Guyton v. Van Wagner

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DIANA GUYTON, a married individual, ) ) ) Plaintiff/Appellant, ) ) v. ) ) VAN WAGNER & COMPANY, INC., ) a Colorado corporation doing ) business in Arizona; ROGER VAN ) WAGNER and JANE DOE VAN WAGNER, ) husband and wife; LANNETTE ) GLOVER and JOHN DOE GLOVER, as ) husband and wife; LORIE CORRADO ) and JOHN DOE CORRADO, as ) husband and wife, ) ) Defendants/Appellees. ) _______________________________ ) DIVISION ONE FILED: 07-15-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0471 DEPARTMENT D MEMORANDUM DECISION (Not for PublicationRule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court of Maricopa County Cause No. CV 2007-092971 The Honorable Joseph Kreamer, Judge AFFIRMED Branham Law Offices, P.C. By Marlon E. Branham and Law Offices of David L. Abney By David L. Abney Attorneys for Plaintiff/Appellant Mesa Phoenix Skypeck & Sorensen By John H. Ishikawa Attorneys for Defendants/Appellees Phoenix T H O M P S O N, Judge ¶1 Plaintiff Diana Guyton appeals the grant of summary judgment in favor of defendants Van Wagner & Company, Inc., Roger and Jane Doe Van Wagner, Lannette and John Doe Glover, and Lorie and John Doe Corrado (collectively, Van Wagner). For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Guyton was employed as a teacher at a Tutor Time Child Care and Learning Center facility, which leased its building and land from Van Wagner. Tutor Time had leased the building and land continued since 1998, and to do purchased the property in December 2005. so after Van Wagner As part of her job duties, Guyton regularly disposed of trash in a gated dumpster located in the facility s parking lot. On December 27, 2006, as Guyton turned to leave after disposing of the trash, the gates and a concrete support post fell and a metal door struck her leg. ¶3 gates The facility director had previously noticed that the were office. passed rusty, and she had complained to the corporate According to her deposition testimony, the director by the gates regularly, 2 but she noticed only on the morning of the accident that the gates were bent and that the hooks to the support post were not secure. She contacted the company office and facility maintenance personnel and began to go from class to class to warn teachers not to use the dumpster, but she did not reach Guyton before the accident. ¶4 Guyton acknowledges that there is no evidence that Van Wagner had actual notice of the danger posed by the gates, but Guyton argues that Van Wagner had constructive notice due to the time necessary for rust to develop in Arizona s arid climate. Guyton argues that Van Wagner, as the owner of the property, had a nondelegable duty to make the property safe for invitees, such as herself, and to inspect for and warn of dangerous conditions on the property. Guyton further argues that Van Wagner s failure to inspect the property in the year between the purchase and the accident would allow a reasonable jury to find that Van Wagner breached its duty of reasonable care. She argues that summary judgment was inappropriate because breach is generally a jury question. ¶5 Van Wagner moved for summary judgment on the basis that there was no evidence it knew of or should have discovered the dangerous condition in time to prevent the accident. For the purposes of summary judgment, Van Wagner assumed it owed a duty to Guyton and consequently argued only that Guyton lacked any genuine evidence of breach of that duty. 3 Van Wagner notes that the facility director stated in her deposition that she believed the damage to the gate had been caused by a city sanitation vehicle, based on a subsequent incident where a city vehicle striking the gate caused the gate to fall in a similar manner. The court granted Van Wagner s motion, and Guyton timely appealed. DISCUSSION ¶6 Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 56(c). We review the grant of summary Ariz. R. Civ. P. judgment de novo to determine whether any genuine issue of material fact exists, and we view the evidence and all reasonable inferences in favor of the nonmoving party. Chalpin v. Synder, 220 Ariz. 413, 418, ¶ 17, 207 P.3d 666, 671 (App. 2008) (citation omitted). Summary judgment should be granted if the facts produced in support of [a] claim . . . have so little probative value, given the quantum of evidence required, that reasonable people could not agree with claim. . .. the conclusion advanced by the proponent of the Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). ¶7 Guyton has presented no evidence beyond mere speculation that the rust caused the gate to fall, nor has she presented evidence to rebut Van Wagner s evidence, in the form 4 of the facility director s dangerous deposition only testimony, slightly prior that to the enclosure became Guyton s accident. Guyton thus cannot carry her burden on either breach of duty or causation. ¶8 Moreover, we have previously recognized the general rule of leased landlord premises, non-liability and requiring precautions for such conditions. for that dangerous lessees conditions take on appropriate Piccola ex rel. Piccola v. Woodall, 186 Ariz. 307, 312, 921 P.2d 710, 715 (App. 1996). Where a lessee has been in possession long enough to assume the obligations of due care, such obligations devolve to the lessee. Id. Additionally, while land owners are required to inspect premises when they have reason to suspect that defects exist at the time a tenant takes possession, they are not required to do so absent such suspicion. Id. at 310, 921 P.2d at 713. Here, Guyton s employer had leased the property for more than ten years, and Guyton presented no evidence that Van Wagner was ever informed of any problems with the enclosure that would trigger a suspicion that a dangerous defect existed. ¶9 For the foregoing reasons, 5 we affirm the grant of summary judgment in favor of Van Wagner. /s/ ______________________________ JON W. THOMPSON, Judge /s/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ___________________________________ DIANE M. JOHNSEN, Judge 6

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