                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


              RICKSON LIM, a single man, Plaintiff/Appellant,

                                        v.

   THERESA E. GILLIES and JOHN DOE GILLIES, wife and husband;
       ARIZONA HOME TEAM, L.L.C., Defendants/Appellees.

                             No. 1 CA-CV 13-0478
                              FILED 10-07-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-009198
               The Honorable Randall H. Warner, Judge

                                  AFFIRMED


                                   COUNSEL

Robert F. Gehrke, Attorney at Law, Phoenix
By Robert F. Gehrke
Co-Counsel for Plaintiff/Appellant

Michael James Wicks, Attorney at Law, Phoenix
By Michael J. Wicks
Co-Counsel for Plaintiff/Appellant

Elardo, Bragg, Appel & Rossi, P.C., Phoenix
By Michael A. Rossi and Rachel A. DaPena
Counsel for Defendants/Appellees
                            LIM v. GILLIES, et al.
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Andrew W. Gould and Judge Samuel A. Thumma joined.


D O W N I E, Judge:

¶1           Rickson Lim appeals the superior court’s grant of summary
judgment to Theresa E. Gillies and Arizona Home Team, L.L.C. For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY1

¶2            This case arises out of an injury that Lim, a licensed real estate
agent, suffered at a property owned by Fannie Mae and listed for sale with
the Arizona Regional Multiple Listing Service, Inc. (“MLS”) by Fannie
Mae’s exclusive listing agent, Arizona Home Team. Gillies, an employee of
Arizona Home Team, was the designated broker and listing agent for the
property.

¶3              Lim and his clients entered the property through the back
door, which opened into the garage.2 Neither Gillies nor any other
representative of Arizona Home Team was present. Lim was unaware
there was a mechanic’s pit in the floor of the garage and, after taking a few
steps, fell into the pit. Prior to the visit, Lim’s business partner, Tram Chu,
viewed the MLS listing, which included photographs of the mechanic’s pit.
According to Ms. Chu, the photos appeared to show a rug on the garage
floor. The MLS listing did not state there was a mechanic’s pit on the
property.




1      On appeal from summary judgment, we view the facts in the light
most favorable to the non-moving party. Comerica Bank v. Mahmoodi, 224
Ariz. 289, 291, ¶ 13, 229 P.3d 1031, 1033 (App. 2010).
2      The parties dispute whether Lim retrieved the key from the MLS
lockbox available to licensed realtors or whether Gillies gave Lim’s partner
the code for a non-MLS lockbox used by the company Fannie Mae
employed to maintain the property. That factual dispute is not material to
our analysis.


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                           LIM v. GILLIES, et al.
                           Decision of the Court

¶4            Lim sued Gillies and Arizona Home Team (collectively,
“Seller’s Agents”) for negligence. After an opportunity for discovery,
Seller’s Agents moved for summary judgment, arguing they owed Lim no
duty of care because they neither owned nor possessed the property. The
superior court agreed and entered judgment for Seller’s Agents. Lim timely
appealed. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1).

                               DISCUSSION

¶5              We review the entry of summary judgment de novo, viewing
the evidence and reasonable inferences therefrom in the light most
favorable to the party opposing the motion. Andrews v. Blake, 205 Ariz. 236,
240, ¶ 12, 69 P.3d 7, 11 (2003). Summary judgment is appropriate
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); see
also Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008
(1990) (Summary judgment is proper “if the facts produced in support of
the claim . . . 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.”).

¶6              “To establish a claim for negligence, a plaintiff must prove
four elements: (1) a duty requiring the defendant to conform to a certain
standard of care; (2) a breach by the defendant of that standard; (3) a causal
connection between the defendant’s conduct and the resulting injury; and
(4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228,
230 (2007). Whether a duty exists is a threshold issue and a question of law
that we review de novo. Id. at ¶ 11, 150 P.3d at 230; Diaz v. Phx. Lubrication
Serv., Inc., 224 Ariz. 335, 338, ¶ 12, 230 P.3d 718, 721 (App. 2010).

¶7            A duty is 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, 214 Ariz. at 143,
¶ 10, 150 P.3d at 230. A duty “may arise from a special relationship based
on contract, family relations, or conduct undertaken by the defendant, or
may be based on categorical relationships recognized by the common law,
such as landowner-invitee.” Delci v. Gutierrez Trucking Co., 229 Ariz. 333,
336, ¶ 12, 275 P.3d 632, 635 (App. 2012). Public policy found in state
statutory law and the common law may also be used to determine the
existence of a duty. Gipson, 214 Ariz. at 146 n.4, ¶ 24, 150 P.3d at 233 n.4.




                                      3
                             LIM v. GILLIES, et al.
                             Decision of the Court

¶8           According to Lim, three bases exist for imposing a duty on
Seller’s Agents: (1) as possessors of the property; (2) as agents of the
property’s possessor; and (3) under a theory of general tort liability. We
address each assertion in turn.

I.     Seller’s Agents Did Not Possess the Property

¶9             Arizona recognizes a special relationship between an owner
or possessor of land and an invitee and imposes an affirmative duty on the
owner/possessor to make the premises safe for the invitee’s use. Markowitz
v. Ariz. Parks Bd., 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985), superseded on
other grounds by A.R.S. § 33-1551; Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142-
43, 639 P.2d 330, 332-33 (1982); Shannon v. Butler Homes, Inc., 102 Ariz. 312,
316-17, 428 P.2d 990, 994-95 (1967).3

       A possessor of land is:

       (a) a person who is in occupation of the land with intent to
       control it or

       (b) a person who has been in occupation of land with intent
       to control it, if no other person has subsequently occupied it
       with intent to control it, or

       (c) a person who is entitled to immediate occupation of the
       land, if no other person is in possession under Clauses (a) and
       (b).

Restatement (Second) of Torts (“Restatement”) § 328E; see also Tostado v. City
of Lake Havasu, 220 Ariz. 195, 201, ¶ 28, 204 P.3d 1044, 1050 (App. 2008);
Clarke v. Edging, 20 Ariz. App. 267, 272, 512 P.2d 30, 35 (1973), abrogated on
other grounds as recognized in Piccola ex rel. Piccola v. Woodall, 186 Ariz. 307,
921 P.2d 710 (App. 1996).

¶10          In seeking summary judgment, Seller’s Agents submitted
evidence that they did not own, control, occupy, maintain, or manage the
property and that their only connection to the property was as a listing

3      An invitee is one who enters premises held open to the public or for
a purpose related to the landowner’s business. Bellezzo v. State, 174 Ariz.
548, 550 n.3, 851 P.2d 847, 849 n.3 (App. 1992); Restatement (Second) of Torts
§ 332 (1965). It is undisputed that Lim was a business invitee.




                                        4
                            LIM v. GILLIES, et al.
                            Decision of the Court

agent making it available to prospective buyers. Lim did not controvert
this evidence but claimed the exclusive nature of the listing agreement with
Fannie Mae constituted a possessory interest because it allowed Seller’s
Agents to control the property by restricting access through the lockbox.4
The Restatement, however, requires occupation by the alleged possessor in
addition to the element of control, see Restatement § 328E, and there is no
evidence Seller’s Agents occupied the property at any time. Given the
undisputed evidence that Seller’s Agents did not own or occupy the
property, were not responsible for maintaining it, and had no right to
immediately possess it, Lim failed to raise a material question of fact about
whether Seller’s Agents possessed the property.

¶11            We are unpersuaded by cases Lim cites from other
jurisdictions, finding a material issue of fact about whether a real estate
agent “possess[ed]” a property listed for sale, as those cases are factually
and legally distinguishable. In Jarr v. Seeco Construction Co., 35 Wash. App.
324, 325 (1983), the defendant real estate agent was present and conducting
an open house when the plaintiff was injured. The agent admitted he was
“in complete charge of the open house and had the responsibility to control
prospective purchasers viewing the property,” and conceded the agent was
a possessor of land for purposes of premises liability. Id. at 329; see also
Coughlin v. Harland L. Weaver, Inc., 103 Cal. App. 2d 602, 606 (1951)
(evidence sufficient to establish that seller’s agent, who was showing
premises when plaintiff was injured, was a possessor for purposes of
premises liability). Moreover, the California Court of Appeal determined
in Hall v. Aurora Loan Services LLC, 215 Cal. App. 4th 1134 (2013), that a
seller’s agent owed a duty to a visitor to disclose a concealed dangerous
condition, relying, in part, on a California statute requiring all people to use
ordinary care to prevent injury to others. Id. at 1139. Arizona has no similar
statute.




4       Lim also asserted the Fannie Mae listing agreement created a duty
because it required Seller’s Agents to “take all appropriate precautions to
ensure the health and safety of [themselves], [their] employees and anyone
who, in any way, works for [them].” We reject Lim’s suggestion he worked
for Seller’s Agents because they stood to benefit from any sale arising from
his showing of the property to his clients.


                                       5
                            LIM v. GILLIES, et al.
                            Decision of the Court

II.    The Fact Seller’s Agents Were Agents of the Property’s Possessor
       Did Not Create a Duty

¶12          Lim next argues Seller’s Agents owed him a duty of care
because they were acting on behalf of the property’s possessor, Fannie Mae.
Restatement § 383 provides:

       One who does an act or carries on an activity upon land on
       behalf of the possessor is subject to the same liability, and
       enjoys the same freedom from liability, for physical harm
       caused thereby to others upon and outside of the land as
       though he were the possessor of the land.

¶13            We applied § 383 in Nguyen v. Nguyen, 155 Ariz. 290, 746 P.2d
31 (App. 1987), a case Lim relies on heavily. In Nguyen, the homeowner was
away when the plaintiff arrived at her residence, but the homeowner’s
sister, who was staying at the property, allowed the plaintiff into the home.
Id. at 291, 746 P.2d at 32. The plaintiff slipped on a freshly waxed floor,
injuring herself. Id. Citing Restatement § 383, we held that the sister owed
the plaintiff a duty of care because she was acting on behalf of the
homeowner and because she had created the risk by waxing the floor and
then failing to alert the plaintiff, even though she should have known the
plaintiff would not discover the peril. Id.

¶14            Unlike Nguyen, where the sister performed an activity on the
property that created the harm that injured the plaintiff, Seller’s Agents did
not create the hazard that injured Lim and were not present when he fell.
The facts of this case also distinguish it from those in which courts have
held that a seller’s agent showing a house is acting on behalf of the possessor
of the property and may be liable for injuries sustained by prospective
buyers. See, e.g., Jarr, 35 Wash. App. at 328; Smith v. Inman Realty Co., 846
S.W.2d 819, 823 (Tenn. App. 1992).

III.   Arizona Does Not Impose General Tort Liability

¶15           Finally, Lim urges us to adopt a more global theory of
liability, imposing a duty on all persons to avoid creating situations that
pose an unreasonable risk of harm to others. We have previously declined
to do so, recognizing that such a fundamental change in the common law is
more appropriately addressed to the Arizona Supreme Court. See Delci, 229
Ariz. at 337-38, ¶¶ 15-18, 275 P.3d at 636-37. We similarly decline Lim’s
request.




                                      6
                         LIM v. GILLIES, et al.
                         Decision of the Court

                            CONCLUSION

¶16         For the foregoing reasons, we affirm the grant of summary
judgment to Appellees. As the successful parties on appeal, Appellees are
awarded their taxable costs upon compliance with ARCAP 21.




                               :gsh




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