Knauss v. DND Neffson Co.

Decision Date06 November 1997
Docket NumberCA-CV,No. 2,2
Citation192 Ariz. 192,963 P.2d 271
Parties, 256 Ariz. Adv. Rep. 12 William KNAUSS, surviving parent of Ellen Marie Knauss, Plaintiff/Appellant/ Cross-Appellee, v. DND NEFFSON COMPANY, a sole proprietorship; Oracle-Wetmore Company, a sole proprietorship; and Forest City Enterprises, Inc., an Ohio corporation, Defendants/Appellees/Cross-Appellants, and Walden Book Company, a New York corporation, Defendants/Appellees. 97-0047.
CourtArizona Court of Appeals

Gabroy, Rollman & Bosse, P.C. by John Gabroy and Richard Brown, Tucson, for Plaintiff/Appellant/Cross-Appellee.

Bury, Moeller, Humphrey & O'Meara by Gerald R. O'Meara and Roger W. Frazier, Tucson, for Defendants/Appellees/Cross-Appellants DND Neffson Company, Oracle-Wetmore Company, and Forest City Enterprises, Inc.

DeConcini McDonald Yetwin & Lacy, P.C. by Wayne E. Yehling, Tucson, for Defendant/Appellee Walden Book Company.

PELANDER, Presiding Judge.

This wrongful death action arose from the after-hours abduction of decedent, Ellen Marie Knauss, from a shopping mall parking lot and her ensuing rape and murder. Decedent's surviving parent, plaintiff/appellant William Knauss, sued defendants/appellees DND Neffson Company, Oracle-Wetmore Company, and Forest City Enterprises, Inc., owners/operators of the Tucson Mall (the mall defendants), alleging they breached their common law duty to protect or warn invitees against foreseeable criminal acts of third parties on mall property, causing his daughter's death. Plaintiff also sued Walden Book Company, a mall tenant, alleging it breached a voluntarily assumed duty to inform mall management that decedent and others would be working after hours so that the mall could make appropriate security arrangements.

The trial court granted summary judgment for Walden and partial summary judgment for the mall defendants, concluding they owed no common law duty to decedent. Plaintiff challenges those rulings in this appeal. In their cross-appeal, the mall defendants contend the trial court should have dismissed the action because the personal representative of decedent's estate, rather than decedent's father, is the only proper plaintiff under A.R.S. § 12-612. We reject that contention, affirm the judgment for Walden, and reverse the partial summary judgment for the mall defendants because it is incompatible with our supreme court's recent decision in Martinez v. Woodmar IV Condominiums Homeowners Ass'n, 189 Ariz. 206, 941 P.2d 218 (1997).

FACTUAL AND PROCEDURAL BACKGROUND

We view the facts and reasonable inferences therefrom in the light most favorable to plaintiff. Martinez. Decedent, an employee of RGIS Inventory Specialists, was performing an inventory at Walden in the Tucson Mall on Sunday night, September 19, 1993. The mall had closed at 5:00 p.m. that day, and the mall's security personnel had left the premises at approximately 9:00 p.m. Walden's manager had made arrangements for RGIS to conduct the inventory and knew that its employees would be working that evening. Walden typically notified mall management to obtain permission for employees to work in the mall after hours. In keeping with that practice, Walden's manager believes she informed the mall that an inventory would be performed after closing time on September 19.

After finishing her work around 11:45 p.m., decedent walked to her car in the mall parking lot. Two young men, David Trostle and Jack Jewitt, Jr., accosted her, forced her into her car, and drove her to the desert, where she was sexually assaulted, shot in the head, and killed. Decedent's body was discovered on September 24, after Trostle and Jewitt had been arrested. 1

In their motions for summary judgment, all defendants contended they owed decedent no duty. The mall defendants also argued that the criminal acts against her were unforeseeable. In opposition, plaintiff asserted, inter alia, that the mall defendants owed decedent a common law duty and that all defendants had voluntarily assumed a duty towards her. He also requested additional time for discovery under Rule 56(f), Ariz. R. Civ. P., 16 A.R.S.

The trial court ruled that this court's opinion in Martinez, 187 Ariz. 408, 930 P.2d 485 (App.1996), which the supreme court later vacated, was "dispositive of the plaintiff's action on the issue of common law duty." The trial court later denied plaintiff's motion for reconsideration of that ruling, but granted his motion under Rule 56(f) "for purposes of determining the factual predicate existing in this case to determine whether the assumption of a duty to patrol the mall parking lot was reasonably exercised." The court entered judgment in favor of Walden, disposing of all claims against it, and entered partial summary judgment for the mall defendants under Rule 54(b), Ariz. R. Civ. P., "with regard to any common law duty owed to Plaintiff's decedent," "leaving only the issue of voluntary assumption of a duty to patrol the parking lots of the Tucson Mall for determination." This appeal and cross-appeal followed.

DISCUSSION

On appeal from a summary judgment, we determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law. United Bank v. Allyn, 167 Ariz. 191, 805 P.2d 1012 (App.1990). Summary judgment is inappropriate unless there are no genuine factual issues and the movant is entitled to judgment as a matter of law, Rule 56(c), or unless the facts supporting a plaintiff's claim "have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim." Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).

1. Summary Judgment for Mall Defendants

To support his negligence claim, plaintiff had to establish duty, breach of the standard of care (negligence), proximate cause, and damages. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982). "The threshold issue of whether the defendant owed any duty of care to the plaintiff is usually decided by the court as a matter of law," subject to our de novo review. Davis v. Cessna Aircraft Corp., 182 Ariz. 26, 30-31, 893 P.2d 26, 30-31 (App.1994). Defendants concede that decedent was a business invitee when she was victimized in the mall parking lot. See Nicoletti. As owners and operators of the mall with control over its parking lots, the mall defendants had "an affirmative duty to make the premises reasonably safe for use by invitees." Tribe v. Shell Oil Co., 133 Ariz. 517, 519, 652 P.2d 1040, 1042 (1982). See also Robertson v. Sixpence Inns of America, 163 Ariz. 539, 789 P.2d 1040 (1990); Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985).

The mall defendants contend, however, that foreseeability is an essential element of duty. According to them, the criminal acts against decedent were unforeseeable as a matter of law because they occurred around midnight, more than six hours after the mall had closed, and because there is no evidence of prior, similar incidents or notice of imminent probability of harm to her. The mall defendants also assert that almost all prior reported criminal incidents on mall property occurred during, or shortly before or after, the mall's business hours, there was no actual or perceived need for round-the-clock security, 2 and their security office was not asked to investigate suspicious activity in or around the parking lot on the night in question. Therefore, they argue, the law should not impose a duty on them to protect or warn against such unforeseeable events as Trostle's and Jewitt's crimes. Defendants' arguments, though somewhat persuasive, are inconsistent with the supreme court's discussion of foreseeability vis-a-vis duty in Martinez.

In that case, an unidentified third party shot the plaintiff/guest without provocation in a condominium complex parking lot while the plaintiff was attending a graduation party. The homeowners association was aware that a gang of young people often gathered in the parking lot to sell drugs and engage in other criminal conduct. The complex had hired a security guard to patrol the complex all night, starting at 8:00 or 9:00 p.m., but the shooting occurred an hour before the guard came on duty. The supreme court likened the homeowners association to a property owner or possessor of common areas and, relying on Restatement (Second) of Torts § 344 (1965) 3 and Restatement (Second) of Property § 17.3 (1976), concluded that it had a duty "to take reasonable measures to protect against foreseeable activities creating danger, including criminal attacks, on the land it controlled." 189 Ariz. at 212, 941 P.2d at 224.

On the question of foreseeability, the court in Martinez stated: "If one owes a duty of reasonable care to those on one's land with permission, then the circumstances will dictate what is reasonable to protect others from foreseeable and preventable danger. The category of danger neither creates nor eradicates duty; it only indicates what conduct may be reasonable to fulfill the duty." Id. at 210-11, 941 P.2d at 222-23. In other words, "[f]oreseeability of harm defines and limits the scope of conduct necessary to fulfill a land possessor's duty and is the cornerstone of the cases involving a possessor's duty to act reasonably to protect [persons] ... from criminal attacks." Id. Thus, the court found, "[t]he type of foreseeable danger [does] not dictate the existence of duty but only the nature and extent of the conduct necessary to fulfill the duty." Id. 4

Under Martinez, we cannot sustain summary judgment for the mall defendants on the ground that they owed no duty of care to decedent. Notwithstanding the allegedly unforeseeable criminal acts against her, Martinez compels the conclusion that, based on their legal relationship with decedent, the mall defendants owed her a common law duty...

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