Arpaio v. Hines Gs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSEPH M ARPAIO, et al., Plaintiffs/Appellants,

v.

HINES GS PROPERTIES INC, et al., Defendants/Appellees.

No. 1 CA-CV 16-0781
FILED 2-20-2018

Appeal from the Superior Court in Maricopa County
No. CV2014-054283
The Honorable Aimee L. Anderson, Judge

AFFIRMED

COUNSEL

Goldman & Zwillinger PLLC, Scottsdale
By Mark D. Goldman, Jeff S. Surdakowski, Joseph P. Brown
Counsel for Plaintiffs/Appellants

Manning & Kass Ellrod, Ramirez, Trester, LLP, Phoenix
By Anthony S. Vitagliano, Robert B. Zelms, Fatima M. Badreddine
Counsel for Defendants/Appellees
 ARPAIO, et al. v. HINES GS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.

P O R T L E Y, Judge:

¶1 Joseph M. Arpaio (“Arpaio”) and Ava Arpaio challenge the
ruling excluding the testimony of their expert witness and granting
summary judgment to Hines GS Properties, Inc., et al. (collectively referred
to as “Hines”). For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Arpaio tripped over a drain embed in the walkway outside of
Two Renaissance Square, fell, and was injured. He sued Hines, the owner
of the property, for negligence, alleging the walkway was “unreasonably
dangerous and improperly maintained.”

¶3 After discovery, including deposing Arpaio, Hines moved for
summary judgment, arguing that: (1) it had no notice of any allegedly
hazardous condition; (2) the drain was not hazardous or defective; and (3)
the drain was open and obvious. In response, Arpaio offered two reports
from Sharon Bonesteel, a licensed architect. In the reports, Bonesteel
disclosed she examined the walkway approximately one year after Arpaio’s
fall. She opined that Hines did not exercise reasonable care in installing
and maintaining the walkway because certain cross-slopes violated the
accessibility requirements of various construction codes, including the
Phoenix Construction Code. Further, she opined that the noncompliance
proximately caused Arpaio’s fall.

¶4 Hines moved to strike Bonesteel’s reports, arguing they
presented impermissible legal conclusions as to both the cited construction
codes and proximate cause. Hines also argued her opinions were irrelevant
given Arpaio’s testimony that he tripped over a drain. After argument, and
due consideration, the trial court struck Bonesteel’s reports, concluding that

1Pursuant to Article VI, Section 3 of the Arizona Constitution, the Arizona
Supreme Court designated the Honorable Maurice Portley, Retired Judge
of the Court of Appeals, to sit in this matter.

2
 ARPAIO, et al. v. HINES GS, et al.
Decision of the Court

her opinions were “inadmissible, irrelevant, and prejudicial.” The court
then entered summary judgment for Hines:

Plaintiffs’ sole argument that the walkway (rather than the
drains) was dangerous is based entirely on Ms. Bonesteel’s
expert opinion that the walkway violated various provisions
of the building code designed for handicapped and disabled
individuals. As the Court has already addressed the
inadmissible, irrelevant and prejudicial impact of her opinion
and has granted the Defendants’ Motion to Strike, the only
issue left is whether the drains on the walkway were
dangerous. The Court finds that there is no genuine issue of
material fact. Specifically, the Court finds that Plaintiffs have
failed to provide sufficient facts to show that the drains at
Two Renaissance Square were unreasonable [sic] dangerous
or that Defendant, Hines, had notice of any alleged issues
with the property. The Court further finds that the drains at
Two Renaissance Square were open and obvious, non-
hazardous conditions, and that [Arpaio] should have been
able to navigate the walkway without injury.

Arpaio appealed following the entry of final judgment. We have
jurisdiction pursuant to Arizona Revised Statute (“A.R.S.”) section 12-
2101(A)(1).

DISCUSSION

¶5 We review de novo whether summary judgment is
appropriate, including whether genuine issues of material fact exist and
whether the trial court properly applied the law. McMurtry v. Weatherford
Hotel, Inc., 231 Ariz. 244, 252, ¶ 20 (App. 2013). Summary judgment may be
appropriate, even in negligence cases, if there are no genuine disputes as to
any material fact and the moving party is entitled to judgment as a matter
of law. Tribe v. Shell Oil Co., 133 Ariz. 517, 518 (1982).

¶6 Landowners owe invitees, like Arpaio, a duty to maintain
their property in a reasonably safe manner. See Ritchie v. Costello, 238 Ariz.
51, 54, ¶ 10 (App. 2015) (citing Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142
(1982)). Landowners, however, are not insurers of absolute safety, but must
only exercise reasonable care to its invitees. Preuss v. Sambo’s of Ariz., Inc.,
130 Ariz. 288, 289 (1981). In fact, the occurrence of a fall without more is
insufficient to prove negligence. Walker v. Montgomery Ward & Co., Inc., 20

3
 ARPAIO, et al. v. HINES GS, et al.
Decision of the Court

Ariz. App. 255, 258 (1973). Thus, to show Hines breached its duty, Arpaio
had to show:

1) that the . . . dangerous condition is the result of defendant’s
acts or the acts of his servants, or 2) that defendant had actual
knowledge or notice of the existence of the . . . dangerous
condition, or 3) that the condition existed for such a length of
time that in the exercise of ordinary care the proprietor should
have known of it and taken action to remedy it (i.e.,
constructive notice).

Id.

¶7 Arpaio contends Bonesteel’s reports created genuine issues of
material fact on the issues and the trial court erred by striking them. We
review the court’s decision to exclude expert evidence for an abuse of
discretion even when a case is resolved on summary judgment. Messina v.
Midway Chevrolet Co., 221 Ariz. 11, 16, ¶ 22 (App. 2008).

¶8 As noted, Arpaio testified he tripped on a drain. Bonesteel
found the drain cover was “flush with the walking surface in compliance
with code,” but opined that “[t]he cross-slope of the . . . path” caused
Arpaio’s fall. More importantly, Bonesteel relied on code provisions
regarding accessibility for physically disabled persons in reaching her
opinions.

¶9 Although Arpaio testified he was not physically handicapped
at the time of his fall, he claims that the code provisions for accessibility for
physically disabled persons were relevant because the Phoenix
Construction Code adopted the standards from the Americans with
Disabilities Act (“ADA”). He, however, has not demonstrated that he was
within the class of persons the code provisions were designed to protect.
See Hatch Dev. LLC v. Solomon, 240 Ariz. 171, 177, ¶ 21 (App. 2016).
Nonetheless, even if we assume the truth of the argument, the reliance on
the Phoenix Construction Code provisions seem misplaced since those
provisions are intended “to provide minimum standards of accessibility to
buildings for the physically handicapped”; and there was no evidence that
Arpaio was physically handicapped in any fashion.

¶10 As a result, given the evidence of the trip and fall, Bonesteel’s
opinions did not relate to Arpaio’s fall and, if admitted into evidence,
would not have aided the jury. See State ex. rel. Montgomery v. Miller, 234
Ariz. 289, 298, ¶ 21 (App. 2014) (“’Expert testimony which does not relate
to any issue in the case is not relevant and, ergo, non-helpful.’” (quoting

4
 ARPAIO, et al. v. HINES GS, et al.
Decision of the Court

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993))); Messina, 221
Ariz. at 16, ¶ 22 (“The threshold test for expert testimony is whether it will
assist the trier of fact.”). Accordingly, the trial court did not abuse its
discretion by excluding Bonesteel’s opinion and reports.

¶11 Moreover, Arpaio did not introduce any other evidence to
show that either the drain or walkway was unreasonably dangerous. See
Burke v. Ariz. Biltmore Hotel, Inc., 12 Ariz. App. 69, 71 (1970) (“’Defective
condition’ is not necessarily synonymous with ‘dangerous condition’ and
becomes so only when the defective condition creates an unreasonable risk
of harm.”). Nor did he present any evidence to support the Walker elements
to show a breach of duty. See ¶ 6, supra. Therefore, we conclude the trial
court properly granted summary judgment for Hines.

CONCLUSION

¶12 We affirm the judgment. Hines may recover its taxable costs
incurred in this appeal upon compliance with Arizona Rule of Civil
Appellate Procedure 21.

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

5