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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SANDRA SCHIAGER, Plaintiff/Appellant,

v.

LANDMARK LAND MANAGEMENT, Defendant/Appellee.

No. 1 CA-CV 20-0226 

Appeal from the Superior Court in Maricopa County

No. CV 2017-014321

The Honorable Danielle J. Viola, Judge

AFFIRMED

COUNSEL

Brown Engstrand & Shely Accident Law Group, Tempe

By Robert W. Shely

Counsel for Plaintiff/Appellant

Jones Skelton & Hochuli PLC, Phoenix

By Lori L. Voepel, Alejandro Barrientos

Counsel for Defendant/Appellee

FILED 3-9-2021
SCHIAGER v. LANDMARK LAND

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Sandra Schiager appeals from the superior court’s summary 

judgment dismissing her negligence claim against Landmark Land 

Management (“Landmark”). For the following reasons, we affirm.

BACKGROUND

¶2 While attending an outdoor event held at a recreational 

property (“the property”) managed by the Salt River Project Employee’s 

Recreational Association, Inc. (“PERA”), Schiager stepped off the cement 

floor of a ramada onto the surrounding grass. As she did so, Schiager’s left 

foot sank into an “unseen” six-inch-deep depression in the ground, causing 

her to fall and fracture her left ankle. Four days later, she underwent 

surgery, which included the placement of 11 pins and screws and a metal 

plate to repair the ankle. 

¶3 Schiager filed a negligence claim against PERA, alleging 

PERA owed her, a business invitee, a non-delegable duty to maintain the 

property in a reasonably safe condition. In an amended complaint, Schiager 

added a negligence claim against Landmark, alleging that by virtue of its 

contract with PERA, to provide regular lawn and landscaping services for 

the property, Landmark owed a duty “to foreseeable users” of the property, 

such as herself, to discover the subsidence and alleviate its risk of harm. She 

further alleged that Landmark mowed the property in a manner that 

concealed the subsidence, aggravating the danger. 

¶4 Landmark answered, denying liability, and moved for 

summary judgment. Specifically, Landmark asserted that it “owed no legal 

duty” to Schiager. In response, Schiager argued that Landmark, “in the 

course and scope of its landscaping duties . . . , hid a pre-existing hazard 

from foreseeable users.”

¶5 After oral argument on the motion, the superior court granted

summary judgment in favor of Landmark, agreeing that it owed no duty to 

Schiager and her negligence claim failed as a matter of law. Following that 
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3

ruling, Landmark submitted its verified statement of costs, asserting it was 

entitled to recover, among other things, its share of mediation expenses. 

Schiager objected to Landmark’s inclusion of the mediator’s fees, citing the 

mediator’s letter to counsel, which stated, “unless the parties direct me 

otherwise, I will send a statement representing a pro rata portion of the total 

to counsel for each of the parties at the conclusion of the hearing.” Because 

no party objected, Schiager argued that the parties agreed to split the 

mediation expenses and Landmark’s share of the mediator’s fees therefore 

were not recoverable. Without disputing the content of the mediator’s 

letter, Landmark contended that the mediation expenses were, in fact,

recoverable as taxable costs. 

¶6 Overruling Schiager’s objection, the superior court awarded 

Landmark its requested costs and entered a final judgment in its favor. 

Schiager timely appealed. 

DISCUSSION

I. Summary Judgment Ruling

¶7 Schiager challenges the superior court’s summary judgment 

ruling. She contends that Landmark owed a duty to PERA’s business 

invitees to inspect the property and remove any hazards. 

¶8 In reviewing a grant of summary judgment, we view the facts 

and the reasonable inferences to be drawn from those facts in the light most 

favorable to the non-moving party and affirm “if the evidence produced in 

support of the defense or claim has so little probative value that no 

reasonable person could find for its proponent.” State Compensation Fund v. 

Yellow Cab. Co., 197 Ariz. 120, 122, ¶ 5 (App. 1999). “We review de novo the 

[superior] court’s application of the law and its determination whether 

genuine issues of material fact preclude summary judgment.” Id.; see also

Ariz. R. Civ. P. 56(a) (“The court shall grant summary judgment 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.”). We will 

affirm the court’s “decision if it is correct for any reason, even if that reason 

was not considered by the [] court.” Glaze v. Marcus, 151 Ariz. 538, 540 (App. 

1986). 

¶9 “To establish a claim for negligence, a plaintiff must prove 

four elements: (1) a duty requiring the defendant to conform to a certain 

standard of care; (2) a breach by the defendant of that standard; (3) a causal 

connection between the defendant’s conduct and the resulting injury; and 

(4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). While 
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breach, causation, and damages “are factual issues usually decided by [a] 

jury,” the “first element, whether a duty exists,” is a question of law that we 

review de novo. Id. at ¶ 10; see also Guerra v. State, 237 Ariz. 183, 185, ¶ 7 

(2015).

¶10 “Whether the defendant owes the plaintiff a duty of care is a 

threshold issue; absent some duty, an action for negligence cannot be 

maintained.” Gipson, 214 Ariz. at 143, ¶ 11. A duty is an “obligation, 

recognized by law, which requires the defendant to conform to a particular 

standard of conduct in order to protect others against unreasonable risks of 

harm.” Id. at ¶ 10 (quotation omitted). “The existence of a duty of care is a 

distinct issue from whether the standard of care has been met in a particular 

case.” Id. 

¶11 “As a legal matter, the issue of duty involves generalizations 

about categories of cases.” Id. “Thus, a conclusion that no duty exists is 

equivalent to a rule that, for certain categories of cases, defendants may not 

be held accountable for damages they carelessly cause, no matter how 

unreasonable their conduct.” Id. at 143–44, ¶ 11.

¶12 “Duties of care may arise from special relationships based on 

contract, family relations, or conduct undertaken by the defendant,” as well 

as from public policy considerations. Id. at 145, ¶¶ 18, 23. “Foreseeability of 

harm is not a relevant consideration in determining the threshold legal 

issue of whether a duty exists, nor are case-specific facts.” Guerra, 237 Ariz. 

at 183, 185, ¶ 8; see also Quiroz v. ALCOA Inc., 243 Ariz. 560, 563, ¶ 2 (2018); 

Gipson, 214 Ariz. at 144, ¶ 15.

¶13 Under the terms of its written contract with PERA, Landmark 

agreed to provide weekly lawn services (“mow grass”) and “maintain 

landscaping” on the 83-acre property. As outlined in its landscaping bid, 

which was incorporated by reference into the lawn-and-landscaping 

services contract, the scope of Landmark’s work was limited to 

“provid[ing] and furnish[ing] all horticultural supervision, labor, material, 

equipment and transportation required to maintain the landscape.” Given 

the agreement’s terms, Landmark, without question, owed PERA a duty to 

perform its contracted services in a non-negligent manner. See Gipson, 214 

Ariz. at 145, ¶ 18. But nothing in the lawn-and-landscaping-services 

contract extended that duty of care to PERA’s business invitees. 

¶14 Acknowledging that Landmark owed her no contractual duty

of care, Schiager first argues that Landmark owed her a duty based on its 

“exclusive control” over the property. As support for this contention, 
SCHIAGER v. LANDMARK LAND

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Schiager cites Martinez v. Woodmar IV Condominiums Homeowners Ass’n, 189 

Ariz. 206, 224 (1997), in which the Arizona Supreme Court found the 

defendant homeowners’ association owed a duty of reasonable care to 

invitees to maintain the safety of its common areas. 

¶15 To have “actual control over premises,” a party “must have 

the authority to: (1) exclude others from the premises; and (2) direct how 

the premises is repaired, maintained, and used.” Dabush v. Seacret Direct 

LLC, 250 Ariz. 264, 269, ¶ 18 (2021). “Both the authority to exclude others 

and control over repairs are necessary to impose a duty of care on a 

possessor of land.” Id. at ¶ 19. 

¶16 Unlike the homeowners’ association in Martinez, which 

exercised exclusive control over the premises at issue in that case, 

Landmark did not exercise control over the property here. 189 Ariz. at 209–

10 (“[W]ith respect to common areas under its exclusive control, a 

condominium association has the same duties as a landlord[,] . . .

[including] a duty to maintain the common areas it controls in a safe 

condition and protect both owners and their guests from dangerous 

conditions.”). Put simply, there is no question that Landmark lacked

authority to exclude Schiager, or any other PERA invitee, from the 

property. Equally important, Landmark had no power to direct the repair, 

maintenance, or use of the property beyond the scope of its own services. 

Of particular relevance to this case, PERA, not Landmark, hired an electrical 

contractor to dig a utility trench and install an electrical conduit to the 

ramada and PERA, not Landmark, oversaw the backfill of that trench, 

which likely caused the subsidence at issue.

¶17 Because Schiager and Landmark have neither a contractual 

relationship nor any other relationship specifically recognized by common 

law or created by public policy, Quiroz, 243 Ariz. at 563, 565, ¶¶ 2, 13, the 

issue before us is whether Landmark, by undertaking lawn maintenance 

services on the property, assumed a duty to PERA’s invitees. Gipson, 214 

Ariz. at 145, ¶ 18; Quiroz, 243 Ariz. at 565, ¶ 14.

¶18 “Arizona recognizes a cause of action for negligent 

performance of an undertaking as it is summarized in the Restatement 

(Second) of Torts.” Steinberger v. McVey ex rel. County of Maricopa, 234 Ariz. 

125, 137, ¶ 45 (App. 2014); Quiroz, 243 Ariz. at 565, ¶ 14; see also Lips v. 

Scottsdale Healthcare Corp., 224 Ariz. 266, 268, ¶ 10 (2010) (“[T]he common 

law imposes a duty of reasonable care on a party who voluntarily 

undertakes to protect persons or property from physical harm.”); Lloyd v. 

State Farm Mut. Auto. Ins. Co., 176 Ariz. 247, 250 (App. 1992) (“When a 
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person voluntarily undertakes an act, even when there is no legal duty to 

do so, that person must perform the assumed duty with due care and is 

liable for any lack of due care in performing.”). 

¶19 Under Restatement (Second) of Torts §§ 323 and 324A (1965), 

a party may assume a duty to act with reasonable care “by undertaking 

(with or without a formal relationship) to perform services” for another,

Acri v. State, 242 Ariz. 235, 240, ¶ 17 (App. 2017), even though the party 

“otherwise had no duty to do so.” Steinberger, 234 Ariz. at 137, ¶ 46; see also

Barnum v. Rural Fire Protection Co., 24 Ariz. App. 233, 237 (1975) (explaining 

a duty arises “by reason of an affirmative undertaking by one who, under 

the circumstances, has no duty to act”). Restatement § 323 states: 

One who undertakes, gratuitously or for consideration, to 

render services to another which he should recognize as necessary

for the protection of the other’s person or things, is subject to 

liability to the other for physical harm resulting from his failure 

to exercise reasonable care to perform his undertaking, if (a) 

his failure to exercise such care increases the risk of such 

harm, or (b) the harm is suffered because of the other’s 

reliance upon the undertaking. 

(Emphasis added.) Restatement § 324A likewise provides for the voluntary 

assumption of a duty: 

One who undertakes, gratuitously or for consideration, to 

render services to another which he should recognize as necessary

for the protection of a third person or his things, is subject to 

liability to the third person for physical harm resulting from his 

failure to exercise reasonable care to protect his undertaking, 

if (a) his failure to exercise reasonable care increases the risk 

of such harm, or (b) he has undertaken to perform a duty 

owed by the other to the third person, or (c) the harm is 

suffered because of reliance on the other or the third person 

upon the undertaking.

(Emphasis added.)

¶20 Considering Restatement § 323, Schiager does not allege that 

Landmark undertook to render services to her, personally, and the record 

reflects that Landmark contracted only to provide services to PERA, not 

PERA’s invitees. Therefore, because Landmark did not undertake any 

action directly on Schiager’s behalf, Restatement § 323 does not apply in 

this case. See U.S. Airways, Inc. v. Qwest Corp., 238 Ariz. 413, 421, ¶ 30 (App. 
SCHIAGER v. LANDMARK LAND

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2015), ordered depublished in part on other grounds by U.S. Airways, Inc. v. 

Qwest Corp., 241 Ariz. 182 (2016).

¶21 To maintain a claim for negligence predicated on an 

undertaking of services pursuant to Restatement § 324A, Schiager was 

required to allege that: (1) Landmark undertook to render services to PERA

that it should have recognized were necessary to protect PERA’s business 

invitees, such as herself, (2) Landmark failed to exercise reasonable care 

while performing the services, thereby increasing her risk of harm, and (3) 

she was in fact harmed by Landmark’s actions. Restatement § 324A; see also 

Steinberger, 234 Ariz. at 137, ¶ 48.

¶22 Relying primarily on Nelson v. Grahawk Properties L.L.C., 209 

Ariz. 437 (App. 2004), Schiager contends that landscapers, generally, are 

liable to third parties for negligent services that cause injury, and that 

Landmark, specifically, is liable to her because it both failed to detect the 

subsidence and mowed the grass in a manner that concealed it. Nelson

involved a property development for residential and commercial use. Id. at 

438, ¶ 2. To obtain municipal approval for the project, the developer “was 

required” to dedicate a right-of-way intersection to the municipality, 

construct certain roadways and related improvements, and maintain 

landscaping for the right-of-way after its dedication. Id. Although its plans 

for the intersection included a traffic signal, the developer installed median 

landscaping before the traffic light was installed. Id. at ¶ 3. Thereafter, the

plaintiff was injured in an automobile accident at the intersection and 

alleged that “sight-obscuring landscaping,” in combination with “no 

operational traffic signal,” created an unreasonably dangerous condition 

that prevented him from seeing an approaching motorcyclist before their 

vehicles collided. Id. at 438–39, ¶¶ 4–5. On appeal, this court reversed the 

superior court’s entry of summary judgment in favor of the developer, 

concluding the local municipality’s non-delegable duty did not, as a matter 

of law, shield the developer from liability. Id. at 440–41, ¶¶ 14–15.

¶23 While Nelson supports the proposition that Landmark is not 

absolved of liability simply because PERA, as the property owner, owes a 

non-delegable duty of care to its invitees to maintain the property in a 

reasonably safe manner, it does not, as Schiager contends, stand for the 

proposition that a landscaper owes a general duty of care to third parties. 

And, unlike the property developer in Nelson, Landmark neither shared 

control of the property at issue nor created the dangerous condition that 
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caused injury―the subsidence. Therefore, Schiager’s reliance on Nelson is 

misplaced.1

¶24 Schiager has not alleged that Landmark knew of the 

subsidence before she fell. Instead, she asserts that Landmark owed invitees

a duty to inspect the property and discover and remedy the hazard. 

Therefore, the dispositive question is whether Landmark, by undertaking 

mowing and landscaping services for PERA, assumed a duty to inspect the 

83-acre property to ensure no potential dangers befell a PERA invitee.

¶25 We conclude that Landmark did not owe PERA’s invitees a 

duty to inspect the property for hazards. In reaching this conclusion, we 

find Diaz v. Phoenix Lubrication Service, 224 Ariz. 335 (App. 2010), 

instructive. In Diaz, the plaintiff took a vehicle to the defendant for an oil 

change service that included a check of the vehicle’s tire pressure. Id. at 337, 

¶ 2. The plaintiff did not purchase separate tire rotation or inspection 

services. Id. A short time later, the plaintiff lost control of the vehicle and 

attributed the accident to “the worn condition of the tread” of the tires. Id. 

at ¶ 3. After the plaintiff filed a negligence claim against various parties, the 

defendant was named as a non-party at fault based on its failure to inspect 

the tires during the oil change. Id. at ¶ 6. The superior court granted the 

defendant’s motion for summary judgment, finding the defendant did not 

owe the plaintiff a duty to inspect the vehicle’s tires. Id. at 337–38, ¶ 8. On 

appeal, this court affirmed, rejecting the plaintiff’s contention that the 

defendant owed a duty to inspect the vehicle for hazards. Id. at 339, ¶ 15.

¶26 Under the plain language of Restatement § 324A, the scope of 

a party’s assumed duty to a third party is clearly limited to the services it 

undertook to render to “another.” In this case, Landmark contracted with 

1 We find no merit to Schiager’s claim that the superior court violated 

her due process rights by distinguishing Nelson on a basis neither advanced 

by Landmark nor mentioned by the court at oral argument. Due process 

guarantees a party notice and an opportunity to be heard. Wales v. Ariz. 

Corp. Comm’n, 249 Ariz. 263, 267, ¶ 9 (App. 2020) (“To comply with due 

process, a party must have had notice and an ‘opportunity to be heard at a 

meaningful time and in a meaningful manner.’”) (citation omitted). Here, 

Schiager received both. At oral argument, Schiager’s attorney argued his 

interpretation of Nelson at length. Moreover, contrary to Schiager’s 

contention, a court’s interpretation and application of case law is not 

constrained by the parties’ framing. To be clear, a court may independently 

assess whether a case is controlling or distinguishable and is not bound by 

the interpretations offered by counsel.
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PERA to provide mowing and landscaping services for the property. 

Because Landmark did not undertake to inspect the 83-acre property for 

unseen hazards, Restatement § 324A did not impose a duty on it to inspect 

with care. Furthermore, to the extent Schiager contends that Landmark is 

liable because it mowed the lawn in a way that concealed the subsidence 

(meaning the grass in the subsidence was taller than the grass in the 

surrounding areas so the overall height of the grass appeared uniform), she 

has not offered any evidence that Landmark should have recognized a need to 

mow the grass in a manner that protected third parties, as required to 

establish an assumed duty under Restatement § 324A. In other words, 

absent evidence that Landmark knew of the subsidence, there is no basis to 

conclude that its method of mowing the grass to achieve a uniform 

appearance was in any way negligent. Therefore, because Landmark owed 

Schiager no duty to inspect the property, the superior court did not err by 

granting summary judgment in Landmark’s favor.

II. Award of Mediation Fees as Taxable Costs

¶27 Schiager challenges the superior court’s award of mediation 

expenses as taxable costs. She contends the court should have upheld the 

parties’ pre-mediation agreement “to split” the mediation fees.

¶28 “A party to a civil action cannot recover its litigation expenses 

as costs without statutory authorization.” Reyes v. Frank’s Serv. & Trucking, 

LLC, 235 Ariz. 605, 608, ¶ 6 (App. 2014) (quoting Schritter v. State Farm Mut. 

Auto. Ins. Co., 201 Ariz. 391, 392, ¶ 6 (2001). As identified in A.R.S. § 12-

332(A)(6), taxable costs include “disbursements that are made or incurred 

pursuant to an order or agreement of the parties.” “Whether a particular 

expenditure qualifies as a taxable cost is a question of law that we review 

de novo.” Reyes, 235 Ariz. at 608, ¶ 6.

¶29 As recognized in Reyes, “the relevant inquiry” under A.R.S.

§ 12-332(A) “is whether the parties agreed to incur the costs, not whether 

they reached a specific agreement about how the costs would ultimately be 

classified.” 235 Ariz. at 612, ¶¶ 28–29 (upholding an award of mediation 

expenses under A.R.S. § 12-332(A), noting the parties “initially” agreed to 

share the expense of mediation but “did not specify how the mediation 

costs would be treated at the conclusion of the litigation”). 

¶30 Here, the parties do not contest that they agreed to attend 

mediation. Although Schiager asserts that she proceeded to mediation with 

the understanding that each party would bear its share of the mediation 

expenses, like the litigants in Reyes, the parties did not specify how the costs 
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would be allocated at the conclusion of the litigation if the dispute was not 

resolved through mediation. Therefore, under these circumstances, the 

mediation expenses were properly awarded as taxable costs under A.R.S. 

§ 12-332(A).

CONCLUSION

¶31 For the foregoing reasons, we affirm the superior court’s 

summary judgment in favor of Landmark. We award Landmark its costs 

incurred on appeal, conditioned upon compliance with ARCAP 21.