Timmons v. Ross Dress for Less, Inc. – 3/21/2014

April 29, 2014

Arizona Court of Appeals Division Two Holds That a Business Holding an Easement for Invitees’ Ingress and Egress Has a Duty to Provide for the Safety of Invitees Using the Easement.

In 2011, Carol Timmons tripped and fell on a curb as she was leaving a Ross Dress for Less (“Ross”) store.  Ross was the only tenant of the shopping center owned by 1031 Solutions.  Ross held a non-exclusive easement over the area where Timmons fell for its business invitees’ ingress and egress.  Ross’s lease agreement with 1031 Solutions required 1031 Solutions to maintain the easement area in “first-class” and “safe” condition.  Ross was required to contribute to maintenance and insurance for the easement area.

Ross filed a motion for judgment on the pleadings, which the parties agreed to treat as a motion for summary judgment because Timmons submitted a statement of facts.  Ross argued that it did not owe a duty to Timmons because 1031 Solutions, not it, owned the area where Timmons fell.  Timmons filed a motion to amend her complaint to include a claim of negligence per se against Ross and 1031 Solutions.  The trial court granted Ross’s motion for summary judgment, concluding that Ross owed no duty to Timmons.  The court also denied Timmons’s motion to amend her complaint, stating that any amendment would be futile because of its ruling on the summary judgment motion.

The Court of Appeals reversed both rulings.  First, the court noted that a possessor of land has the duty to maintain its premises in a condition that is reasonably safe for invitees, and a “possessor” is a person who occupies premises with the intent to control them.  Ross had an easement across the area where Timmons fell, which was acquired and used for the arrival and departure of business invitees of its retail premises.  “Because Timmons was . . . using the easement for the very purpose that Ross held and used the easement, [the court] conclude[d] her injury occurred within the scope of Ross’s duty to invitees.”

With respect to Timmons’s motion to amend her complaint, the Court of Appeals concluded that the trial court erred also.  Timmons’s proposed amendment alleged that Ross was negligent in the construction of the area where she fell.  Thus, “[t]he court’s ruling that Ross had no duty regarding maintenance of the premises did not resolve the question of whether Ross had a duty in construction of the premises.”

Judge Eckerstrom authored the opinion; Judges Kelly and Espinosa concurred.