                     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        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


  ELIZABETH D. MARTIN and WALTER MARTIN, a married couple,
                    Plaintiffs/Appellants,

                                        v.

        ROYAL SIGN COMPANY, INC., an Arizona corporation,
                      Defendant/Appellee.

                             No. 1 CA-CV 14-0743
                               FILED 5-10-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2011-080284
              The Honorable David M. Talamante, Judge

                                  AFFIRMED


                                   COUNSEL

James F. Brook and Associates, Phoenix
By James F. Brook
Counsel for Plaintiffs/Appellants

Law Offices of Joseph A. Kula, Scottsdale
By William C. Knoche
Counsel for Defendant/Appellee
                        MARTIN v. ROYAL SIGN
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.


T H U M M A, Judge:

¶1           Plaintiffs Elizabeth and Walter Martin appeal from the grant
of summary judgment dismissing their negligence claims against defendant
Royal Sign Company, Inc. Because the Martins have shown no error, the
judgment is affirmed.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In May 2010, Elizabeth Martin was hit in the head and
knocked unconscious by what she alleges was part of a commercial sign.
Washington Federal Bank owned the sign, which was designed,
manufactured and installed by Royal Sign. At Washington Federal’s
direction, Royal Sign removed and destroyed the sign a few days after the
incident.

¶3             In December 2011, the Martins filed this action against
Washington Federal and Royal Sign alleging their negligence caused Ms.
Martin’s injuries. Washington Federal successfully obtained summary
judgment and is not a party to this appeal. Royal Sign moved for summary
judgment, arguing the Martins did not know whether the bank’s sign hit
Ms. Martin, and even if it did, the Martin’s expert acknowledged that he
could not determine the cause of the sign’s failure. The Martins argued
“multiple genuine issues of contested and uncontested material facts and
the inferences therefrom,” as well as Royal Sign’s destruction of the sign
after the accident, precluded summary judgment for Royal Sign “under the
principles of negligence, constructive notice, negligence per se and res ipsa
loquitur.”

¶4            After full briefing and oral argument, the superior court
found sufficient evidence for the jury to reasonably infer that Ms. Martin


1On appeal from the grant of summary judgment, this court “view[s] the
evidence and reasonable inferences in the light most favorable to the party
opposing the motion.” Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003).


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                         MARTIN v. ROYAL SIGN
                          Decision of the Court

“was hit and injured by a piece of the falling sign.” Turning to causation,
the court observed the Martins’

              expert testified that he did not know what was
              wrong with the design, manufacture,
              maintenance or installation of the sign in
              question. The testimony regarding wind speeds
              is speculative at best and amounts to an
              unsupported leap in logic relating to allegations
              of negligence for the installation of the sign in
              violation of permit requirements and zoning
              ordinances. None of that establishes the
              necessary causation to support [the Martins’]
              claim.

The Martins sought to respond to these evidentiary gaps by reliance on “res
ipsa loquitur and spoliation.” The court found that res ipsa loquitur did not
apply “because the sign was not under Royal Sign[’s] . . . exclusive control
and both parties appear to acknowledge the accident could have occurred
even without the negligence of” Royal Sign. Finding the Martins’ spoliation
argument required a showing that Royal Sign intentionally destroyed the
sign “with the goal of disrupting or defeating a potential lawsuit,” the court
found “no facts, circumstantial or otherwise, from which a jury could
reasonably infer that [Royal Sign] engaged in ‘spoliation’ as argued by the”
Martins. Accordingly, the court granted Royal Sign’s motion for summary
judgment.

¶5            After unsuccessfully seeking reconsideration, the Martins
filed a timely notice of appeal from the judgment dismissing their claims.
This court has jurisdiction over the appeal pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A)(1) and -2101(A)(1) (2016).2

                               DISCUSSION

¶6            Summary judgment is appropriate “if the moving party
shows that 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). This court reviews the grant of summary judgment de novo. Andrews
v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003). Summary judgment is not


2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


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                          MARTIN v. ROYAL SIGN
                           Decision of the Court

appropriate “if reasonable inferences concerning material facts could be
resolved in favor of either party.” Souza v. Fred Carries Contracts, Inc., 191
Ariz. 247, 252 (App. 1997) (citation omitted).

¶7             The parties’ briefs on appeal do not necessarily track the
superior court’s summary judgment ruling. In addition, the briefs on appeal
take differing approaches to what legal issues properly should be
addressed by this court. Accordingly, the court addresses the parties’
arguments focusing on the Martins’ (1) negligence claim (excluding res ipsa
loquitur); (2) res ipsa loquitur theory; and (3) spoliation.

I.     The Martins’ Negligence Claim (Excluding Res Ipsa Loquitur).

¶8            In opposing Royal Sign’s motion for summary judgment, the
Martins were required to provide factual support for the elements of their
negligence claim: duty, breach, cause-in-fact, legal (or proximate) cause and
resulting damages. Boisson v. Ariz. Bd. of Regents, 236 Ariz. 619, 622 ¶ 5 (App.
2015) (citing cases).3 The superior court found insufficient evidence that
Royal Sign’s breach of any relevant duty caused the injuries to Ms. Martin.

¶9             The Martins allege that Royal Sign negligently designed,
manufactured, installed and repaired the sign and had notice of its
inadequate condition based on “the sign’s collision history and prior wind
and object damage, performance of repairs and replacements of the sign.”
The Martins offered evidence that the sign had been hit by vehicles three
different times since 1999 and blew apart in 2005. Royal Sign last replaced
the sign in 2008 after it was damaged by a truck. The Martins also submitted
evidence of wind gusts on the day of the accident, based on weather station
observations miles away from the accident.

¶10          The report from the Martins’ expert engineer Anthony Voyles
opined that the sign may have failed because of substandard design and
repair and Royal Sign’s failure to obtain a permit or inspection for the

3 The Martins also alleged negligence per se based on Royal Sign’s
purported violation of Maricopa County Zoning Ordinances and A.R.S. §
11-321. See Alaface v. Nat’l Inv. Co., 181 Ariz. 586, 598 (App. 1994) (holding
violation of statute enacted to protect public safety constitutes negligence
per se). Although sufficient to establish duty and breach where applicable,
under negligence per se, the Martins still must show Royal Sign’s actions
caused Ms. Martin’s injuries. Id.; see also Hebert v. Club 37 Bar, 145 Ariz. 351,
353 (App. 1984).




                                       4
                         MARTIN v. ROYAL SIGN
                          Decision of the Court

replacement sign. The Martins also point to the opinion of Washington
Federal’s expert Douglas Ward that if the face of the sign was dislodged as
“a result of the wind event, it was probably cut too small to be fully
captured within the upper cabinet.” The Martins further point to Royal
Sign’s expert engineer Todd Springer’s conclusion that “[t]he most
probable explanation for the subject failure is that the [sign] face was
compromised by other objects prior to or commensurate with the subject
incident.” The Martins contend these expert opinions created a question of
material fact precluding summary judgment because they “‘need only
present probable facts from which the causal relationship reasonably may
be inferred.’” Souza, 191 Ariz. at 253 (citation omitted).

¶11            No evidence showed that the sign was damaged at the time
of the injury or how it was improperly manufactured, installed or repaired.
The experts offered varying opinions as to possible sign failure causes, but
the superior court properly concluded that those opinions were
“speculative and not sufficiently supported by competent evidence.”

¶12           The Martins argue this case is similar to Souza, which found
sufficient evidence that the defendant’s defective car repairs caused an
accident, even where the car had been destroyed before it could be
examined by the expert. 191 Ariz. at 249. Souza held that an expert is usually
permitted to render an opinion as to how or why an accident occurred so
long as that opinion is not based on “sheer speculation, unsupported by any
pertinent facts.” Id. at 254. The expert opinion in Souza was based on the
description of the accident and deposition testimony of two defense
witnesses who admitted the car was repaired with a defective part. Id. at
252-53. Here, by contrast, no evidence showed how the accident occurred
or that the sign was defectively repaired. Accordingly, unlike Souza, the
expert testimony upon which the Martins relied was based on speculation.

¶13           Royal Sign filed a properly-supported motion for summary
judgment arguing that the Martins’ claim failed as a matter of law. This
required the Martins, “by affidavits or as otherwise provided in . . . [Ariz.
R. Civ. P. 56 to] set forth specific facts showing a genuine issue for trial.”
Ariz. R. Civ. P. 56(e)(4). Because the Martins did not do so with regard to
the cause of the sign’s failure, the court did not err in granting Royal Sign’s
motion for summary judgment on their negligence claim (excluding res
ipsa loquitur).




                                      5
                         MARTIN v. ROYAL SIGN
                          Decision of the Court

II.    The Martins’ Res Ipsa Loquitur Theory.

¶14             “Res ipsa loquitur is a theory of circumstantial evidence
under which the jury may reasonably find negligence and causation from
the fact[s] of the accident and the defendant’s relation to the accident.” Cox
v. May Dep’t Store Co., 183 Ariz. 361, 363-64 (App. 1995) (citations omitted).
“A plaintiff who establishes the elements of res ipsa loquitur can withstand
a motion for summary judgment [even] without direct proof of negligence.”
Id. at 364. Accordingly, the discussion of the Martins’ failure to factually
support their negligence claim discussed above is not dispositive of their
res ipsa loquitur theory.

¶15           Although stated differently, the necessary elements for res
ipsa loquitur under Arizona law are:

              (1) the accident must be of a kind which
              ordinarily does not occur in the absence of some
              one’s negligence;
              (2) it must be caused by an agency or
              instrumentality within the exclusive control of
              defendant;
              (3) it must not have been due to any voluntary
              action on the part of the plaintiff; [and]
              (4) plaintiff must not be in a position to show the
              particular circumstances which caused the
              offending agency or instrumentality to operate
              to his injury.

Jackson v. H.H. Robertson Co., Inc., 118 Ariz. 29, 31-32 (1978) (quoting Capps
v. American Airlines, Inc., 81 Ariz. 232, 234 (1956)). The superior court found
the doctrine did not apply “because the sign was not under Royal Sign[’s]
exclusive control and both parties appear to acknowledge that the accident
could have occurred even without the negligence of” Royal Sign. Thus, the
issue is whether the Martins presented a res ipsa jury question, recognizing
the applicability of the doctrine turns on the unique facts and circumstances
of each case. See Capps v. American Airlines, Inc., 81 Ariz. at 234 (“No general
rule can be laid down as to the applicability of res ipsa loquitur. Its
application depends on the peculiar facts and circumstances of each
individual case.”).




                                       6
                         MARTIN v. ROYAL SIGN
                          Decision of the Court

¶16           The Martins claim Royal Sign had exclusive control over the
design and installation of the sign in February 2008.4 There is, however, no
evidence indicating Royal Sign had or shared exclusive control at the time
of the accident in May 2010 or at any time in the more than two years from
February 2008 until the accident.

¶17            It is true, as the Martins suggest, that “the significant time of
exclusive control is the time at which the alleged negligence resulting in the
injury occurred, not the time of the accident.” Jackson, 118 Ariz. at 32. But
the Martins provide no authority for the proposition that res ipsa loquitur
properly may be used to impose liability on a defendant who allegedly had
exclusive control of an instrumentality for a brief period of time years
before an accident. And the authority cited by the Martins negates such a
suggestion. See Cox, 183 Ariz. at 362 (holding res ipsa loquitur was not
precluded, as a matter of law, as to entity with ongoing obligation to
maintain escalator that had inspected escalator approximately two weeks
before and two weeks after accident); Sanchez v. Tucson Orthopaedic Inst.,
P.C., 220 Ariz. 37, 41 ¶ 15 (App. 2008) (finding res ipsa loquitur inapplicable
when plaintiffs claimed that either one defendant or another “controlled the
instrumentality causing injury, and they provided no evidence that either
defendant probably controlled it”); accord Jackson, 118 Ariz. at 32-33 (noting,
in jobsite injury case, “[e]mployees of both defendants had control of the
injurious instrumentality at times close enough to the accident to permit the
inference that the negligence of one or both defendants caused the harm,”
even though “the employees of one or both defendants may have been at
lunch at the time of the accident”).5


4 Although on appeal the Martins attempt to expand the claim to assert
subsequent maintenance of the sign, because no such argument was
presented to the superior court, it was waived. See Cont’l Lighting &
Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, 386 ¶ 12
(App. 2011); Schurgin v. Amfac Elec. Distrib. Corp., 182 Ariz. 187, 190 (App.
1995).

5 The other cases cited by the Martins in discussing the issue on appeal do
not address res ipsa loquitur and are not relevant to this discussion. L.H Bell
& Assocs. v. Granger, 112 Ariz. 440 (1975) (affirming judgment following jury
trial on negligent design claim arising out of flooding damage); Pruett v.
Precision Plumbing, 27 Ariz. App. 288, 291 (1976) (affirming directed verdict
on personal injury claim); Shannon v. Butler Homes, Inc., 102 Ariz. 312 (1967)
(affirming in part and reversing in part motion to dismiss or for judgment
on the pleadings in personal injury design defect case).


                                       7
                         MARTIN v. ROYAL SIGN
                          Decision of the Court

¶18            This more than two year time gap is particularly significant
here, where third party vehicles apparently compromised the sign on
several occasions before the May 2010 accident, including in 1999, 2001,
2005 and 2007. Royal Sign’s expert opined that the most likely cause of the
sign’s failure was an impact to the sign shortly before or at the time of the
May 2010 accident. The Martins acknowledge the sign’s “collision history”
and Royal Sign’s “viable major opinion” that a plausible explanation for the
accident was that “the [sign] face was compromised by other objects prior
to or commensurate with the subject incident.” Indeed, the Martins concede
that their expert “agrees[,] concluding that given the extent of the impact
damage (opposite sign face, cabinet) the impact ‘object’ was yet again a
vehicle.”

¶19            Finally, no evidence showed that Royal Sign (as opposed to
Washington Federal) had control over circumstances that may have
resulted in objects, including vehicles, striking the sign. Subjecting Royal
Sign to a theory of liability holding it responsible for circumstances outside
of its control is contrary to the basis of res ipsa loquitur. Cox, 183 Ariz. at
365 (“‘Control’ under res ipsa loquitur thus corresponds to responsibility for
the instrumentality.”). Accordingly, given the unique facts and
circumstances of this case, the Martins have not shown the superior court
erred in granting summary judgment to Royal Sign on the Martins’ res ipsa
loquitur theory. Byars v. Ariz. Pub. Serv. Co., 24 Ariz. App. 420, 426 (1975)
(noting “it is of little value to discuss any of the innumerable precedents
wherein application of the [res ipsa loquitur] rule[s] was sought, for each
decision must be analyzed upon its particular facts;” affirming summary
judgment where “[t]here are various alternate possibilities to [the
accident’s] cause, some of which obviously were not within the exclusive
control of defendants”); accord Capps, 81 Ariz. at 234 (similar).

III.   Spoliation.

¶20           The Martins argue Royal Sign’s destruction of the sign
constitutes spoliation, which should preclude summary judgment.
Although highly context-dependent, spoliation includes “[t]he intentional
destruction of evidence.” Smyser v. City of Peoria, 215 Ariz. 428, 438 ¶ 32 n.11
(App. 2007) (citation omitted). “Destruction of potentially relevant evidence
obviously occurs along a continuum of fault—ranging from innocence
through the degrees of negligence to intentionally. The resulting penalties
vary correspondingly.” Souza, 191 Ariz. at 250 (citation omitted).
Depending upon the circumstances, a court may have the discretion to
impose a variety of different sanctions for spoliation, ranging from
dismissal or entry of default to instructing the fact finder to make an


                                       8
                         MARTIN v. ROYAL SIGN
                          Decision of the Court

adverse inference about what the destroyed evidence would have shown
and/or monetary sanctions. See, e.g., Souza, 191 Ariz. at 249–50 (citing
cases); Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 267-268 ¶ 8 (2010)
(citing authority). In deciding whether to allow an adverse inference, the
court considers whether the destruction of evidence was intentional or in
bad faith “and whether the loss of evidence prejudiced the party seeking
sanctions.” McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 260 ¶ 51 (App.
2013). A decision regarding the imposition of sanctions is reviewed for an
abuse of discretion. See Souza, 191 Ariz. at 250.

¶21            As applied, Royal Sign removed and destroyed the sign at
Washington Federal’s direction. The unfortunate result of this action is that
the Martins are unable to inspect the sign. The record indicates that Royal
Sign was unaware that anyone had been injured when it removed the sign.
The record also indicates that the removal and destruction was at
Washington Federal’s direction, not an independent decision by Royal
Sign. Nothing suggests that Royal Sign intentionally destroyed the sign to
destroy evidence or acted in bad faith in removing and destroying the sign.
Therefore, the Martins have not shown that the superior court abused its
discretion in resolving their spoliation arguments.

                              CONCLUSION

¶22           The judgment is affirmed.




                                  :ama




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