Sarkilahti v. Bristol Group

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WANDA SARKILAHTI, Plaintiff/Appellant,

v.

BRISTOL GROUP L.L.C., Defendant/Appellee.

No. 1 CA-CV 18-0255
FILED 2-21-2019

Appeal from the Superior Court in Maricopa County
No. CV2017-001402
The Honorable Sherry K. Stephens, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Plaintiff/Appellant

Broening Oberg Woods & Wilson, P.C., Phoenix
By Brian Holohan
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
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Decision of the Court

J O N E S, Judge:

¶1 Wanda Sarkilahti appeals from the trial court’s order granting
summary judgment in favor of Bristol Group, L.L.C. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In February 2017, Sarkilahti filed a complaint alleging she was
injured in a fall after stepping off an elevated edge of a concrete porch that
provides ingress and egress to Jim and Lourdes Voutour’s mobile home.
The complaint alleged both the Voutours, as the owners of the mobile
home, and Bristol Group, as the lessor of the mobile home pad, owed a duty
to warn their invitees of hazards.1

¶3 Bristol Group moved for summary judgment, disputing that
it owed Sarkilahti a duty under either the Restatement (Second) of Torts
§ 356 or its lease to the Voutours. Sarkilahti opposed the motion, asserting
a genuine issue of material fact existed as to whether the Voutours
appreciated the risk created by the elevated edge of the concrete porch such
that Bristol Group would be relieved of its duty.

¶4 The uncontested evidence produced during summary
judgment indicated that the Voutours purchased the mobile home in 2011,
four years before Sarkilahti’s alleged fall. At that time, the mobile home
was already on the pad and elevated above the ground with the concrete
porch attached.

¶5 After briefing and oral argument, the trial court determined
that Bristol Group did not owe a duty to Sarkilahti and entered judgment
in its favor. Sarkilahti timely appealed, and we have jurisdiction pursuant
to Arizona Revised Statutes §§ 12-120.21(A) and -2101(A)(1).

DISCUSSION

¶6 To establish a negligence claim, a plaintiff must prove four
elements: (1) a duty requiring the defendant to conform to a certain
standard of care, (2) the defendant’s breach 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 (2007) (citation
omitted). “The first element, whether a duty exists, is a matter of law for
the court to decide.” Id. (citing Markowitz v. Ariz. Parks Bd., 146 Ariz. 352,

1 The Voutours were later voluntarily dismissed from the lawsuit.

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356 (1985)). “The existence of duty is a threshold issue that is usually
decided by the trial court as a matter of law, subject to our de novo review.”
Bloxham v. Glock, Inc., 203 Ariz. 271, 274, ¶ 6 (App. 2002) (quoting Republic
Nat’l Bank v. Pima Cty., 200 Ariz. 199, 202, ¶ 11 (App. 2001)).

¶7 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, 214
Ariz. at 143, ¶ 10 (quoting Markowitz, 146 Ariz. at 354). Whether Bristol
Group owes Sarkilahti a duty of care is a threshold issue; absent a duty of
care, there can be no viable claim for negligence. Id. at ¶ 11. Sarkilahti has
the burden to show a duty exists. Quiroz v. ALCOA Inc., 243 Ariz. 560, 563,
¶ 2 (2018). Generally, unless a landlord like Bristol Group conceals or fails
to disclose a condition that poses an unreasonable risk of physical harm, it
is not liable for injuries to third parties that occur on its property once a
lessee takes possession. See Alcombrack v. Ciccarelli, 238 Ariz. 538, 540, ¶ 7
(App. 2015) (citing Rendall v. Pioneer Hotel, 71 Ariz. 10, 15-16 (1950), then
Clarke v. Edging, 20 Ariz. App. 267, 272-73 (1973), and then Restatement
(Second) of Torts § 356 cmt. a (1965)).

¶8 This Court has previously held that a landlord owes a duty of
care to inspect the property and to repair or warn tenants of defects. See
Piccola ex rel. Piccola v. Woodall, 186 Ariz. 307, 312 (App. 1996) (citing
Cummings v. Prater, 95 Ariz. 20, 25 (1963)). However, the duty to warn or
remedy continues only until the tenants have had a “reasonable
opportunity to discover the condition and to take precautions” against the
hazard. Id. (citing Restatement (Second) of Torts § 358(2) (1965)). In Piccola,
the plaintiff was injured when she fell through a plate glass door at a home
owned by the defendant, but leased to non-party tenants. Id. at 309. At the
time of the accident, the tenants had lived in the house for about two-and-
a-half years, and one of the tenants admitted she had suspected the door
was not made of safety glass. Id. Because the tenants had lived in the home
for two-and-a-half years, knew the location of the glass door, and “correctly
believed it to be made of non-tempered plate glass,” this Court found the
tenants had “ample opportunity” to discover the dangerous condition and
the landowner was therefore absolved from liability. Id. at 312.

¶9 Here, Bristol Group owed a duty of reasonable care to inspect
the property and either remedy the alleged defect or warn the Voutours
about it. However, pursuant to Piccola, Bristol Group’s duty to warn or
remedy continued only until the tenants had a reasonable opportunity to
appreciate the risk posed by the elevated edge. The Voutours lived in their
home for approximately four years before Sarkilahti’s alleged injury.

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Additionally, the Voutours knew the location of the elevated edge, as the
porch was used as a means of ingress and egress from the mobile home. No
reasonable juror would find that, after four years of living in the mobile
home, the Voutours did not have a reasonable opportunity to appreciate
the risk of the elevated edge.

¶10 We are not persuaded by Sarkilahti’s argument that the
Voutours testified they did not actually “appreciate the risk” posed by the
allegedly dangerous condition. While it is true that the tenant in Piccola
admitted she suspected the glass door was not made of safety glass, this
Court’s decision did not turn on the tenant’s actual appreciation of the risk.
Rather, Piccola turned on whether the tenants had a “reasonable
opportunity” to recognize the condition and appreciate the risk. Id. It may
be possible that James Voutour, a quadriplegic, did not have the
opportunity to appreciate the risk, based upon his testimony that he entered
and left his home via a wheelchair ramp and never left the porch via the
elevated edge in question. However, Lourdes Voutour’s affidavit merely
stated that she “did not appreciate the hazard posed by the porch.” This
conclusory statement is insufficient to create a genuine question of fact as
to whether she had a reasonable opportunity to appreciate the risk.

¶11 Sarkilahti also relies upon comment b to the Restatement
(Second) of Torts § 358, and comments b and g to the Restatement (Second)
of Property: Landlord and Tenant § 17.1, for the contention that Bristol
Group is liable if they should have realized that the Voutours were unlikely
to appreciate the risk. Piccola expressly rejected this argument, holding that
a landowner’s duty to warn was extinguished after the tenants had a
reasonable opportunity to discover the dangerous condition. 186 Ariz. at
312; see also Restatement (Second) of Property, Landlord & Tenant § 17.1
cmt. f (1977) (“[T]he landlord remains liable until the tenant has had a
reasonable opportunity to discover and take precautions, except where the
landlord actively conceals.”). Both parties also analyze Restatement (Third)
of Torts § 53, but our supreme court expressly rejected the Restatement
(Third) of Torts’ duty framework in Quiroz. Quiroz, 243 Ariz. at 576-579,
¶¶ 74-89. Accordingly, we will not address the Restatement (Third) of
Torts.

¶12 For the first time on appeal, Sarkilahti argues that under the
Arizona Mobile Home Parks Residential Landlord and Tenant Act (Mobile
Home Act), Bristol Group owed a non-delegable duty of care to comply
with applicable building and safety codes. Bristol Group argues the issue
is waived because it was not made before the trial court. Sarkilahti argues
the issue was preserved because her expert’s report, attached as Exhibit 19

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to her response to Bristol Group’s summary judgment motion, references a
statute within the Mobile Home Act. We disagree that this passing
reference preserved the issue. Sarkilahti failed to develop her argument
that a duty is created under the Mobile Home Act in the proceedings before
the trial court. Therefore, the argument is waived on appeal. See Hughes
Aircraft Co. v. Indus. Comm’n, 125 Ariz. 1, 3-4 (App. 1979) (finding a brief
mention of an issue to a hearing officer did not preserve the issue on
appeal).

¶13 Finally, Sarkilahti argues the trial court’s determination that
the porch’s dangerous condition was “open and obvious” violated Article
18, Section 5, of the Arizona Constitution, which provides: “[t]he defense of
contributory negligence or of assumption of risk shall, in all cases
whatsoever, be a question of fact and shall, at all times, be left to the jury.”
The record does not support Sarkilahti’s assertion. The court held that
“Bristol Group did not owe a duty to Plaintiff since the condition of the
porch was obvious and known to the [Voutours] who had resided at the
property for four years.” The court did not determine any issue related to
contributory negligence or assumption of risk. The reference to the
“obvious” condition of the porch only relates to the Voutour’s opportunity
to discover the condition and remedy the defect. As such, the decision did
not violate the Arizona Constitution.

CONCLUSION

¶14 For the foregoing reasons, we affirm the trial court’s order
granting summary judgment in Bristol Group’s favor.

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

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