Metcalf v. Montecito

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JEANNE METCALF, et al., Plaintiffs/Appellants,

v.

THE MONTECITO PEORIA LESSEE, LLC, et al., Defendants/Appellees.

No. 1 CA-CV 24-0413
FILED 02-06-2025

Appeal from the Superior Court in Maricopa County
No. CV2022-011491
The Honorable Susanna C. Pineda, Judge

AFFIRMED

COUNSEL

Napier, Baillie, Wilson Bacon & Tallone, P.C, Phoenix
By Michael Napier, Juliana B. Tallone
Counsel for Plaintiffs/Appellants

Lewis Brisbois Bisgaard & Smith, LLC, Phoenix
By Kevin C. Nicholas, Bruce C. Smith, Jay R. Rademacher
Counsel for Defendants/Appellees
 METCALF, et al. v. MONTECITO, et al.
Decision of the Court

MEMORANDUM DECISION

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

P E R K I N S, Judge:

¶1 Jeanne Metcalf, as personal representative of Irene Tierney’s
estate, appeals from the superior court’s entry of summary judgment in
favor of The Montecito Peoria Lessee, LLC (the “Montecito”) on her
negligence claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The Montecito is a senior living community in Peoria. The
Montecito gives all its residents a Resident Handbook, which contains a
Motorized Cart Policy. The Motorized Cart Policy prohibits residents from
driving motorized mobility scooters from outdoor areas into the building
and admonishes residents to operate carts in “a conservative and safe
manner, taking special precautions . . . in situations that present an
additional risk of injury or alarm to others in the vicinity.” The Policy also
states that “[a]t high traffic times . . . extra precautions may be required by
management for motorized carts entering or exiting the area.” Residents
wishing to use a scooter must sign a “motorized cart agreement” that
requires them to comply with the Motorized Cart Policy.

¶3 Irene Tierney and Grace Stewart both lived in independent
living casitas at the Montecito. One morning in May 2022, Stewart’s back
was hurting, so she borrowed her husband’s scooter to go to the dining
room to get lunch. Stewart had only used the scooter twice before, driving
it around the parking lot for practice. Stewart did not notify the Montecito
that she would be driving the scooter that day. And she never signed a
motorized cart agreement.

¶4 The Montecito’s lobby was crowded with residents waiting to
board a bus to take them shopping. Stewart drove into the lobby just as the
crowd began to move toward the door. Stewart panicked and tried to brake
by pressing her foot down as if she were in a car, but the scooter did not
have a brake pedal—Stewart had forgotten that braking was accomplished
by releasing the throttle on the handlebars. Still traveling at full speed,

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Stewart drove into the lobby and crashed into Tierney, who was standing
at the front desk. Tierney fell, hit her head on the bottom of the desk, and
later died from her injuries.

¶5 Tierney’s daughter, Jeanne Metcalf, sued the Montecito and
Stewart for negligence on behalf of her mother’s estate. The Montecito
moved for summary judgment, arguing no reasonable jury could find that
it breached its duty to Tierney. The superior court granted summary
judgment in favor of the Montecito.

¶6 Metcalf timely appealed and we have jurisdiction. A.R.S. § 12-
2101(A)(1).

DISCUSSION

¶7 Metcalf argues summary judgment was inappropriate
because a reasonable jury could have found the Montecito breached its duty
to Tierney. We review a grant of summary judgment de novo, viewing
evidence in the light most favorable to the non-moving party. Federico v.
Maric, 224 Ariz. 34, 36, ¶ 7 (App. 2010). “We will affirm a grant of summary
judgment if the [superior] court was correct for any reason.” Id.

¶8 A plaintiff claiming negligence must prove that: (1) the
defendant owed the plaintiff a duty to conform to a certain standard of care;
(2) the defendant breached that duty; (3) the defendant’s breach caused the
plaintiff’s injury; and (4) actual damages. Gipson v. Kasey, 214 Ariz. 141, 143,
¶ 9 (2007).

I. Duty

¶9 The Montecito argues on appeal that it did not owe a duty to
Tierney. The Montecito cites Perez v. Circle K Convenience Stores, Inc., 257
Ariz. 244 (App. 2024), in which we held that the duty analysis in premises
liability cases includes a factual inquiry to determine whether a dangerous
condition is unreasonable given the relationship between the parties. Id. at
247–49, ¶¶ 12–16.

¶10 The Montecito did not dispute duty below. It conceded it
owed Tierney a landowner-invitee duty and instead argued that it did not
breach its duty to Tierney because (1) it did not cause or permit a dangerous
condition on its property, and (2) it had insufficient time to remedy the
condition once it arose. The superior court thus never reached the question
of duty.

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¶11 A party must timely present its legal theories to the superior
court so that the court has an opportunity to address all issues on their
merits. Roebuck v. Mayo Clinic, 256 Ariz. 161, 166, ¶ 16 (App. 2023). A party
who fails to raise an argument before the superior court waives it on appeal.
Id.

¶12 Because the Montecito did not dispute duty below, it has
waived the duty argument on appeal. The only issue before us is whether
the Montecito breached its landowner-invitee duty to Tierney. See Libretti v.
QuikTrip Corp., 1 CA-CV 23-0762, 2024 WL 4459044, at *2, ¶ 11 n.2 (Ariz.
App. Oct. 10, 2024) (mem. decision) (supplemental citation to Perez was
misplaced because defendants did not dispute duty below; the sole issue
on appeal was breach). And given the following resolution of the breach
question, we need not address duty even if the Montecito had not waived
it. See Orme Sch. v. Reeves, 166 Ariz. 301, 310 (1990) (a party moving for
summary judgment needs only to show that no evidence exists to support
an essential element of the claim).

II. Breach

¶13 Breach is a factual matter typically determined by the jury,
Gipson, 214 Ariz. at 143, ¶ 9, but summary judgment on breach is
appropriate when the evidence is insufficient to create a genuine dispute of
material fact whether the defendant’s conduct fell below the standard of
care, Coburn v. City of Tucson, 143 Ariz. 50, 53 (1984).

¶14 A landowner owes an invitee a duty of reasonable care to
make the premises safe for the invitee’s use. McMurtry v. Weatherford Hotel,
Inc., 231 Ariz. 244, 253, ¶ 23 (App. 2013). But “[t]he proprietor of a business
premises is not an insurer of the safety of invitees and is not required at his
peril to keep the premises absolutely safe.” Berne v. Greyhound Parks of Ariz.,
Inc., 104 Ariz. 38, 41 (1968). Instead, “[t]he standard of reasonable care
generally includes an obligation to discover and correct or warn of
unreasonably dangerous conditions that the [landowner] should
reasonably foresee might endanger an invitee.” McMurtry, 231 Ariz. at 253,
¶ 23. A plaintiff establishes the foreseeability necessary to prove breach of
that standard of care by showing that the landowner caused or had actual
or constructive knowledge of the dangerous condition. Preuss v. Sambo’s of
Ariz., Inc., 130 Ariz. 288, 289 (1981).

¶15 Metcalf argues that the Montecito’s Motorized Cart Policy
demonstrates it had actual knowledge of a dangerous condition—namely,
motorized scooters being driven in crowded lobbies. That knowledge, and

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the Motorized Cart Policy itself, created a duty to prevent collisions. Metcalf
asserts the Montecito breached that duty by failing to prohibit motorized
scooters in crowded areas during high-traffic times like lunchtime.

¶16 But Metcalf conflates the dangerous condition with the
circumstances that could produce it. A landowner is liable for injuries
sustained on his premises only if he caused or had notice “of the defect itself
which occasioned the injury, and not merely of conditions naturally
productive of that defect and subsequently in fact producing it.” Preuss, 130
Ariz. at 289. For example, if a rock falls out of a planter onto an adjacent
sidewalk and someone slips on the rock, the landowner is liable only if he
placed the rock on the sidewalk or otherwise had notice of the rock. Id. at
290. The landowner is not liable merely because the planter supplied the
rock, or because he might foresee that someone could kick a rock out of the
planter onto the sidewalk. Id. To hold the landowner liable, there must be
“some evidence that others had fallen on, or complained about, [the]
rock[],” id. at 290, or that the rock had been on the sidewalk for long enough
that “in the exercise of ordinary care the [landowner] should have known
of it and taken action to remedy it,” id. at 289.

¶17 Here, Tierney was not injured by just any scooter in the
Montecito’s lobby; she was injured by Stewart’s scooter. Thus, the
dangerous condition that caused Tierney’s injury was Stewart on her
husband’s scooter, not the Montecito’s general tolerance of motorized
scooters in its lobby. The latter is a circumstance that produced the former,
but the former is the dangerous condition we consider.

¶18 The Montecito’s liability thus depends on whether there is
evidence that it knew Stewart drove her husband’s scooter, or that Stewart
had been doing so regularly enough that the Montecito should have known.

¶19 The record shows the Montecito did not have actual or
constructive notice that Stewart drove her husband’s scooter. Stewart never
signed a motorized cart agreement. Stewart practiced driving the scooter in
the parking lot twice, but the record contains no evidence that the
Montecito was aware of those practice sessions. Stewart testified that she
had otherwise never driven the scooter until the day of the incident, and
she did not notify the Montecito that she would be using the scooter that
day. The parties agree that Stewart crashed into Tierney within a few
seconds after she drove her scooter through the lobby door.

¶20 Metcalf produced no evidence to create a genuine dispute of
those material facts. Instead, Metcalf asserted at summary judgment that

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the Montecito “had reason to know a resident, like Ms. Stewart, could be in
the facility area on a motorized scooter” because Stewart’s husband used
the scooter every day leading up to the incident, and Montecito residents
regularly used scooters. But neither of those facts establishes notice that
Stewart—the dangerous condition that caused the injury—would be
driving the scooter.

¶21 If the Montecito had notice that Stewart drove her husband’s
scooter, then it would be for a jury to decide the Montecito’s standard of
care and whether it breached its duty. Absent such notice, there is no
dispute of material fact that the Montecito could not have foreseen or
prevented the accident. See Coburn, 143 Ariz. at 53. The Montecito thus did
not breach the standard of care. The superior court did not err by granting
summary judgment in its favor.

CONCLUSION

¶22 We affirm.

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

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