Johnson v. Almida Land & Cattle Company, LLC – 11/3/2016

November 22, 2016

Arizona Court of Appeals Division One holds that a permittee has a duty not to create or maintain an artificial condition upon the land that would cause an unreasonable risk of harm to others present on or outside the land.

A company obtained a permit from the United States Forest Service to graze cattle on land within the Prescott National Forest.  The company erected an electric fence in its grazing area.  A motorcycle rider collided with the fence and brought a negligence claim against the company. 

The superior court granted summary judgment in favor of the company on the basis that it owed no duty of care to the motorcycle rider.

The Court of Appeals reversed.  Arizona generally follows the Restatement (Second) of Torts unless it is contrary to Arizona law.  Section 386 of the Restatement imposes liability upon “[a]ny person, except the possessor of land . . . who creates or maintains upon the land a structure or other artificial condition which he should recognize as involving an unreasonable risk of physical harm to others upon or outside the land . . . .”  The Court of Appeals held that the concept of foreseeability in § 386 is relevant to the factual determinations of breach and causation, and thus does not contravene the rule that “foreseeability is not a factor to be considered by courts in making determinations of duty,” Gipson v. Kasey, 214 Ariz. 141, 144 ¶ 15 (2007).  The Court of Appeals, therefore, adopted the “longstanding commonsense rule set forth in § 386,” noting that “[a] contrary holding would lead to absurd results by immunizing permittees, no matter how negligent, from all liability to visitors on the land.” 

Because it concluded that § 386 governed and imposed a duty on the company, the Court of Appeals reversed the grant of summary judgment.

Presiding Judge Swann delivered the opinion of the Court, in which Judges Thompson and Kessler joined.