment may be granted “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 (1990). This court reviews de novo
the grant of a motion for summary judgment. See Parkway Bank & Trust Co.
v. Zivkovic, 232 Ariz. 286, 289 (App. 2013).



1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.




                                      3
                             PEREZ v. PALACE
                            Decision of the Court

I.     Babylon Owed Eretza A Duty As A Business Invitee.

¶8            Although described in various ways, by alleging an Arizona
common law negligence claim, Perez had the burden to show: (1) duty; (2)
breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation
and (5) resulting damages. See, e.g., Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9
(2007); Alcombrack v. Ciccarelli, 238 Ariz. 538, 540 ¶ 6 (App. 2015); Boisson v.
Arizona Board of Regents, 236 Ariz. 619, 622 ¶ 5 (App. 2015) (citing cases).

¶9             The parties agree that Babylon owed Eretza a duty as a
business invitee. See Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539,
544 (1990). As such, Babylon had a duty “to discover and correct or warn
of hazards which the possessor should reasonably foresee as
endangering” Id. (quoting Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 355
(1985)). This duty

              includes the obligation to warn invitees of any
              danger of which [Babylon] knows or should
              know and of which the invitee is unaware and
              unlikely to discover. The warning must allow
              the invitee to decide intelligently whether to
              accept an invitation to enter the property and,
              if the invitee chooses to do so, protect himself
              against any danger.

Robertson, 163 Ariz. at 544 (citations omitted). A possessor of land,
however, “is not ordinarily found negligent for injuries to those invitees
from conditions which are open and obvious, nor for those which are
known to the invitee.” Markowitz, 146 Ariz. at 356 (citing Tribe v. Shell Oil
Co., Inc., 133 Ariz. 517, 519 (1982)). But because a landowner must “act
reasonably in light of the known and foreseeable risks,” if the landowner
“should foresee that the condition is dangerous despite its open and
obvious nature, neither the obvious nature nor the plaintiff’s knowledge
of the danger is conclusive.” Markowitz, 146 Ariz. at 356-57.

II.    The Record Presented Does Not Show That Perez’ Premises
       Liability Claim Fails As A Matter Of Law.

¶10           Babylon argues summary judgment was required because,
as a matter of law, Perez cannot show: (1) Eretza was killed by a concealed
hazard; (2) Babylon failed to warn Eretza and (3) Babylon acted
unreasonably. These arguments require a finding that the hazard was
“open and obvious” as a matter of law and that no reasonable juror could
conclude that Babylon failed to properly warn Eretza.


                                       4
                            PEREZ v. PALACE
                           Decision of the Court

      A.     On This Record, Whether Unit 1 Was An Open And
             Obvious Danger Is A Question Of Fact.

¶11           Whether a danger is open and obvious generally is a
question of fact for the jury. See Andrews ex rel. Kime v. Casa Grande, 167
Ariz. 71, 75 (App. 1990); McLeod ex rel. Smith v. Newcomer, 163 Ariz. 6, 10
(App. 1989) (citing Tribe, 133 Ariz. at 519). Babylon suggests the issue can
be decided as a matter of law here because “HVAC units are always
connected to electricity.” But Unit 1 was a vandalized HVAC unit that the
record suggests had been inoperable for “a week or two” before Eretza
arrived, and Babylon did not engage Eretza to repair Unit 1. Babylon has
not shown that these facts would overcome the general rule that such
issues present questions of fact for the jury.

¶12           Babylon next argues that Perez’ “own expert has admitted
that the vandalism and damage to the wiring on the HVAC units was a
dangerous condition that was open and obvious to any trained HVAC
technician.” But the deposition excerpt cited for this proposition does not
mandate this legal conclusion, as demonstrated by the following exchange
that begins with a follow up to a question not contained in the record:

             Q. Why do you say that?

             A. Because the unit was vandalized and the
             wiring was removed, damaged, disconnected
             and created a hazardous condition for anybody
             to be on the roof.

             Q. And based upon your investigation and
             analysis of what happened here, because the
             vandalized Unit 1 was not de-energized, is that
             a critical factor, the fact that Francisco Eretza
             was electrocuted?

             ...

             A. Yes, it was.

             ...

             Q. Real quick on that point, you just listed a
             bunch of things that in your opinion created a
             dangerous condition, which is that the wiring
             had been removed, vandalized, et cetera. Those


                                     5
                             PEREZ v. PALACE
                            Decision of the Court

              are situations that were equally visible to Mr.
              Eretza as they would have been to the owners
              of Babylon, correct?

              A. I believe they were, yes.

Similarly, Babylon’s argument that Perez’ “electrical expert has changed
his theory several times” may create a credibility issue for a finder of fact
to resolve, but does not show that Babylon prevails as a matter of law. See,
e.g., Pipher v. Loo, 221 Ariz. 399, 404 ¶ 17 (App. 2009) (“It is the jury’s
function to determine accuracy, weight, or credibility.”) (citation omitted);
Felder v. Physiotherapy Associates, 215 Ariz. 154, 164 ¶ 47 (App. 2007) (same)
(citation omitted).

¶13            Babylon argues, with some force, that certain evidence
supports its factual positions. And after seeking to impeach statements in
a Phoenix Police Department Report, Babylon claims Perez provided “no
evidence” to prove, among other things, that the power was on to Unit 1
as Eretza began his work or that he was electrocuted by Unit 1 wires. But
Babylon has not shown that Report is inadmissible. And that Report states
Eretza “was accidentally electrocuted” by electrical wires, that he “died
instantly,” that his body was found “in front of” Unit 1 and “that the
contact point on [his] body was between his thumb and forefinger—
consistent with handling or touching an electrified wire.” That same
Report notes Ricardo Valdez, a Babylon owner who was on site the
morning of Eretza’s death, “said the power to . . . Unit #1 was not
manually turned off prior to any repairs” and “there was still power going
into” Unit 1 at the time Eretza was electrocuted. Ultimately, Babylon’s
attempts to impeach these statements may or may not prevail. But
whether they do is a fact-finding function, see, e.g., Pipher, 221 Ariz. at 404
¶ 17; Felder, 215 Ariz. at 164 ¶ 47, not something mandating “that there is
no genuine dispute as to any material fact,” Ariz. R. Civ. P. 56(a).

¶14            Similarly, assuming Babylon is correct in arguing that the
police “photos are ‘worth 1,000 words’ when it comes to demonstrating
the open and obvious nature of the significant destruction and damage to
the HVAC units at Babylon, including but not limited to Unit 1,” Babylon
has not shown that weighing and assessing those photos properly shows
Perez’ claims fail as a matter of law. This is particularly true given that the
open and obvious danger determination generally is a question of fact for
the jury. See, e.g., Tribe, 133 Ariz. at 519; Andrews ex rel. Kime, 167 Ariz. at
75; McLeod, 163 Ariz. at 10.




                                       6
                            PEREZ v. PALACE
                           Decision of the Court

¶15           On this record, contrary to Babylon’s argument that there
are no disputed genuine issues of material fact, a jury properly could
conclude that Unit 1 had been vandalized2 and inoperable for a week or
two before Eretza arrived; that Babylon did not turn off the power to Unit
1 but did not tell Eretza that the vandalized HVAC units were still
connected to power and that Babylon did not “expressly warn[]”Eretza
that the power to Unit 1 was still “hot” (even though it had been
inoperable for a week or two). Accordingly, on this record, whether Unit 1
was an open and obvious danger is properly a question of fact for
resolution by the jury, not by summary judgment.

      B.     On This Record, Whether Babylon Failed To Properly
             Warn Eretza Is A Question Of Fact.

¶16           Babylon argues “[t]he undisputed evidence also shows that
Babylon warned [Eretza] of the condition of the HVAC units on the roof.”
In support of this argument, Babylon points to evidence that its
representative “spent 15 minutes walking the roof with [Eretza] before
[Eretza] started his work;” explained which units the representative
“believed to be non-functioning and explained to [Eretza] about the
vandalism and the exposed wires in various locations of the roof;”
showed where the circuit breakers were located and that Eretza
commented about the dangers of high voltage in the wires.

¶17             If Unit 1 was the only HVAC unit on the roof, or if it was
undisputed that Babylon told Eretza Unit 1 was still connected to live
electricity, or told Eretza he could not obtain parts from Unit 1 and he did
so contrary to that directive, Babylon’s reference to the roof tour might
suffice to show Perez’ claim failed as a matter of law. But that is not the
record presented. Moreover, although offered for a different reason,
Babylon argues on appeal that “[t]here is no evidence to show . . . what
[Eretza] knew (other than having actual knowledge of the location of the
breaker panel and that the HVAC units had been vandalized or were
otherwise in disrepair),” negating any claim that, as a matter of law,
Babylon had properly and sufficiently warned Eretza. Indeed, and unlike
the authority upon which Babylon relies in making this argument, the
record does not show that Babylon undisputedly warned Eretza “that the
lines were hot.” Citizen’s Util., Inc. v. Livingston, 21 Ariz. App. 48, 53

2 Contrary to Babylon’s argument on appeal, that it may have been “open
and obvious” that the HVAC units had been vandalized does not mean, as
a matter of law, that Unit 1 was an “open and obvious” danger.



                                     7
                            PEREZ v. PALACE
                           Decision of the Court

(1973). Thus, whether Babylon failed to properly warn Eretza is a question
of fact, not subject to resolution by summary judgment.

       C.     The Cases Relied Upon Show That Perez’ Premises
              Liability Claim Does Not Fail As A Matter Of Law.

¶18          Babylon argues summary judgment should be affirmed
because “[t]he circumstances involving Decedent’s accident are materially
indistinguishable from Mason, Cordova and Citizens Utility.” Given key
differences, however, these three Court of Appeals cases show that
summary judgment was not proper in this case.

¶19            Mason v. Arizona Pub. Serv. Co., 127 Ariz. 546 (App. 1980) and
Citizens Utility are powerline cases, which in some significant respects are
analogous here. Those cases, however, involve appeals from jury verdicts
where it was undisputed that the plaintiff was told or understood the
powerlines were electrified (or “hot”). See Mason, 127 Ariz. at 551
(reversing jury verdict for plaintiff where powerlines apparently were
always electrified; “[t]here is no indication that the power line was
anything but open and obvious, and [plaintiff] testified that he was aware
of it and the danger it posed”); Citizens Utility, 21 Ariz. App. at 53
(reversing jury verdict for plaintiff where power to powerlines was shut
off and then turned back on; noting two witnesses testified a foreman
warned plaintiff “that the lines were hot. There was no evidence to the
contrary.”).3 In this case, by contrast, the appeal is taken from the grant of
summary judgment (not after trial) and Babylon points to no evidence that
it told Perez (or that Perez undisputedly understood) that Unit 1 was
electrified or hot.

¶20           Cordova v. Parrett involved a death resulting from the failure
of a hydraulic supporting jack used in moving a mobile home, a far
different factual setting than this case. 146 Ariz. 79, 80-81 (App. 1985).
Cordova does not address the “open and obvious” issue Babylon argues,
and although citing Mason, it does so for an unrelated proposition. Id. at
82–83 (citing Mason for the proposition that, although Restatement
(Second) of Torts § 414 (1965) (“Negligence in Exercising Control Retained


3For these same reasons, Babylon is incorrect in arguing that Mason and
Citizens Utility support the proposition that “[t]he existence of power
running to an HVAC unit is not a concealed hazardous condition as a
matter of law since HVAC units are always connected to electricity.”




                                      8
                            PEREZ v. PALACE
                           Decision of the Court

by Employer”) “does apply to employees of independent contractors, the
retained control that triggers liability is not retained control over the
premises but over the manner in which the work is done”). Moreover, in
Cordova, the defendants’ only involvement with the move was to say
where the mobile home was to be located, which “had nothing to do with
the accident.” Id. at 81, 83. In short, Babylon has not shown that Cordova
supports the grant of summary judgment in this case.4

¶21           More significantly, Babylon cites three Arizona Supreme
Court cases that reversed decisions finding, as a matter of law, that a
premises liability claim failed given disputed issues of material fact. See
Robertson, 163 Ariz. at 541 (vacating grant of motion for directed verdict;
“[b]ecause plaintiff presented sufficient evidence of negligent failure to
warn to take the issue to the jury, we vacate the court of appeals decision
and reverse and remand to the trial court for further proceedings
consistent with this opinion”); Markowitz, 146 Ariz. at 359 (“there is duty
and there are questions of fact on the issue of negligence and proximate
cause. The summary judgment granted by the trial court is reversed.”);
Tribe, 133 Ariz. at 519 (vacating summary judgment for defendant;
“[r]easonable minds could easily disagree as to whether a sixteen-inch
step down is open and obvious to one who has ascended a six-inch step;”
“Whether the step was dangerous, open and obvious or whether appellees
should have anticipated the harm if open and obvious are issues to be
decided by a jury in its capacity as triers of fact.”).

¶22          Viewed in a light most favorable to Perez, the record could
support a finding that Valdez routinely went onto the roof of the hall to
inspect the HVAC units and “check if anything else was stolen,” and he
had done so the night before Eretza was electrocuted. The record also
could support a finding that Valdez knew Unit 1 had been vandalized,
leaving exposed electrical wires, and he knew the power was on to Unit 1.
Valdez asked Eretza to see if Unit 1 had an operable compressor that

4 Nor has Babylon shown how the analysis in Flowers v. K-Mart Corp.,
where the layout of a K-Mart “parking lot and the traffic therein” was an
open and obvious danger, 126 Ariz. 495, 497 (App. 1980), supports
summary judgment here. And although Babylon claims Silvas v. Speros
Const. Co. is “inapplicable” to this case factually, that case found factual
issues precluded resolution of the claims as a matter of law. 122 Ariz. 333,
335 (App. 1979) (“The trial court erred in not submitting the case to the
jury.”).




                                     9
                           PEREZ v. PALACE
                          Decision of the Court

could be used to repair the Big Unit, and the evidence suggests Eretza was
acting in conformance with that request. On this record, and without
expressing a view of the ultimate resolution as a factual matter, Perez’
claim cannot be resolved as a matter of law. Accordingly, summary
judgment for Babylon is vacated.5

                              CONCLUSION

¶23           The entry of summary judgment for Babylon is vacated and
this matter is remanded for further proceedings consistent with this
decision. Perez is awarded her taxable costs on appeal upon compliance
with Arizona Rule of Civil Appellate Procedure 21.




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




5For similar reasons, Babylon has not shown as a matter of law, and in the
alternative, that it “undisputedly acted reasonably,” “even in the face of
an open and obvious hazard.” See Robertson, 163 Ariz. at 545 (“the
evidence could support many conclusions about what conduct would
have been reasonable under the circumstances and we do not believe any
of those conclusions apply as a matter of law”). In addition, given this
resolution, this court also does not address Perez’ arguments regarding
comparative fault and assumption of risk.



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