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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


 SILVESTRE CASTRO GONZALEZ and MARIA TERESA GONZALEZ,
   husband and wife, and the surviving children, Plaintiffs/Appellants,

                                        v.

MAT CONSTRUCTION, INC., YUMA dba MAT CONSTRUCTION, INC.,
  a corporation; MICHAEL and JANET TUCKER, a married couple,
                      Defendants/Appellees.

                             No. 1 CA-CV 16-0064
                               FILED 10-12-2017


             Appeal from the Superior Court in Yuma County
                        No. S1400CV201400269
             The Honorable John Neff Nelson, Judge, Retired

                      VACATED AND REMANDED


                                   COUNSEL

Law Offices of Luis P. Guerra, LLC, Phoenix
By Luis P. Guerra, David C. Shapiro
Co-Counsel for Plaintiffs/Appellants

Grant & Vaughn, PC, Phoenix
By Kenneth B. Vaughn, Sharon R. Sprague
Co-Counsel for Plaintiffs/Appellants

Ahwatukee Legal Office, PC, Phoenix
By David Abney
Co-Counsel for Plaintiffs/Appellants
Lewis Brisbois Bisgaard & Smith, LLP, Phoenix
By Matthew D. Kleifield, Venus G. Booth
Counsel for Defendant/Appellee MAT

Curl & Glasson, PLC, Tucson
By David L. Curl, J.C. Patrascioiu
Counsel for Defendants/Appellees Tuckers



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.


C A M P B E L L , Judge:

¶1            Silvestre Castro Gonzalez (“Gonzalez”), joined by members
of his family, appeal the superior court’s entry of summary judgment
dismissing their negligence claims against MAT Construction, Inc., Yuma,
dba MAT Construction, Inc. (“MAT”), and Michael and Janet Tucker
(together, “Tucker”). Gonzalez argues MAT and Tucker owed him a duty
of care—contrary to the superior court’s ruling—and that genuine issues
of material fact precluded entry of summary judgment in defendants’
favor. We agree with Gonzalez. Accordingly, we vacate the judgment in
favor of MAT and Tucker and remand for further proceedings consistent
with this decision.

             FACTS AND PROCEDURAL BACKGROUND

¶2          Tucker owned MAT and served as the qualifying party on
MAT’s construction license. 1 Tucker owned a parcel of real property in
Yuma. Tucker, as a landowner, hired MAT as the general contractor to
build a house on the property (“the Project”). In turn, MAT hired Lone
Wolfe Construction (“Lone Wolfe”) to lath and stucco the house. Gonzalez
was an employee of Lone Wolfe.

1    In deciding the motion for summary judgment, “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn
in [its] favor.” Sanchez v. City of Tucson, 191 Ariz. 128, 130 (1998) (citations
omitted); see also Orme School v. Reeves, 166 Ariz. 301, 309-10 (1990).




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                    GONZALEZ v. MAT CONST et al.
                        Decision of the Court

¶3            Mr. Tucker supervised the project, “generally visit[ing] the
[p]remises on a daily basis.” After compacting the soil, MAT dug trenches
and set the forms in preparation for pouring concrete footings for an
exterior patio. To set the forms, MAT dug a trench, approximately one
foot deep, and installed form boards, ranging from six to twelve inches
deep in the ground. After the concrete dried, MAT employees removed
the form boards, leaving the concrete footings and a cavity in the soil
formerly occupied by the form boards. The employees then shoveled dirt
into the cavity. According to the record, Mr. Tucker normally would
supervise MAT’s digging and trenching.

¶4            Later, Gonzalez and his coworker Delfino Garibay—also
employed by Lone Wolfe—set up scaffolding on the back-patio area to
lath the house in preparation for stucco. While working on the scaffold,
Gonzalez suddenly felt a scaffold leg sink into the ground. The scaffold
shifted and he fell onto the cement below, suffering permanent injury.
Gonzalez sued Tucker, as landowner, and MAT, as the general contractor,
alleging their negligence caused his injury.

¶5            In his deposition, Gonzalez explained that the soil under the
scaffold was loose, not packed, and uneven. He also contended that the
problem was the soil under the scaffolding. Garibay testified that the soil
under the scaffold looked fine, but he did not know about the condition of
the soil “down below.” After MAT employees were deposed about the
soil preparation, Gonzalez signed a declaration stating he was unaware
that Mr. Tucker “and his employees had dug, shoveled, scraped, trenched,
sloped and removed wheel barrows full of dirt all around where
[Gonzalez] had to set the scaffolding.” Gonzalez asserted that Tucker and
MAT caused the ground to become unstable and failed to warn him of the
dangerous condition before he placed the scaffolding.

¶6             Gonzalez’s expert witness testified that the digging,
trenching, and excavating performed by MAT and Tucker “altered,
disturbed and affected the condition of the ground, dirt and soil in the
area exactly where the scaffold was placed.” The expert opined that after
MAT and Tucker removed the form boards, they “merely shoveled some
dirt and soil,” but did not “safely fill[] and compact[] the slope, trench and
cavity [they] created.”

¶7           Tucker and MAT moved for summary judgment, which the
superior court granted. The court held that even if the ground was
unstable, neither Tucker nor MAT breached any duty to exercise
reasonable care because there was no evidence Tucker or MAT retained


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                     GONZALEZ v. MAT CONST et al.
                         Decision of the Court

control over Gonzalez’s work. Additionally, the court ruled neither
defendant had a duty to warn Gonzalez about the condition of the soil in
the area that had been trenched because they had not created a dangerous
condition.

¶8          We have jurisdiction over this timely appeal pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1). 2

                               DISCUSSION

¶9             We review the entry of summary judgment de novo,
“viewing the evidence and reasonable inferences in the light most
favorable to the party opposing the motion.” Andrews v. Blake, 205 Ariz.
236, 240, ¶ 12 (2003). In doing so, we determine “whether any genuine
issues of material fact exist.” Brookover v. Roberts Enter., Inc., 215 Ariz. 52,
55, ¶ 8 (App. 2007); see also Valder Law Offices v. Keenan Law Firm, 212 Ariz.
244, 249, ¶ 14 (App. 2006). When uncontroverted, “facts alleged by
affidavits attached to a motion for summary judgment may be considered
true.” Portonova v. Wilkinson, 128 Ariz. 501, 502 (1981).

¶10           A plaintiff alleging negligence must show: “(1) a duty
requiring the defendant to conform to a certain standard of care; (2) the
defendant’s breach of that duty; (3) a causal connection between the
defendant’s conduct and the resulting injury; and (4) actual damages.”
McMurty v. Weatherford Hotel, Inc., 231 Ariz. 244, 252, ¶ 22 (App. 2013)
(citation omitted). “Duty is defined as an obligation, recognized by law,
which requires the defendant to conform to a particular standard of
conduct in order to protect others against unreasonable risks of harm.”
Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 10 (2007) (citations omitted). Whether
a duty exists is a question of law to be decided by the court. Robertson v.
Sixpence Inns of Am., Inc., 163 Ariz. 539, 543 (1990). “Duty arises from the
recognition that certain relations between individuals impose on one a
legal obligation for the benefit of another.” Id. (citations omitted).

¶11          Here, we have two separate defendants: MAT as general
contractor and Tucker as landowner. We therefore address separately
whether a general contractor and a landowner owe a duty to the
employee of a subcontractor.



2       We grant MAT’s motion to strike references to certain handbooks
cited in Gonzalez’s reply brief and have not considered them.



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                    GONZALEZ v. MAT CONST et al.
                        Decision of the Court

I. MAT’s Duty as General Contractor

¶12            “The general rule which defines the common-law obligation
of the general contractor to the employee of the subcontractor imposes
upon the former the obligation to exercise ordinary care to furnish the
latter with a reasonably safe place in which to work or, if there is danger
attendant upon his work which arises from conditions that are not
obvious, to give the employee reasonable warning of such danger.” Lewis
N.J. v. Riebe Enters., Inc., 170 Ariz. 384, 388 (1992) (emphasis omitted).

¶13          MAT was both the general contractor and the concrete
contractor on the Project. Gonzalez offered evidence that MAT created a
cavity in the soil when it removed the concrete forms and negligently
caused the ground to be unstable by failing to properly fill in the cavity,
thereby breaching its duty.

¶14            MAT argues, however, that before any duty can attach,
Gonzalez must show that MAT retained control over Lone Wolfe’s work,
citing Restatement (Second) of Torts § 414 (1965). We reject this argument.
Section 414 concerns the liability of an employer for negligence by an
independent contractor when the employer retains some control over the
independent contractor’s work. But the claim here is not that MAT is
liable for the negligence of Lone Wolfe or its employees. Instead, based on
the facts in the summary judgment briefing, Gonzalez’s claim is that MAT
itself negligently created an unsafe situation and did not warn Lone Wolfe
or its employees of that situation. As a matter of law, MAT had a duty to
exercise ordinary care in maintaining a reasonably safe work site and to
warn of any danger on the premises, and Gonzalez offered sufficient facts
to create a genuine issue of fact as to whether MAT breached that duty.

II. Tucker’s Duty as Landowner

¶15            Generally, a landowner owes no duty to the employee of an
independent contractor when the landowner “has turned over safe
premises to the independent contractor without hidden and/or concealed
defects and has not retained control of the premises where the work is
being performed, either directly or through other independent
contractors.” Welker v. Kennecott, 1 Ariz. App. 395, 404-05 (App. 1965); see
also E.L. Jones Constr. Co. v Noland, 105 Ariz. 446, 455 (1970) (“The general
rule is that the owner of premises owes to the servant of the independent
contractor employed to perform work on his premises the duty to avoid
endangering him by his own negligence or affirmative act, but owes no
duty to protect him from the negligence of his own master.”) (citations



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                    GONZALEZ v. MAT CONST et al.
                        Decision of the Court

omitted). This is the general rule because typically, the landowner delivers
the premises to the general contractor and relinquishes control of the
premises. The landowner thereby delegates his duty of care to the general
contractor, which steps into the landowner’s shoes regarding possession
and control over the premises. The contractor then directs its employees
and subcontractors to complete the building project, and the landowner is
minimally involved and does not supervise the jobsite. However, there are
exceptions to this general rule.

¶16           First, a landowner may be liable when it has breached its
duty to turn over safe premises or has failed to warn of concealed defects.
See Ft. Lowell-NSS Ltd. P’ship v. Kelly, 166 Ariz. 96, 101 (1990); Welker, 1
Ariz. App. at 404-05. On summary judgment, Gonzalez presented
evidence that Mr. Tucker himself created an unsafe situation by failing to
properly replace and compact the soil following removal of the form
boards for the foundation. According to a MAT employee, Mr. Tucker
came by prior to the concrete pour, and it was his practice to “come by to
make sure everything was up to par.” Tucker therefore will be liable to the
extent that Mr. Tucker created an unsafe soil condition and failed to warn
workers.

¶17            Second, under § 414, a landowner who has hired a
contractor is subject to liability for harm the contractor causes to an
employee if the landowner has retained control over any part of the work.
See Lee v. City of Kingman, 124 F. Supp. 3d 985, 989 (D. Ariz. 2015) (“With
regard to Section 414, however, the [Welker] court held that a landowner
personally owes Section 414 duties to an independent contractor’s
employees because ‘[t]he division of control, particularly in the area of
safety precautions, may have some tendency to cause accidents.’”
(quoting Welker, 1 Ariz. App. 395 at 340)). Under this rule, Tucker may be
liable for the negligence of MAT to the extent that Mr. Tucker personally
exercised “some control” over the manner in which MAT performed
work.

¶18          Whether a defendant breached the standard of care under
§ 414 is a question for the jury. 3 Lewis, 170 Ariz. at 389. This is because,


3     Section 414 provides:

      One who entrusts work to an independent contractor, but
      who retains the control of any part of the work, is subject to
      liability for physical harm to others, for whose safety the



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                    GONZALEZ v. MAT CONST et al.
                        Decision of the Court

under § 414, the question of whether a defendant has retained control is
directly linked with the question of breach.

¶19          Gonzalez submitted facts sufficient to create a genuine issue
of material fact about Tucker’s retained control over the project. The
extent to which Tucker maintained control over MAT’s work must be
determined by the jury, along with the question of whether Tucker
breached any resulting duty. Id.

¶20           Tucker cites Lee v. M. and H. Enters., 237 Ariz. 172 (App.
2015), in arguing he owed no “retained control” duty to Gonzalez. Unlike
Mr. Tucker, however, the landowner in Lee did not retain control over any
of the actual work performed. Id. at 179, ¶¶ 24-25. “To trigger liability
under Restatement § 414, a landowner must have retained some measure
of control not over the premises of the work site, but over the actual work
performed.” Id. at 178, ¶ 22 (citation omitted).

¶21            Here, Gonzalez submitted, and Tucker admitted, facts
sufficient to demonstrate that Tucker was much more than a mere
observer of the construction project. See id. at 178, ¶ 23 (“[A] trial court
may properly grant summary judgment in favor of a landowner if no
reasonable jury could conclude the landowner retained control over the
work at issue.”) (citations omitted). Gonzalez submitted sufficient
evidence to show that, based on Mr. Tucker’s participation in the actual
“work” of construction, Tucker may have retained some control and
therefore it is for a jury to decide the scope of the duty owed by Tucker to
Gonzalez under § 414.

                             CONCLUSION

¶22        For these reasons, the superior court erred by entering
summary judgment in favor of Tucker and MAT. We vacate and remand




      employer owes a duty to exercise reasonable care, which is
      caused by his failure to exercise his control with reasonable
      care.




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                  GONZALEZ v. MAT CONST et al.
                      Decision of the Court

to the superior court for proceedings consistent with this decision. We
award costs to Gonzalez upon compliance with Arizona Rule of Civil
Appellate Procedure 21.




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




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