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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


          LARRY E. FRANCIS, a single man, Plaintiff/Appellant,

                                        v.

          DONALD W. PURK, a single man, Defendant/Appellee.

                             No. 1 CA-CV 16-0006
                               FILED 12-20-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-010016
                 The Honorable James T. Blomo, Judge

                      VACATED AND REMANDED


                                   COUNSEL

Schmitt Schneck Smyth Casey & Even, P.C., Phoenix
By Timothy J. Casey
Counsel for Plaintiff/Appellant

Law Office of Denise L. Amanatidis, Phoenix
By Michael E. Palumbo
Counsel for Defendant/Appellee
                            FRANCIS v. PURK
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Maurice Portley1 joined.


W I N T H R O P, Judge:

¶1             Plaintiff/appellant Larry E. Francis appeals the superior
court’s summary judgment in favor of defendant/appellee Donald W.
Purk. Because Purk owed Francis a duty as a matter of law, and questions
of fact exist regarding whether Purk breached the duty of care he owed
Francis and whether Francis was contributorily negligent and/or assumed
the risk, we vacate the judgment in favor of Purk and remand for further
proceedings.

                FACTS AND PROCEDURAL HISTORY2

¶2            Purk owned a residential property (“the home”) in Phoenix.
Purk had hired Francis to paint and work on other projects at the home, and
on April 22, 2014, Francis prepared to paint an eave—the lower portion of
the roof that overhangs the exterior wall. Francis laid a small plywood
board on top of part of a horizontal trellis3 attached to the home next to and
below the eave, climbed onto the board, and was injured when the
ostensible supporting portion of the trellis collapsed under his weight.

¶3           Francis filed a complaint against Purk, alleging negligence -
premises liability. The parties filed cross-motions for summary judgment,
with Purk arguing in part that he did not know, have reason to know, or


1      The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

2     In reviewing summary judgment, we view the evidence in the light
most favorable to the appellant, Francis. See Nat’l Bank of Ariz. v. Thruston,
218 Ariz. 112, 116, ¶ 17, 180 P.3d 977, 981 (App. 2008).

3      The trellis consisted of lightweight, hollow metal beams used as a
patio covering or solarium to provide light shade.



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                            FRANCIS v. PURK
                           Decision of the Court

create the condition of the trellis; the condition of the trellis did not
constitute an unreasonably dangerous condition or pose an unreasonable
risk of harm, and to the extent it did, he had reason to expect Francis would
discover the condition or realize its danger; and, ultimately, that he (Purk)
owed no duty to Francis.4 After further briefing by the parties, the superior
court held oral argument on the motions.5

¶4           After taking the matter under advisement, the superior court
granted Purk’s motion for summary judgment and denied Francis’s
motion, reasoning as follows:

             Plaintiff was able to view the fake hollow metal beams
      and was concerned enough that he took a number of steps to
      ensure that the fake beams were sufficient to hold his weight.
      Plaintiff was a painter with 30 to 35 years’ experience. The
      Court finds that Defendant had no duty to Plaintiff regarding
      the structural integrity of the hollow metal fake beams.

¶5           We have jurisdiction over Francis’s appeal of the superior
court’s judgment. See Ariz. Rev. Stat. § 12-2101(A)(1) (2016).

                                ANALYSIS

¶6           Francis argues the superior court erred by granting summary
judgment in favor of Purk because, as a matter of law, Purk owed Francis a
duty of reasonable care, and genuine issues of material fact otherwise
preclude judgment as a matter of law.

¶7             The superior court shall grant summary judgment when
“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, 802 P.2d 1000, 1008 (1990). If the evidence would allow
a jury to resolve a material issue in favor of either party, summary judgment

4     Because we vacate the judgment on other grounds, we need not and
do not decide Francis’s argument that Purk’s “no duty” argument was
untimely.

5   During oral argument, Francis conceded that his motion for
summary judgment should be denied.


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                              FRANCIS v. PURK
                             Decision of the Court

is improper. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012,
1016 (App. 1990).

¶8            To establish negligence, a plaintiff must show (1) a duty
requiring the defendant to conform to a certain standard of care, (2) a breach
of that standard that (3) causes injury, and (4) actual damages. Gipson v.
Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). “The 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, 150 P.3d at 232 (citing
Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985); 1
Dan B. Dobbs, The Law of Torts § 226, at 577 (2001)).6

¶9            Arizona law imposes a duty on a possessor of land to use
reasonable care to make the premises safe for invitees. McMurtry v.
Weatherford Hotel, Inc., 231 Ariz. 244, 252, ¶ 22, 293 P.3d 520, 528 (App. 2013)
(citing Markowitz, 146 Ariz. at 355, 706 P.2d at 367); see also Piccola v. Woodall,
186 Ariz. 307, 310, 921 P.2d 710, 713 (App. 1996) (holding that a landlord
has a duty to exercise reasonable care for the safety of tenants and others).
“The standard of reasonable care generally includes an obligation to
discover and correct or warn of unreasonably dangerous conditions that the
possessor of the premises should reasonably foresee might endanger an
invitee.”7 McMurtry, 231 Ariz. at 252, ¶ 23, 293 P.3d at 528.

¶10          In this case, as a handyman and painter hired by Purk to work
on Purk’s home, Francis was an invitee; accordingly, Purk owed Francis a
duty to use reasonable care to make the premises safe for Francis. The
superior court therefore erred in finding Purk owed no duty to Francis as a
matter of law.

¶11           Purk suggests that the trellis was not unreasonably dangerous
because there is no evidence that it would have collapsed if Francis had not
climbed on it. That is a question for the jury, however, which could find
that Purk violated the standard of care if it determines that he should have
reasonably foreseen that an invitee, including Francis, would climb on the
structure. See McMurtry, 231 Ariz. at 252-53, ¶ 23, 293 P.3d at 528-29. “A


6     Although whether a duty exists is a matter of law, the other
elements, including breach and causation, are factual matters generally
decided by the jury. Gipson, 214 Ariz. at 143, ¶ 9, 150 P.3d at 230 (citing
Markowitz, 146 Ariz. at 356, 358, 706 P.2d at 368, 370).

7       This statement and our decision should not be construed as adopting
the strict standard of care advocated by Francis.


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                            Decision of the Court

reasonably foreseeable event is one that might ‘reasonably be expected to
occur now and then, and would be recognized as not highly unlikely if it
did suggest itself to the actor’s mind.’” Id. at 253, ¶ 23, 293 P.3d at 529
(citation omitted). If reasonable people could differ about whether a danger
is foreseeable, the jury must resolve the issue. Id. (citing Markowitz, 146
Ariz. at 357-58, 706 P.2d at 369-70).

¶12            Moreover, to the extent the superior court’s ruling may be
construed as relying on contributory negligence or assumption of the risk
to obviate any duty owed to Francis, such ruling invaded the province of
the jury. Pursuant to Article 18, § 5, of the Arizona Constitution, “[t]he
defense of contributory negligence or of assumption of risk shall, in all cases
whatsoever, be a question of fact and shall, at all times, be left to the jury.”
Accord Gunnell v. Ariz. Pub. Serv. Co., 202 Ariz. 388, 394, ¶ 23, 46 P.3d 399,
405 (2002) (“[I]n a negligence case, the jury is the sole arbiter of fact and law
as to the defenses of contributory and comparative negligence.” (citations
omitted)). By deciding as a matter of law that Purk owed Francis no duty,
ostensibly because Francis had fully assumed the risk, the court’s ruling ran
afoul of Article 18, § 5, of the Arizona Constitution.8




8      Of course, our decision would not prevent a jury from finding
Francis one hundred percent at fault under comparative fault or
assumption of the risk principles. See Franklin v. Clemett, 240 Ariz. 515, 521,
¶ 10, 382 P.3d 802, 808 (App. 2016) (“[J]ury instructions that are ‘permissive
and leave the plaintiff’s recovery to the discretion of the jury if it finds that
the plaintiff was negligent or assumed the risk’ also pass muster under
Article 18, § 5.” (quoting Salt River Project Agric. Improvement & Power Dist.
v. Westinghouse Elec. Corp., 176 Ariz. 383, 386, 861 P.2d 668, 671 (App. 1993)
(quoting with approval permissive instructions, such as “[p]laintiff may not
be entitled to recover and your verdict may be for the defendant,” and
“[y]our verdict may, but need not be, in favor of Defendants”))).


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                          FRANCIS v. PURK
                         Decision of the Court

                            CONCLUSION

¶13          For the foregoing reasons, we vacate the judgment and
remand for further proceedings consistent with this decision. We award
taxable costs to Francis upon compliance with Arizona Rule of Civil
Appellate Procedure 21.




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




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