Westerman v. Ernst, No. 2 CA-CV 2023-0205 (App. Div. II, January 22, 2025) (J. Gard) https://www.appeals2.az.gov/decisions/CV20230205Opinion.pdf
OPENING IN VEGETATION IN LANDSCAPING ALLOWING PASSAGE TO PARKING LOT AT STRIP MALL CREATED QUESTION OF FACT AS TO WHETHER PLAINTIFF IS INVITEE VS TRESPASSER AND DEFENSE THAT CONDITION WAS “OPEN & OBVIOUS” IS BUT ONE FACTOR IN DETERMINING IF CONDITION WAS UNREASONABLY DANGEROUS AND IS QUESTION OF FACT FOR JURY
Defendant owners of Tierra del Sol shopping mall allegedly created an unreasonably dangerous condition resulting plaintiff's fall. The mall is elevated from the parking lot and there are stairs to access the mall. The area in front of the mall stores, other than where the stairs are, is landscaped with decorative rock and bushes. Plaintiff left the veterinary clinic at the mall with her two dogs. She was told her dogs could urinate in the landscape area outside the clinic. Plaintiff saw an opening in the shrubs in the landscaped area and thought she would take her dogs to those bushes to urinate and then walk through the opening to her car. She failed to notice the sidewalk was raised higher than the landscaping and when she stepped off the sidewalk fell and was injured.
Defendants obtained summary judgment. The trial court found plaintiff was a trespasser and not an invitee when she left the sidewalk area and as such defendants owed her no duty of care. The trial court further found the raised sidewalk was an “open and obvious” condition further barring plaintiff's suit. Plaintiff's motion for reconsideration was denied and this appeal followed. The Arizona Court of Appeals vacated and remanded.
Here the photographs of the area where plaintiff fell showed that there was a clear path through the landscaping to the parking lot. A path that appeared to have footprints indicating others had used it for this purpose. There were no natural or artificial barriers to deter invitees from accessing the parking lot through this opening. As such, a question of fact exists as to whether plaintiff was an invitee to whom defendants owed a duty of care or a trespasser where no duty would exist.
With respect to whether the raised sidewalk constituted an “open and obvious” condition, photos revealed what could be described as an optical illusion making the condition not so obvious. Further, whether a condition is “open and obvious” is only one element to be considered when evaluating whether a condition is unreasonably dangerous. In fact, an open and obvious condition can still be unreasonably dangerous under certain circumstances. As such, there is a question of fact in this case as to whether this condition was open and obvious as well as unreasonably dangerous. Its not for the trial court to grant summary judgment because it feels the defendant will or even should prevail. Questions of fact are for the jury.
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