Siddons v. Business Properties Development Co.

• Decision Date: 24 February 1998
• Docket Number: No. CV-97-0103-PR,CV-97-0103-PR
• Citation: 953 P.2d 902,191 Ariz. 158
• Parties: , 263 Ariz. Adv. Rep. 33 Steven Kelly SIDDONS, individually and as parent and conservator of the Estate of R.C.S., his minor child; Katie Siddons, as joint custodial parent of R.C.S., her minor child, Plaintiffs/Appellants. v. BUSINESS PROPERTIES DEVELOPMENT COMPANY aka Business Properties Partnership Number 41, Defendant/Appellee.
• Court: Arizona Supreme Court

Page 902

953 P.2d 902

191 Ariz. 158, 263 Ariz. Adv. Rep. 33

Steven Kelly SIDDONS, individually and as parent and conservator of the Estate of R.C.S., his minor child; Katie Siddons, as joint custodial parent of R.C.S., her minor child, Plaintiffs/Appellants. v. BUSINESS PROPERTIES DEVELOPMENT COMPANY aka Business Properties Partnership Number 41, Defendant/Appellee.

No. CV-97-0103-PR.

Supreme Court of Arizona En Banc.

Feb. 24, 1998.

Jones, Skelton, & Hochuli by A. Melvin McDonald, Jeffrey Miller, and Eileen Dennis, Phoenix, for Plaintiffs/Appellants.

Ridenour, Swenson, Cleere, & Evans, P.C. by Robert R. Beltz and Scott A. Holden, Phoenix, for Defendant/Appellee.

OPINION

ZLAKET, Chief Justice.

¶1 On June 2, 1992, 4-year-old Rick Siddons was seriously injured when a heavy door fell on him in front of Berry's Appliance Warehouse, one of several businesses in a Tempe strip mall. Earlier that day, Berry's employees had removed the glass and metal door from its hinges and placed it on the sidewalk, propping it against the outside wall of the building beside the customer entrance.

¶2 Deposition testimony of store managers indicates that Berry's employees routinely followed this practice--sometimes two or three times a day--to facilitate the movement of large appliances in and out of the store. The door frequently remained off the hinges for an hour or two at a time. Berry's had asked its landlord, Business Properties Development (BPD), for permission to install double doors, but that request was refused for "aesthetic" reasons.

¶3 This action was brought against both Berry's and BPD. The claim against Berry's was settled and is not at issue here. The trial court granted BPD's motion for summary judgment. The court of appeals affirmed, holding that "BPD had no duty to protect against a condition created exclusively by Berry's after it took possession of the property, and more so here, when BPD did not have notice that the condition presented a foreseeable risk of harm." We granted review. Because this is an appeal from summary judgment, we must view the facts in a light most favorable to the non-movant. See Gulf Insurance Co. v. Grisham, 126 Ariz. 123, 124, 613 P.2d 283, 284 (1980).

¶4 While the question of duty is generally answered by the court as a matter of law, see Beach v. City of Phoenix, 136 Ariz. 601, 604, 667 P.2d 1316, 1320 (1983), there may be preliminary fact issues that a jury must resolve. See, e.g., McNally v. Ward, 192 Cal.App.2d 871, 14 Cal.Rptr. 260, 266 (1961) (whether defective portion of premises was reserved by landlord for common use, or was under exclusive control of tenant, ordinarily a question of fact).

¶5 This matter concerns a landlord's duty with respect to areas allegedly within its control. Our analysis is guided by Restatement (Second) of Torts § 360 (1965), which reads as follows:

A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.

See also Martinez v. Woodmar IV Condominiums Homeowners Ass'n Inc., 189 Ariz. 206, 208-09, 941 P.2d 218, 220-21 (1997). Thus, if BPD retained control over the area where the accident occurred, it would have had a duty to inspect and make safe. This duty extended to "members of the tenant's family, his employees, his invitees, his guests, and others on the land in the right of the tenant." Martinez, 189 Ariz. at 209, 941 P.2d at 221 (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 63, at 440 (5th ed.1984)); see also Dolezal v. Carbrey, 161 Ariz. 365, 371, 778 P.2d 1261, 1267 (App.1989).

¶6 We must therefore decide if the evidence here would support a finding that the condition was within BPD's "dominion...