PAIRSH v. COMPASS CHRISTIAN

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KIMBERLY DAWN PAIRSH, Plaintiff/Appellant,

v.

COMPASS CHRISTIAN CHURCH, et al., Defendants/Appellees.

No. 1 CA-CV 25-0193
FILED 09-03-2026

Appeal from the Superior Court in Maricopa County
No. CV2021-095493
The Honorable Peter A. Thompson, Judge

VACATED AND REMANDED

COUNSEL

Law Office of Gilbert Azafrani, Marina del Rey, CA
By Gilbert Azafrani (argued)
Co-Counsel for Plaintiff/Appellant

William D. Black, Esq., Phoenix, AZ
By William D. Black
Co-Counsel for Plaintiff/Appellant

Jones Skelton & Hochuli PLC, Phoenix, AZ
By Michael A. Ludwig, Arcangelo S. Cella (argued), Christopher M.
Brown
Counsel for Defendants/Appellees

PAIRSH v. COMPASS CHRISTIAN, et al.
Decision of the Court

MEMORANDUM DECISION

Chief Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge David B. Gass1 and Judge Anni Hill Foster joined.

H O W E, Judge:

¶1 Kimberly Dawn Pairsh appeals the superior court’s order
granting summary judgment to Compass Christian Church, Kids Discovery
Club Christian Preschool, Karen Fullbright, and Karen Clough (“the
Church”) on her negligence claim. For the following reasons, we vacate and
remand to the superior court.

FACTS AND PROCEDURAL BACKGROUND

¶2 The Church operates a preschool located down a hallway
accessible through either the Church’s lobby or two exterior doors leading
directly into the hallway from outside. In November 2019, Pairsh arrived at
the Church to pick up a child she nannied from the preschool. It had been
raining that morning and began to rain more heavily by the time Pairsh was
at the Church for preschool dismissal. The Church became crowded with
around 50 people seeking shelter from the rain, some waiting in the
hallway.

¶3 When the preschool was dismissed, people lined up to pick
up their children. Pairsh waited in line for 15-20 minutes before retrieving
the child and walking down the hallway away from the preschool. Pairsh
then slipped and fell in the hallway seriously injuring herself. Although she
did not observe any water on the floor before she fell, her hands and clothes
were wet after she fell.

1 Judge David B. Gass was a sitting member of this Court when the matter

was assigned to this panel of the Court. He retired effective June 30, 2026.
In accordance with the authority granted by Article 6, Section 3, of the
Arizona Constitution, and under A.R.S. § 12-145, the Chief Justice of the
Arizona Supreme Court has designated Judge David B. Gass as a judge pro
tempore in the Court of Appeals for the purpose of participating in the
resolution of cases assigned to this panel during his term in office and for
the duration of Administrative Order 2026-87.

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PAIRSH v. COMPASS CHRISTIAN, et al.
Decision of the Court

¶4 Pairsh sued, alleging that the Church was negligent because
it failed to adequately maintain the hallway and failed to discover or correct
a hazardous condition. The Church moved for summary judgment, arguing
that it did not owe Pairsh a duty of care because no unreasonably
dangerous condition existed on its premises. It also argued that, even if it
did owe Pairsh a duty of care, it had not breached that duty. It claimed that
Pairsh failed to offer sufficient evidence that the hallway was wet, that the
Church caused the floor to be wet, or knew, or should have known that the
floor was wet. Finally, the Church argued that Pairsh’s fall was not the
proximate cause of some of her injuries.

¶5 Relying on Perez v. Circle K Convenience Stores, Inc., 257 Ariz.
271 (App. 2024) (“Perez I”) the court determined that the condition of the
floor on the day Pairsh fell was “open and obvious to all present” and thus
the Church’s premises were not “unreasonably dangerous.” It thus ruled,
as a matter of law, that the Church did not owe Pairsh “a duty to warn of
or render safe any such condition.” It granted the Church summary
judgment, dismissed the case, and certified the judgment under Arizona
Rule of Civil Procedure 54(c). Pairsh timely appealed and we have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶6 Pairsh argues that “the trial court erred in deciding the issue
of an ‘unreasonable condition’ and concluding that” the Church did not
owe her a duty.

I. Waiver

¶7 The Church argues that, because Pairsh “did not respond to
[its] argument that unreasonable dangerousness was a duty issue or . . . that
the trial court could decide breach as a matter of law” she waived those
arguments on appeal. Although not a model of clarity, Pairsh’s response to
the Church’s motion argued that the Church was not entitled to summary
judgment. She argued generally that her “testimony” that the hallway floor
was wet and caused her to slip and fall was uncontroverted and presented
a dispute of material fact such that summary judgment would be improper.
She disputed that the Church was entitled to judgment as a matter of law
on the issue of duty and asserted that a material fact question precluded
summary judgment on the issue of breach. Pairsh thus did not waive these
arguments.

¶8 The Church also argues that Pairsh waived “any argument
against” its motion for summary judgment by not timely responding to it.

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PAIRSH v. COMPASS CHRISTIAN, et al.
Decision of the Court

But she waived nothing. Pairsh responded to the motion one business day
late, and the superior court considered it in ruling on the Church’s motion
for summary judgment. And even if Pairsh had not responded to the
Church’s motion for summary judgment, the Church still had the burden
to show entitlement to judgment as a matter of law and this Court could
review the superior court’s ruling. Schwab v. Ames Const., 207 Ariz. 56, 59–
60 ¶¶ 15–16 (App. 2004); Ariz. R. Civ. P. 56(a) & (e).

¶9 The Church also argues that Pairsh waived her duty
argument on appeal because she did not file any post-judgment motions
regarding that issue in the superior court. That argument fails because
“[u]pon an appeal from a final judgment” this Court reviews “all orders
and rulings assigned as error.” A.R.S. § 12-2102(A). Pairsh did not waive
her arguments on appeal.

II. Summary Judgment

¶10 The next issue is whether the superior court erroneously
granted the Church summary judgment. “We review the entry of summary
judgment de novo, viewing the facts in the light most favorable to the
nonmoving party.” Dinsmoor v. City of Phoenix, 251 Ariz. 370, 373 ¶ 13
(2021). A court may grant summary judgment when “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). Summary judgment should be
granted, “if the facts produced in support of the claim or defense have so
little probative value, given the quantum of evidence required, that
reasonable people could not agree with the conclusion advanced by the
proponent of the claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309
(1990).

¶11 A plaintiff in a negligence action must show “the existence of
a duty owed by the defendant to the plaintiff, a breach of that duty, and
injury proximately caused by such breach.” Berne v. Greyhound Parks of
Ariz., Inc., 104 Ariz. 38, 39 (1968).

A. Duty

¶12 A duty exists if 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.” Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356 (1985).
Pairsh was the Church’s invitee, and it therefore owed her a duty to use
reasonable care to “discover and correct or warn of hazards which the
possessor should reasonably foresee as endangering an invitee.” Id. at 355.

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PAIRSH v. COMPASS CHRISTIAN, et al.
Decision of the Court

¶13 Relying on this Court’s decision in Perez I, however, the
superior court found that the conditions on the Church’s premises were not
“unreasonably dangerous” and thus the Church did not owe Pairsh a duty
of care. But as both parties agree, our supreme court has since clarified the
duty standard in Perez v. Circle K Convenience Stores, Inc., 259 Ariz. 221 (2025)
(“Perez II”) making the superior court’s reliance on Perez I misplaced. “[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.” Perez II,
259 Ariz. at 228 ¶ 21. Factual issues such as whether an unreasonable risk
of harm existed or whether the danger was open and obvious are
considered as part of the breach—not duty—analysis. Id. at 227 ¶ 17; see also
Markowitz, 146 Ariz. at 355–56. The superior court thus erred by granting
summary judgment for the Church on the basis that it did not owe Pairsh a
duty of care.

B. Breach

¶14 The Church argues that summary judgment is still
appropriate because—as a matter of law—it did not breach the duty it owed
Pairsh. We take no position on the Church’s breach arguments—to this
Court or in its motion to the superior court. Both the Church’s motion and
the court’s order relied on Perez I to determine the “scope” of the duty
owed. Because it relied on Perez I, the superior court concluded its inquiry
at the duty question and did not reach the Church’s breach arguments.
Thus, remand to the superior court for reconsideration of the Church’s
breach arguments is appropriate in light of Perez II. 259 Ariz. at 221.

CONCLUSION

¶15 We vacate and remand to the superior court for
reconsideration.

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

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