Dabush v. Seacret Direct LLC

• Decision Date: 08 January 2021
• Docket Number: No. CV-19-0200-PR,CV-19-0200-PR
• Citation: 478 P.3d 695,250 Ariz. 264
• Parties: Ephraim DABUSH, et al., Plaintiffs/Appellants, v. SEACRET DIRECT LLC, et al., Defendants/Appellees.
• Court: Arizona Supreme Court

250 Ariz. 264

478 P.3d 695

Ephraim DABUSH, et al., Plaintiffs/Appellants,

v.SEACRET DIRECT LLC, et al., Defendants/Appellees.

No. CV-19-0200-PR

Supreme Court of Arizona.

Filed January 8, 2021

Geoffrey M. Trachtenberg, (Argued) Justin Henry, (Argued) Levenbaum Trachtenberg PLC, Phoenix, Attorneys for Ephraim Dabush and Rachel Dabush

Jonathan D. Schneider, Luane Rosen, ReNae A. Nachman, Charles D. Onofry, (Argued) Schneider & Onofry PC, Yuma, Attorneys for Seacret Direct LLC

Ryan John McCarthy, Jonathan Paul Barnes, Jr., (Argued) Jones Skelton & Hochuli PLC, Phoenix, Attorneys for Prizma Capital LLC

JUSTICE GOULD authored the opinion of the Court, in which VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, LOPEZ, BEENE, MONTGOMERY and JUDGE EPPICH^* joined.

JUSTICE GOULD, opinion of the Court:

¶1 This is a premises liability case. Plaintiff Ephraim Dabush ("Dabush") was injured when he fell through a skylight on the roof of a multi-tenant commercial building. Dabush asserts that Seacret Direct, LLC ("Direct") and Prizma Capital, LLC ("Prizma"), who sublet portions of the building at the time of the accident, were possessors of the roof, and therefore owed him a duty to maintain the roof in a safe condition.

¶2 We hold that because Prizma and Direct ("Defendants") did not have a right to control the roof under their subleases, and did not exercise actual control over the roof, they were not possessors, and therefore owed no duty to Dabush. We further hold that Prizma did not become a possessor by making repairs to the roof. And finally, we hold that Defendants did not assume a duty to protect Dabush from the risk of falling through a skylight. Accordingly, we affirm the trial court's grant of summary judgment in favor of Defendants.

I.

¶3 At the time of Dabush's accident, 2619 E. Chambers, LLC ("Chambers") owned the building, which consists of office space and a warehouse. Chambers leased the entire building to Seacret Spa, LLC ("Spa"). Under Spa's lease, it was responsible for collecting rents, making all necessary payments associated with the building, and repairing and maintaining the building.

¶4 Spa subleased portions of the building to Seacret Retail, Direct, and Prizma. Prizma leased office space and a storage unit, while Direct leased office space and part of the warehouse. Direct's section of the warehouse was separated from Spa's section by a chain link fence. Chambers, Spa, Direct, and Prizma generally operate as interconnected family businesses. Dabush, however, does not allege they failed to operate as separate and distinct limited liability companies.¹

¶5 At the time of the accident, Elad Gotlib ("Gotlib") managed the building for Spa. When maintenance issues arose in the building, Gotlib hired Prizma to perform the repairs. Prizma invoiced Spa for the cost of the repairs. However, according to Direct's manager, David Ben-Shabat ("David"), Direct was responsible for maintaining the roof over its section of the warehouse.

¶6 Dabush, who was a friend and relative of David, would often visit him at the building. According to Dabush, Prizma and Direct were expected to "pitch in" and make repairs to the building. As a result, Dabush would assist David by supervising Prizma's workers while they performed repairs. Additionally, David would relay instructions to Prizma's workers through Dabush.

¶7 Before Dabush's fall, Gotlib discovered the warehouse roof was leaking. He hired Prizma to fix the leaks, which ultimately required replacing the skylights. On the morning of the accident, Prizma's employees² started replacing Skylight 18. The parties dispute why Dabush went on the roof, but it was either to supervise Prizma's workers or, at David's request, to inspect and take pictures of their work. After Dabush examined and photographed Skylight 18, he walked to Skylight 10, which was approximately eighty feet from where Prizma's employees were working. When Dabush put his foot on top of Skylight 10, he fell through the skylight and was severely injured. The skylight where Dabush fell was located over Direct's portion of the warehouse.

¶8 The trial court granted Defendants’ motions for summary judgment on the grounds that, because they were not the owners or possessors of the warehouse roof, they owed no duty to Dabush. The court of appeals affirmed as to Prizma, but reversed as to Direct, holding that a genuine fact dispute existed as to whether Direct exercised control over the roof. We accepted review because this case involves an issue of statewide importance regarding premises liability.

II.

¶9 To prevail on his premises liability claim, Dabush must prove that Defendants owed him a duty to maintain the roof in a reasonably safe condition. Quiroz v. ALCOA, Inc. , 243 Ariz. 560, 563–64 ¶ 7, 574 ¶ 63, 416 P.3d 824, 827-28, 838 (2018). In Arizona, duty "is based on either special relationships recognized by the common law or relationships created by public policy." Id. at 563 ¶ 2, 416 P.3d at 827. Here, Dabush claims that a special relationship existed because he was an invitee on Defendants’ premises. See id. at 567 ¶ 23, 416 P.3d at 831 (stating that a duty exists based on a landowner-invitee and landowner-licensee special relationship); Nicoletti v. Westcor, Inc. , 131 Ariz. 140, 143, 639 P.2d 330, 333 (1982) (stating that a possessor of land owes a duty of care to entrants on their property); Restatement (Second) of Torts §§ 314A, 341 – 343A (Am. Law Inst. 1965) (to same effect).

¶10 Whether a duty exists "is a legal matter to be determined before the case-specific facts are considered." Gipson v. Kasey , 214 Ariz. 141, 145 ¶ 21, 150 P.3d 228, 232 (2007). Thus, "we review the existence of duty de novo as a matter of law." Quiroz , 243 Ariz. at 564 ¶ 7, 416 P.3d at 828. Further, we review a grant of summary judgment de novo, viewing the evidence in the light most favorable to the party against whom summary judgment was entered. Duncan v. Scottsdale Med. Imaging, Ltd. , 205 Ariz. 306, 308 ¶ 2, 70 P.3d 435, 437 (2003).

III.

¶11 As we discuss below, Defendants only owe a duty to Dabush if they had legal control of the premises or exercised actual, physical control over it. Here, it is undisputed that Spa, under its lease with Chambers, had the legal right to control and possess the entire building, including the roof. Dabush argues, however, that because Defendants performed repairs on the roof, they exercised control over it, and were therefore possessors. In contrast, Defendants claim that as sublessees, they had no legal right to control the common areas of the building, which included the roof. Additionally, Defendants assert that any repairs they performed did not make them possessors of the roof.

A. Legal Control

1. Direct

¶12 Direct's sublease expressly provides that Spa retains control over the "common areas" in the building. And here, although the sublease does not specifically list the roof as one of the common areas, it clearly is a common area. Specifically, in multi-tenant buildings, a common area is one that is used for, or benefits, all tenants. See Warren v. Winkle , 400 S.W. 3d 755, 759–60 (Ky. Ct. App. 2013) (stating that a common area is one "used by all tenants or necessary to their enjoyment of their individual apartments"); Allison v. AEW Capital Mgmt., L.L.P., 481 Mich. 419, 751 N.W.2d 8, 13 (2008) (to same effect); Black's Law Dictionary (11th ed. 2019) (stating that a "common area" is "realty that all tenants may use"); see also Martinez v. Woodmar IV Condominiums Homeowners Ass'n, Inc. , 189 Ariz. 206, 209, 941 P.2d 218, 221 (1997) (stating that, in the context of a condominium association, parking lots are "common areas" because all unit owners are entitled to use them). As a result, roofs are considered common areas. See Winkle , 400 S.W. 3d at 759–60 (stating that a roof is a common area); Lopez v. Gukenback , 391 Pa. 359, 137 A.2d 771, 775 (1958) (to same effect); Reiman v. Moore , 42 Cal.App.2d 130, 108 P.2d 452, 455 (1940) (to same effect); see also Restatement (Second) of Torts § 360 cmt. d (Am. Law Inst. 1965) (stating that roofs are areas "usually [held] in common with other lessees"); Restatement (Second) of Property § 17.3, cmts. a, h, illus. 14 (Am. Law Inst. 1976) (to same effect); Prosser & Keeton, The Law of Torts § 63 441–42 (5th ed. 1984) (recognizing that roofs are common areas that are "parts of the premises maintained for the benefit of the tenants").

2. Prizma

¶13 Prizma's sublease is not in the record. Therefore, as to Prizma, we have no lease provision to examine in determining whether Spa retained legal control over the roof. Nevertheless, it is well established that in the absence of an express lease provision, a landlord retains control over the common areas of a multi-tenant building. See Martinez , 189 Ariz. at 209, 941 P.2d at 221 (stating that "[t]raditionally ... common areas were considered under the control of the landlord, although open and necessary for use by tenants," and that a condominium association "retained control" over common areas (quoting Prosser & Keeton supra ¶ 14 at 442)); Warren , 400 S.W.3d at 759 (stating "[i]n absence of proof to the contrary, a landlord is presumed to have retained control over premises used in common by different tenants"); Holmes v. Kimco Realty Corp. , 598 F.3d 115, 121 & n.4 (3d Cir. 2010) (stating that "the rule adopted by the great majority" of jurisdictions is that "a lessee in a multi-tenant shopping center does not have a duty to maintain common areas controlled by the landlord"); see also Restatement of Torts § 360 & cmt. d (stating that as to premises liability, a lessor remains liable for all areas, including common areas, over which it retains control); Restatement of Property § 17.3 & cmt. h, illus. 14 (same).

¶14 This rule has been consistently applied to the roof of a multi-tenant building. As one commentator has noted:

[w]hen different parts of a building ... are leased to several tenants, the approaches and common

...