Perez v. Circle K

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ROXANNE PEREZ, Plaintiff/Appellant,

v.

CIRCLE K CONVENIENCE STORES, INC., Defendant/Appellee.

No. 1 CA-CV 22-0425
FILED 4-9-2024

Appeal from the Superior Court in Maricopa County
No. CV2020-010129
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

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

Phillips Law Group, P.C., Phoenix
By Timothy G. Tonkin, Nasser Abujbarah, Kevin Valdez
Co-Counsel for Plaintiff/Appellant

The Sorenson Law Firm, LLC, Tempe
By Wade R. Causey
Counsel for Defendant/Appellee
 PEREZ v. CIRCLE K
Opinion of the Court

OPINION

Judge Anni Hill Foster delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma joined. Vice Chief Judge Randall M.
Howe specially concurred.

F O S T E R, Judge:

¶1 The question of duty for an Arizona common law claim is an
issue of law for courts to decide, whereas factual issues such as breach and
causation are issues of fact typically resolved by a jury. In this case,
summary judgment was granted in favor of defendant Circle K
Convenience Stores, Inc. (“Circle K”) on the basis that no duty existed.
Plaintiff Roxanne Perez appeals that order. For the following reasons, the
ruling is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 On March 13, 2020, Perez went to a Circle K store in Phoenix
to buy some ice cream. She was familiar with the store, having been there
25 to 30 times before. Perez walked down the first aisle and grabbed ice
cream from a freezer. She took a few steps to go to the next aisle but tripped
and fell over a case of water at the end of the aisle (the “end cap”). Perez
admitted she did not look down after she grabbed the ice cream and turned
around. Perez admitted that, if she had looked down, she would have seen
the case of water. She also admitted that there was plenty of light in the
store and she had seen end cap displays at other stores before the incident.

¶3 As a result of the fall, Perez suffered significant injuries to her
elbow, neck, and back. Perez subsequently filed this negligence and
premises liability action against Circle K.

¶4 Circle K later moved for summary judgment, and after full
briefing and oral argument, the superior court granted the motion. The
superior court concluded that no evidence showed that the case of water
created an unreasonably dangerous condition. “[W]hile the case of water
may have created a dangerous condition, it did not create an unreasonably
dangerous condition,” adding Perez “could have seen the case of water had
she looked down,” suggesting “that the condition was open and obvious.”

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Opinion of the Court
¶5 Perez timely appealed from the resulting final judgment. This
Court has jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶6 When there is no genuine issue of “material fact and the
moving party is entitled to judgment as a matter of law,” this Court will
affirm a grant of summary judgment. Ariz. R. Civ. P. 56(a); Thompson v. Pima
Cnty., 226 Ariz. 42, 44, ¶ 5 (App. 2010). A grant of summary judgment is
reviewed de novo, viewing the facts in a light most favorably to Perez. See
Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003).

I. THE SUPERIOR COURT DID NOT ERR IN GRANTING SUMMARY
JUDGMENT TO CIRCLE K.

A. The issue of duty is a legal question to be addressed by the courts.

¶7 Perez must, among other things, plead and be able to prove
that Circle K owed her a duty under Arizona law. See, e.g., Quiroz v. ALCOA
Inc., 243 Ariz. 560, 563-64, ¶ 7 (2018) (citing cases). More specifically, Perez
must plead and be able to prove Circle K owed a duty “to conform to a
particular standard of conduct to protect her against unreasonable risks of
harm.” Dinsmoor v. City of Phoenix, 251 Ariz. 370, 373, ¶14 (2021) (citing
Gipson v. Kasey, 214 Ariz. 141, 143, ¶¶ 9–10 (2007)). Whether she has done
so is a threshold issue that is determined as a matter of law. Gipson, 214
Ariz. at 143, ¶¶ 9, 11. Absent such a duty, Circle K cannot be liable to her.
See, e.g., id. at 143-44, ¶ 11 (Absent some duty, “defendants may not be held
accountable for damages they carelessly cause, no matter how
unreasonable their conduct.”); Markowitz v. Ariz. Parks Bd., 146 Ariz. 352,
354 (1985) (“[A] negligence action may be maintained only if there is a duty
or obligation[.]”). Unlike the other elements of common law torts, the court
alone determines the existence and scope of any claimed duty. See
Dinsmoor, 251 Ariz. at 373-74, ¶¶ 14-17.

¶8 To support her claim, Perez argues that she was a business
invitee, meaning Circle K owed “‘an affirmative duty’ to use reasonable
care to make the premises safe for [her] use.” Markowitz, 146 Ariz. at
355 (quoting Tribe v. Shell Oil Co., Inc., 133 Ariz. 517, 519 (1982)). Thus far,
Perez correctly states the law. But when determining whether duty exists,
a court cannot resolve the issue without examining the scope of the duty,
including what it is not.

¶9 For generations, our supreme court has noted that a business
owner like Circle K “is not an insurer of the safety of” a business invitee like

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Opinion of the Court
Perez. See Berne v. Greyhound Parks of Ariz., Inc., 104 Ariz. 38, 41 (1968) (citing
cases). Similarly, a business owner like Circle K “is not required . . . to keep
the premises absolutely safe.” Id. (citing cases).

¶10 More recently, the supreme court noted that duty also cannot
be based on foreseeability. Gipson, 214 Ariz. at 144, ¶ 15 (“[F]oreseeability
is not a factor to be considered by courts when making determinations of
duty, and we reject any contrary suggestion in prior opinions.”); accord Cal-
Am Props. Inc. v. Edais Eng’g Inc., 253 Ariz. 78, 81, ¶ 7 (2022).

¶11 Collectively, these cases hold that the question of the scope of
the common law duty presented here is neither forward looking (through
foreseeability) nor backward looking (what a defendant should have done).
Instead, the scope of the duty is an issue of law the court determines based
on the relationship and reasonableness of the circumstances. See Dawson v.
Withycombe, 216 Ariz. 84, 107, ¶ 71 n.21 (App. 2007) (noting, in analogous
circumstance, that “the scope of [a party’s] fiduciary duty is a question of
law”).

B. The scope of duty requires a court to determine whether a condition is
“unreasonably dangerous.”

¶12 Perez argues that, when determining the legal question of
duty, this Court cannot consider the facts of this case, which she claims are
properly determined by the jury in addressing breach, causation and
damages. See Moore v. Sw. Sash & Door Co., 71 Ariz. 418, 423 (1951); Ariz.
Const. art. 18, § 5. But, when answering the legal question of duty, courts
may “consider facts to determine whether a duty exists based on the
presence of an unreasonable risk of harm that arose within the scope of a
special relationship.” Dinsmoor, 251 Ariz. at 376, ¶ 27 (emphasis added).

¶13 The supreme court has unambiguously allowed for factual
analysis in evaluating the only question before this court, which is the duty
owed by Circle K. See id. at 376-77, ¶ 27.1 To determine whether a condition
is unreasonably dangerous the supreme court has continually stated:

If people who are likely to encounter a condition may be
expected to take perfectly good care of themselves without
further precautions, then the condition is not unreasonably

1 The Concurrence argues that Dinsmoor differs because of a special
relationship in that case between a student and a school. But that argument
requires a factual analysis of the nature of the relationship, something the
Concurrence [at ¶ 39] states is impermissible in addressing duty.

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Opinion of the Court
dangerous because the likelihood of harm is slight. Of course,
the bare fact that a condition is ‘open and obvious’ does not
necessarily mean that it is not unreasonably dangerous. The
open and obvious condition is merely a factor to be taken into
consideration in determining whether the condition was
unreasonably dangerous.

Cummings v. Prater, 95 Ariz. 20, 27 (1963) (quoting 2 Fowler V. Harper and
Fleming James, Jr., The Law of Torts § 27.13 (1956)) (internal citations
omitted); Daughtry v. Montgomery Ward, 102 Ariz. 267, 269-70 (1967);
McFarland v. Kahn, 123 Ariz. 62, 62-63 (1979); Smedberg v. Simons, 129 Ariz.
375, 378 (1981). Perez contends that the superior court determined the
standard of care and “violated the principle that courts decide duty and
juries decide standard of care and breach.” This argument, though,
misconstrues the superior court’s ruling which properly addressed the legal
issue of duty—not breach—because the scope of determining duty includes
a determination of reasonableness. See Burke v. Ariz. Biltmore Hotel, Inc., 12
Ariz. App. 69, 72 (1970) (determining that “as a matter of law, the condition
was not unreasonably dangerous”).

¶14 Citing Markowitz, the Concurrence reasons that the majority’s
analysis is one of factual breach, rather than the legal question of duty and
its scope. Markowitz stated that

[t]he question of duty is decided by the court. The question is
whether the relationship of the parties was such that the
defendant was under an obligation to use some care to avoid
or prevent injury to the plaintiff. If the answer is no, the
defendant is not liable even though he may have acted
negligently in light of the foreseeable risk.

146 Ariz. at 356. But this is not the standard that has been consistently
adopted by the supreme court. See Gipson, 214 Ariz. at 143, ¶ 10 (“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.’”); Dinsmoor, 251 Ariz. at 373, ¶ 14
(noting plaintiff must establish that defendant “owed a duty to [the
plaintiff] to conform to a particular standard of conduct to protect her
against unreasonable risks of harm”). Without examining the scope of the
duty owed, a court cannot determine whether a relevant duty existed.

¶15 To accept the Concurrence’s position, a court’s only duty-
based role in liability cases would be to determine the legal relationship of
the parties, not the relationship and the reasonableness of the circumstances

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Opinion of the Court
as is necessary in determining duty. In such a world, if a plaintiff minimally
alleged being injured while on the property of a business, the issue of duty
could never be resolved by motion short of trial.

¶16 The Concurrence’s reliance on Markowitz is misplaced
because numerous cases decided after Markowitz have instructed that out
of the four elements necessary to establish negligence the first is a duty “to
conform to a certain standard of care.” Cal-Am Props. Inc., 253 Ariz. at 81,
¶ 5; see also Gipson, 214 Ariz. at 143, ¶ 10; see also Avitia v. Crisis Preparation
and Recovery Inc., 256 Ariz. 198, 211, ¶ 63 (2023) (Timmer, V.C.J., concurring
in part, dissenting in part, and concurring in the result) (“As we concluded
in Dinsmoor . . .[,] a court does not act contrary to Gipson by examining the
case-specific facts to decide whether ‘an unreasonable risk of harm’ arose
from a special relationship to trigger a duty.”). Here, the duty owed
required that Perez not be subjected to the possibility of an unreasonable
harm.2

C. Perez did not establish that an “unreasonably dangerous” condition
existed to support a duty under law.

¶17 “The burden of proving negligence rests upon the plaintiff,
and it is not incumbent upon the defendant to prove an absence thereof.”
Berne, 104 Ariz. at 39 (citing Pickwick Stages Corp. v. Messinger, 44 Ariz. 174
(1934); Salt River Valley Water Users’ Ass’n. v. Blake, 53 Ariz. 498 (1939)).
“Moreover, it is not sufficient that the facts are such that negligence might
have existed, but it must affirmatively appear that it did.” Id. (citing
McGuire v. Valley Nat’l Bank of Phx., 94 Ariz. 50 (1963); Butane Corp. v. Kirby, 66 Ariz. 272, 282 (1947); Seiler v. Whiting, 52 Ariz. 542 (1938)). At her
deposition, Perez stated that she would have seen the case of water if she
had looked down. This admission contradicts her assertion that the “danger
was hidden and not obvious” and demonstrates that the presence of the
case of water was “clearly visible.” See Burke, 12 Ariz. App. at 70–71 (finding
that no unreasonably dangerous condition existed after the plaintiff slipped
and fell on a top step because the black strip marking the top step was
“clearly visible”); Hagan v. Sahara Caterers, Inc., 15 Ariz. App. 163, 166 (1971)
(finding that no unreasonably dangerous condition existed after the

2 Claiming Dinsmoor, as discussed here, is inconsistent with Markowitz, the

Concurrence [¶ 47] asks the Supreme Court to grant review “to resolve that
conflict.” But Arizona common law was not frozen in time in the Markowitz
decision, as the Supreme Court has made clear in the nearly forty years
since that decision.

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Opinion of the Court
plaintiff slipped on pebbles outside a restaurant that were “visible to the
plaintiff” and therefore no duty existed).

¶18 Perez also stated she visited the store 25 to 30 times
previously, and while she did not remember this store displaying products
at the end caps, she testified that she was aware stores often have end cap
displays. These facts are analogous to Hagan where the plaintiff had
previously been to the restaurant and had seen the pebbles that she later
slipped on resulting in a determination that the condition was not
unreasonably dangerous. 15 Ariz. App. at 165.

¶19 Perez points to testimony from Mark Whitmire, Circle K’s
Rule 30(b)(6) witness, who testified to a “two-foot rule” Circle K provided
to its stores as a guideline. Perez asserts that Whitmire’s statements that he
would have moved the product back towards the end cap and that it
appeared to be a “hazardous situation” requiring remedying establish that
Circle K was on notice that the condition was unreasonably dangerous. But
nothing in Whitmire’s testimony supports that the case of water was
unreasonably dangerous under the law. See Burke, 12 Ariz. App. at 71. As
the superior court correctly noted, “Whitmire did not testify at his
deposition that the product displayed in the store in this case was an
unreasonably dangerous condition.” At best, his testimony indicates that
the store did not follow its own two-foot “guideline” for stacking products.
A guideline or policy does not create a duty that does not exist in law, rather
it speaks to the standard of care and whether there was a breach of that
standard. See Ponce v. Parker Fire Dist., 234 Ariz. 380, 385, ¶ 20 (App. 2014).
No evidence was presented demonstrating it was unreasonable that the
case of water was on the floor. Further, nothing in the record suggests that
other customers tripped on a case of water or any other item displayed at
an end cap. The determination of duty is not dictated by testimony but by
the record presented. See Hafner v. Beck, 185 Ariz. 389, 393 (App. 1995).

¶20 A “defective condition” is not necessarily synonymous with
“dangerous condition” and becomes so only when the defective condition
creates an unreasonable risk of harm. Berne, 104 Ariz. at 41. The mere fact
that an injury has been sustained does not give rise to a presumption that a
defective condition created an unreasonable risk of harm. See Daugherty, 102
Ariz. at 269.

¶21 Citing Walker v. Montgomery Ward & Co., Inc., 20 Ariz. App.
255 (1973) and Andrews v. Fry’s Food Stores of Ariz., 160 Ariz. 93 (App. 1989),
Perez argues the superior court erred because reasonable people could
differ as to whether Circle K created an unreasonably dangerous condition
or an “open and obvious danger.” The procedural posture of both cases

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Opinion of the Court
though differentiates them from Perez’s claims and this case. In Walker, the
issue addressed was not one of duty but of causation and whether the
owner of the premises exercised due care, not whether there was a duty. 20
Ariz. App. At 258. Andrews involved a question about the propriety of jury
instructions as to causation, not duty. 160 Ariz. at 94. Neither case supports
the premise that a duty existed here.

¶22 Perez also cites (albeit in passing) Tribe, 133 Ariz. 517, to
support her position that the condition was “unreasonably dangerous.” But
Tribe is distinguishable. In Tribe, the court found a disputed issue of fact,
concluding that “[r]easonable minds could easily disagree as to whether a
sixteen-inch step down is open and obvious to one who has ascended a six-
inch step.” 133 Ariz. at 519. Unlike this case, however, Tribe involved a
circumstance where “a station wagon obstructed [plaintiff’s] view.” Id. The
plaintiff in Tribe testified that she was distracted by passing “traffic and her
concern for her child’s safety.” Id. Perez never testified that she was
distracted or that the case of water was obscured from view. Nor has Perez
shown that Tribe—which turned on foreseeability (whether “the proprietor
should anticipate the harm from the condition despite its obviousness”),
id.—survived Gipson’s recent mandate that “foreseeability is not a factor” in
defining duty, Gipson, 214 Ariz. at 144, ¶ 15.

¶23 While the Concurrence charges that this reasoning addresses
breach rather than duty, that is not the case. If duty relies on the relationship
between the parties and the reasonableness of the circumstances, the known
or obvious nature of a condition is necessary to determine reasonableness.
Here, Perez’s own admissions do not support that the condition was
unreasonable. While factual questions of breach or causation are not
addressed in a legal analysis of duty, facts used to support them can be
applicable in determining duty.

¶24 Perez points to illustrations in the Restatement (Second) of
Torts § 343A cmt. f to urge that stores like Circle K should be on notice that
their store displays are distracting. Her reliance though is misplaced, and
her argument is not persuasive since the Restatement contradicts her
position. See Restatement (Second) of Torts § 343A cmt. e (1965) (illustrating
that a company is not liable when a customer preoccupied with his own
thoughts walked straight into a glass door that was open and obvious).

¶25 None of the cases cited support Perez’s position that the
superior court erred. Perez is correct that the questions of causation and
standard of care are issues of fact. But the occurrence of a fall on business
premises does not by itself establish negligence. Contreras v. Walgreens Drug
Store No. 3837, 214 Ariz. 137, 138, ¶ 7 (App. 2006). Considering the direction

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Opinion of the Court
given by Dinsmoor, facts may be examined to determine whether the
condition was “unreasonably dangerous” for the purposes of determining
duty under the law. Dinsmoor, 251 Ariz. at 376-77, ¶ 27. Here, neither the
law nor the evidence suggests that there was an unreasonably dangerous
condition that would establish a duty in this case.

D. The Determination of Duty Does Not Include Foreseeability or
Assumption of Risk.

¶26 Perez cites Article 18, § 5 of the Arizona Constitution, arguing
that the superior court erred by determining factual issues that should have
been submitted to a jury. This Court agrees that contributory negligence
and assumption of risk are questions for a jury, but it does not read the
superior court’s ruling as determining those issues.

¶27 The superior court’s role was not to determine whether the
condition in the store was “open and obvious” under a standard of care
analysis, whether the condition in the store caused Perez’s injuries or
whether Circle K met the standard of care. Its role was to determine
whether the facts, as established by Perez, created a duty under law for
Circle K. In determining duty, the superior court was permitted to examine
facts sufficient to establish whether an “unreasonably dangerous”
condition existed to trigger a duty by Circle K under law. Dinsmoor, 251
Ariz. at 376-77, ¶ 27. The superior court’s analysis and conclusion are
consistent with governing case law in deciding the threshold question—
whether a duty exists. See Gipson, 214 Ariz. at 143, ¶ 9 (“The first element
[of a claim for negligence], whether a duty exists, is a matter of law for the
court to decide.” (citing Markowitz, 146 Ariz. at 356)).

¶28 Perez has not shown that duty based on foreseeability has
survived the Arizona Supreme Court’s directive that “foreseeability is not
a factor to be considered by courts when making determinations of duty.”
Id. at 144, ¶ 15. Moreover, although Perez argues it is a “reasonable
inference” that a customer would be distracted by eye-level displays, she
never stated that she was distracted by a store display. Perez’s argument–
that Circle K should have expected the attractive store displays could
distract her–fails.

¶29 Finally, Perez argues that the superior court’s ruling
incorrectly determined contributory negligence and assumption of risk,
which is a question for a jury. As stated herein, Perez was expected to take
care of herself in regard to reasonable risks—such as a trip and fall over a
visible object. This requirement is not a determination of contributory
negligence or assumption of risk—it is the standard used to determine

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Opinion of the Court
liability. Because Perez’s evidence fails to demonstrate that the case of water
was “unreasonably dangerous,” the superior court was correct in
determining that she was responsible for taking care to prevent her injury.

II. ADMISSIBILITY OF STATEMENTS FROM THE CIRCLE K
EMPLOYEES

¶30 At her deposition, Perez testified that after she fell, a Circle K
employee told her the cases of water where she fell are normally stacked at
waist-height. Perez added the employee apologized and stated the display
of water was not normally in the condition it was when she fell. Perez
contends that the superior court erred when it ruled that statements by
Circle K employees are inadmissible hearsay.

¶31 This Court agrees with Perez. The evidence was admissible
and should have been considered. An opposing party’s statement offered
against an opposing party is admissible and is not hearsay. Ariz. R. Evid.
801(d)(2)(D). But these statements by a Circle K employee, as reported by
Perez, do not address the threshold issue of duty. They do not establish that
the employee, and thereby Circle K, were on notice of the condition such
that it would create a duty. Instead, these statements speak to standard of
care, breach, and causation. Accordingly, although properly part of the
summary judgment record, these statements do not alter the result.

CONCLUSION

¶32 For the foregoing reasons, the superior court’s grant of
summary judgment is affirmed. Circle K is awarded its taxable costs
incurred on appeal contingent upon its compliance with Arizona Rule of
Civil Appellate Procedure 21. Perez’s request for taxable costs is denied.

H O W E, Judge, specially concurring:

¶33 I concur with the Majority that the superior court erred in
holding that the statements of the Circle K employee were inadmissible, but
that the error did not affect the propriety of granting summary judgment. I
also concur that the superior court correctly granted Circle K summary
judgment. Summary judgment was appropriate here, in my view, because
Perez failed to show a genuine issue of material fact that Circle K breached
its duty of care to her when she shopped at the store.

¶34 The Majority has chosen a different analysis in affirming the
granting of summary judgment, however. I regret I cannot join this analysis
because it contradicts decisions from the Arizona Supreme Court and this
court defining duty and breach in tort actions. The Majority holds that in

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Opinion of the Court
determining as a matter of law whether Circle K owed a duty to keep its
premises reasonably safe for its business invitees such as Perez, that
determination includes resolving the factual question whether the
condition that may have caused the injury was unreasonably dangerous or
whether it was open and obvious. See supra ¶¶ 12–13.

¶35 This holding intermixes the issues of duty and the breach of
that duty. “Duty” is an obligation recognized by law that requires a tort
defendant to conform to a particular standard of care to protect others
against unreasonable risks of harm. Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 10
(2007). It involves “generalizations about categories of cases,” id., and is a
matter of law for the court to decide, id. at 143 ¶ 9. The standard of care is
what the defendant must do or not do to satisfy that duty, and whether the
defendant has met or breached the standard of care “is an issue of fact that
turns on the specifics of the individual case.” Id. at 143 ¶ 10. This issue is
“usually decided by the jury.” Id. at 143 ¶ 9.

¶36 Here, in my view, the existence of a duty is clear as a matter
of law. In the general category of cases involving possessors of land in
relation to their invitees, possessors of land have a duty to maintain their
premises in a condition reasonably safe for invitees. Fort Lowell—NSS Ltd.
P’ship v. Kelly, 166 Ariz. 96, 101 (1990); Restatement (Second) of Torts § 343
(1965). Circle K is a possessor of the store in which Perez was injured,
Restatement (Second) of Torts § 328(E), and Perez, as a customer of the
store, was a business invitee, id. § 332(3). Circle K thus owed a duty to Perez
to keep its premises reasonably safe for her.

¶37 The Majority believes this analysis is incomplete, however. It
holds that the duty determination also includes deciding whether the
condition that allegedly caused Perez’s injury created “an unreasonable risk
of harm,” supra ¶ 12, implicitly relying on Restatement (Second) of Torts
§ 343, which provides that a possessor of land is not liable for physical harm
to invitees caused by a condition unless the possessor knows or should
reasonably know that the condition “involves an unreasonable risk of
harm.” And even when a condition involves an unreasonable risk of harm,
the possessor is still not liable if the danger is “known or obvious” to the
invitee. Id. § 343A.

¶38 But whether a condition “involves an unreasonable risk of
harm” or is “known or obvious” are factual questions that go to whether a
defendant has breached its duty, not a part of the duty analysis. Markowitz
v. Ariz. Parks Bd., 146 Ariz. 352, 355–56 (1985) (whether a danger is open and
obvious is a question of breach, not duty); Tribe v. Shell Oil Co., Inc., 133 Ariz.
517, 519 (1982) (whether a danger is open and obvious is a fact question “to

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Howe, J., Concurring
be decided by a jury”); Shaw v. Petersen, 169 Ariz. 559, 561 (App. 1991)
(whether a pool is an open and obvious danger to a child “is a question that
relates to the breach of duty, not its existence”); McLeod v. Newcomer, 163
Ariz. 6, 9 (App. 1989) (because duty was established, whether a pool was
an unreasonably dangerous condition was a fact question that could not be
determined as a matter of law in that case); Bellezzo v. State, 174 Ariz. 548,
555 (App. 1992) (Claborne, J., concurring) (“Arizona [has] said time and
time again that an open and obvious danger is a fact question not to be
decided by a judge.”); George v. Fox W. Coast Theatres, 21 Ariz. App. 332, 334
(1974) (evidence was such that the jury could infer that condition was
unreasonably dangerous). Notably, the applicable Restatement provisions
do not state that the existence of a condition that creates an unreasonable
risk of harm or its known or obvious characteristic is a part of the duty
analysis; they speak merely in terms of “liability,” consistent with those
questions being part of the breach analysis. See Restatement (Second) of
Torts § 343 (the possessor “is subject to liability” if condition “involves an
unreasonable risk of harm”); id. § 343A (the possessor “is not liable” if the
condition is “known or obvious”).

¶39 The Majority’s analysis contradicts these decisions,
incorporating factual questions of breach in its duty determination.
“[H]aving established the special relationship—duty—the court cannot
negate the existence of that duty through a breach analysis.” Shaw, 169 Ariz.
at 561. Our supreme court “disapprove[s] of attempts to equate the concept
of duty with specific details of conduct.” Markowitz, 146 Ariz. at 355. “[T]he
existence of a duty is not to be confused with details of the standard of
conduct.” Id. But the Majority’s analysis brings in the specific details of
Perez’s case to determine Circle K’s duty. The Majority discusses whether
(1) the water cases were visible; (2) Perez could or did see the water cases;
(3) Perez had visited the Circle K enough times to be familiar with end cap
displays; (4) Perez knew about end cap displays; (5) other customers had
tripped on the end cap displays; and (6) the Circle K employees followed
store guidelines in placing the end cap displays. See supra ¶¶ 17–19. These
facts are important indeed to determine whether Circle K did or did not
protect Perez from an unreasonable risk of harm and whether the danger
from the end cap was open and obvious, but they are not relevant to
whether Circle K had a duty to Perez in the first place. Duty involves
“generalizations about categories of cases,” Gipson, 214 Ariz. at 143 ¶ 10, in
this case, the duty of possessors of land to their invitees. Considering the
specific facts of Perez’s case in deciding duty is at war with that principle.

¶40 The supreme court’s decision in Markowitz is instructive.
There, a young man was injured in a cliff diving accident on public land.

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Howe, J., Concurring
146 Ariz. at 354. The young man sued the State for negligence, and the trial
court granted the State summary judgment. Id. This court affirmed the
summary judgment, ruling that the State owed no duty to the young man
because “the natural environment did not present an unreasonable risk of
harm” and the danger was open and obvious. Id. (quoting Markowitz v. Ariz.
Parks Bd., 146 Ariz. 260, 264 (App. 1984)).

¶41 The supreme court reversed on review. Id. at 359. The court
explained that the question of duty is “whether the relationship of the
parties was such that the defendant was under an obligation to use some
care to avoid or prevent injury to the plaintiff.” Id. at 356. “[T]he concept of
duty is not a question of whether the danger was natural, artificial,
obvious[,] or whether the defendant should have searched for, warned of[,]
or removed the danger or have taken any other particular action.” Id. Those
questions, the court explained, are questions of negligence, determining
whether the defendant’s conduct was reasonable under the circumstances.
Id. at 357.

¶42 The same analysis applies here. Because Circle K is a
possessor of land, and Perez was its business invitee, as a matter of law
Circle K owed a duty to Perez to keep its premises safe. The questions
whether the end cap display that tripped her created an unreasonable risk
of harm and whether the display was open and obvious to Perez are fact
questions that go to whether Circle K breached that duty and are not—
absent a failure of proof under the summary judgment standard, Gipson,
214 Ariz. at 143 ¶ 9 n.1—for this court to resolve. The Majority’s analysis
blends factual questions going to breach into its duty determination when
those issues should be distinct.

¶43 A consequence of that blending is confusion for courts and for
litigants. Which facts go to duty—which a court can find—and which facts
go to breach—which only a jury can find? What rule determines which side
certain facts fall on? Any set of facts can be read to go to the scope of a duty
or to breach. See, e.g., Markowitz, 146 Ariz. at 356 (rejecting this court’s
inclusion of the obviousness of the danger within a duty analysis rather
than a breach analysis); Shaw, 169 Ariz. at 561 (rejecting trial court’s ruling
that the open and obvious nature of a pool was a part of a duty analysis).
This confusion is especially acute here because, historically, questions of
unreasonable risk of harm and the open and obvious nature of a danger
have been for a jury, not a court, and courts have been admonished for
overstepping their role. See, e.g., Markowitz, 146 Ariz. at 355-56; Shaw, 169
Ariz. at 561. Blurring the distinction between duty and breach of that duty
runs counter to the supreme court’s attempt to establish a clear demarcation
between them in Gipson, 214 Ariz. at 143 ¶ 9. As the supreme court clearly

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Howe, J., Concurring
stated in Gipson: “A fact-specific analysis of the relationship between the
parties is a problematic basis for determining if a duty of care exists. The
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. The Majority’s
analysis does just what Gipson warned against.

¶44 The Majority cites as authority for its analysis Dinsmoor v. City
of Phoenix, 251 Ariz. 370 (2021). The supreme court says there that “[w]e do
not understand Gipson as meaning a court cannot consider facts to
determine whether a duty exists based on the presence of an unreasonable
risk of harm that arose within the scope of a special relationship.” Id. at 376
¶ 27. While that statement on its face may support the Majority’s position
that it can consider facts addressing unreasonable risk of harm in
determining the scope of duty, on closer inspection, the statement does not
apply to this case.

¶45 Dinsmoor was a tragic case of a student murdered off campus
by another student when school personnel were arguably aware that
violence might occur, and the issue was whether the school owed a duty of
care to the murdered student. Id. at 371-72 ¶ 1. In determining the scope of
the school’s duty to its students, the supreme court held that no duty of care
existed because any unreasonable risk of harm did not arise during the
school-student relationship. Id. at 377 ¶¶ 28-29. The facts showed that the
risk of harm to the student did not exist until after the student left the
school’s supervision. Id. at 377 ¶ 28. That is the context in which the
supreme court stated that specific facts of the case can be considered in
determining duty.

¶46 Taken in context, the Dinsmoor statement does not apply here.
Dinsmoor presented unusual facts requiring the resolution of geographic
and temporal limits of a school’s duty to its students, which had statewide
effect. In contrast, this case, while vitally important to the parties, presents
mundane facts and issues: did the store owner take appropriate precautions
to keep its premises safe for its customers like Perez? No question exists
whether the allegedly unreasonable risk of harm to Perez—placing the
water cases at the end cap, creating the risk of tripping and physical
injury—occurred within the context of the land possessor/business invitee
relationship. Breach, not duty, is the issue here, and language from a case
addressing different issues should not be taken out of context to upend
settled law.

¶47 In any event, if my understanding of Dinsmoor turns out
faulty and Dinsmoor applies to this case, it is inconsistent with Markowitz
and the other cases holding that whether an unreasonable risk of harm

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Howe, J., Concurring
exists and whether the danger is open and obvious are factual questions not
for a court to resolve, but for a jury. See supra ¶ 38. In that event, I would
urge the supreme court to grant review in this case to resolve that conflict.

¶48 The Majority believes my analysis faulty. But the alleged
faults, with respect, are not well-taken. First, the Majority argues that the
supreme court has not consistently followed the rule it expressly stated in
Markowitz, relying on Dinsmoor. See supra ¶ 14. But given the number of
supreme court and court of appeals decisions following Markowitz before
Dinsmoor holding that the issues of unreasonable risk and the open and
obvious nature of the danger are breach questions, see supra ¶ 38,
inconsistency is hardly a problem. And as noted, Dinsmoor, rightly
understood, see supra ¶¶ 44–45, is not inconsistent with Markowitz.
Moreover, if the Majority is correct that Markowitz and Dinsmoor are
inconsistent, all the more reason for the supreme court to grant review and
resolve the inconsistency.

¶49 Second, the Majority argues that under my analysis, once the
legal relationship between a plaintiff and a defendant is established and a
plaintiff “minimally allege[s] injury,” the issue of duty must go to trial, see
supra ¶ 15, apparently because the unreasonableness of the risk of harm and
the open and obvious nature of the danger can be resolved only by a jury.
But this argument assumes an incorrect premise, that the unreasonableness
of the risk and the open and obvious nature of the danger are questions that
pertain to duty. These factual questions are, as the supreme court and this
court have repeatedly held, part of the breach analysis. See supra ¶ 38. So a
court can resolve the issue of duty as a legal matter without regard to
contested facts that must be submitted to a jury.

¶50 Moreover, the fact that a court must determine duty without
considering the unreasonableness of the harm and the open and obvious
nature of the danger does not mean, as the Majority seems to imply, that
tort cases will more easily survive summary judgment. A court’s
determination that a defendant owes a duty of care to a plaintiff is never by
itself enough to get a case to trial. The plaintiff must still also show that a
genuine issue of material fact exists whether the defendant breached that
duty, whether the defendant caused the plaintiff injury, and whether the
plaintiff suffered damages. See Gipson, 214 Ariz. at 143 ¶ 9. If a plaintiff fails
to show a genuine issue of material fact on any of these elements, summary
judgment is warranted. Ariz. R. Civ. P. 56(a); Gipson, 214 Ariz. at 143 ¶ 9
n.1. For this reason, while the Majority and I disagree whether unreasonable
risk and the open and obvious nature of danger should be accounted for
under the duty element or the breach element, our disagreement does not
affect the likelihood of surviving a summary judgment motion because a

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Howe, J., Concurring
plaintiff still has to present sufficient evidence on that point to survive
summary judgment.

¶51 Third, the Majority takes issue with the distinction I have
observed in Dinsmoor. The Majority claims that determining when an
unreasonable risk of danger arose—the factual determination the supreme
court made in Dinsmoor—is the same as determining if an unreasonable risk
of danger exists—as the Majority does in this case. See supra ¶ 13 n.1. But
that is not true. Determining when a danger may have arisen is a narrow
question that specifically pertains to duty. If, as in Dinsmoor, the danger of
murder occurred outside the time that the school supervised the student,
then the school had no duty to the student. 251 Ariz. at 377 ¶ 28. Whether
the placement of the water cases in this case constituted an unreasonable
risk of danger—which undoubtedly occurred during the land
possessor/business invitee relationship—is a broader factual question that
goes to breach of the duty of care. See ¶ 38. Dinsmoor should not be read to
blur the clear demarcation between the legal question of duty and the
factual question of breach of that duty.

¶52 These are the reasons I, respectfully, cannot join the Majority’s
analysis, although I agree that summary judgment was appropriate. I
therefore concur in the judgment.

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

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