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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                          MARY MACKAY, Appellant,

                                         v.

           AUTO-OWNERS INSURANCE COMPANY, Appellee.

                              No. 1 CA-CV 17-0377
                                  FILED 7-26-18


            Appeal from the Superior Court in Maricopa County
                 Nos. CV2014-054870 and CV2015-094548
                              (Consolidated)
             The Honorable Aimee L. Anderson, Judge Retired

                       REVERSED AND REMANDED


                                    COUNSEL

Jeffrey L. Victor PC, Scottsdale
By Jeffrey L. Victor

Law Office of Scott E. Boehm PC, Phoenix
By Scott E. Boehm
Co-Counsel for Appellant

Elardo Bragg & Rossi PC, Phoenix
By Venessa J. Bragg, Tico A. Glavas
Counsel for Appellee
                    MACKAY v. AUTO-OWNERS INS
                        Decision of the Court


                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Randall M. Howe and Judge Jennifer M. Perkins joined.


S W A N N, Judge:

¶1           This is an appeal from an order granting summary judgment
for the defendant on a negligence claim in a premises liability case. We
agree with the plaintiff that the defendant had a duty to maintain safe
premises and that the plaintiff presented sufficient evidence to create a
question of fact as to whether the defendant breached that duty.
Accordingly, and for reasons that follow, we reverse and remand for
further proceedings.

                FACTS AND PROCEDURAL HISTORY

¶2            Visiting her mother’s home in Mesa, Mary Mackay sat on a
swinging chair that her mother had hung from the patio ceiling a year
earlier. After sitting on the chair, the patio roof collapsed on her, and she
sustained injuries as a result. At the time the roof collapsed, Mackay’s
mother was leasing the home from Andrea Kash, who insured the premises
through Auto-Owners Insurance Company (“AOI”).

¶3           After the collapse, the City of Mesa inspected the premises
and deemed it “unsafe” and “structurally unsound” under the Mesa City
Code. The City sent Kash a “Notice of Unsafe Structure,” informing her of
the observed code violations, and requiring her to make specific repairs.

¶4            Mackay sued Kash for negligence per se based on Kash’s
alleged code violations and for basic negligence. Kash could not be located,
so Mackay served her by publication, and, one month later, AOI intervened.

¶5            Mackay moved for summary judgment on her negligence per
se claim, pointing to Kash’s alleged failure to comply with the Mesa City
Code and A.R.S. § 33-1324 (a landlord’s duty to maintain fit premises). In
the same month, AOI moved for summary judgment as to Mackay’s
negligence claim, contending that Kash had no notice of the dangerous
condition and therefore had no duty to Mackay. The superior court granted
AOI’s motion and denied Mackay’s motion, ruling that the negligence per
se claim failed as a matter of law and that Mackay had failed to establish
that Kash had notice of the dangerous condition. The court then awarded


                                     2
                     MACKAY v. AUTO-OWNERS INS
                         Decision of the Court

$15,969.06 to AOI for its costs and witness fees under Ariz. R. Civ. P.
(“Rule”) 68. Mackay appeals.

                                DISCUSSION

¶6            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.” Rule 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).

I.     KASH OWED MACKAY A DUTY OF REASONABLE CARE.

¶7             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, (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 (citing Markowitz v. Ariz.
Parks Bd., 146 Ariz. 352, 354 (1985)).

¶8             Citing Gipson and Diaz v. Phoenix Lubrication Service Inc., 224
Ariz. 335, 338 (App. 2010), AOI contends, as it did in its summary judgment
motion, that notice of a hazardous condition is a threshold issue such that
there is no duty if there is no notice. The superior court adopted AOI’s
interpretation of Gipson, and, finding that Mackay had failed to establish
notice, granted AOI’s summary judgment motion. The court explained:

              Before this Court can address whether Defendant
       Andrea Kash owed a duty to Plaintiff, the Court must first
       find notice. A landowner must have notice of the condition
       for the plaintiff to even get to a jury. See Gipson v. Kasey, 214
       Ariz. 141, 143, 150 P.3d 228, 230 (2007). Notice is the threshold
       element of Plaintiff’s premises liability lawsuit. Plaintiff must
       establish that Defendant Andrea Kash had notice of the actual
       unreasonably dangerous condition itself.

¶9           Mackay argues that AOI and the superior court misinterpret
the case law. We agree. Markowitz, Gipson, and Diaz all held that the


                                       3
                    MACKAY v. AUTO-OWNERS INS
                        Decision of the Court

existence of a duty, not notice, is the threshold issue in a negligence action.
Gipson, 214 Ariz. at 143, ¶ 11; Markowitz, 146 Ariz. at 354; Diaz, 224 Ariz. at
338. Indeed, Markowitz warned against just this problem (considering
particular facts of the incident in determining whether there is a duty):
“[t]hese details of conduct bear upon the issue of whether the defendant
who does have a duty has breached the applicable standard of care and not
whether such a standard of care exists in the first instance.” 146 Ariz. at
355. Gipson reaffirmed this analytical framework. 214 Ariz. at 144, ¶ 15
(holding that foreseeability is not “a factor to be considered by courts when
making determinations of duty”); see also Quiroz v. ALCOA Inc., 243 Ariz.
560, 564–65, ¶¶ 10, 12 (2018) (observing that, even though Markowitz
“limited foreseeability to determining the issue of breach,” it was “Gipson
[that] enacted a sea change in Arizona tort law by removing foreseeability
from our duty framework”). The court here therefore erred by applying
foreseeability—or “notice”—in its duty analysis.

¶10            We find that Kash did owe a duty to Mackay. Mackay was
indisputably an invitee at the premises, and Arizona law imposes a duty on
a possessor of land, like Kash, to use reasonable care to make the premises
safe for invitees. See McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 252,
¶ 22 (App. 2013) (citing Markowitz, 146 Ariz. at 355); see also Piccola v.
Woodall, 186 Ariz. 307, 310 (App. 1996).

¶11            Mackay further contends that even if we generously interpret
the superior court’s order as finding that Kash owed a duty but that Mackay
had not provided sufficient evidence to create a genuine dispute of material
fact, the court still erred. The record supports Mackay’s contention. For
example, two previous tenants testified that a tile had fallen from the patio
roof. In the first instance, the tenant replaced the tile. In the second
instance, the tenant informed Kash’s property manager of the fallen tile and
the manager had it fixed. The same previous tenant also testified that she
informed the manager that carpenter bees were possibly burrowing into a
post supporting the patio roof. Additionally, the property manager agreed
that based on the City of Mesa’s inspection and the simple fact that it
collapsed, the patio roof was “not fit in the manner it was maintained.”
Viewing these facts in the light most favorable to Mackay, there is an issue
of material fact regarding notice and reasonableness, and those issues are
reserved for the jury. See St. George, 241 Ariz. at 165, ¶ 11.

¶12            Mackay also contends that Kash accepted a duty based on
their lease agreement, which provides, in part, that the “Landlord agrees to
maintain the Premises as provided in A.R.S. § 33-1324.” She further



                                      4
                     MACKAY v. AUTO-OWNERS INS
                         Decision of the Court

contends that violation of the lease provision gives rise to strict liability. We
disagree with both propositions.

¶13            First, “a contract to keep the premises in [] safe condition
subjects the lessor to liability only if he does not exercise reasonable care
after he has had notice of the need of repairs.” Piccola, 186 Ariz. at 310 n.4
(quoting Restatement (Second) of Torts § 357 cmt. d (1965)). In Piccola, we
declined to extend a contractual duty to an analogous lease provision when
the lessee, similar to Mackay here, never notified the landlord of any
problem. See id. Second, “[s]trict liability is a public policy device to spread
the risk from one to whom a defective product may be a catastrophe . . . to
those who marketed the product, profit from its sale, and have the know-
how to remove its defects before placing it in the chain of distribution.”
Antone v. Greater Ariz. Auto Auction, 214 Ariz. 550, 552, ¶ 10 (App. 2007)
(emphasis added) (citing Tucson Indus., Inc. v. Schwartz, 108 Ariz. 464, 467–
68 (1972)). In contrast, a violation of a residential lease provision does not
give rise to strict liability. See id. at 552–53, ¶¶ 11–12.

¶14            We hold that Kash, as landlord, owed Mackay, as invitee, a
common law duty of reasonable care to make the premises safe for invitees.
See McMurtry, 231 Ariz. at 252, ¶ 22; Markowitz, 146 Ariz. at 355; Piccola, 186
Ariz. at 310. Accordingly, the superior court erred by ruling that Kash did
not owe Mackay such a duty. Furthermore, we hold that Mackay presented
sufficient evidence to create a genuine dispute of material fact as to whether
Kash breached her duty, therefore creating a fact issue for the jury. See
Gipson, 214 Ariz. at 144, ¶ 16. We reverse the entry of summary judgment
and remand this matter to the superior court for further proceedings.

II.    WE WILL NOT ADDRESS THE SUPERIOR COURT’S DENIAL OF
       MACKAY’S MOTION FOR SUMMARY JUDGMENT.

¶15           Generally, a party may not appeal an order denying summary
judgment. Fleitz v. Van Westrienen, 114 Ariz. 246, 248 (App. 1977). The
parties here agreed at oral argument that the superior court’s denial of
Mackay’s motion for summary judgment on her negligence per se claim is
not an appealable judgment. Because the issue can still be litigated in
superior court, it would be premature to address it here. We therefore
decline to do so.




                                       5
                   MACKAY v. AUTO-OWNERS INS
                       Decision of the Court

                            CONCLUSION

¶16           For the foregoing reasons, we reverse the grant of summary
judgment in favor of AOI and remand for further proceedings. We further
vacate the judgment awarding Rule 68 sanctions against Mackay.




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

                                      6
