ALISON v. BOWMAN

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

OLIVIA FAUN ALISON, Plaintiff/Appellant,

v.

BOWMAN FAMILY LIMITED LIABILITY PARTNERSHIP, et al.,
Defendants/Appellees.

No. 1 CA-CV 26-0200
FILED 10-09-2026

Appeal from the Superior Court in Maricopa County
No. CV2024-001132
The Honorable Adam D. Driggs, Judge

AFFIRMED

COUNSEL

The Entrekin Law Firm, Phoenix
By B. Lance Entrekin
Counsel for Plaintiff/Appellant

Dyet & Hill, PLLC, Gilbert
By Shane P. Dyet, Andres Chagolla
Counsel for Defendants/Appellees

ALISON v. BOWMAN, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Michael J. Brown joined.

P A T O N, Judge:

¶1 Olivia Alison appeals the superior court’s grant of summary
judgment against her in favor of her commercial landlord Bowman Family
Limited Liability Partnership (“Bowman”). For the following reasons, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 “On appeal from summary judgment, we view the facts in the
light most favorable to the party against whom summary judgment was
entered.” Rasor v. Nw. Hosp. LLC, 244 Ariz. 423, 424, ¶ 3 (App. 2018).

¶3 Bowman has owned a commercial office building in Phoenix
since 1999. In December 2021, Alison entered a one-year lease with
Bowman for Suite No. 2 (“Suite 2”), beginning in January 2022. The
entrance to Suite 2 included an automatically-closing door that was part of
Alison’s leased premises.

¶4 Before signing the lease, Alison toured and inspected Suite 2.
She did not inspect the door’s bottom edge at that time, but also noticed
nothing wrong with it. The lease stated that Alison accepted the premises
“in good order and repair” and required her to maintain the leased
premises in good condition. It also made Alison responsible for taking care
of the equipment and fixtures within the premises and for certain repairs.

¶5 Bowman did not ordinarily have access to its tenants’ private
suites and left responsibility for the suites’ doors with the tenants. Bowman
checked the doors in its suites for new tenants to ensure the doors were
working properly. As such, Bowman would have performed such a check
before Alison signed the lease. Bowman had no record of maintenance or
inspection records relating to the door in Suite 2 and no record of a
complaint or reported problem with it before Alison’s accident.

¶6 About seven weeks after her tenancy began, Alison was
walking through the door carrying “goods” when it closed on her leg,

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lacerating her heel and rupturing her Achilles tendon. Alison later
underwent several surgeries for her injury.

¶7 Alison sued Bowman for negligence, alleging Bowman failed
to inspect and maintain the door and warn her of its dangerous condition.
Bowman moved for summary judgment, arguing that Alison possessed
and controlled Suite 2 and the lease placed responsibility for maintaining
the premises on her. Bowman therefore contended that it owed Alison no
duty concerning the condition of the door. It alternatively argued that
Alison lacked evidence that Bowman knew or reasonably should have
known the door was defective.

¶8 Alison opposed the motion, arguing Bowman owed her
duties as her landlord and as a landowner to a business invitee. According
to Alison, those duties required Bowman to inspect the premises for latent
defects, maintain a reasonably safe means of ingress and egress, and repair
dangerous conditions or warn her of them. She further argued that
Bowman had owned the building for 23 years without inspecting or
maintaining the door and that its duties continued after she took possession
of the suite.

¶9 Alison supported her opposition to summary judgment in
part with excerpts from two unsworn expert reports and an excerpt of a
medical record from the emergency department she visited the night of her
injury. Bowman objected to the expert reports, arguing they were
inadmissible because they lacked foundation and were hearsay because
they lacked affidavits. Bowman also challenged the medical record as
foundationless and hearsay. See Ariz. R. Evid. 803(6)(D).

¶10 After oral argument, the superior court granted summary
judgment for Bowman. The court concluded that “[b]ecause [Alison’s]
injury occurred inside the leased premises and [Bowman] did not retain
control, [Bowman] owed no duty as a matter of law.” Alternatively, the
court concluded that “even if a duty existed,” Alison did not establish
breach because she presented “no admissible evidence suggesting
[Bowman] had reason to know of a defect, or that any defect existed prior
to [Alison’s] tenancy.” That is, Alison did not prove Bowman had “actual
or constructive notice” of the defective door.

¶11 Alison timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) Section 12-2101(A)(1).

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DISCUSSION

¶12 We review the grant of summary judgment de novo.
Dinsmoor v. City of Phoenix, 251 Ariz. 370, 373, ¶ 13 (2021). Summary
judgment is appropriate 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). A party moving for
summary judgment (Bowman) who does not bear the burden of proof at
trial may satisfy its initial burden by pointing to evidence in the record
showing that the opposing party (Alison) lacks sufficient evidence to carry
its burden at trial. Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 113, ¶ 2
(App. 2008). The opposing party must then “present sufficient evidence
demonstrating the existence of a genuine factual dispute as to a material
fact.” Id. at 119, ¶ 26.

¶13 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). Speculation or evidence creating
the “slightest doubt” about the facts is insufficient to withstand a motion
for summary judgment. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195
(App. 1990); Martin v. Schroeder, 209 Ariz. 531, 534, ¶ 12 (App. 2005); see also
Orme Sch., 166 Ariz. at 309 (“[A]ffidavits that contain inadmissible evidence,
that are internally inconsistent, that tend to contradict the affiant’s sworn
testimony at deposition, and similar items of evidence may provide a
‘scintilla’ or create the ‘slightest doubt’ and still be insufficient to withstand
a motion for summary judgment.”).

¶14 To survive summary judgment on her claims, Alison must
provide proof that (1) Bowman owed her a duty to conform to a standard
of conduct that protects her from an unreasonable risk of harm, (2) Bowman
fell below (breached) that standard, (3) a causal connection exists between
Bowman’s acts or omissions and her injury, and (4) she suffered actual
damages. Perez v. Circle K Convenience Stores, Inc., 259 Ariz. 221, 224, ¶ 7
(2025).

I. The parties conflate distinct legal relationships and negligence
principles.

¶15 Alison relies on special relationships to establish Bowman’s
liability. Like she did in opposition to summary judgment, Alison contends
Bowman owed her obligations as the landowner based on her status on the

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premises as a business invitee and, separately, as her landlord. The parties,
however, do not consistently distinguish between the principles governing
those relationships. And the superior court’s ruling reflects the same. It
concluded Bowman owed Alison no duty because she was injured within
the leased premises and Bowman “did not retain control.” That reasoning
bears differently on the two relationships Alison invokes. It determines
whether Bowman was a possessor of the premises and thus owed Alison a
duty as its invitee; it does not necessarily resolve the obligations arising
from the landlord-tenant relationship. We therefore consider each
relationship separately.

¶16 Arizona courts have occasionally analogized the landlord-
tenant relationship to the possessor-invitee relationship. See McLeod By &
Through Smith v. Newcomer, 163 Ariz. 6, 11 (App. 1989); Piccola v. Woodall, 186 Ariz. 307, 311 n.3 (App. 1996). But an analogy does not make the
relationships interchangeable. See, e.g., McCarthy v. Kummerle, 1 CA-CV 24-
0887, 2025 WL 2977786, at *2, ¶ 15 (Ariz. App. Oct. 22, 2025) (mem. decision)
(finding a case “inapposite because it involved a landlord-tenant duty,
which is different from the business-invitee relationship”) (citing 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) (same)). A possessor’s obligations to an
invitee arise from possession of the land and the entrant’s status; a
landlord’s obligations to a tenant arise from the landlord-tenant
relationship. Although possession and control may inform both inquiries,
they do not necessarily serve the same function in each.

¶17 The parties also blur the distinction between duty and breach.
Whether a duty exists is a legal question we review de novo. Dinsmoor, 251
Ariz. at 373 ¶ 14. “Duty is the requirement to conform to a standard of
conduct in order to protect others against unreasonable risks of harm.”
McLeod, 163 Ariz. at 8. And “duty is not presumed; in every negligence
case, the plaintiff bears the burden of proving the existence of a duty.”
Quiroz v. ALCOA Inc., 243 Ariz. 560, 563, ¶ 2 (2018). A duty may arise from
a special relationship or public policy. See Dinsmoor, 251 Ariz. at 373, ¶ 14.
“Special relationships include those recognized at common law and those
formed by contracts, joint undertakings, and family relationships.” Id.
Whether a defendant breached that duty, by contrast, ordinarily presents a
factual question concerning whether the defendant’s conduct fell below the
applicable standard of care. Perez, 259 Ariz. at 228-29, ¶ 22.

¶18 That distinction does not make the duty inquiry fact-free.
“[S]ometimes certain antecedent facts must be considered in determining
whether a duty exists.” Id. at 226, 228, ¶¶ 15, 20. Those facts may include

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whether a statute applies, a particular relationship exists, or whether a
person entered property as an invitee, licensee, or trespasser. Id. at 228, ¶
20. Although such questions may involve facts, a court may resolve them
as a matter of law when the evidence permits only one reasonable
conclusion. See id. at 228, ¶ 21; Dabush v. Seacret Direct LLC, 250 Ariz. 264,
273, ¶ 40 (2021).

¶19 But the factual inquiry relevant to duty is limited. Perez, 259
Ariz. at 228, ¶ 21. Case-specific facts concerning the parties’ conduct and
whether the defendant acted reasonably ordinarily bear on breach and
causation, not the existence of a duty. Id. at 228, ¶¶ 20-21. Although breach
and causation ordinarily present factual questions, they too may be
resolved as a matter of law when the record permits only one reasonable
conclusion. Id. at 228-29, ¶ 22 (citing cases resolving issues of breach and
causation as a matter of law).

II. Alison and Bowman did not have a possessor-invitee
relationship when she was injured.

¶20 Alison contends Bowman owed her the duties a possessor of
land owes an invitee. That theory requires a possessor-invitee relationship
between Bowman and Alison. The facts here establish no such relationship.

¶21 A possessor of land owes certain duties to people entering
their land, and the scope of those duties depends in part on the entrant’s
status as an invitee, licensee, or trespasser. See Nicoletti v. Westcor, Inc., 131
Ariz. 140, 142-43 (1982). Relevant here, an invitee is “a person who is
invited to enter or remain on land for a purpose directly or indirectly
connected with business dealings with the possessor of the land.” Id. at 143
(quoting Restatement (Second) of Torts § 332 (1965)). The relevant
relationship is between the possessor and invitee—not simply a landowner
or lessor and a person on the property. See Dabush, 250 Ariz. at 269-70, ¶¶
16-19. Ownership and possession may coincide, but they need not. Id. A
party possesses land when they legally control it or actually occupy it with
the intent to control it. Id. at 267-69, ¶¶ 11, 16-17. Actual control generally
requires authority to exclude others and direct how the property is
repaired, maintained, and used. Id. at 269, ¶¶ 18-19. Courts look to
governing leases and other established principles of law to determine legal
control. Id. at 268, ¶¶ 12-14.

¶22 Here, the lease vested Alison with legal control of Suite 2.
Bowman leased the premises to Alison, who took possession and operated
her business there. Alison acknowledged that the door that allegedly

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injured her was part of her leased premises. Although the lease permitted
Bowman to enter at reasonable times for specified purposes, that limited
right of entry did not give Bowman legal control over premises otherwise
surrendered to Alison when she took possession. Cf. Gibbons v. Chavez, 160
Ariz. 73, 76 (App. 1988) (a landlord’s reserved right to inspect the premises
in the lease “did not create a duty on the part of the [landlords] to exercise
that right”). Nothing in the record shows Bowman retained authority to
exclude Alison or others from the suite. The undisputed evidence therefore
establishes that Bowman was not the possessor for purposes of Alison’s
premises-liability theory.

¶23 Nor was Alison on the premises as Bowman’s invitee when
she was injured. An invitee enters or remains on land for purposes
connected to business dealings with the possessor. Nicoletti, 131 Ariz. at 143.
Even setting aside that Alison herself possessed Suite 2, she was there that
day as Bowman’s tenant, operating her own business from the suite—not
for a purpose connected with business dealings with Bowman. Alison may
have been Bowman’s invitee when she first visited the property as a
prospective tenant but that was no longer their relationship at the time she
was injured. At that point, her right to occupy Suite 2 arose from her lease,
not from Bowman’s invitation.

¶24 Alison’s reliance on Nicoletti does not establish otherwise.
Nicoletti recognized a possessor’s duty to provide invitees reasonably safe
means of ingress and egress. Id. But that duty arises from the possessor-
invitee relationship; the location of an alleged defect at a means of ingress
or egress does not itself establish that relationship. Id. Alison’s allegation
that the defective door provided ingress and egress from Suite 2 thus does
not establish that Bowman possessed the suite or that Alison entered or
remained there as Bowman’s invitee. See Bloxham v. Glock Inc., 203 Ariz.
271, 275, ¶ 8 (App. 2002) (“In the absence of a special relationship . . . there
[is] no duty that can sustain a negligence claim.”).

¶25 She similarly argues Dabush does not support the proposition
that a landlord is relieved of liability after surrendering possession to a
tenant because the defendant there was not the plaintiff’s landlord. 250
Ariz. 264. Alison is correct that Dabush does not resolve what obligations
Bowman may have owed Alison as her landlord. But we do not rely on
Dabush for that proposition. Dabush explains when a defendant qualifies as
a possessor for purposes of premises liability. See Dabush, 250 Ariz. at 268-
70, ¶¶ 11-25. And as explained above, the undisputed evidence establishes
that Alison, not Bowman, possessed Suite 2.

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¶26 The superior court therefore correctly concluded that
Bowman did not owe Alison a duty based on a possessor-invitee
relationship. But that conclusion does not resolve whether Bowman owed
Alison obligations as her landlord, which we examine next.

III. Even assuming Bowman owed Alison a duty as her landlord,
Alison did not establish Bowman breached its duty.

¶27 Alison separately relies on Bowman’s status as her landlord
to support her negligence claim. She argues that “a landlord owes a duty
of reasonable care to his tenants which includes an obligation to inspect and
warn of any hazardous condition on the leased premises,” quoting Piccola,
186 Ariz. at 308. From Piccola, Alison characterizes that obligation as time
dependent: a landlord must inspect and warn until the tenant has had a
reasonable opportunity to discover the condition and take precautions.
Because Alison occupied Suite 2 for less than two months before the
accident, she argues Bowman remained obligated to inspect the door and
warn her of any dangerous conditions.

¶28 But Alison’s formulation omits an important limitation on the
liability recognized in Piccola. 186 Ariz. at 310. Piccola said the landlord-
tenant relationship gives rise to a duty of reasonable care to tenants and their
guests on the premises. Id. at 310. But Piccola did not hold that reasonable
care requires a landlord to continually inspect leased premises for
undiscovered defects. Relying on Cummings v. Prater, 95 Ariz. 20 (1963),
Piccola explained that a landlord must exercise ordinary care to inspect
when the landlord “has reason to suspect defects existing at the time of the
taking of the tenancy” and must repair those defects or warn the tenant of
them. Piccola, 186 Ariz. at 310-11. Thus, although the landlord-tenant
relationship supplied the duty, whether the landlord had reason to suspect
a defect informed whether reasonable care required an inspection—and
ultimately whether the landlord could be liable for failing to discover and
address the defect. Id.

¶29 That distinction is one between duty and breach. As
discussed above, Perez instructs that case-specific facts concerning a
defendant’s knowledge of a condition and the precautions reasonable care
required concern breach, not whether a duty exists. Perez, 259 Ariz. at 228,
¶¶ 20-21. We therefore understand Piccola’s “reason to suspect” language,
in light of our Supreme Court’s ruling in Perez, as informing whether
reasonable care required the landlord to inspect under the circumstances,
not whether the landlord-tenant relationship gave rise to a duty in the first
instance.

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¶30 Alison similarly treats Piccola’s limitation on a landlord’s
liability as defining the duration of the landlord’s duty. Piccola explained
that a landlord’s liability for an undisclosed dangerous condition
“continues only until the tenant has had a reasonable opportunity to
discover the condition and take precautions.” 186 Ariz. at 312. Alison
emphasizes that the tenants in Piccola possessed their home for 30 months,
while she possessed Suite 2 for less than two months. But the passage of
time did not terminate the landlord-tenant duty in Piccola. Rather, as
clarified by Perez, the tenants’ opportunity to discover the condition
informed whether the landlord remained liable for failing to discover or
disclose it. See id. Consistent with Perez, that fact bears on whether the
landlord acted unreasonably under the circumstances—not whether the
duty arising from the landlord-tenant relationship ceased to exist. 1

¶31 We need not define the outer limits of a commercial
landlord’s duty to resolve this appeal. The cases on which the parties rely
do not address materially similar circumstances, i.e., a commercial tenant
injured by an allegedly defective door within her exclusively leased
premises almost two months after the landlord surrendered possession and
ordinary access to it. Nor have we found a factually similar, let alone
analogous, case. Some of those cases concern residential tenants; others
concern duties owed by possessors of land. And the commercial context
presents considerations not necessarily implicated in residential tenancies,
including parties’ bargaining positions and contractual allocation of
possession, access, and responsibility. See 1800 Ocotillo, LLC v. WLB Grp.,
Inc., 219 Ariz. 200, 202, ¶ 8 (2008); Zambrano v. M & RC II LLC, 254 Ariz. 53,
58-59, ¶¶ 10, 11 (2022). Not to mention that the legislature treats the two
contexts differently. The Arizona Residential Landlord and Tenant Act
expressly requires residential landlords to maintain fit premises. See A.R.S.
§ 33-1324. Arizona law imposes no comparable statutory obligation on
commercial landlords. See Hounshell v. White, 220 Ariz. 1, 6, ¶ 22 (App. 2008)
(“Where the legislature has included a specific provision in one part of a
statute and omitted it in another part, we must conclude that it knows how
to say what it means, and its failure to do so is intentional.”) (citation
omitted). The record also does not establish whether the condition Alison
alleges caused her injury arose before or after Bowman transferred

1 That Perez involved the possessor-invitee relationship does not make its

discussion of general negligence principles inapplicable here. 259 Ariz. at
256, ¶ 8. Although possessor-invitee and landlord-tenant cases are not
interchangeable in defining the duties arising from those distinct
relationships, see supra ¶ 16, the general principles governing the negligence
inquiry apply across both.

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possession. We therefore assume without deciding that Bowman owed
Alison the duty of reasonable care she asserts. Because the circumstances
bearing on reasonable care changed when Bowman transferred possession
of Suite 2 to Alison, we consider Bowman’s conduct before and after that
transfer separately. Under either period, Alison failed to present evidence
from which a reasonable jury could find breach.

¶32 Alison’s pre-turnover theory rests principally on Bowman’s
alleged failure to inspect the door. She emphasizes that Bowman had
owned the building for approximately 23 years, that the same door
remained during that period, and that Bowman did not inspect or maintain
the door. She also contends the door was dangerous because it closed too
quickly and had a sharp bottom edge. From those circumstances, Alison
reasons that Bowman should have inspected the door, discovered those
conditions, and repaired them or warned her.

¶33 We need not decide whether the absence of inspection or
maintenance records permits an inference that Bowman did not inspect the
door. Bowman’s representative stated that although Bowman had no record
of an inspection or maintenance specific to the door, Bowman routinely
checked suite doors between tenants to ensure they were “working
properly and closing properly” and that such an inspection would have
occurred before Alison leased Suite 2. But even assuming Bowman did not
inspect the door before turnover, that fact alone does not establish breach.
Alison still had to present evidence from which a jury could find that
reasonable care required it to discover and address the alleged condition,
which she did not do. See Cummings, 95 Ariz. at 26; Piccola, 186 Ariz. at 310-
11.

¶34 And the expert opinions Alison sought to use to establish
breach do not fill that gap. The superior court declined to consider those
reports in ruling on summary judgment based on its finding that they were
inadmissible. Alison does not challenge that ruling on appeal. We
therefore do not consider them in determining whether she created a
genuine issue of material fact. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp.,
165 Ariz. 1, 4 (App. 1990) (unless evidence is “part of the record before the
trial court at the time it considered the motion for . . . summary judgment,
we cannot consider [it] on appeal”); see also Overson v. Cowley, 136 Ariz. 60,
63 n.2 (App. 1982). Without them, Alison lacks any admissible expert
evidence that Bowman’s inspection practices fell below the applicable
standard of care, that the door was defective in the manner she alleges, or
that a reasonable inspection before turnover would have revealed the
alleged condition. See Ariz. R. Civ. P. 56(c)(3)(B)(i) (requiring the party

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opposing a motion for summary judgment to provide “the specific,
admissible parts of the record that establish” disputed facts).

¶35 More fundamentally, Alison did not present admissible
evidence from which a jury could find Bowman knew of a supposed
dangerous condition or had reason to suspect any such condition. She
identified no prior complaint, injury, malfunction, or other event alerting
Bowman to a problem with the door. Nor did she identify evidence that
Bowman observed anything suggesting inspection or repair was necessary.
Under Cummings and Piccola, the absence of such evidence matters; Alison’s
theory of breach depends on showing circumstances from which
reasonable care required Bowman to discover and address the condition
she alleges caused her injury. See Piccola, 186 Ariz. at 310-11. Absent any
such evidence, no reasonable jury could infer Bowman should have known
of the door’s alleged condition. See generally Matts v. City of Phoenix, 137
Ariz. 116, 119 (App. 1983) (whether a party had actual or constructive
knowledge must be based on more than “sheer speculation” and a jury may
not “draw speculative inferences which [are] not based on probative facts”).

¶36 Alison also did not establish that the allegedly dangerous
condition existed when she took possession. In her deposition, Alison
described the door as automatic, heavy, and several inches above the floor.
After the accident, she attributed her injury to a combination of the door’s
automatic closing and what she described as its sharp bottom edge. But
when asked whether the edge was sharp when she toured the suite before
signing the lease, Alison answered that she did not know because she had
not examined the bottom of the door. Her deposition testimony that the
door otherwise had not changed since she leased the suite does not establish
that the particular condition she alleges caused her injury existed at
turnover.

¶37 And the incident itself does not supply the missing evidence.
Cummings cautioned that “[p]eople can get hurt on almost anything” and
that injury alone does not itself establish an unreasonably dangerous
condition. 95 Ariz. at 26. Alison did not plead or otherwise develop a res
ipsa loquitur theory that would permit negligence to be inferred from the
occurrence of the incident itself. The fact that the door injured her therefore
does not establish that the alleged dangerous condition existed when
Bowman transferred possession, that Bowman had reason to suspect it, or
that a reasonable inspection would have discovered it. Reaching those
conclusions on this record would require no more than speculation. And
that is not enough to meet one’s burden on summary judgment. See Hall v.

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Smith, 214 Ariz. 309, 316, ¶ 23 (App. 2007) (“sheer speculation is insufficient
to defeat summary judgment”) (citation modified).

¶38 Further, Alison’s notice argument does not alter her burden.
She faults Bowman for failing to establish when the alleged defect arose and
emphasizes the absence of documentary evidence of prior inspection or
maintenance. But Bowman could satisfy its initial summary-judgment
burden by identifying the absence of evidence supporting an element
Alison would bear the burden of proving at trial. See Nat’l Bank of Ariz., 218
Ariz. at 117, ¶ 22. Alison then had to produce admissible evidence creating
a genuine issue for trial. Id. at 119, ¶ 26. Bowman did not have to establish
that the alleged condition arose only after Alison took possession. See
McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 252, ¶ 22 (App. 2013) (the
plaintiff must provide evidence establishing all the elements of actionable
negligence to survive a motion for summary judgment). The uncertainty
about when it arose instead leaves Alison without evidence necessary to
support her pre-possession theory. See Orme Sch., 166 Ariz. at 310 (“If the
party with the burden of proof on the claim or defense cannot respond to
the motion [for summary judgment] by showing that there is evidence
creating a genuine issue of fact on the element in question, then the motion
for summary judgment should be granted.”). She therefore failed to
establish breach based on Bowman’s conduct before transferring
possession.

¶39 To the extent Alison challenges Bowman’s conduct after she
took possession, i.e., post-turnover, that argument fares no better. The lease
placed Suite 2 in Alison’s possession, stated that she accepted the premises
in good order and repair, and assigned her responsibility for maintaining
the leased premises during the lease term. Bowman’s representative
likewise stated in deposition testimony that Bowman inspected the
common areas and building exteriors weekly but left suite doors to the
tenants because Bowman did not have access to them. To be clear, we do
not rely on lease provisions as eliminating or limiting the duty we have
assumed Bowman owed. Rather, they inform the circumstances against
which Bowman’s conduct must be judged. After transferring possession,
Bowman no longer possessed Suite 2, lacked ordinary access to its interior,
and could not inspect Alison’s door whenever it chose.

¶40 And nothing during Alison’s tenancy gave Bowman reason
to suspect an issue with the door. Alison used the door every time she
entered Suite 2. She stated that before the incident she “had no idea”
anything was wrong with it and that, on the night of the incident, the door
did not close differently than it had on the many occasions she had used it

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before. She never reported a problem with the door to Bowman, and the
record identifies no complaint or incident from anyone else. On this record,
a jury could not reasonably infer that Bowman acted unreasonably by
failing to discover a condition that Alison herself had not perceived while
Bowman lacked ordinary access to the suite.

¶41 Thus, even assuming Bowman owed Alison a duty, Alison
failed to present evidence from which a reasonable jury could find Bowman
breached that duty. Before Bowman turned the property over to her, she
did not establish that Bowman knew or had reason to suspect the alleged
condition, that the condition existed at that time, or that a reasonable
inspection would have revealed it. After turnover, Bowman lacked
ordinary access to the suite and received no notice or other information
suggesting the door required inspection or repair. And the excluded expert
opinions cannot supply the evidence otherwise missing from the record.
On this record, finding breach would require speculation. We therefore
affirm summary judgment. See ABCDW LLC v. Banning, 241 Ariz. 427, 433,
¶ 16 (App. 2016) (we may affirm summary judgment if correct for any
reason).

¶42 In earlier proceedings, the superior court allowed Bowman to
identify Alison’s treating physician as a nonparty at fault. Alison also
challenges that ruling on appeal. But because we affirm summary
judgment for Bowman, we need not address Alison’s challenge to that
ruling.

¶43 Bowman requests its attorneys’ fees under Section 12-341.01
to the extent this appeal arises out of the lease or requires its enforcement
or interpretation. We decline that request. But as the prevailing party, we
award Bowman its taxable costs subject to compliance with Arizona Rule
of Civil Appellate Procedure 21(b).

CONCLUSION

¶44 We affirm.

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

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