McCarthy v. Kummerle

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DOUGLAS MCCARTHY and MELODY MCCARTHY, a married couple,
Plaintiffs/Appellants,

v.

JOHN KUMMERLE and JACKIE KUMMERLE, husband and wife;
PHILLIP YOUNIS and DEBBIE YOUNIS, husband and wife; MOR-DOR
DEVELOPMENT, INC., individually and collectively, d.b.a. RIVER
ISLAND MARKET, an Arizona corporation; CASTLE ROCK
COMMUNITIES, LLC d.b.a. CASTLE ROCK SHORES RV PARK,
Defendants/Appellees.

No. 1 CA-CV 24-0887
FILED 10-22-2025

Appeal from the Superior Court in La Paz County
No. S1500CV202400001
The Honorable Marcus A. Kelley, Judge

AFFIRMED

COUNSEL

Stone Rose Law Firm, LLC, Scottsdale
By Colby Kanouse
Counsel for Plaintiffs/Appellants
Resnick & Louis, PC, Scottsdale
By Derek Warner
Counsel for Defendants/Appellees Kummerle, et al.

Wood Smith Henning & Berman, LLP, Phoenix
By Jason R. Mullis, Leo Yang
Counsel for Defendants/Appellees Castle Rock

MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in
which Judge Daniel J. Kiley and Judge Brian Y. Furuya joined.

P A T O N, Judge:

¶1 Douglas and Melody McCarthy (“the McCarthys”) appeal the
superior court’s dismissal of their complaint against Castle Rock Shores RV
Park (“Castle Rock”) and River Island Market (“the Market”). For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In January 2023, the McCarthys were staying at Castle Rock,
an RV park located along a two-lane highway in Parker, Arizona. One
evening, Douglas McCarthy (“Mr. McCarthy”) crossed the highway from
Castle Rock to shop at the Market. While walking back across the road to
Castle Rock, he was struck by a car and sustained serious injuries.

¶3 The McCarthys sued Castle Rock and the Market, alleging
both businesses failed to adequately illuminate their premises for
pedestrians crossing the highway. The McCarthys argued Castle Rock
knew of an unreasonable risk of harm from the inadequate lighting, but
“did nothing to ameliorate the risk.”

¶4 In May 2024, Castle Rock and the Market jointly moved to
dismiss the McCarthys’ complaint under Arizona Rule of Civil Procedure
(“Rule”) 12(b)(6), arguing Mr. McCarthy was not on their premises when
he was struck.

¶5 The McCarthys responded to Castle Rock and Market’s
motion to dismiss in June 2024, arguing that both parties owed Mr.

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Decision of the Court

McCarthy a duty to provide a safe means of ingress and egress to their
properties, and inadequate lighting on the parties’ premises created an off-
premises danger of darkness on the highway.

¶6 The superior court held oral argument in August 2024, and in
October 2024, granted the motion to dismiss, finding neither Castle Rock
nor the Market owed Mr. McCarthy a duty “in terms of off-premises
liability.”

¶7 The McCarthys timely appealed.1 We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) Section 12-120.21(A)(1).

DISCUSSION

¶8 The McCarthys argue that because Mr. McCarthy was an
invitee, Castle Rock and the Market owed a duty to maintain their premises
in a reasonably safe condition. The McCarthys contend that inadequate
lighting on both properties created an unreasonable risk of harm that Castle
Rock and the Market knew existed. The McCarthys emphasize that the
business-invitee relationship between the parties imposes a duty on Castle
Rock and the Market to provide safe ingress and egress from both
properties, and that they breached that duty by not maintaining their
premises.

¶9 We review the superior court’s dismissal of a complaint under
Rule 12(b)(6) de novo. Conklin v. Medtronic, Inc., 245 Ariz. 501, 504, ¶ 7
(2018). Dismissal under Rule 12(b)(6) is proper if “as a matter of law [the
Plaintiff] would not be entitled to relief under any interpretation of the facts
susceptible of proof.” CVS Pharmacy, Inc. v. Bostwick, 251 Ariz. 511, 576-77,
¶ 10 (2021) (internal quotation omitted). We treat well-pleaded material
allegations as admitted but do not accept as true legal conclusions or
unwarranted deductions of fact. Johnson Int’l, Inc. v. City of Phx., 192 Ariz.
466, 470, ¶ 19 (App. 1998).

¶10 A plaintiff must prove the following four elements to prevail
on an ordinary negligence claim: (1) the defendant had a duty to conform
to a certain standard of care, (2) the defendant breached that duty, (3) a
causal connection existed between the defendant’s conduct and the
resulting injury, and (4) damages occurred. Gipson v. Kasey, 214 Ariz. 141,

1 Castle Rock filed an Answering Brief but the Market did not. Although
we could treat this failure to respond as a confession of reversible error, in
the exercise of our discretion, we decline to do so. Michaelson v. Garr, 234
Ariz. 542, 544, ¶ 4 n.3 (App. 2014).

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143, ¶ 9 (2007). Whether a duty exists is a question of law we review de
novo. Diaz v. Phx. Lubrication Service, Inc., 224 Ariz. 335, 338, ¶ 12 (App.
2010). A negligence action cannot be maintained unless a duty exists. Id.
Duty may be based on a special relationship between the parties or on a
relationship shaped by public policy. Gipson, 214 Ariz. at 144-45, ¶¶ 18-23;
see also Perez v. Circle K Convenience Stores, Inc., 259 Ariz. 221, 228, ¶ 21 (2025)
(“[T]he proper inquiry in the duty analysis is whether a special relationship
existed between the plaintiff and defendant and, if so, whether the risk of
harm alleged to have injured the plaintiff arose within that relationship.”
(emphasis added)).

¶11 Arizona imposes on landowners a duty to invitees to
maintain their premises in a reasonably safe condition. Nicoletti v. Westcor,
Inc., 131 Ariz. 140, 142 (1982). Landowners have “a duty to provide a
reasonably safe means of ingress and egress for those who enter onto the
land,” whether as public invitees who enter the land as members of the
public, or as business invitees who enter the land for purposes connected
with business dealings. Nicoletti, 131 Ariz. at 143. But “[o]nce an invitee
safely leaves the premises, the landowner-invitee relationship terminates,
as does the landowner’s duty to the invitee.” Ritchie v. Costello, 238 Ariz.
51, 54, ¶ 11 (App. 2015).

¶12 To prevail on their premises liability claim, the McCarthys
had to prove that Castle Rock and the Market owed Mr. McCarthy a duty,
namely, the duty to maintain the ingress and egress on their properties in a
reasonably safe condition. Perez, 259 Ariz. at 224, ¶ 7; Quiroz v. ALCOA,
Inc., 243 Ariz. 560, 563-64, ¶ 7 (2018).

¶13 The McCarthys cannot establish the existence of such a duty,
nor can they prove Mr. McCarthy had a special relationship with Castle
Rock or the Market. Phx. Union High Sch. Dist. No. 210 v. Sinclair, ___ Ariz.
___, 572 P.3d 80, 87, ¶ 25 (2025) (cautioning against “unreasonabl[e]
expan[sion]” of duty to “every business [with] customers jaywalking across
a public road to reach the business premises.”). Establishing whether Mr.
McCarthy had a business-invitee relationship with either Castle Rock or the
Market depends on his status at the time he was struck on the highway.
Perez, 259 Ariz. at 228, ¶ 21. Undoubtedly, Mr. McCarthy would have been
a business invitee while on Castle Rock’s grounds because he was a guest
and would have also been a business invitee while inside the Market. But
once Mr. McCarthy left the area to which he was invited, i.e., the property
lines of Castle Rock and the Market, the business-invitee relationship was
terminated and neither Castle Rock nor the Market owed him a duty at the
time he was struck.

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¶14 The McCarthys’s reliance on Stephens v. Bashas’ Inc., 186 Ariz.
427 (App. 1996) is misplaced. In Stephens, a business invitee suffered off-
premises harm after Bashas’ required him to park offsite for a delivery.
Stephens, 186 Ariz. at 429. We concluded that Bashas’ owed the business
invitee a duty to maintain ingress into its delivery dock to avoid off-
premises injury. Stephens, 186 Ariz. at 430-31. Here, however, neither
Castle Rock nor the Market required Mr. McCarthy to cross the road afoot;
he voluntarily did so.

¶15 The McCarthys argue that a landowner’s duty to provide a
safe means of ingress and egress includes the duty to prevent off-premises
harm to invitees entering or leaving the property, according to Udy v.
Calvary Corp., 162 Ariz. 7 (App. 1989). In Udy, we held that the landlord
owed a duty to a child who was struck by a car while chasing a ball that
escaped from the home’s unfenced yard. Id. at 14 (noting the landlord-
tenant relationship required the landlord to “take such precautions for the
tenants’ safety as a reasonably prudent person would take under similar
circumstances in light of the known and foreseeable risks”). But Udy is
inapposite because it involved a landlord-tenant duty, which is different
from the business-invitee relationship here. See Yoder v. Tux-Xpress Inc., 1
CA-CV 16-0396, 2017 WL 1709509, at *3, ¶ 11 n.2 (Ariz. App. May 2, 2017)
(mem. decision) (finding Udy inapplicable when determining existence of
duty to a business invitee because Udy addressed only a landlord’s duty to
a tenant).

¶16 Further, the landlord in Udy controlled the tenants’ ability to
protect themselves from the danger of traffic outside their home. 162 Ariz.
at 16 (Jacobson, J., concurring) (“This duty arises out of control.”). The
landlord repeatedly refused the tenants’ multiple requests to build a fence,
even at their own expense, and the tenants were unable to simply move to
a different home. Id. at 9-10. In contrast, neither Castle Rock nor the Market
had the authority to install lighting on the public highway. See Parker,
Ariz., Code §§ 10-14-4, -8; see also Phx. Union High Sch. Dist. No. 210, 572 P.3d
at 84-85, ¶ 16 (finding school owed no duty to student injured while
crossing street that school had no authority to install safety features on).

¶17 The McCarthys also contend that Castle Rock and the Market
were aware that pedestrians crossed the highway to visit the respective
businesses and knew about “the near total lack of lighting” on both
properties. But whether Castle Rock and the Market foresaw potential
harm does not create a duty, because foreseeability is no longer a factor in
determining duty. Gipson, 214 Ariz. at 144, ¶ 15. Arizona no longer imposes
an obligation upon landowners “to discover and correct or warn of hazards

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which the possessor should reasonably foresee as endangering an invitee.”
Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 367 (1985). Here, the hazards did
not exist on property controlled by either Castle Rock or the Market; rather,
they existed entirely on the road, which is state-owned property. The
superior court properly granted Castle Rock’s motion to dismiss.

CONCLUSION

¶18 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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