Vega v. Killip

Annotate this Case

Download PDF

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 DANIELLE KRISTINE VEGA, ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff/Appellant, v. JOE KILLIP, Defendant/Appellee. 1 CA-CV 10-0855 DIVISION ONE FILED: 11/03/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules Of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2008-092287 The Honorable John R. Ditsworth, Judge AFFIRMED Franklin & Associates By Charles P. Franklin Colby R. Kanouse Attorneys for Plaintiff/Appellant Jones, Skelton & Hochuli, P.L.C. By F. Richard Cannata, Jr. Lori L. Voepel Attorneys for Defendant/Appellee Tempe Phoenix D O W N I E, Judge 1 ¶1 Danielle entry Vega summary judgment for of Kristine claim. appeals Joe the Killip superior on her court s negligence For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 In December 2007, Killip hosted a party at his home. Cy McKee, one of the party guests, brought a golf cart and parked it in Killip s backyard. During the party, Jaime Willingham, another guest, drove the golf cart off the property with Vega as a passenger. Willingham drove down the street approximately one block before attempting a U-turn, causing the golf cart to overturn and injure Vega. ¶3 Vega Willingham, judgment, filed McKee, arguing this and he action Killip. owed Vega for negligence moved Killip no duty against summary of care for or, in the alternative, that there was no evidence his actions breached any duty of care. for Killip. pursuant to The court granted the motion and entered judgment Vega timely Arizona appealed. Revised Statutes We have jurisdiction ( A.R.S. ) section 12-2101(A)(1). DISCUSSION ¶4 A court may grant summary judgment 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)(1). Ariz. R. Civ. P. We view the evidence in the light most favorable to 2 Vega, against whom judgment was entered, and determine de novo whether there are genuine issues of material fact and whether the trial court erred in its application of the law. Unique Equip. Co. v. TRW Vehicle Safety Sys., Inc., 197 Ariz. 50, 52, ¶ 5, 3 P.3d 970, 972 (App. 1999). ¶5 A plaintiff alleging negligence must prove: (1) the existence of a duty recognized by law requiring the defendant to conform to a certain standard of care; (2) the defendant s breach of that duty; (3) a causal connection between the breach and the plaintiff s resulting injury; and (4) actual damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007) (citation omitted). A duty is an obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order unreasonable risks of harm. to protect others against Id. at ¶ 10 (citation omitted). The existence of a duty is a question of law that we review de novo. Diaz v. Phoenix Lubrication Serv., Inc., 224 Ariz. 335, 338, ¶ 12, 230 P.3d 718, 721 (App. 2010). ¶6 Vega contends Killip owed her a duty of care because she was a social guest on his property. It is undisputed, though, that Vega was not on Killip s property when she was injured. In Wickham v. Hopkins, 226 Ariz. 468, 250 P.3d 245 (App. 2011), we held that the landowner-licensee relationship ended when a social guest left 3 the homeowner s property and walked into injured. 1 the street in front of the home, where he was We stated: While Wickham was on the premises, the landowner-licensee relationship existed, triggering the limited duty owed by landowners or occupiers to licensees. But that relationship ceased when Wickham walked off the Hopkinses property onto the street. We are unable to identify any duty-creating relationship between Wickham and the Hopkinses at the time of Wickham s injury. Wickham, 226 Ariz. at 472, ¶ 17, 250 P.3d at 249. ¶7 she Vega insists Killip owed her a duty of care even after left his property because dangerous condition on (Second) of ( Restatement ) Torts imposition of a duty. that a possessor physical harm of caused his her land. injury She § was caused contends 364 by a Restatement (1965) supports That section states, in pertinent part, land by may a be subject structure 1 or to liability other for artificial Moreover, a landowner generally owes a social guest no duty other than to refrain from knowingly letting him run upon a hidden peril or wantonly or wilfully causing him harm. Shannon v. Butler Homes, Inc., 102 Ariz. 312, 316, 428 P.2d 990, 994 (1967). Even if Vega had been injured while on Killip s property, there is no genuine issue of material fact regarding whether the golf cart was a hidden peril. There is no evidence Vega lacked the age or the experience to appreciate the dangers associated with such a vehicle when driven improperly. See, e.g., id. at 318, 428 P.2d at 996 (stating that what constitutes a hidden peril is only a question of fact for the jury in borderline cases); Shaw v. Petersen, 169 Ariz. 559, 821 P.2d 220 (App. 1991) (declining to rule as a matter of law that backyard swimming pool was not a hidden peril to 19-month-old child). 4 condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of harm if the condition is created by a third person with the possessor s consent or acquiescence while the land is in his possession. Restatement § 364(b). Because § 364 addresses harms that result from structures or artificial conditions on the land, it does not support imposition of a duty here, where the golf cart was not on Killip s property at the time of the incident, but merely had been parked there earlier in the night. ¶8 Killip did not owe a duty of protect Vega after she left his property. reasonable CONCLUSION We affirm the judgment of the superior court. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ PETER B. SWANN, Judge /s/ DONN KESSLER, Judge 5 to The superior court properly granted him summary judgment. ¶9 care

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.