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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   PATRICIA MCCALL, Plaintiff/Appellant,

                                         v.

           THOMAS A. ARVIDSON, et al., Defendants/Appellees.

                              No. 1 CA-CV 18-0400
                                FILED 3-14-2019


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-013496
                     The Honorable Rosa Mroz, Judge

                       REVERSED AND REMANDED


                                APPEARANCES

Patricia McCall, Phoenix
Plaintiff/Appellant

Perry Childers Hanlon & Hudson, PLC, Phoenix
By Christopher J. Bork, Kathleen M. Langley, Michael R. Perry
Counsel for Defendants/Appellees



                        MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.
                      MCCALL v. ARVIDSON, et al.
                         Decision of the Court

M O R S E, Judge:

¶1            This is an appeal from an order granting summary judgment
for the defendants on a negligence claim in a personal injury case. For the
following reasons, we reverse and remand.

                FACTS AND PROCEDURAL HISTORY

¶2            Patricia McCall alleged that she was injured in the apartment
she leased from Thomas Arvidson and Roberta Crane (collectively
"Landlords"). Specifically, McCall alleged there was a plumbing problem
in her bathroom which caused her to slip on standing water that leaked
from the toilet during the early morning hours.

¶3            McCall sued the Landlords for negligence. Landlords moved
for summary judgment, contending that they could not be liable because
they had no notice of the toilet leak. Landlords argued that a "[l]ack of
notice equals lack of duty." Landlords noted that McCall admitted the
toilet/bathroom did not leak the night before the incident, and that she did
not remember whether she informed Landlords of bathroom leaks prior to
the incident.

¶4            In response, McCall contended that Landlords knew of the
dangerous plumbing conditions. In support of her contention, McCall
provided an undated and unsworn witness statement from a previous
tenant, Delona Ross, indicating plumbing problems, as well as Landlords'
disclosure statement, which states:

      After taking ownership, they discovered that the main
      plumbing line from the City was backing up into the subject
      apartment building and as tenants reported, back up in their
      bathrooms. Defendants took all reasonable measures to have
      Roto Rooter and other repair agencies respond to reported
      problems.

¶5             The superior court determined that Ross's undated and
unsworn witness statement was inadmissible and granted Landlords'
motion, holding that Landlords did not owe a duty to McCall because there
was no admissible evidence of Landlords' actual knowledge or notice of the
leaking toilet condition.

¶6          McCall timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1).



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                       MCCALL v. ARVIDSON, et al.
                          Decision of the Court

                               DISCUSSION

¶7             As a preliminary matter, we note that McCall failed to make
a single citation to the record in her opening brief in violation of Arizona
Rule of Civil Appellate Procedure ("ARCAP") 13(a). We could find McCall's
arguments waived due to her failure to comply with the appellate rules,
but, in our discretion, we will not dismiss the appeal. Cf. Delmastro & Eells
v. Taco Bell Corp., 228 Ariz. 134, 137, ¶ 7, n.2 (App. 2011) (waiver for failure
to comply with ARCAP 13 is discretionary).

¶8             Summary judgment is appropriate if "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 "should 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). We
review a grant of summary judgment de novo, and we view the facts in the
light most favorable to the non-moving party. St. George v. Plimpton, 241
Ariz. 163, 165, ¶ 11 (App. 2016).

¶9             To establish negligence, a plaintiff must show (1) a duty
requiring the defendant to conform to a certain standard of care, (2) a breach
by the defendant of that standard, (3) injury caused by the breach, and (4)
actual damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). Importantly
here, "[t]he issue of duty is not a factual matter; it is a legal matter to be
determined before the case-specific facts are considered." Id. at 145, ¶ 21.

¶10            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." Id. at 143, ¶ 10
(quoting Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354 (1985)). A duty
exists when the parties' relationship is such that the defendant has "an
obligation to use some care to avoid or prevent injury to the plaintiff."
Markowitz, 146 Ariz. at 356. Whether Landlords owe McCall a duty of care
is a "threshold issue"—absent a duty of care, there can be no viable claim
for negligence. Gipson, 214 Ariz. at 143, ¶ 11. McCall has the burden to
show a duty exists. Alcombrack v. Ciccarelli, 238 Ariz. 538, 540, ¶ 6 (App.
2015) (citation omitted).

¶11          The superior court erred in determining that Landlord owed
no duty to McCall because Landlord did not have notice. Gipson specifically
found that the existence of a duty, not notice, is the threshold issue in



                                       3
                       MCCALL v. ARVIDSON, et al.
                          Decision of the Court

negligence actions. Gipson, 214 Ariz. at 143, ¶ 11, citing Markowitz, 146 Ariz.
at 354. Gipson held that foreseeability, and by extension notice, is not "a
factor to be considered by courts when making determinations of duty."
Gipson, 214 Ariz. at 144, ¶ 15. The Arizona Supreme Court recently
observed that "Gipson enacted a sea change in Arizona tort law by removing
foreseeability from our duty framework." Quiroz v. ALCOA Inc., 243 Ariz.
560, 565, ¶ 12 (2018).

¶12             A landlord owes a duty of reasonable care which requires
inspection of premises if there is reason to suspect defects existing at the
time the tenant takes possession. Piccola By & Through Piccola v. Woodall,
186 Ariz. 307, 310 (App. 1996). The landlord must repair or warn the tenant
of such defects. Id., citing Cummings v. Prater, 95 Ariz. 20, 26 (1963).
Additionally, a landlord owes a tenant a duty of care "throughout the lease
period to maintain premises free from 'unreasonably dangerous'
instrumentalities that could potentially cause injury." McLeod By & Through
Smith v. Newcomer, 163 Ariz. 6, 8 (App. 1989), citing Presson v. Mountain
States Props, Inc., 18 Ariz. App. 176, 178 (1972). Thus, the Landlords owed
McCall a duty.

¶13           Next, we look to breach and causation. While foreseeability
may not be used to determine whether a duty exists to a certain plaintiff,
courts "may still use foreseeability in determining whether the injury is
foreseeable (breach and causation)." Quiroz, 243 Ariz. at 565, ¶ 13. Breach
and causation are factual questions. Gipson, 214 Ariz. at 144, ¶ 16
("[F]oreseeability often determines whether a defendant acted reasonably
under the circumstances or proximately caused injury to a particular
plaintiff. Such factual inquiries are reserved for the jury.").

¶14          Landlords contend that McCall produced no evidence
demonstrating that they had notice of the leaking toilet. McCall provides
Ross's witness statement and Landlords' disclosure statement as evidence
that Landlords had notice of the plumbing problems. While the superior
court was correct in finding Ross's undated and unsworn statement
inadmissible,1 it failed to address Landlords' admission in their disclosure

1       McCall attached a sworn Ross witness statement to her opening
brief, as well as other photographic exhibits, which were not included in
the record below. We will not consider any exhibit that is not part of the
record. See Crook v. Anderson, 115 Ariz. 402, 403 (App. 1977) (stating "the
parties cannot add exhibits, depositions, or affidavits to support their
position" on appeal from summary judgment).



                                      4
                      MCCALL v. ARVIDSON, et al.
                         Decision of the Court

statement. Disclosure statements can be admitted as admissions of a party-
opponent. Ryan v. San Francisco Peaks Trucking Co., 228 Ariz. 42, 47, ¶¶ 15-
16 (App. 2011).

¶15           Based on Landlords' admission that they knew "the main
plumbing line from the City was backing up into the subject apartment
building and as tenants reported, back up in their bathrooms," we hold that
McCall presented sufficient evidence to create a genuine dispute of material
fact as to whether Landlords breached their duty. See Gipson, 214 Ariz. at
144, ¶ 16. Therefore, we reverse the entry of summary judgment and
remand this matter to the superior court for further proceedings.


                              CONCLUSION

¶16          For the foregoing reasons, we reverse the grant of summary
judgment in favor of Landlords on duty and remand for further
proceedings.




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




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