Perez v. Circle K Convenience Stores, Inc., No. CV-24-0104-PR (March 12, 2025) (J. Timmer)

WHETHER OR NOT A CONDITION ON PREMISES IS “UNREASONABLY DANGEROUS” TO A BUSINESS INVITEE GOES TO WHETHER THERE WAS A BREACH OF STANDARD OF CONDUCT AND HAS NO BEARING ON THE QUESTION OF DUTY TO BUSINESS INVITEES

Plaintiff while shopping in a Circle K she had frequented in the past,  tripped on a water bottle display at the end of an aisle and injured herself. The trial court in granting defendant summary judgment found that the “end-cap” display was “open and obvious” had plaintiff looked down and therefore Circle K owed her no duty. Plaintiff appealed and the Arizona Court of Appeals affirmed finding no duty where the condition causing the injury was not “unreasonably dangerous.”  The Arizona Supreme Court reversed and remanded the trial court's determination and vacated the court of appeals decision in part.

 To prove a case of negligence a plaintiff must prove the defendant owed plaintiff a duty of reasonable care. To establish a duty, plaintiff must show a “special relationship recognized by the common law or one “shaped by public policy.  Where business owners invite others onto their premises “directly or indirectly connected with its business dealings”  they create the special relationship of “business invitee” recognized in the common law. Business owners owe an “affirmative duty to make the premises reasonably safe for use by invitees.”

 To prove a breach of the standard of care in trip/slip and fall cases plaintiff must prove:  defendant “(1) created the unsafe condition; (2) had actual knowledge or notice of it; or (3) should have discovered and remedied the unsafe condition before the fall.” Finding no duty based on the case specific factual determination that the condition causing injury was not “unreasonably dangerous”  conflates duty with breach.

 “The purpose in examining case-specific facts in the duty inquiry involving a special relationship is determining when and where the alleged risk of harm arose—within or outside the scope of the special relationship—not whether the alleged risk actually constituted an unreasonably dangerous condition.”  Thus, while the court of appeals relied upon Dinsmoor v. City of Phoenix, 251 Ariz. 370, 373 ¶ 13 (2021) to affirm, its reliance was misplaced. In Dinsmoor the supreme court found the school district did not owe a duty to the plaintiffs' decedent child who was shot by another student off campus, ” [b]ecause nothing alerted the school that [the student shooter] posed a threat to Ana before she left the school's custody and control, .  .  . a known and tangible risk of harm did not arise within the scope of the school-student relationship . . . . [the harm occurred] outside the traditional time-and-space bounds of a special relationship” i.e. off campus. Similarly, when considering other special relationships like innkeeper/guests, common carrier/passengers, as well as business invitees, “courts may examine case-specific facts to determine whether the alleged risk of harm arose within the scope of those relationships,”  e.g., on the bus in the Inn or in the store.

To summarize, as in Dinsmoor, sometimes certain antecedent

facts must be considered in determining whether a duty exists—for

instance, whether a statute applies to a circumstance to give rise to a duty;

whether a person is an invitee, licensee or trespasser; or whether the alleged

risk of harm occurred within the scope of a special relationship. See, e.g.,

Westerman v. Ernst, No. 2 CA-CV 2023-0205, 2025 WL 261789, at *4 ¶ 17

(Ariz. App. Jan. 22, 2025) (concluding that a genuine issue of material fact

concerning the plaintiff's status as an invitee or trespasser precluded

summary judgment on the issue of duty). However, factual issues of

breach and causation are not part of this inquiry. Rather, they generally

are questions for the jury once a duty is established.

Here there is no question that plaintiff was a business invitee on Circle K's premises related to Circle K's business.