MAUGHAN v. DILLARD

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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 HERMENEGILDA MAUGHAN, ) ) Plaintiff/Appellant, ) ) v. ) ) DILLARD STORE SERVICES, INC., ) an Arkansas corporation, ) ) Defendant/Appellee. ) ) __________________________________) DIVISION ONE FILED: 03/05/2013 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 12-0218 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2010-027207 The Honorable Colleen L. French, Judge Pro Tempore AFFIRMED Warnock, MacKinlay & Carman, PLLC by John T. White and Brian R. Warnock Krista M. Carman Attorneys for Plaintiff/Appellant The Cavanagh Law Firm, P.A. by Ralph E. Hunsaker and William F. Begley Attorneys for Defendant/Appellee S W A N N, Judge Scottsdale Prescott Phoenix ¶1 summary Hermenegilda judgment ( Dillard s ) Maughan in on favor her appeals of the Dillard negligence superior Store claim. We court s Services, affirm Inc. because Maughan failed to oppose the motion for summary judgment with evidence from which a reasonable jury could find that Dillard s failed to keep its premises in a reasonably safe condition. FACTS AND PROCEDURAL HISTORY ¶2 Maughan alleged that while exiting a restroom located in a Dillard s store, she fell and was injured when the door to the restroom struck her. She filed a negligence action claiming that Dillard s failed to adequately maintain its premises and failed to discover or correct moved for hazardous conditions on its premises.1 ¶3 Maughan Dillard s had material not question unreasonably of fact dangerous judgment, arguing sufficient produced summary evidence to create a regarding whether there was an condition on the premises. that Maughan opposed the motion, contending that a question of fact existed concerning whether the restroom door was too heavy and closed too quickly. registered closure She offered a letter from Michael J. Kuzel, a professional standards. The engineer, court 1 describing granted certain Dillard s door- motion for Maughan also asserted a claim against Dillard s for negligent infliction of emotional distress, which is not at issue in this appeal. 2 summary judgment, ruling that Maughan had not offered sufficient evidence from which a reasonable jury could find that the restroom door was defective or that any such defect created an unreasonably dangerous condition. ¶4 Thereafter, Maughan filed a motion for reconsideration in which she argued that the evidence established a material question of fact regarding whether the door was unreasonably dangerous. To the motion, Maughan attached her entire deposition transcript, the deposition transcript of Dillard s store engineer, and an affidavit from her daughter, who stated that she visited the Dillard s restroom shortly after Maughan s fall and noticed the door shut very quickly, taking approximately two seconds to move from fully open to closed.2 ¶5 The court denied Maughan s motion for reconsideration and entered judgment for Dillard s. Maughan timely appeals from the judgment, which disposed of her entire complaint. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1). DISCUSSION ¶6 Maughan contends that the superior court erred by granting summary judgment for Dillard s because genuine issues of material fact existed regarding the closing speed of the door. Dillard s contends that Maughan failed to offer evidence 2 Maughan also apparently delivered color photographs of her injuries to the court along with the motion, but the photographs are not part of the record. 3 that an unreasonably dangerous condition existed on its premises. ¶7 Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. 56(a).3 produced Summary in judgment support of should the claim be or Ariz. R. Civ. P. granted defense if the facts 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 or defense. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). ¶8 existence A plaintiff of a duty, in a a negligence breach of proximately caused by the breach. that action duty, must and show an the injury Berne v. Greyhound Parks of Ariz., Inc., 104 Ariz. 38, 39, 448 P.2d 388, 389 (1968). The mere occurrence of a fall on business premises is not sufficient to show negligence by the proprietor. Preuss v. Sambo s of Ariz., Inc., 130 Ariz. 288, 289, 635 P.2d 1210, 1211 (1981). A business owner is not an insurer of the safety of a business invitee, but only owes a duty to exercise reasonable care to his invitees. Walker v. Montgomery Ward & Co., 20 Ariz. App. 255, 258, 511 P.2d 699, 702 (1973). This duty requires the owner to 3 At the time of the superior court s ruling, Ariz. R. Civ. P. 56(c)(1) set forth the standard for granting summary judgment. 4 discover and correct or warn of hazards that the owner should reasonably foresee might endanger an invitee. Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985). Whether the owner has exercised the care required to keep the premises in a reasonably safe condition usually a question of fact for the jury. at 258, 511 P.2d at 702. for an invitee is Walker, 20 Ariz. App. But when no evidence exists from which a reasonable jury could find that the defendant breached its duty of care, summary judgment is warranted. ¶9 Here, the court determined that Maughan, whom Dillard s does not dispute was its business invitee, had not presented sufficient facts to show that the restroom door was defective or that any dangerous condition. such defect created an unreasonably Maughan argues this was error, citing her deposition testimony that the door closed too quickly. We agree with the superior court that this testimony is insufficient to create a material question of fact regarding whether the door was defective and unreasonably dangerous, or whether Dillard s was negligent in maintaining its premises. Conclusory statements are simply insufficient to raise any genuine issues of material Procedure. fact under Rule 56(e), Arizona Rules of Civil State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20, 26, 725 P.2d 727, 733 (App. 1986). Without any quantitative evidence regarding the door s closing speed, its deviation (if 5 any) from the norm, or any evidence regarding prior accidents, Maughan s testimony is simply a self-serving statement of opinion. Her testimony would leave a jury merely to speculate about the condition of the door, and cannot defeat a motion for summary judgment. P.2d 250, 255 Florez v. Sargeant, 185 Ariz. 521, 526, 917 (1996); see also Ariz. R. Civ. P. 56(e)(4) (adverse party s affidavit must set forth specific facts showing that there is a genuine issue for trial).4 ¶10 The superior court correctly determined that Maughan s evidence could not establish that the door was defective or that any such defect created an unreasonably dangerous condition. See Burke v. Ariz. Biltmore Hotel, 12 Ariz. App. 69, 71, 467 P.2d 781, 783 (1970) ( The mere fact that an injury has been sustained does not give rise to a presumption that a defective condition created an unreasonable risk of harm. ); Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008 (a scintilla of evidence or evidence creating the slightest 4 doubt about the facts may Maughan also relies on Kuzel s letter. But Kuzel s letter contains neither facts regarding the door s closing speed nor opinions concerning whether it was defective and unreasonably dangerous. In the exercise of our discretion, we decline to consider the deposition testimony of Dillard s store engineer or the affidavit of Maughan s daughter, because Maughan first submitted that evidence to the superior court with her motion for reconsideration. Ramsey v. Yavapai Family Advocacy Ctr., 225 Ariz. 132, 137, ¶ 18, 235 P.3d 285, 290 (App. 2010) (appellate court generally does not consider arguments raised for the first time in a motion for reconsideration). 6 still be insufficient to withstand a motion for summary judgment). CONCLUSION ¶11 For the summary judgment party, Dillard s foregoing in is favor reasons, of we affirm Dillard s. entitled to an As award the the of entry of prevailing costs upon compliance with ARCAP 21. /s/ __________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ____________________________________ PAUL F. ECKSTEIN, Judge Pro Tempore* * The Honorable Paul F. Eckstein, Judge Pro Tempore of the Court of Appeals, Division One, is authorized by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this appeal pursuant to the Arizona Constitution, Article 6, Section 3, and A.R.S. §§ 12-145 to -147 (2003). 7

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