Rosales v. Alvarado

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERIK ROSALES, Plaintiff/Appellant,

v.

JOSE ALVARADO, Defendant/Appellee.

No. 1 CA-CV 23-0592
FILED 3-19-2024

Appeal from the Superior Court in Maricopa County
No. CV2021-014148
The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

Martinet Law, Scottsdale
By Philippe Martinet
Counsel for Plaintiff/Appellant

Hill, Hall & DeCiancio PLC, Phoenix
By R. Corey Hill, Christopher Robbins
Counsel for Defendant/Appellee
 ROSALES v. ALVARADO
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge David D. Weinzweig joined.

J A C O B S, Judge:

¶1 House painter Erick Rosales appeals the summary judgment
for homeowner Jose Alvarado in Rosales’s suit over serious injuries Rosales
suffered tripping over fixed cables he had previously noticed while
working on Alvarado’s roof. Rosales argues summary judgment was
improper because he was an invitee, and because the fixed cables were not
as a matter of law an open and obvious hazard. Because Rosales admitted
seeing and ignoring the fixed cables, even if he was an invitee, there was no
issue of fact as to whether the cables were open and obvious. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Alvarado hired Robin Poz, Rosales, and two other men to
paint his home. Alvarado paid them $2,500 for labor and provided the
paint and supplies. Before painting, Poz and Rosales surveyed the house.
Poz told Rosales he would paint the portion on the roof. On the fourth day
of painting, Poz had gone to a home improvement store, while Rosales got
on top of the roof. After Rosales had almost finished painting, he tripped
over fixed cables and fell, suffering serious injuries.

¶3 Rosales sued Alvarado, claiming he was an invitee to whom
Alvarado owed a duty to make the premises safe. Alvarado denied these
allegations and argued Rosales failed to mitigate his damages. Alvarado
moved for summary judgment claiming he did not owe Rosales a duty to
protect him from non-obvious dangers and that the cables were open and
obvious. Rosales opposed, arguing Alvarado had a duty to warn against
dangers and that there was a genuine issue of material fact as to whether
the cables were open and obvious. The superior court granted Alvarado
summary judgment because Rosales testified that before he began painting
the roof, he saw the cables on the roof but forgot about them after he started
painting.

¶4 Rosales timely appealed. We have jurisdiction under A.R.S. §
12-2101(A) and Article 6, Section 9 of the Arizona Constitution.

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 ROSALES v. ALVARADO
Decision of the Court

DISCUSSION

¶5 Summary judgment is proper when “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). We review
summary judgments de novo, viewing the facts in the light most favorable
to the nonmoving party. Lee v. M & H Enters., Inc., 237 Ariz. 172, 175 ¶ 10
(App. 2015). We take undisputed facts as true. Portonova v. Wilkinson, 128
Ariz. 501, 502 (1981).

¶6 A landowner owes varying duties to invitees, licensees, or
trespassers. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142-43 (1982). For
simplicity’s sake, we assume Rosales is an invitee, the status entitling him
to the greatest degree of protection among those statuses. While
landowners owe duties to invitees to provide for their safety, Ft. Lowell-NSS
Ltd. P’ship v. Kelly, 166 Ariz. 96, 101 (1990), a landowner “is not ordinarily
found negligent for injuries to those invitees from conditions which are
open and obvious, nor for those which are known to the invitee.” Markowitz
v. Ariz. Parks Bd., 146 Ariz. 352, 356 (1985). Summary judgment is
appropriate if no reasonable juror could find that a landowner breached a
duty. Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9 n.1 (2007).

¶7 Here, no reasonable juror could find Alvarado breached a
duty. Rosales testified, “I saw [the fixed cables] before starting the painting,
but then once you’re painting and you have your adrenaline pumping, you
forget about it.” Because it is undisputed Rosales saw the fixed cords and
failed to attend to them, Alvarado breached no duty to Rosales, because the
condition was both open and obvious and “known to the invitee.”
Markowitz, 146 Ariz. at 356. Rosales argues Alvarado should have warned
him of the hazard, but given that Rosales admits seeing the hazard, the
argument that a lack of warning caused his injury fails because he knew of
the hazard and failed to take account of it. See id.

¶8 Rosales argues there was an issue of fact as to whether the
cables were open and obvious, citing Shaw v. Petersen, 169 Ariz. 559, 562
(App. 1991), in which we held that whether a pool was an open and obvious
hazard to a child was a question of fact for the jury. Shaw does not aid
Rosales, because the question about the child’s perspective on the hazard
was central, and it was unclear the extent to which the pool’s danger was
obvious to the child.

¶9 Rosales also relies on our unpublished decision in Perez v.
Palace Banquets & Events, LLC, 1-CA-CV 15-0735, 2017 WL 117115 (Ariz.

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 ROSALES v. ALVARADO
Decision of the Court

App. Jan. 12, 2017) (mem. decision), but it too is readily distinguishable.
There, a workman died from electrocution and thus did not give testimony,
as Rosales did, which clarified the open and obvious nature of the hazard
at issue. Id. at *3 ¶ 12. While it is true, as Rosales argues, that whether a
hazard is open or obvious is generally a fact issue, that is in part because
plaintiffs seldom testify to their prior observation of the hazard at issue. As
Markowitz explains, a landowner will generally not be liable to an invitee
who knows of a hazard. 146 Ariz. at 356. This is a case in which that rule
is decisive.

CONCLUSION

¶10 For these reasons, we affirm.

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

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