                            IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


               CAROL TIMMONS, A SINGLE WOMAN,
                      Plaintiff/Appellant,

                               v.

       ROSS DRESS FOR LESS, INC., A FOREIGN CORPORATION,
                      Defendant/Appellee.

                    No. 2 CA-CV 2013-0053
                     Filed March 21, 2014

         Appeal from the Superior Court in Pima County
                         No. C20124934
          The Honorable Charles V. Harrington, Judge

                REVERSED AND REMANDED


                          COUNSEL

Hallinan Law Firm, Tucson
By Joane Hallinan and Nick Nogami
Counsel for Plaintiff/Appellant

Holloway Odegard & Kelly, P.C., Phoenix
By Leslie Rakestraw
Counsel for Defendant/Appellee


                          OPINION

Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.
                        TIMMONS v. ROSS
                        Opinion of the Court

E C K E R S T R O M, Judge:

¶1          Appellant Carol Timmons appeals from the trial court’s
order granting summary judgment in favor of appellee Ross Dress
For Less, Inc. (Ross). For the following reasons, we reverse and
remand for further proceedings consistent with this opinion.

                Factual and Procedural Background

¶2           In reviewing a grant of summary judgment, we view
the facts in the light most favorable to the party against whom
judgment was entered. In re 1996 Nissan Sentra, 201 Ariz. 114, ¶ 2, 32
P.3d 39, 41 (App. 2001). In December 2011, Timmons tripped and
fell on one of two curbs or steps outside a Ross store. She filed a
complaint against Ross and the owner of the property, 1031
Solutions, LLC (Ross’s landlord), alleging negligence in their failure
to maintain the premises in a reasonably safe condition and to
provide a reasonably safe means of ingress and egress. Specifically,
Timmons alleged Ross failed to “use reasonable care to warn of or
remedy [an] unreasonably dangerous condition.”

¶3          Ross filed a motion for judgment on the pleadings,
asserting 1031 Solutions, and not Ross, owned the area where
Timmons fell.1 Because Timmons submitted a statement of facts and
evidence outside the pleadings, the parties agreed to treat Ross’s
motion as one for summary judgment. Timmons also filed a motion
to amend her complaint to include a claim of negligence per se
against Ross and 1031 Solutions.

¶4           After a hearing, the trial court granted Ross’s motion,
finding that Ross did not own the area where Timmons fell, had not
“appropriated the area for its own use,” and therefore had no duty
to Timmons. The court also denied Timmons’s motion to amend her
complaint as to Ross, stating that any such amendment would be
“futile based on the granting of the Motion for Summary Judgment.”


      1We  note that the lease agreement identifies the landlord as
“Scobar Adventures, LLC.” It is unclear from the record how 1031
Solutions came to own the property.

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                          TIMMONS v. ROSS
                          Opinion of the Court

The court entered a final judgment as to Timmons’s claims against
Ross pursuant to Rule 54(b), Ariz. R. Civ. P.

¶5          On appeal, Timmons claims the court erred in granting
summary judgment in favor of Ross, granting summary judgment
before considering her motion to amend, and denying her motion to
amend. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1)
and 12-2101(A)(1).

                   Motion for Summary Judgment

¶6           Timmons argues the trial court erred in concluding
Ross owed her no duty to maintain a step adjoining, and leading
exclusively to, the commercial premises leased by Ross. Specifically,
she challenges the trial court’s conclusion that Ross lacked sufficient
possession of, or control over, the location of her injury to justify the
imposition of such a duty.

¶7           We review a grant of summary judgment de novo, and
will affirm “only if there is no genuine issue as to any material fact
and the party seeking judgment is entitled to judgment as a matter
of law.” Williamson v. PVOrbit, Inc., 228 Ariz. 69, ¶ 11, 263 P.3d 77,
79 (App. 2011). The party opposing summary judgment need not
necessarily submit affidavits, but “must in some form present proof
by admissible evidence to establish a genuine dispute as to a
material fact.” State ex rel. Corbin v. Sabel, 138 Ariz. 253, 256, 674 P.2d
316, 319 (App. 1983).

¶8           “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, ¶ 10, 150 P.3d 228, 230 (2007),
quoting Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364,
366 (1985). A possessor of land has a duty to maintain its premises
in a condition that is reasonably safe for invitees. Ft. Lowell-NSS Ltd.
P’ship v. Kelly, 166 Ariz. 96, 101, 800 P.2d 962, 967 (1990). A
possessor of land is defined as “‘a person who is in occupation of the
land with intent to control it.’” Tostado v. City of Lake Havasu, 220
Ariz. 195, ¶ 28, 204 P.3d 1044, 1050 (App. 2008), quoting Restatement
(Second) of Torts § 328E(a) (1965).

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                         TIMMONS v. ROSS
                         Opinion of the Court

¶9           The parties presented the following facts relevant to
Ross’s possession and control of the location of Timmons’s injury.
While departing from Ross’s store, Timmons fell on one of two curbs
or steps that connected the parking lot and the elevated area in front
of the store. She maintains the curbs, as configured, constituted an
unreasonably dangerous condition and Ross therefore had a duty to
remediate the danger. Ross was the only tenant of the shopping
center, and therefore the step was used exclusively by persons
entering or departing from its store.

¶10           Ross was neither the owner nor the lessee of either the
parking lot or the curbs but held a non-exclusive easement across
both entitling its invitees to have access to the store. Ross’s lease
agreement with the landlord, 1031 Solutions, specified that 1031
Solutions agreed to maintain the easement area in a “first class” and
“safe” condition. Ross, however, agreed to pay for the maintenance
of, and, to some extent, insurance for, the easement area.2

¶11          In general, an easement is a non-possessory interest in
land. Restatement (Third) of Property (Servitudes) § 1.2(1) (2000);
see Mountain States Tel. & Tel. Co. v. Kelton, 79 Ariz. 126, 131, 285 P.2d
168, 171 (1955). In Clark v. New Magma Irrigation & Drainage District,
this court adopted the analysis of the California Court of Appeals,
which reasoned:

             The right of control that attends ownership
             of an easement has a narrower scope than
             the right of control that accompanies fee
             ownership of real property. Therefore, the
             corresponding duty to third parties in
             managing the property interest must also
             be narrower in scope and tied to the reason
             that the easement is granted.




      2The  lease agreement makes it clear that Ross must pay some
share of the cost of insurance for the common areas, but it is unclear
what that share is.

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                         TIMMONS v. ROSS
                         Opinion of the Court

208 Ariz. 246, ¶ 13, 92 P.3d 876, 879 (App. 2004), quoting Cody F. v.
Falletti, 112 Cal. Rptr. 2d 593, 603-04 (Ct. App. 2001). Accordingly,
we observed “an easement holder has a duty to act reasonably
under the circumstances in its use of the servient estate, but . . . the
duty does not extend beyond the scope of that use.” Id. ¶ 14.

¶12           Here, Ross acquired and used the easement for the
arrival and departure of its invitees to and from its retail premises.
Therefore, Ross had a duty to act reasonably in providing for the
safety of invitees to the extent they used the easement for the
purposes of arriving and departing. See id. Timmons maintains she
was injured departing from the Ross store after shopping there.
Because Timmons was then using the easement for the very purpose
that Ross held and used the easement, we conclude her injury
occurred within the scope of Ross’s duty to invitees.3 See Blackman v.
Fed. Realty Inv. Trust, 664 A.2d 139, 142 (Pa. Super. Ct. 1995) (finding
scope of potential duty to injured person depended on “the manner
in which the [defendant] exercises the prerogatives of that
easement”).

¶13          Ross has maintained, however, both in its briefing and
at oral argument, that because it had no control over the area where
the injury occurred, it could have no duty to Timmons. But even
assuming arguendo that the easement interest itself did not provide
Ross sufficient control to establish a duty, Ross had an express
contractual right to insist that 1031 Solutions maintain the easement
premises in a “first class” and ”safe” condition. Moreover, Ross
agreed to pay for the maintenance of the easement area, part of the
insurance, and any property taxes for it. Thus, to the extent
Timmons needed to demonstrate that Ross maintained any control
beyond that inherent in the easement interest, she has done so.




      3Although     Timmons has vigorously maintained that Ross’s
responsibilities under its leasehold agreement created enough
control to justify the imposition of a duty, and noted the presence of
the easement agreement in that context, neither party provided the
trial court with the Clark case, which we find dispositive here.

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                          TIMMONS v. ROSS
                          Opinion of the Court

¶14            Ross also contends our reasoning should follow this
court’s decision in Kiser v. A.J. Bayless Markets, Inc., 9 Ariz. App. 103,
449 P.2d 637 (1969). In that case we held that, when a lease provided
that the lessor was responsible for maintenance of the parking lot
where the plaintiff tripped, the lessee owed no duty to the injured
party. Id. at 105, 107, 449 P.2d at 639, 641. The court explained that
the lessor’s responsibility to maintain the parking lot “negated the
existence of any duty owing by defendant [lessee] to plaintiff with
reference to the condition of the parking lot.” Id. at 107, 449 P.2d at
641; see also Jackson v. Cartwright Sch. Dist., 125 Ariz. 98, 102, 607 P.2d
975, 979 (App. 1980).

¶15          Ross emphasizes correctly that its lease with 1031
Solutions similarly provided that the lessor was responsible for the
area where Timmons was injured.4 But in Kiser, the plaintiff did not
assert that the defendant owed her a duty of care as a result of the
defendant’s possession or control over the parking lot arising from
an easement. 9 Ariz. App. at 107, 449 P.2d at 641. As the court
emphasized, the plaintiff in Kiser did not challenge the lessee’s
assertion that, by the terms of the lease, the lessee lacked any
possession or control over the parking lot. Id. Thus, our reasoning
in Kiser did not address the question presented by Timmons in this
case: whether an easement holder owes a duty to an invitee when
the invitee uses the easement for the very purpose for which the
easement holder has secured it. And, were we to read Kiser as
broadly as Ross suggests, we would contravene the long-standing
principle that the duty of a possessor of land to its invitees is non-
delegable. See Ft. Lowell-NSS, 166 Ariz. at 103, 800 P.2d at 969; Simon




      4Section7.1.1 of the lease provided: “Landlord shall maintain
all Common Areas in first class condition, repair and cleanliness, as
is customary in maintenance practices for shopping centers similar
in type and location to that of the Shopping Center, including
sidewalk steam cleaning and shall keep the Common Areas free of
any impediments and open for easy and safe movement within the
Common Areas.”

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                        TIMMONS v. ROSS
                        Opinion of the Court

v. Safeway, Inc., 217 Ariz. 330, ¶ 20, 173 P.3d 1031, 1038-39 (App.
2007).5

¶16           For the foregoing reasons, the trial court erred in
concluding that, under the circumstances here, Ross owed no duty
to its invitees to maintain the easement premises in a reasonably safe
condition and therefore erred in granting Ross’s motion for
summary judgment.6

                         Motion to Amend

¶17          Timmons asserts the trial court erred in granting Ross’s
motion for summary judgment before considering her motion to
amend her complaint. The court denied Timmons’s motion on the
basis that such an amendment would be futile. We review a trial
court’s denial of a motion to amend for an abuse of discretion.


      5At oral argument, Ross also asserted it could have no duty
when, in its view, it “hasn’t independently done something wrong.”
But whether Ross acted negligently relates not to whether a duty
was owed, but to whether it breached the standard of care, a
question we do not resolve here. See Gipson, 214 Ariz. 141, ¶ 10, 150
P.3d at 230 (“The existence of a duty of care is a distinct issue from
whether the standard of care has been met in a particular case.”).
Furthermore, nothing in this opinion precludes the trial court from
finding 1031 Solutions was partly or entirely responsible for
Timmons’s injury.
      6Timmons    separately argued Ross owed her a duty to provide
safe ingress and egress to its retail premises. To the extent she bases
this argument on Ross’s control over the easement area, we have
already resolved that question in her favor above. To the extent an
argument could be made that Ross owed her such a duty regardless
of its level of control over the easement area, we need not address
that claim here. See Kiser, 9 Ariz. App. at 105, 107, 449 P.2d at 639,
641 (suggesting no duty would arise in absence of control). But see
Stephens v. Bashas’ Inc., 186 Ariz. 427, 430, 924 P.2d 117, 120 (App.
1996) (suggesting business may have duty to invitees for ingress and
egress extending beyond its own property).

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                         TIMMONS v. ROSS
                         Opinion of the Court

Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 231 Ariz.
517, ¶ 4, 297 P.3d 923, 925 (App. 2013). Motions to amend should be
granted unless the court finds specific cause, such as futility, to deny
the amendment. See Ariz. R. Civ. P. 15(a)(1) (“Leave to amend shall
be freely given when justice requires.”); MacCollum v. Perkinson, 185
Ariz. 179, 185, 913 P.2d 1097, 1103 (App. 1996). In determining
whether the court abused its discretion, “we presume that the facts
alleged in the complaint are true.” MacCollum, 185 Ariz. at 185, 913
P.2d at 1103.

¶18          Even if the admissible evidence clearly had established
that Ross had no duty to maintain the premises where Timmons fell
because it was not the possessor of the area at the time of her fall,
Timmons’s proposed amended complaint alleged Ross was
negligent in the construction of the area. Assuming the facts in the
complaint are true, Ross had control over the design and
construction of the area where Timmons fell, and a reasonable jury
therefore could conclude Ross had a duty not to be negligent in the
construction of the premises. See Wells Fargo Bank v. Ariz. Laborers,
Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201
Ariz. 474, ¶ 103, 38 P.3d 12, 37 (2002) (summary judgment not
appropriate where “‘reasonable jury could return a verdict for the
nonmoving party’”); quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); cf. Parks v. Atkinson, 19 Ariz. App. 111, 114, 505 P.2d
279, 282 (1973) (owner who retains control of construction may be
liable for negligent construction by independent contractor). The
court’s ruling that Ross had no duty regarding maintenance of the
premises did not resolve the question of whether Ross had a duty in
construction of the premises. We therefore conclude the court
abused its discretion in denying Timmons’s motion to amend.

                           Costs on Appeal

¶19           Ross has requested its “costs” on appeal under former
Rule 21(c)(1), Ariz. R. Civ. App. P. Ariz. Sup. Ct. Order R-10-0033
(Sept. 1, 2011). But Ross has neither prevailed nor specified the basis
for such an award. See Sklar v. Town of Fountain Hills, 220 Ariz. 449,
¶ 23, 207 P.3d 702, 708 (App. 2008) (“Rule 21(c) . . . does not provide
a substantive basis for costs and attorneys’ fees.”). We therefore
deny the request.
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                       TIMMONS v. ROSS
                       Opinion of the Court

                           Disposition

¶20          For the foregoing reasons, we reverse the trial court’s
grant of summary judgment as to Timmons’s claim for negligent
maintenance of the premises and its denial of her motion to amend
the complaint against Ross to include negligence per se. We remand
for further proceedings consistent with this opinion.




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