                                    IN THE
              ARIZONA COURT OF APPEALS
                                  DIVISION ONE


     KYLE ALCOMBRACK, a married individual, Plaintiff/Appellant,

                                       v.

ROBERT CICCARELLI and JANE DOE CICCARELLI, husband and wife,
                    Defendants/Appellees.

                             No. 1 CA-CV 13-0148
                               FILED 12-3-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2009-027538
              The Honorable Katherine M. Cooper, Judge

                                   AFFIRMED


                                   COUNSEL

Breyer Law Offices, Phoenix
By Mark P. Breyer
Counsel for Plaintiff/Appellant

O’Connor & Campbell, PC, Tempe
By Michael R. Altaffer, J. Edward Doman, Jr.
Counsel for Defendants/Appellees



                                   OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in
which Judge Randall M. Howe joined. Judge Diane M. Johnsen dissented.
                     ALCOMBRACK v. CICCARELLI
                         Opinion of the Court

T H U M M A, Judge:

¶1            A couple defaulted on their obligations to repay a lender on a
loan for a house they leased to a tenant. The lender then hired a company
to inspect the house. The inspection company then hired a locksmith
company to change the locks. The locksmith company then sent a locksmith
to change the locks. Mistaking the locksmith for an intruder, the tenant shot
and seriously injured the locksmith. The locksmith filed a negligence claim
against the couple who defaulted on the loan. The superior court granted
the couple summary judgment, finding the locksmith had not shown a
cognizable duty. The locksmith now appeals. Because the locksmith has not
shown the couple owed him a duty, the grant of summary judgment is
affirmed.

                FACTS1AND PROCEDURAL HISTORY

¶2            In 2008, Robert and Dixie Ciccarelli leased a house in Phoenix
to Jeffrey Harrison. By early 2009, the Ciccarellis had defaulted on a loan
secured by the house and foreclosure had begun. The Ciccarellis did not tell
Harrison of the foreclosure.

¶3            In late February 2009, a notice of trustee’s sale issued. The
beneficiaries of the deed of trust2 then hired LPS Field Services, Inc., to
inspect the house. LPS then hired Sentinel Field Services, Inc., a locksmith
company. Sentinel then sent employee locksmith Kyle Alcombrack to
change the locks at the house. Mistakenly thinking the house was vacant,
Alcombrack drilled out the lock on the front door of the house. Mistakenly
thinking the house was being broken into, Harrison shot at the door,
seriously injuring Alcombrack.

¶4            Alcombrack sued the Ciccarellis, the beneficiaries of the deed
of trust and LPS. Alcombrack alleged the Ciccarellis “had a duty to” him
which they breached. More specifically, Alcombrack alleged the Ciccarellis
created an unreasonably-dangerous condition by not telling Harrison the
house was in foreclosure and that someone might inspect the house


1 This court views the evidence and reasonable inferences in a light most
favorable to the non-movant. Lennar Corp. v. Transamerica Ins. Co., 227 Ariz.
238, 242 ¶ 7 (App. 2011).

2The operative pleading names JP Morgan Chase Bank, N.A., Washington
Mutual Home Loans, Inc., and Washington Mutual Mortgage Securities
Corporation.

                                     2
                       ALCOMBRACK v. CICCARELLI
                           Opinion of the Court

“and/or change the locks.” The Ciccarellis moved for summary judgment,
arguing they owed no duty. After briefing and oral argument, the superior
court granted the motion, finding Alcombrack was a licensee, the
Ciccarellis did not owe Alcombrack a duty, the Ciccarellis did not owe a
duty to tell Harrison about the foreclosure and, even if they owed such a
duty to Harrison, “that duty did not extend to a duty to [Alcombrack] to
protect him from” Harrison.

¶5            A jury later found Alcombrack sustained $849,026 in damages
and that LPS was 34 percent at fault. Alcombrack reached a post-trial
settlement with LPS and the beneficiaries of the deed of trust, and appealed
the entry of summary judgment in favor of the Ciccarellis.3 This court has
jurisdiction over Alcombrack’s timely appeal pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.)
section 12-2101(A)(1) (2015).4

                                 DISCUSSION

¶6             Although described in various ways, a plaintiff alleging an
Arizona common law negligence claim must show: (1) a duty requiring the
defendant to conform to a certain standard of care; (2) defendant’s breach
of that duty; (3) cause in fact; (4) legal cause; and (5) actual damages. See
Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9 (2007); Grafitti-Valenzuela ex rel. Grafitti
v. City of Phoenix, 216 Ariz. 454, 457, 460 ¶¶ 6, 20-21 (App. 2007). “The first
element, whether a duty exists, is a matter of law for the court to decide.”
Gipson, 214 Ariz. at 143 ¶ 9; accord Guerra v. State, 237 Ariz. 183, 185 ¶ 7

3 Having dismissed Alcombrack’s claim against the Ciccarellis, the superior
court correctly did not permit the jury to assess any fault to them. The
Ciccarellis argue, without supporting authority, that by failing to appeal the
judgment against LPS, Alcombrack waived his right to appeal as to the
Ciccarellis. Because the grant of summary judgment in favor of the
Ciccarellis was interlocutory, Alcombrack properly waited until after entry
of final judgment to appeal. Having settled with LPS after the jury’s verdict,
Alcombrack had no reason to appeal as to LPS. Finally, the jury’s allocation
of fault to specified non-parties was a vehicle for determining the fault of
the parties, and could not be introduced as evidence of liability in any
action. See A.R.S. § 12-2506(B). Accordingly, Alcombrack did not waive his
right to appeal as to the Ciccarellis.

4Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                         3
                      ALCOMBRACK v. CICCARELLI
                          Opinion of the Court

(2015). Absent duty, an action for negligence fails. Gipson, 214 Ariz. at 143
¶ 11. The party claiming negligence has the burden to show a duty. Id. at
143 ¶ 9.

I.     Alcombrack Has Not Shown A Duty Based On A Landowner-
       Licensee/Invitee Relationship.

¶7              After rejecting foreseeability as a factor in determining duty,
Gipson observed that “[d]uties of care may arise from special relationships
based on contract, family relations, or conduct undertaken by the
defendant.” Id. at 145 ¶ 18. Gipson cited the landowner-invitee relationship
as a “categorical relationship [that] can give rise to a duty.” Id. at 145 ¶ 19
(citing cases); accord Restatement (Second) of Torts (Restatement Second) §§
333-50 (1965). Under a landowner-licensee/invitee relationship, however, a
landowner not in possession of property owes no duty to a third party who
is injured on the property. See, e.g., Rendall v. Pioneer Hotel, 71 Ariz. 10, 15-
16 (1950) (“At common law, subject to certain exceptions not here material,
the occupier or tenant and not the landlord was liable to a third person on
the premises for injury caused by the condition or use of the demised
premises.”); Clarke v. Edging, 20 Ariz. App. 267, 272-73 (1973) (noting
landlord generally not considered possessor for premises liability);
Restatement Second § 356 cmt. a (“[I]t is the general rule that the lessor is
not liable to the lessee, or to others on the land, for injuries occurring after
the lessee has taken possession.”). Accordingly, Alcombrack has not shown
the Ciccarellis owed a relevant duty based on a landowner-licensee/invitee
relationship, see Clarke, 20 Ariz. App. at 272-73, or based on contract or
family relations, see Gipson, 214 Ariz. at 145 ¶ 18. That failure, however, does
not end the inquiry. As Gipson recognized, even absent such relationships,
a common law duty may arise based on “conduct undertaken by the
defendant.” 214 Ariz. at 145 ¶ 18.5




5 The Dissent at ¶ 32 n.15 correctly notes that, had this incident occurred
several years later, Alcombrack could have claimed the Ciccarellis had a
duty to provide notice to Harrison under A.R.S. § 33-1331 (2013). That
statute, enacted in 2013, does not apply here. See A.R.S. § 1-244. Moreover,
a statutory duty enacted years after the incident is not relevant to whether
Alcombrack has shown the Ciccarellis owed him a common law duty.




                                       4
                      ALCOMBRACK v. CICCARELLI
                          Opinion of the Court

II.    Alcombrack Has Not Otherwise Shown The Ciccarellis Owed A
       Duty Relevant To His Claim.

¶8             Alcombrack argues a duty arose when the Ciccarellis
defaulted on their loan, thereby empowering the beneficiaries of the deed
of trust to change the locks on the house.6 The Ciccarellis counter that they
had no duty to notify Harrison of the foreclosure and, even if they did, such
a duty would not extend to third parties like Alcombrack.7 Because no
Arizona case resolves this issue, this court ordered supplemental briefing
on whether Alcombrack preserved for appellate review an argument that
the Ciccarellis owed a duty on any basis other than as an invitee or a
licensee and, if so, the applicability of specified legal authorities to this case.
In that supplemental briefing, Alcombrack argues a duty should be
recognized under La Raia v. Superior Court, 150 Ariz. 118 (1986); Maldonado
v. Southern Pacific Transportation Co., 129 Ariz. 165 (App. 1981); Restatement
Second §§ 321 and 322 and Restatement (Third) of Torts Liability for
Physical and Emotional Harm (Restatement Third) §§ 7 and 39 (2010). The
Ciccarellis counter that Alcombrack, in part, waived the application of these
authorities and, in any event, has not shown a duty in this case. This court
addresses these arguments in turn, beginning with the case law and
Restatement Second § 322.

       A.      Nether La Raia, Maldonado Nor Restatement Second § 322
               Imposed A Duty On The Ciccarellis.

¶9            In La Raia, a landlord applied a pesticide that caused the
tenant to become ill. 150 Ariz. at 120. When the tenant asked for a list of the
chemicals in the pesticide, the landlord provided a list that “omitted all
toxic items” and, having been told by medical professionals that “none of
the chemicals was toxic,” the tenant “reentered her apartment only to
become more seriously ill.” Id. The tenant sued the landlord and, on appeal,

6The primary reason to change the locks was, presumably, to keep anyone
who had a key from accessing the house, including the Ciccarellis.

7 The parties dispute whether Alcombrack’s claim is based on misfeasance
or nonfeasance. See, e.g., Bogue v. Better-Bilt Aluminum Co., 179 Ariz. 22, 34
(App. 1994) (stating the “general rule is that absent a special relationship . .
. no duty exists to take affirmative precaution for the aid or protection of
another”); Restatement Second § 314 cmt. c (”one human being, seeing a
fellow man in dire peril, is under no legal obligation to aid him”). Given the
resolution of duty, the court need not resolve the misfeasance or
nonfeasance dispute.

                                        5
                     ALCOMBRACK v. CICCARELLI
                         Opinion of the Court

the Arizona Supreme Court concluded plaintiff should have been allowed
to amend her complaint. Id. at 123. In coming to that conclusion, La Raia
noted Maldonado applied Restatement Second § 322

              to a situation in which it was alleged that
              defendant negligently jerked a train car, causing
              plaintiff to fall under the wheels and become
              severely injured. Defendant then refused to aid
              plaintiff and may have hindered those who
              came to his assistance. The court of appeals
              found that in the absence of prior case law, it
              would apply Restatement [Second] § 322. That
              situation is closely analogous to the one before
              us. In the present case, we need say only that
              because defendant poisoned plaintiff it had a
              duty to minimize the resulting harm after it
              discovered what had occurred.

                     Thus, there is no need to recognize a new
              tort. Having caused or contributed to plaintiff’s
              poisoning, defendant was under a duty to act
              reasonably to mitigate the resulting harm.

150 Ariz. at 122. In that distinguishable context -- where the plaintiff sought
to hold defendant liable for its failure to mitigate harm after defendant’s
tortious conduct physically injured plaintiff -- La Raia expressly adopted
Restatement Second § 322, which states:

              If the actor knows or has reason to know that by
              his conduct, whether tortious or innocent, he
              has caused such bodily harm to another as to
              make him helpless and in danger of further
              harm, the actor is under a duty to exercise
              reasonable care to prevent such further harm.

150 Ariz. at 122 (quoting Restatement Second § 322); accord Maldonado, 129
Ariz. at 169 (applying Restatement Second § 322 and noting, where plaintiff
“received his injuries from an instrumentality under” defendant’s control,
“this is sufficient to impose a duty to render reasonable aid and assistance;
a duty for the breach of which [defendant] is liable for additional injuries
suffered”) (emphasis added).

¶10            Given La Raia, as well as Maldonado, Restatement Second § 322
clearly is the law in Arizona. It is equally clear, however, that Restatement


                                      6
                     ALCOMBRACK v. CICCARELLI
                         Opinion of the Court

Second § 322 does not apply to Alcombrack’s claim. Alcombrack does not
assert that the Ciccarellis owed and then breached a duty after he was shot.
Instead, Alcombrack claims the Ciccarellis owed a duty before he was shot.
Moreover, the analysis in La Raia, including its construction of Maldonado,
addresses a defendant’s duty to mitigate further harm after the defendant’s
actions have caused physical injury to the plaintiff in violation of a duty,
not whether the defendant owed plaintiff a duty in the first instance. 150
Ariz. at 122. La Raia made this distinction plain by noting that, although
plaintiff claimed spoliation when the landlord provided incorrect
information about the chemicals that injured her, “[i]n failing to provide
[correct information], and intentionally providing false information,
defendant did not spoil the evidence, it caused a new or further injury to the
plaintiff.” Id. Thus, La Raia, Maldonado and the Restatement Second § 322 do
not apply to Alcombrack’s claim against the Ciccarellis.

       B.     Alcombrack Has Not Shown That Restatement Third § 7
              Should Be Adopted In This Case.

¶11          It is clear that, in briefing before the superior court,
Alcombrack raised the issue of whether Restatement Third § 7 should be
adopted as the law of Arizona, an argument that court rejected. The
question is whether this court should adopt, for the first time in Arizona, a
standard that “[a]n actor ordinarily has a duty to exercise reasonable care
when the actor’s conduct creates a risk of physical harm.” Restatement
Third § 7(a). For several reasons, Alcombrack has not shown that
Restatement Third § 7(a) should be adopted here.

¶12         First, Restatement Third § 7(a) is significantly broader than
Restatement Second § 315,8 the latter of which “has been adopted in
Arizona and applied in support of no-duty determinations absent a special

8

              There is no duty so to control the conduct of a
              third person as to prevent him from causing
              physical harm to another unless (a) a special
              relation exists between the actor and the third
              person which imposes a duty upon the actor to
              control the third person’s conduct, or (b) a
              special relation exists between the actor and the
              other which gives to the other a right of
              protection.

Restatement Second § 315.

                                      7
                      ALCOMBRACK v. CICCARELLI
                          Opinion of the Court

relationship.” Delci v. Gutierrez Trucking Co., 229 Ariz. 333, 337-38 ¶16 (App.
2012) (citing Fedie v. Travelodge Int’l, Inc., 162 Ariz. 263, 265 (App. 1989) and
Davis v. Mangelsdorf, 138 Ariz. 207, 208 (App. 1983)). Alcombrack does not
allege that the Ciccarellis owed a duty here based on Restatement Second §
315.

¶13            Second, dicta in Ontiveros v. Borak, 136 Ariz. 500 (1983) does
not show that Arizona adopted the standard later reflected in Restatement
Third § 7(a). As the Dissent notes at ¶ 31, Ontiveros quoted an Alaska case
stating “’every person is under a duty to avoid creating situations which
pose an unreasonable risk of harm to others’” in abolishing the common-
law doctrine that tavern owners were not liable for off-premises injuries to
third parties caused by the acts of an intoxicated patron. 136 Ariz. at 509
(quoting Nazareno v. Urie, 638 P.2d 671, 674 (Alaska 1981)). This statement
was not essential to the holding in Ontiveros but, as Gipson noted, this dicta
could be interpreted as being consistent with the Restatement Third § 7(a)
approach to duty. 214 Ariz. at 146 ¶ 24 n.4. Gipson, however, found it was
“not necessary . . . to frame the issue” that broadly, holding instead that
“Arizona statutes themselves provide a sufficient basis for a duty of care.”
214 Ariz. at 146 ¶ 24. The Gipson concurrence noted that adopting
Restatement Third § 7(a) would represent a significant change to Arizona
duty law, described as “a different conceptual approach.” Id. at 147-48
(Hurwitz, J., concurring). Moreover, the rationale for the holding in
Ontiveros “was much more narrowly based on the relation of the licensed
supplier of liquor and his patron requiring the licensee to ’take affirmative
measures to control or avoid increasing the danger from the conduct of
others,’” a relationship not present here. Delci, 229 Ariz. at 338 ¶ 17 (quoting
Ontiveros, 136 Ariz. at 508–09); accord Diaz v. Phx. Lubrication Serv., Inc., 224
Ariz. 335, 340 ¶ 21 (App. 2010) (noting Gipson did not decide whether a
common law duty existed and rejecting duty argument under Ontiveros and
Restatement Third § 7 because defendant did not create the risk to plaintiff).

¶14           A third and final point comes from the lengthy but persuasive
conclusion in Delci that

              adoption of the Third Restatement would do
              more than just modify existing Arizona
              negligence law; it would substantially change
              Arizona’s longstanding conceptual approach to
              negligence law by effectively eliminating duty
              as one of the required elements of a negligence
              action. See Gipson, 214 Ariz. at 147–48, ¶¶ 33–40
              [] (Justice Hurwitz, concurring) . . . ; compare


                                       8
                      ALCOMBRACK v. CICCARELLI
                          Opinion of the Court

              Wertheim v. Pima County, 211 Ariz. 422, 426, ¶ 17
              [] (App. 2005) (“We do not understand the law
              to be that one owes a duty of reasonable care at
              all times to all people under all circumstances.”)
              []; Bloxham [v. Glock Inc.], 203 Ariz. at 275, ¶ 8
              [(App. 2002)] (same). The Third Restatement
              approach significantly lessens the role of the
              court as a legal arbiter of whether society should
              recognize the existence of a duty in particular
              categories of cases; for this reason, adopting the
              Third Restatement would increase the expense
              of litigation. Although restricting the dismissal
              of negligence actions for lack of duty may be
              thought desirable as more protective of a
              litigant’s jury-trial right, such a fundamental
              change in the common law requires an
              evaluation of competing public policies that is
              more appropriately addressed to the Arizona
              Supreme Court.

229 Ariz. at 338 ¶18 (citations omitted); accord Hafner v. Beck, 185 Ariz. 389,
391 (App. 1995) (“We do not understand the law to be that one owes a duty
of reasonable care at all times to all people under all circumstances. The
common law has not been stretched that far yet, and we envision
considerable danger in doing so in this context.”).9 For these reasons,
Alcombrack has not shown that this court should adopt Restatement Third
§ 7(a) in this case.

       C.     Alcombrack Has Not Shown That Restatement Third § 39
              Or Restatement Second § 321 Should Be Adopted In This
              Case.

¶15            Alcombrack did not cite Restatement Third § 39 or
Restatement Second § 321 in briefing before the superior court. Nor did
Alcombrack rely on these provisions in his opening or reply briefs on
appeal. Accordingly, Alcombrack has waived any argument they should
apply here. See Continental Lighting & Contracting, Inc. v. Premier Grading &
Utilities, LLC, 227 Ariz. 382, 386 ¶ 12 (App. 2011); Schurgin v. Amfac Elec.
Distribution Corp., 182 Ariz. 187, 190 (App. 1995); see also State v. Moody, 208

9Delci added that “[t]o our knowledge, only two state courts have expressly
adopted” Restatement Third § 7(a), a statement that remains true today. 229
Ariz. at 338 ¶18 n.6 (citing Iowa and Nebraska cases).

                                       9
                     ALCOMBRACK v. CICCARELLI
                         Opinion of the Court

Ariz. 424, 452 ¶ 101 n.9 (2004) (noting court usually does not consider
arguments even when raised in reply brief on appeal). Even on the merits,
however, Alcombrack has not shown these provisions should be adopted
in this case.

¶16           “An actor whose conduct has not created a risk of physical []
harm to another has no duty of care to the other unless a court determines
that one of the affirmative duties in §§ 38-44 is applicable.” Restatement
Third § 37. Alcombrack argues this court should adopt the following
standard: “When an actor’s prior conduct, even though not tortious, creates
a continuing risk of physical harm of a type characteristic of the conduct,
the actor has a duty to exercise reasonable care to prevent or minimize the
harm.” Restatement Third § 39. No Arizona decision has adopted
Restatement Third § 39. Indeed, the only published decision to cite the
provision is in a partial dissent in Huck v. Wyeth, Inc., 850 N.W.2d 353, 390
(Iowa 2014) (Hecht, J., concurring in part and dissenting in part).

¶17          Restatement Third § 39 “imposes a duty that might be
subsumed under the general duty of reasonable care in § 7.” Restatement
Third § 39 cmt. d. If subsumed in Restatement Third § 7, Restatement Third
§ 39 would not impose a duty here for the same reasons discussed above in
concluding Alcombrack has not demonstrated that this court should adopt
Restatement Third § 7(a). If not subsumed in Restatement Third § 7,
meaning Restatement Third § 39 sets forth a different duty, the question is
whether Arizona law should recognize that different duty.

¶18          Restatement Third § 39 is based on Restatement Second §§ 321
and 322. See Restatement Third § 39 cmt. a (“[t]his Section encompasses
both § 321 and § 322 from the Second Restatement and eliminates the
requirement of helplessness contained in § 322”). To the extent Restatement
Third § 39 is based on Restatement Second § 322, as discussed above,
Restatement Second § 322 does not apply to Alcombrack’s claim.
Restatement Second § 321, by contrast, states that

             (1) If the actor does an act, and subsequently
             realizes or should realize that it has created an
             unreasonable risk of causing physical harm to
             another, he is under a duty to exercise
             reasonable care to prevent the risk from taking
             effect.




                                     10
                     ALCOMBRACK v. CICCARELLI
                         Opinion of the Court

              (2) The rule stated in Subsection (1) applies even
              though at the time of the act the actor has no
              reason to believe that it will involve such a risk.

Restatement Second § 321. The Restatement Third, however, “replac[ed]
and supersed[ed]” the Second Restatement. See Restatement Third
Introduction. Moreover, Alcombrack has not shown that Arizona should
adopt Restatement Second § 321 even if the Restatement Third had not
replaced and superseded the Restatement Second.

¶19            Although promulgated 50 years ago, Arizona has never
adopted Restatement Second § 321. Indeed, the only Arizona case to
mention the provision did so in passing in holding summary judgment
should have been granted because the defendant “owed no duty to
[plaintiff] to protect him from an assault by strangers.” Parish v. Truman,
124 Ariz. 228, 229-30 (App. 1979). The fact that Arizona has not adopted
Restatement Second § 321 in the five decades after it was promulgated is
telling. Looking at how the provision has been received in other states also
is telling.

¶20           The Dissent at ¶ 32 n.14 correctly states that Restatement
Second § 321 has been adopted in at least a few other jurisdictions. As noted
by the Minnesota Supreme Court, however, Restatement Second § 321 “has
received heavy criticism from multiple jurisdictions,” including “for
vagueness and over-inclusiveness.” Domagala v. Rolland, 805 N.W.2d 14, 25
(Minn. 2011). Domagala rejected the provision, noting “significant public
policy concerns,” adding “few state supreme courts have favorably cited”
the provision in majority opinions and “[s]everal courts have expressed
disfavor for the Restatement by explicitly rejecting section 321, declining to
extend its terms, or expressly distinguishing its provisions on factual
grounds.” Id. at 25 n.2, 26 (citing cases). Nearly a decade earlier, the
Connecticut Supreme Court characterized Restatement Second § 321 as
“creat[ing] a duty based on foreseeability alone, without any consideration
of the public policy concerns that we have concluded are an essential
component of our traditional duty analysis,” noting “[w]e have not adopted
§ 321 of the Restatement (Second) in the past and, even if it were applicable,
we would decline to do so in the present case.” Murillo v. Seymour
Ambulance Ass’n, Inc., 823 A.2d 1202, 1207 (Conn. 2003) (cited with approval
on other grounds in Guerra, 237 Ariz. at 188 ¶ 22). This criticism of § 321 as
focusing “on foreseeability alone” is particularly significant, given Gipson’s
holding “that foreseeability is not a factor to be considered by courts when
making determinations of duty.” 214 Ariz. at 144 ¶ 15. Thus, Restatement
Second § 321 (and Restatement Third § 39 to the extent it is based on § 321)


                                      11
                      ALCOMBRACK v. CICCARELLI
                          Opinion of the Court

is inconsistent with current Arizona law.10 For these reasons, Alcombrack
has not shown that this court should adopt Restatement Third § 39 or
Restatement Second § 321 in this case.

                               CONCLUSION

¶21          Alcombrack has not shown that the superior court erred in
granting summary judgment in favor of the Ciccarellis on Alcombrack’s
claim against them.11 Accordingly, the superior court’s grant of summary
judgment in favor of the Ciccarellis on Alcombrack’s claim against them is
affirmed.




10The Dissent at ¶ 29 correctly states that, “[a]bsent controlling Arizona law
to the contrary, an Arizona court generally follows the Restatement.” It is
equally true, however, that Arizona “do[es] not follow the Restatement
blindly, . . . and will come to a contrary conclusion if Arizona law suggests
otherwise.” Powers v. Taser Intern., Inc., 217 Ariz. 398, 403 ¶ 19 (App. 2007)
(citation omitted); accord Small v. Ellis, 90 Ariz. 194, 199 (1961); Reed v. Real
Detective Pub. Co., 63 Ariz. 294, 303 (1945); Cannon v. Dunn, 145 Ariz. 115,
116 (App. 1985). Because Arizona law does suggest otherwise here,
Alcombrack has not shown that they should be adopted in this case.

11 Given this conclusion, this court need not address the Ciccarellis’
arguments that the trustee lacked the power under Arizona law to change
the locks after their default or that Harrison’s action was a superseding
intervening cause. See Dissent ¶¶ 34 & 35.

                                       12
                      ALCOMBRACK v. CICCARELLI
                          Johnsen, J., dissenting

J O H N S E N, Judge, dissenting:

¶22           I respectfully dissent. My view is that under duty principles
already established in Arizona, if the Ciccarellis’ default authorized the
lender to enter the home and change the locks, they owed a duty to take
reasonable steps to prevent resulting personal injury to the locksmith the
lender sent to do that.

¶23            As the Majority states, although a landlord who has leased the
entirety of the property usually has no duty as landowner to one who comes
onto the land, that does not mean the landowner necessarily owes no other
duty to the entrant. It only means that no ”categorical relationship”
imposes such a duty. See supra ¶ 7. As our supreme court has held, in the
absence of any such categorical relationship, an actor can by his conduct
create another relationship that may impose on him a duty of care. Gipson
v. Kasey, 214 Ariz. 141, 145, ¶ 18 (2007).

¶24            Alcombrack argues that such a duty arose when the
Ciccarellis defaulted on their loan, thereby empowering their lender to
enter the home and change the locks. Under his theory, the Ciccarellis are
liable for injuries caused when their tenant, a bail bondsman who wore a
bullet-proof vest for protection, mistook Alcombrack for a home invader
and shot him.

¶25           Normally, as the Ciccarellis contend in their ”nonfeasance”
argument, one has no duty to protect another who is at risk of harm. See La
Raia v. Superior Court, 150 Ariz. 118, 121 (1986) (”common law generally
refused to impose a duty upon one person to give aid to another, no matter
how serious the peril to the other and no matter how trifling the burden of
coming to the rescue”); see Restatement Second § 314 cmt. c (”one human
being, seeing a fellow man in dire peril, is under no legal obligation to aid
him”). This is the normal rule ”irrespective of the gravity of the danger to
which the other is subjected and the insignificance of the trouble, effort, or
expense of giving him aid or protection.” Id.

¶26            But the rule may be different when the actor has created the
risk of harm. ”In general, every person is under a duty to avoid creating
situations which pose an unreasonable risk of harm to others.” Nunez v.
Prof’l Transit Mgmt. of Tucson, Inc., 229 Ariz. 117, 121, ¶ 17 (2012) (quotation
omitted). When someone has done something ”and subsequently realizes
or should realize that it has created an unreasonable risk of causing physical
harm to another, he is under a duty to exercise reasonable care to prevent
the risk from taking effect.” Restatement Second § 321(1) (1965).



                                      13
                      ALCOMBRACK v. CICCARELLI
                          Johnsen, J., dissenting

¶27            In La Raia, our supreme court adopted this principle in
holding that an actor who has done something that renders another helpless
and in danger has a duty to prevent further harm to the other. In that case,
a landlord inadvertently used a pesticide that poisoned a tenant, then lied
about the chemical it had used, causing the tenant’s medical problems to go
untreated. The supreme court analyzed whether, having endangered the
tenant in the first place, the landlord could be sued for failing ”to minimize
the resulting harm after it discovered what had occurred.” 150 Ariz. at 122.
The court adopted Restatement (Second) of Torts § 322 (1965):

              If the actor knows or has reason to know that by
              his conduct, whether tortious or innocent, he
              has caused such bodily harm to another as to
              make him helpless and in danger of further
              harm, the actor is under a duty to exercise
              reasonable care to prevent such further harm.

The applicable principle, the La Raia court said, is ”where the defendant
created the danger the law imposes a duty to do what is reasonable to
extricate the plaintiff.” Id. (citing Maldonado v. Southern Pac. Transp. Co., 129
Ariz. 165 (App. 1981)) (applying Restatement Second § 322).

¶28           Restatement (Second) of Torts § 321 (1965) imposes the same
duty in a situation in which an actor has created a risk of physical harm to
another:

                     (1)     If the actor does an act, and
              subsequently realizes or should realize that it
              has created an unreasonable risk of causing
              physical harm to another, he is under a duty to
              exercise reasonable care to prevent the risk from
              taking effect.

                     (2) The rule stated in Subsection (1)
              applies even though at the time of the act the
              actor has no reason to believe that it will involve
              such a risk.

The duty imposed by this section applies regardless of ”whether the
original act is tortious or innocent.” Restatement Second § 321, cmt a.

¶29           Absent controlling Arizona law to the contrary, an Arizona
court generally follows the Restatement. See In re Krohn, 203 Ariz. 205, 210,
¶ 18 (2002). Neither the Ciccarellis nor, in my view, the Majority, offer a


                                       14
                     ALCOMBRACK v. CICCARELLI
                         Johnsen, J., dissenting

compelling reason why this court should not follow that general rule and
adopt Restatement Second § 321 in this case.12

¶30            In the first place, § 321 follows from the same principle that
underlies § 322: Both provide that, as La Raia put it, when an actor has
”created the danger” to another, the actor has a duty to act reasonably to
prevent harm. Section 322 applies when an actor has caused bodily harm
to another who has been rendered helpless; in that situation, the actor must
exercise care to prevent further harm. Section 321 applies when an actor
realizes that he has created an unreasonable risk of bodily harm; in that
situation, the actor must exercise care to prevent the risk from taking effect.

¶31           Moreover, both § 322 and § 321 are grounded in a principle
our supreme court announced more than 30 years ago: ”[E]very person is
under a duty to avoid creating situations which pose an unreasonable risk
of harm to others.” Ontiveros v. Borak, 136 Ariz. 500, 509 (1983). The
Majority notes that no Arizona case has adopted § 321 even though it was
promulgated more than 50 years ago. But given that no Arizona case has
rejected the provision over that same period, the most that can be said about
the omission is that it simply hasn’t come up before now.13

¶32           The Majority cites cases from elsewhere criticizing § 321 and
concludes that provision is impermissibly based on foreseeability. Supra ¶
20; see Gipson, 214 Ariz. at 144, ¶ 15. But the Connecticut case that is the

12 The Majority believes Alcombrack waived any argument in favor of
Restatement Second § 321 by failing to cite that provision in his opening or
reply briefs. Supra ¶ 15. Instead, Alcombrack urged this court to adopt
Restatement Third § 7, which the Majority believes to be a wide analytical
leap from existing Arizona common law. We sought and received
supplemental briefing about whether to adopt Restatement Second § 321, a
50-year-old provision that is considerably more limited in scope than
Restatement Third § 7. Under the circumstances, if we decline to adopt
Restatement Third § 7, I do not believe waiver precludes us from
considering whether to adopt Restatement Second § 321 instead.

13The Ciccarellis argue this court rejected Restatement Second § 321 in
Parish v. Truman, 124 Ariz. 228 (App. 1979). But we did not reject Section
321 in that case; we determined it was not relevant because there was no
evidence the defendant knew of the risk he allegedly had created to the
plaintiff. Id. at 230.




                                      15
                      ALCOMBRACK v. CICCARELLI
                          Johnsen, J., dissenting

centerpiece of that discussion, Murillo, merely held that public policy may
limit the scope of a duty otherwise imposed under § 321.14 Arizona courts
likewise have recognized that public policy may limit application of general
duty principles in some circumstances. Under these authorities, however,
public policy does not bar every application of the general duty rule. In
Guerra v. State, 237 Ariz. 183 (2015), for example, our supreme court noted
that although prior Arizona decisions had applied Restatement (Second) of
Torts § 323 (duty of reasonable care of one who renders certain services to
another), for reasons of public policy, the court would not apply that rule
to law enforcement personnel when they notify next-of-kin. 237 Ariz. at
187, ¶ 20 (”policy considerations may militate against finding a duty in
certain contexts”). See Espinoza v. Schulenburg, 212 Ariz. 215, 217, ¶¶ 9, 11
(2006) (expressly adopting ”rescue doctrine” as stated in Restatement
(Third) of Torts § 32 but holding that, for policy reasons, that duty rule did
not apply to public safety employees injured on the job). There is no public
policy asserted for why the duty rule stated in § 321 should not apply here.15

¶33           In the superior court and again on appeal, Alcombrack argues
Restatement Third § 7 imposed a duty on the Ciccarellis to take steps to
protect someone the lender might send to change the locks on the home.
As in Gipson and the other cases the Majority cites, however, this court need
not decide here whether to adopt Restatement Third § 7. As applied to the

14 At issue in Murillo was a claim by a woman who fainted in a hospital
emergency room after she saw medical personnel struggling to insert an IV
into her sister’s arm. 823 A.2d at 1204. It is no surprise that the court in that
case held the emergency medical technician and nurse that the bystander
sued had no duty to the plaintiff. The court held that, as a matter of public
policy, medical personnel should be encouraged to devote their full
attention to their patients, not to bystanders. Id. at 1206. In any event, and
for the record, other jurisdictions have adopted § 321. See Parnell v. Peak
Oilfield Service Co., 174 P.3d 757 (Alaska 2007); Courtney v. Courtney, 413
S.E.2d 418 (W. Va. 1991).

15See A.R.S. § 33-1331 (2015) (requiring landlord to give tenant notice of
foreclosure and allowing a tenant who does not receive such notice to sue
for damages). That statute was adopted in 2013 and so was not in effect at
the time relevant here, but it decisively rebuts any possible contention that
public policy precludes application of § 321 to a landlord whose loan
documents allow the lender to enter the property and change the locks
upon default.




                                       16
                     ALCOMBRACK v. CICCARELLI
                         Johnsen, J., dissenting

allegations of the complaint in this case, Restatement Second § 321 imposed
a duty on the Ciccarellis to act reasonably to prevent physical harm to
Alcombrack.

¶34            Alcombrack argues the duty at issue arose when the
Ciccarellis defaulted on their loan because their deed of trust expressly
authorized the lender upon default to send someone like him to change the
locks.16 The Ciccarellis, however, argue they cannot be responsible because
the trustee lacked the power under Arizona law to change the locks on the
home after their default.       Citing Restatement (Third) of Property
(Mortgages) § 4.1 (1997), the Ciccarellis contend the provision in the deed
of trust upon which Alcombrack relies is unenforceable under Arizona law.
The relevant Restatement provision states:

             (a) A mortgage creates only a security interest in
             real estate and confers no right to possession of
             that real estate on the mortgagee.

             (b) Any agreement, whether in a mortgage or
             not, that grants the mortgagee, as mortgagee,
             the right to possession in the future is
             unenforceable, except as provided in § 3.1(c).

Restatement (Third) of Property (Mortgages) § 4.1.17

¶35          Although, as stated, Arizona courts usually follow the
Restatement, we do not do so when it conflicts with a relevant statute or
case law. See In re Estate of Reynolds, 235 Ariz. 80, 83, ¶ 12 (App. 2014).
Under Arizona law, the parties to a mortgage may by contract agree to


16 The deed of trust provided that upon the borrower’s breach, “Lender may

do and pay for whatever is reasonable or appropriate to protect Lender’s
interest in the Property and rights under this Security Instrument, including
. . . securing and/or repairing the Property.” It further stated, “Securing
the Property includes, but is not limited to, entering the Property to make
repairs [and] change locks.” Whether it was “reasonable or appropriate”
for the lender to change the locks on the home under the circumstances
presented here is not before us.

17 Section 3.1(c) of Restatement (Third) of Property (Mortgages), which
restricts the authority of a mortgagee to limit the mortgagor’s power to
redeem, is not relevant here.



                                     17
                     ALCOMBRACK v. CICCARELLI
                         Johnsen, J., dissenting

allow the mortgagee a right of possession. See A.R.S. § 33-703 (2015) (”A
mortgage is a lien upon everything that would pass by a grant of the
property, but does not entitle the mortgagee to possession of the property
unless authorized by the express terms of the mortgage.”) (emphasis added).
Although § 33-703 on its face applies to mortgages rather than deeds of
trust, there is no apparent reason why the principle underlying the statute
likewise would not apply to deeds of trust. For that reason, I would decline
to follow Restatement (Third) of Property (Mortgages) § 4.1 and hold
instead that a trustee is not barred as a matter of law from entering the
property when the deed of trust permits it to do so.

¶36          For these reasons, I would reverse the summary judgment
and remand for a trial on Alcombrack’s negligence claim against the
Ciccarellis. At that point, the jury would be tasked to decide whether,
applying the appropriate principles of law, the Ciccarellis breached a duty
to Alcombrack and whether they should be liable for his injuries.




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