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Arizona Case Law Update

CONSTRUCTIVE NOTICE/MODE OF OPERATION

Kinast v. Target Corp., 2016 WL 1593812 Slip Copy (United States District Court, District of Arizona, April 21, 2016)

Facts and Procedural History

Kinast slipped and fell while walking down the main aisle of a Target store in Mesa, Arizona. She did not see what caused her fall but felt the sensation of her foot slipping on something that felt like a baby powder consistency. She did not see anything on the floor before her fall, but she and a friend saw a wipe nearby after the paramedics arrived. Kinast did not know how long the wipe had been on the floor or whether it was there before her fall. At the time of her fall, the main aisle was busy and crowded. Kinast sued Target.

Holding

A business proprietor has an affirmative duty to make and keep his premises reasonably safe for customers. But the mere occurrence of a fall on a floor within business premises is insufficient to prove negligence on the part of the proprietor. A proprietor may be liable for an invitee’s injuries only if the proprietor created the dangerous condition, had actual or constructive notice of it, or if the proprietor reasonably could anticipate its mode of operation would regularly produce hazardous conditions.

Under traditional negligence theories, a storeowner’s liability cannot be premised simply upon a plaintiff’s proof a storeowner had notice a dangerous condition was a possibility. Rather, a plaintiff must show the proprietor had notice of the specific dangerous condition itself. So one of the most important questions that must be answered in establishing constructive notice is the length of time that a given condition has been present. Here, Kinast did not see the wipe before she fell and she admitted the wipe may not have been on the floor until after she fell. She provided no evidence regarding the length oftime the wipe was on the floor prior to her fall. The District Court of Arizona found she could not prove Target had constructive notice of the wipe’s presence.

Even where actual or constructive notice is lacking, a business may be liable for an accident on its premises based on its choice of a particular mode of operation and not the events surrounding the plaintiff’s accident. To prevail under a mode-of-operation theory, a plaintiff must establish: (1) the business reasonably could anticipate the hazardous condition would occur on a regular basis; and (2) the business did not exercise reasonable care under the circumstances. The rule is of limited application. It focuses not on whether a condition occurs at some interval, but on whether the condition creates a hazard to customers with sufficient regularity to be considered customary, usual, or normal.

Here, Kinast presented no evidence the cart wipes regularly created hazardous conditions for Target’s customers. She presented no evidence of past incidents involving cart wipes such that Target could reasonably anticipate the wipes regularly would pose a hazard. Summary judgment was appropriate.

ENFORCEMENT OF POLICY CONDITIONS/ EXCLUSIONS

Commerce and Industry Ins. Co. v. Snider, 2016 WL 1660485 Slip Copy (United States District Court, District of Arizona, April 27, 2016)

Facts and Procedural History

After a plane accident, Snider made a claim under his aircraft insurance policy, which Commerce denied because Snider did not have a current medical certificate at the time of the accident.

The relevant policy provision provided:

In consideration of the premium for which this policy is written, it is understood and agreed that the coverage afforded by this Policy shall apply only while the aircraft is operated in flight by the pilot(s) designated below and then only if the said pilot(s) is properly certificated and rated by the FAA as shown below, has the minimum flying experience, all as indicated below, and in addition holds a valid and current medical certificate of the appropriate class[.]

Snider admitted he did not hold a current and valid FAA medical certificate at the time of the accident.

Holding

The policy expressly excluded coverage if the aircraft is operated in flight by a pilot that did not hold a current FAA medical certificate. The policy was not ambiguous and so no coverage was afforded for the accident.

The denial of coverage does not result in a forfeiture because Snider never paid to insure the risk that he would fly without a certificate. The risk contracted for included the assurance that Snider’s health met the minimum federal guidelines, and the failure to obtain the FAA medical certificate affected the risk assumed by Commerce.

Further, the fact Snider’s physician deemed him in good health only weeks before the crash is irrelevant. Commerce did not agree to rely on Snider’s physician’s representations. The policy set forth a specific standard – the FAA medical certificate, which the insured was expressly required to have any time he piloted the plane.

Commerce’s motion for judgment on the pleadings was granted.

A.R.S. §38-1101(K) AND POLICE OFFER EMPLOYMENT TERMINATION

Dyer v. Yuma, 2016 WL 2658135 Memorandum Decision (Arizona Court of Appeals, May 10, 2016)

Facts and Procedural History

Davida Dyer was a police officer in Yuma. After an incident involving the identification of a driver suspect, the City of Yuma sent Dyer a notice of intent to terminate her for violations of the police department’s policies relating to truthfulness, falsification of records, and unbecoming conduct. Dyer was terminated a week later. She asked the City of Yuma to reconsider. The City of Yuma denied.

Dyer appealed her termination to the City of Yuma’s Merit System Board, which rejected her termination. In its findings and recommendations, the Merit Board noted the City of Yuma and the Yuma Police Department failed to prove Dyer was untruthful, falsified records, or exercised unbecoming conduct.

The City Administrator, on behalf of the City of Yuma, reviewed the Merit Board decision, overruled the Merit Board’s findings and recommendations, and upheld Dyer’s termination. He noted he reviewed the case and all documentation and explained a major factor in his decision was the fact the Yuma County Attorney’s Office independently judged the incident and found the statements by Dyer were not credible and the polygraph testing did not clear Dyer.

Dyer sued the City of Yuma seeking judicial review of her termination arguing the City of Yuma had not complied with A.R.S. §38-1101(K).

Holding

A.R.S. §38-1101(K) states:

Except where a statute or ordinance makes the administrative evidentiary hearing the final administrative determination, an employer or a person acting on behalf of an employer may amend, modify, reject or reverse a decision made by a hearing officer, administrative law judge or appeals board after a hearing where the law enforcement officer or probation officer and the employer have been equally allowed to call and examine witnesses, cross-examine witnesses, provide documentary evidence and otherwise fully participate in the hearing if the decision was arbitrary or without reasonable justification and the employer or person acting on behalf of the employer states the reason for the amendment, modification, rejection or reversal.

On its face, A.R.S. §38-1101(K) expressly limits an employer’s authority to reject an appeals board’s decision to circumstances in which it determines the appeals board acted arbitrarily or without reasonable justification. An employer can reject the board’s decision only if it 1) found the board’s action was arbitrary and capricious and 2) provided reasons for its rejection.

Before the City of Yuma could reject the Merit Board’s decision, it was required to: first find the Merit Board’s decision was arbitrary or without reasonable justification; and second, explain the reasons for its rejection or reversal of the Merit Board’s decision. Although the City of Yuma provided reasons for its rejection of the Merit Board’s decision, it did not make any finding that the Merit Board’s decision was arbitrary or without reasonable justification. A decision is not arbitrary or without reasonable justification simply because an employer, or person acting on behalf of the employer, disagrees with the decision.

In addition, the City Manager’s comprehensive review of the case and its documentation did not create an inference the complied with the requirements of A.R.S. §38-1101(K). The Legislature has directed employers, not the courts, to make the determination as to whether the board acted arbitrarily or without reasonable justification. The finding must be expressly made by the employer, not inferred by the courts.

NEGLIGENCE, RES IPSA LOQUITOR, AND SPOLIATION

Martin v. Royal Sign Company, Inc., 2016 WL 2657308 Memorandum Decision (Arizona Court of Appeals, May 10, 2016)

Facts and Procedural History

In 2010, Elizabeth Martin was hit in the head and knocked unconscious by what she alleges was part of a commercial sign designed, manufactured, and installed by Royal Sign.

The Martins alleged Royal Sign negligently designed, manufactured, installed, and repaired the sign and had notice of its inadequate condition based on the sign’s collision history and prior wind and object damage, and performance of repairs and replacements of the sign. The Martins offered evidence the sign had been hit by vehicles three different times since 1999 and blew apart in 2005. Royal Sign last replaced the sign in 2008 after it was damaged by a truck. The Martins also submitted evidence of wind gusts on the day of the accident, based on weather station observations miles away from the accident.

The reports from all experts involved in the litigation discussed possible speculative causes for the failure which were not supported by competent evidence.

Holding

The Arizona Court of Appeals held the Martins did not present evidence that showed the sign was damaged at the time of the injury or how it was improperly manufactured, installed, or repaired. Summary judgment on the negligence claim was appropriate.

The necessary elements for res ipsa loquitor are:

  • The accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence;
  • It must be caused by an agency or instrumentality within the exclusive control of defendant;
  • It must not have been due to any voluntary action on the part of the plaintiff; and
  • Plaintiff must not be in a position to show the particular circumstances which caused the offending agency or instrumentality to operate to his injury.

The Arizona Court of Appeals found there was no evidence indicating Royal Sign had or shared exclusive control at the time of the accident in 2010 or at any time in the more than two years from February 2008 until the accident. This more than two-year gap is significant because third party vehicles apparently compromised the sign on several occasions before the 2010 accident. There was also no evidence Royal Sign had control over circumstances that may have resulted in objects, including vehicles, striking the sign. Subjecting Royal Sign to a theory of liability holding it responsible for circumstances outside of its control is contrary to the basis of res ipsa loquitor. Summary judgment on this issue was appropriate.

Although highly context-dependent, spoliation includes the intentional destruction of evidence. In deciding whether to allow an adverse inference about what the destroyed evidence would have shown, the court considers whether the destruction of evidence was intentional or in bad faith and whether the loss of the evidence prejudiced the party seeking sanctions. Here, Royal Sign removed and destroyed the sign at the direction of the owner of the sign, co-defendant Washing Federal. The unfortunate result of this action is that the Martins were unable to inspect the sign. The Court of Appeals found Royal Sign was unaware anyone had been injured when it removed the sign. The removal was not an independent decision by Royal Sign. Nothing suggests Royal Sign intentionally destroyed the sign to destroy evidence or acted in bad faith in removing and destroying the sign. Summary judgment was proper on this issue.

ABOUT THE AUTHOR: J.P. Harrington Bisceglia is senior counsel at Tyson & Mendes LLP. She specializes in general liability defense, insurance coverage and bad faith litigation. Contact J.P. at 602.386.5644 or jpharrington@tysonmendes.com.

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