Perez v. Circle K Convenience Stores, Inc., No. 1 CA-CV 22-0425 (App. Div. I, April 9,2024) (J. Foster) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/Perez%20-%20Final.pdf

WHERE PLAINTIFF HAD VISITED STORE 25-30 TIMES, WAS FAMILIAR WITH END AISLE DISPLAYS AND WHERE PLAINTIFF ADMITTED HAD SHE LOOKED SHE WOULD HAVE SEEN END CAP DISPLAY, SITUATION WAS OPEN AN OBIVIOUS AND STORE OWED NO DUTY TO PUT DISPLAY ELSWHERE TO AVOID SLIP AND FALLS/BREACH OF STORE GUIDELINE GOES TO STANDARD OF CARE AND NOT DUTY/APOLOGY AND ADMISSION THAT DISPLAYS WERE NORMALLY WAIST HIGH GOES TO STANDARD OF CARE NOT DUTY CONSTITUTIONAL REQUIRMENT THAT ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE MUST ALWAYS GO TO JURY DOES NOT AFFECT DUTY ANALYSIS BUT RATHER GOES TO STANDARD OF CARE

Plaintiff Roxanne Perez went to a Circle K Convenience Store [Circle K] she had frequented some 25-30 times. She took an ice cream from the freezer, took a few steps to go down the next aisle and tripped over a water display at the end of the aisle. She sued claiming serious personal injuries. She admitted she did not look down after grabbing the ice cream and admitted that had she looked down she would have seen the case of water. She admitted the lighting was good and she had seen these “end cap” displays before. The Circle K's Rule 30(b)(6) witness testified the end cap display in question violated the store's “two-foot rule” and created a hazardous situation. The Arizona Court of Appeals granted the defendant Circle K summary judgment finding that while the display may have been “dangerous” it was not “unreasonably dangerous” but instead was “open and obvious.” Plaintiff appealed and the Arizona Court of Appeals affirmed.

Plaintiff was a business invitee to which a business owner owes a duty to provide reasonably safe premises. However, a business owner is not an “insurer of the safety” of invitees, nor does it have a duty to keep the premises “absolutely safe.”

The question of duty is always a question for the court and the court is permitted to consider the facts in making this determination so far as it is necessary to define the scope of the duty. The fact a condition is “open and obvious,” while not dispositive, is a factor to consider in defining the scope.

Here, where plaintiff admitted to having frequented the store many times, admitted to being familiar with end caps and admitted had she looked she would have seen the case of water, the condition was both open and obvious and not unreasonably dangerous. This is particularly true where there was no evidence of other trip and falls.  Violation of a store guideline in placing the water goes to the issue of whether the standard of care was breached and not to the question of duty.  Even if the case of water constituted a “'defective” condition, a “defective condition' is not necessarily synonymous with ‘dangerous condition.'”

Article 18, § 5 of the Arizona Constitution which preserves questions of “assumption of the risk” and “contributory negligence” for the jury is inapplicable here as a determination of duty does not involve a determination of these defenses. “Perez was expected to take care of herself in regard to reasonable risks—such as a trip and fall over a visible object. This requirement is not a determination of contributory negligence or assumption of risk—it is the standard used to determine liability. Because Perez's evidence fails to demonstrate that the case of water was ‘unreasonably dangerous,' the superior court was correct in determining that she was responsible for taking care to prevent her injury.”

Finally, where statements by employees of apology and that the water was normally stacked waist high were improperly excluded as hearsay, they likewise only went to the issue of the standard of care and do not change the conclusion that Circle K owed no duty here.