NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT 

PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ELIZABETH D. MARTIN and WALTER MARTIN, a married couple, 

Plaintiffs/Appellants,

v.

ROYAL SIGN COMPANY, INC., an Arizona corporation, 

Defendant/Appellee.

No. 1 CA-CV 14-0743

Appeal from the Superior Court in Maricopa County

No. CV2011-080284

The Honorable David M. Talamante, Judge

AFFIRMED

COUNSEL

James F. Brook and Associates, Phoenix

By James F. Brook

Counsel for Plaintiffs/Appellants

Law Offices of Joseph A. Kula, Scottsdale

By William C. Knoche

Counsel for Defendant/Appellee
MARTIN v. ROYAL SIGN

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.

T H U M M A, Judge:

¶1 Plaintiffs Elizabeth and Walter Martin appeal from the grant 

of summary judgment dismissing their negligence claims against defendant 

Royal Sign Company, Inc. Because the Martins have shown no error, the 

judgment is affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 In May 2010, Elizabeth Martin was hit in the head and 

knocked unconscious by what she alleges was part of a commercial sign. 

Washington Federal Bank owned the sign, which was designed, 

manufactured and installed by Royal Sign. At Washington Federal’s

direction, Royal Sign removed and destroyed the sign a few days after the 

incident.

¶3 In December 2011, the Martins filed this action against 

Washington Federal and Royal Sign alleging their negligence caused Ms. 

Martin’s injuries. Washington Federal successfully obtained summary 

judgment and is not a party to this appeal. Royal Sign moved for summary 

judgment, arguing the Martins did not know whether the bank’s sign hit 

Ms. Martin, and even if it did, the Martin’s expert acknowledged that he 

could not determine the cause of the sign’s failure. The Martins argued 

“multiple genuine issues of contested and uncontested material facts and 

the inferences therefrom,” as well as Royal Sign’s destruction of the sign 

after the accident, precluded summary judgment for Royal Sign “under the 

principles of negligence, constructive notice, negligence per se and res ipsa 

loquitur.”

¶4 After full briefing and oral argument, the superior court 

found sufficient evidence for the jury to reasonably infer that Ms. Martin

 

1 On appeal from the grant of summary judgment, this court “view[s] the 

evidence and reasonable inferences in the light most favorable to the party 

opposing the motion.” Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003).
MARTIN v. ROYAL SIGN

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3

“was hit and injured by a piece of the falling sign.” Turning to causation, 

the court observed the Martins’ 

expert testified that he did not know what was 

wrong with the design, manufacture, 

maintenance or installation of the sign in 

question. The testimony regarding wind speeds 

is speculative at best and amounts to an 

unsupported leap in logic relating to allegations 

of negligence for the installation of the sign in 

violation of permit requirements and zoning 

ordinances. None of that establishes the 

necessary causation to support [the Martins’] 

claim.

The Martins sought to respond to these evidentiary gaps by reliance on “res 

ipsa loquitur and spoliation.” The court found that res ipsa loquitur did not 

apply “because the sign was not under Royal Sign[’s] . . . exclusive control 

and both parties appear to acknowledge the accident could have occurred 

even without the negligence of” Royal Sign. Finding the Martins’ spoliation 

argument required a showing that Royal Sign intentionally destroyed the 

sign “with the goal of disrupting or defeating a potential lawsuit,” the court 

found “no facts, circumstantial or otherwise, from which a jury could 

reasonably infer that [Royal Sign] engaged in ‘spoliation’ as argued by the” 

Martins. Accordingly, the court granted Royal Sign’s motion for summary 

judgment.

¶5 After unsuccessfully seeking reconsideration, the Martins 

filed a timely notice of appeal from the judgment dismissing their claims.

This court has jurisdiction over the appeal pursuant to the Arizona 

Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) 

sections 12-120.21(A)(1) and -2101(A)(1) (2016).

2

DISCUSSION

¶6 Summary judgment is appropriate “if the moving party 

shows that there is no genuine dispute as to any material fact and the 

moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 

56(a). This court reviews the grant of summary judgment de novo. Andrews 

v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003). Summary judgment is not 

 

2 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated. 
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4

appropriate “if reasonable inferences concerning material facts could be 

resolved in favor of either party.” Souza v. Fred Carries Contracts, Inc., 191 

Ariz. 247, 252 (App. 1997) (citation omitted). 

¶7 The parties’ briefs on appeal do not necessarily track the 

superior court’s summary judgment ruling. In addition, the briefs on appeal 

take differing approaches to what legal issues properly should be 

addressed by this court. Accordingly, the court addresses the parties’ 

arguments focusing on the Martins’ (1) negligence claim (excluding res ipsa 

loquitur); (2) res ipsa loquitur theory; and (3) spoliation. 

I. The Martins’ Negligence Claim (Excluding Res Ipsa Loquitur).

¶8 In opposing Royal Sign’s motion for summary judgment, the 

Martins were required to provide factual support for the elements of their 

negligence claim: duty, breach, cause-in-fact, legal (or proximate) cause and 

resulting damages. Boisson v. Ariz. Bd. of Regents, 236 Ariz. 619, 622 ¶ 5 (App. 

2015) (citing cases).3 The superior court found insufficient evidence that 

Royal Sign’s breach of any relevant duty caused the injuries to Ms. Martin.

¶9 The Martins allege that Royal Sign negligently designed, 

manufactured, installed and repaired the sign and had notice of its 

inadequate condition based on “the sign’s collision history and prior wind 

and object damage, performance of repairs and replacements of the sign.” 

The Martins offered evidence that the sign had been hit by vehicles three 

different times since 1999 and blew apart in 2005. Royal Sign last replaced 

the sign in 2008 after it was damaged by a truck. The Martins also submitted 

evidence of wind gusts on the day of the accident, based on weather station 

observations miles away from the accident.

¶10 The report from the Martins’ expert engineer Anthony Voyles

opined that the sign may have failed because of substandard design and 

repair and Royal Sign’s failure to obtain a permit or inspection for the 

 

3 The Martins also alleged negligence per se based on Royal Sign’s 

purported violation of Maricopa County Zoning Ordinances and A.R.S. §

11-321. See Alaface v. Nat’l Inv. Co., 181 Ariz. 586, 598 (App. 1994) (holding 

violation of statute enacted to protect public safety constitutes negligence 

per se). Although sufficient to establish duty and breach where applicable, 

under negligence per se, the Martins still must show Royal Sign’s actions 

caused Ms. Martin’s injuries. Id.; see also Hebert v. Club 37 Bar, 145 Ariz. 351, 

353 (App. 1984).
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5

replacement sign. The Martins also point to the opinion of Washington 

Federal’s expert Douglas Ward that if the face of the sign was dislodged as 

“a result of the wind event, it was probably cut too small to be fully 

captured within the upper cabinet.” The Martins further point to Royal 

Sign’s expert engineer Todd Springer’s conclusion that “[t]he most 

probable explanation for the subject failure is that the [sign] face was 

compromised by other objects prior to or commensurate with the subject 

incident.” The Martins contend these expert opinions created a question of 

material fact precluding summary judgment because they “‘need only 

present probable facts from which the causal relationship reasonably may 

be inferred.’” Souza, 191 Ariz. at 253 (citation omitted).

¶11 No evidence showed that the sign was damaged at the time 

of the injury or how it was improperly manufactured, installed or repaired.

The experts offered varying opinions as to possible sign failure causes, but 

the superior court properly concluded that those opinions were

“speculative and not sufficiently supported by competent evidence.” 

¶12 The Martins argue this case is similar to Souza, which found 

sufficient evidence that the defendant’s defective car repairs caused an 

accident, even where the car had been destroyed before it could be 

examined by the expert. 191 Ariz. at 249. Souza held that an expert is usually 

permitted to render an opinion as to how or why an accident occurred so 

long as that opinion is not based on “sheer speculation, unsupported by any 

pertinent facts.” Id. at 254. The expert opinion in Souza was based on the 

description of the accident and deposition testimony of two defense 

witnesses who admitted the car was repaired with a defective part. Id. at 

252-53. Here, by contrast, no evidence showed how the accident occurred 

or that the sign was defectively repaired. Accordingly, unlike Souza, the 

expert testimony upon which the Martins relied was based on speculation.

¶13 Royal Sign filed a properly-supported motion for summary 

judgment arguing that the Martins’ claim failed as a matter of law. This 

required the Martins, “by affidavits or as otherwise provided in . . . [Ariz. 

R. Civ. P. 56 to] set forth specific facts showing a genuine issue for trial.” 

Ariz. R. Civ. P. 56(e)(4). Because the Martins did not do so with regard to 

the cause of the sign’s failure, the court did not err in granting Royal Sign’s 

motion for summary judgment on their negligence claim (excluding res 

ipsa loquitur).
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II. The Martins’ Res Ipsa Loquitur Theory.

¶14 “Res ipsa loquitur is a theory of circumstantial evidence 

under which the jury may reasonably find negligence and causation from 

the fact[s] of the accident and the defendant’s relation to the accident.” Cox 

v. May Dep’t Store Co., 183 Ariz. 361, 363-64 (App. 1995) (citations omitted).

“A plaintiff who establishes the elements of res ipsa loquitur can withstand 

a motion for summary judgment [even] without direct proof of negligence.”

Id. at 364. Accordingly, the discussion of the Martins’ failure to factually 

support their negligence claim discussed above is not dispositive of their 

res ipsa loquitur theory.

¶15 Although stated differently, the necessary elements for res 

ipsa loquitur under Arizona law are:

(1) the accident must be of a kind which 

ordinarily does not occur in the absence of some 

one’s negligence;

(2) it must be caused by an agency or 

instrumentality within the exclusive control of 

defendant;

(3) it must not have been due to any voluntary 

action on the part of the plaintiff; [and]

(4) plaintiff must not be in a position to show the 

particular circumstances which caused the 

offending agency or instrumentality to operate 

to his injury.

Jackson v. H.H. Robertson Co., Inc., 118 Ariz. 29, 31-32 (1978) (quoting Capps 

v. American Airlines, Inc., 81 Ariz. 232, 234 (1956)). The superior court found 

the doctrine did not apply “because the sign was not under Royal Sign[’s]

exclusive control and both parties appear to acknowledge that the accident 

could have occurred even without the negligence of” Royal Sign. Thus, the 

issue is whether the Martins presented a res ipsa jury question, recognizing 

the applicability of the doctrine turns on the unique facts and circumstances 

of each case. See Capps v. American Airlines, Inc., 81 Ariz. at 234 (“No general 

rule can be laid down as to the applicability of res ipsa loquitur. Its 

application depends on the peculiar facts and circumstances of each 

individual case.”).
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¶16 The Martins claim Royal Sign had exclusive control over the 

design and installation of the sign in February 2008.4 There is, however, no 

evidence indicating Royal Sign had or shared exclusive control at the time 

of the accident in May 2010 or at any time in the more than two years from 

February 2008 until the accident. 

¶17 It is true, as the Martins suggest, that “the significant time of 

exclusive control is the time at which the alleged negligence resulting in the 

injury occurred, not the time of the accident.” Jackson, 118 Ariz. at 32. But 

the Martins provide no authority for the proposition that res ipsa loquitur 

properly may be used to impose liability on a defendant who allegedly had

exclusive control of an instrumentality for a brief period of time years 

before an accident. And the authority cited by the Martins negates such a 

suggestion. See Cox, 183 Ariz. at 362 (holding res ipsa loquitur was not 

precluded, as a matter of law, as to entity with ongoing obligation to 

maintain escalator that had inspected escalator approximately two weeks 

before and two weeks after accident); Sanchez v. Tucson Orthopaedic Inst., 

P.C., 220 Ariz. 37, 41 ¶ 15 (App. 2008) (finding res ipsa loquitur inapplicable 

when plaintiffs claimed that either one defendant or another “controlled the 

instrumentality causing injury, and they provided no evidence that either 

defendant probably controlled it”); accord Jackson, 118 Ariz. at 32-33 (noting, 

in jobsite injury case, “[e]mployees of both defendants had control of the 

injurious instrumentality at times close enough to the accident to permit the 

inference that the negligence of one or both defendants caused the harm,” 

even though “the employees of one or both defendants may have been at 

lunch at the time of the accident”).

5

 

4 Although on appeal the Martins attempt to expand the claim to assert 

subsequent maintenance of the sign, because no such argument was 

presented to the superior court, it was waived. See Cont’l Lighting & 

Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, 386 ¶ 12 

(App. 2011); Schurgin v. Amfac Elec. Distrib. Corp., 182 Ariz. 187, 190 (App. 

1995).

5 The other cases cited by the Martins in discussing the issue on appeal do 

not address res ipsa loquitur and are not relevant to this discussion. L.H Bell 

& Assocs. v. Granger, 112 Ariz. 440 (1975) (affirming judgment following jury 

trial on negligent design claim arising out of flooding damage); Pruett v. 

Precision Plumbing, 27 Ariz. App. 288, 291 (1976) (affirming directed verdict 

on personal injury claim); Shannon v. Butler Homes, Inc., 102 Ariz. 312 (1967)

(affirming in part and reversing in part motion to dismiss or for judgment 

on the pleadings in personal injury design defect case).
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¶18 This more than two year time gap is particularly significant

here, where third party vehicles apparently compromised the sign on 

several occasions before the May 2010 accident, including in 1999, 2001, 

2005 and 2007. Royal Sign’s expert opined that the most likely cause of the 

sign’s failure was an impact to the sign shortly before or at the time of the 

May 2010 accident. The Martins acknowledge the sign’s “collision history” 

and Royal Sign’s “viable major opinion” that a plausible explanation for the 

accident was that “the [sign] face was compromised by other objects prior 

to or commensurate with the subject incident.” Indeed, the Martins concede 

that their expert “agrees[,] concluding that given the extent of the impact 

damage (opposite sign face, cabinet) the impact ‘object’ was yet again a 

vehicle.”

¶19 Finally, no evidence showed that Royal Sign (as opposed to 

Washington Federal) had control over circumstances that may have 

resulted in objects, including vehicles, striking the sign. Subjecting Royal 

Sign to a theory of liability holding it responsible for circumstances outside 

of its control is contrary to the basis of res ipsa loquitur. Cox, 183 Ariz. at 

365 (“‘Control’ under res ipsa loquitur thus corresponds to responsibility for 

the instrumentality.”). Accordingly, given the unique facts and 

circumstances of this case, the Martins have not shown the superior court 

erred in granting summary judgment to Royal Sign on the Martins’ res ipsa 

loquitur theory. Byars v. Ariz. Pub. Serv. Co., 24 Ariz. App. 420, 426 (1975) 

(noting “it is of little value to discuss any of the innumerable precedents 

wherein application of the [res ipsa loquitur] rule[s] was sought, for each 

decision must be analyzed upon its particular facts;” affirming summary 

judgment where “[t]here are various alternate possibilities to [the 

accident’s] cause, some of which obviously were not within the exclusive 

control of defendants”); accord Capps, 81 Ariz. at 234 (similar).

III. Spoliation.

¶20 The Martins argue Royal Sign’s destruction of the sign 

constitutes spoliation, which should preclude summary judgment. 

Although highly context-dependent, spoliation includes “[t]he intentional 

destruction of evidence.” Smyser v. City of Peoria, 215 Ariz. 428, 438 ¶ 32 n.11 

(App. 2007) (citation omitted). “Destruction of potentially relevant evidence 

obviously occurs along a continuum of fault—ranging from innocence 

through the degrees of negligence to intentionally. The resulting penalties 

vary correspondingly.” Souza, 191 Ariz. at 250 (citation omitted). 

Depending upon the circumstances, a court may have the discretion to 

impose a variety of different sanctions for spoliation, ranging from 

dismissal or entry of default to instructing the fact finder to make an 
MARTIN v. ROYAL SIGN

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adverse inference about what the destroyed evidence would have shown 

and/or monetary sanctions. See, e.g., Souza, 191 Ariz. at 249–50 (citing 

cases); Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 267-268 ¶ 8 (2010)

(citing authority). In deciding whether to allow an adverse inference, the 

court considers whether the destruction of evidence was intentional or in 

bad faith “and whether the loss of evidence prejudiced the party seeking 

sanctions.” McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 260 ¶ 51 (App. 

2013). A decision regarding the imposition of sanctions is reviewed for an 

abuse of discretion. See Souza, 191 Ariz. at 250.

¶21 As applied, Royal Sign removed and destroyed the sign at 

Washington Federal’s direction. The unfortunate result of this action is that

the Martins are unable to inspect the sign. The record indicates that Royal 

Sign was unaware that anyone had been injured when it removed the sign. 

The record also indicates that the removal and destruction was at 

Washington Federal’s direction, not an independent decision by Royal 

Sign. Nothing suggests that Royal Sign intentionally destroyed the sign to 

destroy evidence or acted in bad faith in removing and destroying the sign. 

Therefore, the Martins have not shown that the superior court abused its 

discretion in resolving their spoliation arguments.

CONCLUSION

¶22 The judgment is affirmed.