Dabush v. Seacret Direct LLC (1/8/2021)

February 11, 2021

Arizona Supreme Court holds that a sublessee does not owe a duty to maintain a common area of a property in a reasonably safe condition when the sublessee makes repairs to the property unrelated to the injury that subsequently occurred.

An injured worker fell through a skylight on the roof of a multi-tenant commercial building.  The worker sued two sublessees of the building, namely the sublessee over whose portion of the building the skylight was located, and the sublessee who had undertaken a repair of the roof in a separate portion of the roof.  The trial court granted the sublessees’ motions for summary judgment on the ground that they owed no duty to the worker; the Court of Appeals affirmed.

The Arizona Supreme Court also affirmed holding that the sublessees did not owe a duty to the injured worker. 

A defendant owes a duty to maintain a premises in reasonably safe condition if the defendant has legal control of the premises, exercises actual, physical control over the premises, or assumes the duty. 

The Court first held that the sublessees did not have legal or actual control over the premises.  There was no legal control because the roof was a common area of the building and the subleases stated that the landlord retained control over common areas.  There was no actual control over the premises because the sublessees could not exclude others from the roof and did not have plenary authority to repair and maintain the roof.

Furthermore, the Court held that the liability that arises when one does an act or carries on an activity on behalf of the possessor is limited to the specific act or activity performed on behalf of the possessor.  The repairs made on the roof by the sublessee did not create the risk of the injury that occurred, and therefore the repairs did not give rise to a duty owed to the Plaintiff.  Additionally, the Court held that engaging the sublessee to do the repair work did not rise to the level of the possessor turning over the entire charge of the land to the sublessee such as would give rise to a duty.

The Court further rejected the argument that examining the scope of the repair work violated the duty framework set forth in Quiroz v. ALCOA, Inc., 243 Ariz. 560 (2018) in that the court considered specific facts in determining the existence of a duty.  The Court held that a fact-specific inquiry is necessary when determining if a party assumes a duty based on its conduct.

Finally, the Court held the sublessee did not assume duty for the condition of the skylight under the doctrine of negligent undertaking because an assumed duty is limited to the extent of the specific undertaking and the nature of the services undertaken must be for the specific purpose of protecting a third party from harm.  The worker failed to present any evidence that sublessees assumed a duty to protect him from failing through a skylight.

Justice Gould authored the unanimous opinion.