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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHRIS CARMINUCCI, et al., Plaintiffs/Appellants, 

v.

TRIMARK YUMA HOSPITALITY II, LLC, et al., Defendants/Appellees. 

No. 1 CA-CV 23-0427 

Appeal from the Superior Court in Maricopa County

No. CV2021-001139 

The Honorable Scott A. Blaney, Judge

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

COUNSEL

Ahwatukee Legal Office, PC, Phoenix

By David L. Abney

Co-Counsel for Plaintiffs/Appellants 

Yearin Law Office, Scottsdale

By Donald G. Yearin

Co-Counsel for Plaintiffs/Appellants

Holloway Odegard & Kelly, PC, Phoenix

By Ryan P Toftoy

Counsel for Defendants/Appellees Yuma Hotel Group, II, LLC and Sunridge 

Properties, Inc.

FILED 06-06-2024
CARMINUCCI, et al. v. TRIMARK, et al. 

Decision of the Court

2 

Koeller, Nebeker, Carlson & Haluck LLP, Phoenix

By William A. Nebeker, John M. Sticht

Counsel for Defendant/Appellee Trimark Yuma Hospitality II, LLC

MEMORANDUM DECISION

Chief Judge David B. Gass delivered the decision of the court, in which 

Presiding Judge Anni Hill Foster and Judge Randall M. Howe joined.

G A S S, Chief Judge:

¶1 Chris Carminucci was a hotel guest injured when a shower 

grab bar pulled away from the wall when he entered the shower in his 

room. The failure of the shower grab bar caused him to fall, resulting in 

serious injuries. Because of his fall, Mr. Carminucci and his wife sued 

several entities for damages. 

¶2 The superior court granted summary judgment in favor of 

three of those entities: (1) the current owner, (2) the previous owner, and (3) 

the previous owner’s management company.1 The Carminuccis appeal.

¶3 Based on the duty the current owner owed Mr. Carminucci, 

we reverse summary judgment in the current owner’s favor. We affirm 

summary judgment in favor of the previous owner and its management 

company. We remand to the superior court for further proceedings

consistent with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶4 When reviewing an order granting summary judgment, this 

court views the facts in the light most favorable to the non-moving party. 

Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003). 

1 The current owner is Trimark Yuma Hospitality II, LLC. The previous 

owner is Yuma Hotel Group II, LLC. The previous owner’s management 

company is Sunridge Properties, Inc. In January 2019, Yuma Hotel sold the 

hotel to Trimark Yuma Hospitality LLC and Trimark IX, LLC. At some 

point before Mr. Carminucci’s fall, Trimark Yuma Hospitality II, LLC 

acquired Trimark Yuma Hospitality LLC’s interest in the hotel. Trimark IX, 

LLC is not a party to this appeal.
CARMINUCCI, et al. v. TRIMARK, et al. 

Decision of the Court

3

¶5 In January 2020, Mr. Carminucci stayed at the hotel. The first 

time he got into the shower, he put his hand on the grab bar to pull himself 

in. The top of the grab bar came loose from the wall, causing him to fall 

backward and be injured. For purposes of this appeal, the parties do not 

dispute the grab bar constituted an unreasonably dangerous condition.

¶6 The relationships between the relevant parties control the 

outcome of this appeal. The previous owner owned the hotel for about 15 

years, from its 2004 construction through January 31, 2019. During that 

time, the previous owner had a management company to run the hotel.

¶7 In January 2019, the previous owner sold the hotel, and the 

current owner took “as is” title when the sale closed. The current owner’s 

general manager also had operated the hotel for the previous owner’s 

management company.

¶8 Mr. Carminucci was injured about a year after the previous 

owner sold the hotel. The Carminuccis brought negligence and premises 

liability claims against various parties, including the current owner, the 

previous owner, and the previous owner’s management company. The 

current owner separately moved for summary judgment. The previous 

owner and its management company jointly moved for summary 

judgment. The superior court granted both motions.

¶9 This court has jurisdiction over the Carminuccis’ timely 

appeal under article VI, § 9, Constitution of Arizona, and A.R.S. 

§§ 12-120.21.A.1 and -2101.A.1.

DISCUSSION

¶10 The superior court must grant summary judgment if a 

moving party shows “there is no genuine dispute as to any material fact” 

and it is “entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a); see 

also Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990). Summary judgment is 

appropriate when a nonmoving party produces either no supporting facts 

or supporting facts with “so little probative value, given the quantum of 

evidence required, that reasonable people could not agree with the 

conclusion advanced by” the nonmoving party. Orme School, 166 Ariz. at 

309.

¶11 When reviewing a superior court’s grant of summary 

judgment, this court “must determine de novo whether . . . any genuine 

issues of material fact [exist] and whether the [superior] court erred in 

applying the law.” Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 316 ¶ 8 
CARMINUCCI, et al. v. TRIMARK, et al. 

Decision of the Court

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(App. 1998). This court may affirm summary judgment if the superior court 

“was correct in its ruling for any reason.” KCI Rest. Mgmt. LLC v. Holm 

Wright Hyde & Hays PLC, 236 Ariz. 485, 488 ¶ 12 n.2 (App. 2014) (cleaned 

up).

¶12 The elements of a negligence claim are: “(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). The first element, whether a defendant owes a 

duty to conform its conduct to a certain standard of care, is an issue of law 

for the court to determine. Dinsmoor v. City of Phoenix, 251 Ariz. 370, 373 

¶ 14 (2021). The second issue, which encompasses the specific contours of 

what standard of care satisfies the defendant’s duty, is a fact issue for the 

jury. See Gipson, 214 Ariz. at 143 ¶ 10 (quoting Coburn v. City of Tucson, 143 

Ariz. 50, 52 (1984)). Even so, the superior court may grant summary 

judgment if no reasonable jury could conclude a party breached the

standard of care. See Patterson v. Thunder Pass, Inc., 214 Ariz. 435, 438 ¶ 10 

(App. 2007) (quoting Gipson, 214 Ariz. at 143 ¶ 9 n.1). 

I. Because evidence shows the current owner’s preventive

maintenance inspections of the shower grab bars may not have

complied with industry or brand standards, a jury must decide

whether the current owner had constructive knowledge of the

shower grab bar’s unreasonably dangerous condition.

¶13 To establish negligence, a business invitee must prove more 

than the mere occurrence of a fall on a business’s premises. Contreras v. 

Walgreens Drug Store No. 3837, 214 Ariz. 137, 137–38 ¶ 7 (App. 2006). A 

business invitee also must prove either the unreasonably dangerous 

condition causing the fall resulted from the business owner’s acts or the 

business owner had actual or constructive knowledge of the unreasonably 

dangerous condition. Id. An owner has constructive knowledge of an 

unreasonably dangerous condition if that condition exists for so long the 

owner in the exercise of ordinary care should have learned of the condition 

and acted to remedy it. Id.

¶14 Expert opinions about industry and brand standards are 

evidence a jury may use to help determine the relevant standard of care. See 

Gilbert Tuscany Lender, LLC v. Wells Fargo Bank, 232 Ariz. 598, 602–03 ¶ 21 

(App. 2013) (“[I]ndustry practice addresses primarily whether there has 

been a breach of duty” (citation omitted)); Shepherd v. Costco Wholesale Corp., 

250 Ariz. 511, 517 ¶ 29 (2021) (holding a company’s policy may not establish 

a duty but may inform the standard of care and collecting cases so holding 
CARMINUCCI, et al. v. TRIMARK, et al. 

Decision of the Court

5

as to company policies and administrative regulations). Thus, a business 

invitee may use evidence of an owner’s failure to meet an industry or brand 

standard of care to establish the owner’s constructive knowledge of an 

unreasonably dangerous condition. Cf. Ponce v. Parker Fire Dist., 234 Ariz. 

380, 385 ¶¶ 19–20 (App. 2014) (discussing applicability of internal 

standards to fact question of standard of care).

¶15 The parties do not dispute the current owner had a duty to 

Mr. Carminucci as a landowner to its invitee. See McMurtry v. Weatherford 

Hotel, Inc., 231 Ariz. 244, 252 ¶ 23 (App. 2013); Stephens v. Bashas’ Inc., 186 

Ariz. 427, 430 (App. 1996). The dispute is whether the current owner 

breached the applicable standard of care, which is a fact question for a jury. 

See Gipson, 214 Ariz. at 143 ¶ 10. But if the Carminuccis provided no factual 

evidence to support the fact question, summary judgment is appropriate. 

Orme School, 166 Ariz. at 309.

¶16 The Carminuccis argue the current owner had constructive 

knowledge of the shower grab bar’s unreasonably dangerous condition.

And they argue the current owner’s constructive knowledge is a fact issue 

for the jury, not a legal issue for the superior court.

¶17 The Carminuccis’ standard-of-care expert addressed industry 

and brand standards of care for the inspection of shower grab bars, 

including the frequency of those inspections. The expert said “industry or 

brand standards” require quarterly inspections. The expert reviewed the 

hotel’s records, and based on that review, the expert said the current owner 

did not meet the quarterly standard. Instead, during the more than eleven 

months before Mr. Carminucci fell, the expert said the current owner 

performed no preventive maintenance inspections of the shower grab bars 

in the room where Mr. Carminucci was injured. The expert also said the last 

preventive maintenance inspection was fourteen months before Mr. 

Carminucci’s fall.

¶18 The Carminucci’s standard-of-care expert did not stop there. 

The expert said before the sale, the previous owner and its management 

company inspected the shower grab bars just twice a year, not quarterly. 

The expert also said the current owner’s general manager was the same 

person who managed the hotel for the previous owner’s management 

company “and the 2019 and following brand audits showed a continuation 

of [the earlier] failed [inspection] standard.”

¶19 The current owner did not contest the expert’s 

characterization of the records. And the current owner points to no 

evidence contravening the expert’s identification of industry or brand 
CARMINUCCI, et al. v. TRIMARK, et al. 

Decision of the Court

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standards and the relevance of those standards, or the current owner’s 

failure to meet those standards based on the hotel records. Instead, the 

current owner argues it met the standard of care. For evidence, the current 

owner argues “housekeeping and maintenance staff regularly inspected

and used the shower grab bars when cleaning both the bars and the 

showers” and points to the lack of any complaints or reports of shower grab 

bar problems. But even then, the current owner just cites deposition 

testimony evidencing the housecleaners’ use, not inspection.

¶20 The current owner also argues it performed preventive 

maintenance on all rooms approximately every 90 days. It supports that 

assertion with a maintenance engineer’s deposition testimony: “It depends 

on what work I have to do. Sometimes you get finished in three months; 

sometimes it will take you more than three months. But that’s my goal is to 

finish every room in three months, but it doesn’t usually always happen.”

¶21 At bottom, the parties dispute whether the current owner met 

the applicable standard of care. If the jury finds the current owner did not, 

the jury could go on to find the current owner had constructive knowledge 

of the grab bar’s unreasonably dangerous condition. That dispute is not 

amenable to summary judgment because it presents a case-specific fact 

issue. See Gipson, 214 Ariz. at 143 ¶ 10.

¶22 We thus vacate the grant of summary judgment in the current 

owner’s favor. Based on that ruling, we need not address the Carminuccis’ 

mode-of-operation and res ipsa loquitor arguments because they are moot.

II. The superior court did not err when it granted summary judgment 

in favor of the previous owner and its management company for 

the injuries Mr. Carminucci suffered about a year after the 

previous owner sold the hotel.

¶23 In contrast to his relationship with the current owner, Mr. 

Carminucci was not an invitee of the previous owner or its management 

company when he grabbed the bar and fell. The previous owner sold the 

hotel to the current owner about a year earlier. The previous owner’s 

management company stopped managing the hotel at the same time. At 

that point, the previous owner and its management company had no 

ownership interest in or possession of the hotel, had no responsibility for 

its maintenance or management, and could not control Mr. Carminucci’s 

access to it.

¶24 With few exceptions, a land seller is not liable for physical 

harm to the buyer or the buyer’s invitees from dangerous conditions, even 
CARMINUCCI, et al. v. TRIMARK, et al. 

Decision of the Court

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if the conditions existed at the time of sale. See Restatement (Second) of 

Torts (“Restatement”) § 352; Fehribach v. Smith, 200 Ariz. 69, 71 ¶ 8 (App. 

2001) (recognizing adoption of Restatement section). Because no exception 

applies, the sellers did not owe Mr. Carminucci any duty.

¶25 The Carminuccis argue two exceptions to this black letter law. 

First, they argue the previous owner and its management company 

voluntarily assumed a duty for third-party tort claims in the purchase 

agreement. Second, they argue those entities are liable because they knew 

the hotel’s grab bars were an unreasonably dangerous condition when the 

previous owner sold the hotel.

A. The previous owner and its management company did not 

voluntarily assume a duty for third-party tort claims arising 

after the current owner took possession of the hotel.

¶26 On this point, the issue is one of duty. The Carminuccis argue

the previous owner and its management company waived any commonlaw defense against liability to the Carminuccis because of a third-party 

liability term in the purchase agreement. That third-party liability term 

reads:

Hotel Employees and Hotel Employee Liabilities. . . . Seller 

shall be liable for . . . all liabilities and Hotel Employee 

Liabilities through the date of closing. “Hotel Employee 

Liabilities” shall mean all obligations and liabilities . . . with 

respect to Hotel Employees . . . . Seller shall also remain liable 

for any third party tort claims that arise out of events 

occurring prior to the Closing Date during Seller’s ownership 

of the Property. The provisions in this Section shall survive 

closing.

(Italics added).

¶27 The Carminuccis argue the third-party liability term 

establishes a voluntary assumption of a duty for their third-party tort 

claims because the Carminucci’s claims arose out of an event “occurring 

prior to the Closing Date.” To that end, the Carminuccis argue the “event” 

was the allegedly faulty installation of the grab bar, not the grab bar’s 

failure during Mr. Carminucci’s stay at the hotel more than a decade after 

the hotel’s construction was complete and almost a year after the previous 

owner sold the hotel to the current owner.
CARMINUCCI, et al. v. TRIMARK, et al. 

Decision of the Court

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¶28 In response, the previous owner and its management 

company make several arguments. For one, they argue the third-party 

liability clause does not apply to the Carminuccis’ claims because the 

“event” was the grab bar’s failure during Mr. Carminucci’s stay. We agree. 

We thus need not address the other arguments.

¶29 This court interprets contract terms de novo, giving no 

deference to the superior court’s interpretation. VEREIT Real Estate, LP v. 

Fitness Int’l, LLC, 255 Ariz. 147, 152 ¶ 11, (App. 2023). “A general principle 

of contract law is that when parties bind themselves by a lawful contract, 

the terms of which are clear and unambiguous, a court must give effect to 

the contract as written.” Id. (quoting Grubb & Ellis Mgmt. Servs., Inc. v. 

407417 B.C., L.L.C., 213 Ariz. 83, 86 ¶ 12 (App. 2006) (cleaned up)).

¶30 The third-party liability term extends the previous owner’s 

liability for claims arising out of “events occurring prior to” the closing date 

and the current owner’s possession of the hotel. The Carminuccis’ claims

arise out of the “event” of Mr. Carminucci’s fall when the grab bar failed. 

The “event” of the grab bar’s installation—and indeed the building of the 

hotel more than a decade earlier—is too attenuated from the actual grabbar failure and Mr. Carminucci’s fall to be understood as the “event” out of 

which the Carminuccis’ claims arise.

¶31 The Carminuccis’ suggested interpretation would require the 

previous owner to indemnify the current owner against all third-party tort 

claims for all time because all injuries at the hotel could be said to have 

“arisen from” the building of the hotel. Cf. Burkons v. Ticor Title Ins. Co. of 

Cal., 168 Ariz. 345, 350 (1991) (rejecting proposed contract interpretation in 

part because no rational property seller would agree to such a term). As in 

Burkons, no rational seller would agree to such a term here. See id.

¶32 At bottom, the superior court did not err when it granted 

summary judgment against the Carminuccis based on their theory of thirdparty liability under the purchase agreement. And we can affirm the 

superior court’s decision if it is correct for any reason. See KCI Rest., 236 

Ariz. at 488 ¶ 12 n.2. As the superior court found, “by using the phrase 

‘claims that arise out of events occurring prior to the Closing Date,’ [the 

parties] intended to place responsibility on [the sellers] for injuries 

sustained or damages incurred prior to the sale.” The purchase agreement 

did not place responsibility on the previous owner and its management 

company for torts arising out of events occurring after the sale closed. And 

the purchase agreement provides no other support for imposing liability on 

those entities for the Carminuccis’ claims.
CARMINUCCI, et al. v. TRIMARK, et al. 

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B. Because the Carminuccis offered no evidence the previous

owner and its management company knew or had reason to

know of any unreasonably dangerous condition of the

current owner’s grab bars, the superior court did not err

when it granted summary judgment in those entities’ favor.

¶33 The Carminuccis alternatively argue the previous owner and

its management company may be liable for the Carminuccis claims because

the grab bar constituted an unreasonably dangerous condition and the

previous owner failed to disclose that condition to the current owner.

Under this theory, those entities’ liability would arise only if, among other

conditions, they had reason to know of the condition. See Restatement § 353.

Having “reason to know” means the vendor “has information from which

a person of reasonable intelligence, or [the vendor’s] own superior

intelligence, would infer that the condition exists, or would govern [its]

conduct on the assumption that it does exist . . . .” Restatement § 353 cmt. c.

¶34 The Carminuccis argue whether those entities had reason to 

know of the grab bar’s allegedly unreasonably dangerous condition is a 

question for the jury to resolve. The Carminuccis are correct as far as they 

go, but their truncated analysis falls short. The Carminuccis must establish 

a material fact issue about the previous owner’s and its management 

company’s reason to know. The Carminuccis point to no evidence in the 

record from which a jury could infer those entities knew or had reason to 

know the grab bars presented an unreasonably dangerous condition.

¶35 The Carminuccis do not argue those entities had information 

from which they could infer an unreasonably dangerous condition. Rather,

the Carminuccis point to the declarations of their experts and argue those 

entities should have had that information. Those experts say:

• The previous owner and its management company “could have

readily seen that the installation of the subject shower bar violated

the standard of care” when the hotel was under construction; and

• “[E]ven the most cursory testing of the shower bar . . . would have”

“immediately” revealed its “negligent and shoddy installation.”

¶36 The Carminuccis also argue their expert declarations show 

the previous owner and its management company failed to inspect the grab 

bars properly when they owned and managed the hotel. But whether those 

entities inspected or met any duty of care as owners and possessors of the 

hotel before the previous owner sold it was not before the superior court.

The Carminuccis’ claims did not arise when the previous owner and its 
CARMINUCCI, et al. v. TRIMARK, et al. 

Decision of the Court

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management company owned and possessed the hotel. Any evidence those 

entities fell short of the standard of care as hoteliers is irrelevant to their 

liability for tort claims arising after they transferred the hotel ownership 

and possession to the current owner. 

¶37 The previous owner and its management company presented 

business records and personal declarations describing years of employee 

and guest experience using the grab bars throughout the hotel without 

incident, indication of failure, or faulty installation. And unlike the current 

owner, those entities did not owe the current owner’s future guests any

duty to inspect.

¶38 As a final point on this issue, the Carminuccis argue the 

previous owner and its management company should be liable because, 

“[a] landowner who creates [an unreasonably] dangerous condition on real 

property is liable for the harm that invitees suffer on the land.” But the 

Carminuccis offer no independent basis for holding those entities liable 

beyond the Restatement’s common-law rule of seller liability under section 

353. Beyond that rule, Arizona law does not support a land seller’s liability

even if we assume the land seller created an unreasonably dangerous

condition, especially when, as here, the current owner took the hotel in “as

is” condition.

¶39 The superior court appropriately granted summary judgment

in favor of the previous owner and its management company on the 

Carminuccis’ claims. 

CONCLUSION

¶40 We reverse and remand the superior court’s grant of 

summary judgment in favor of the current owner (Trimark Yuma) and 

against the Carminuccis. Because the Carminuccis prevailed on their appeal 

as to the current owner (Trimark Yuma), we grant the Carminuccis their 

costs on appeal against that entity once the Carminuccis comply with Rule 

21, Arizona Rules of Civil Appellate Procedure.
CARMINUCCI, et al. v. TRIMARK, et al. 

Decision of the Court

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¶41 We affirm the superior court’s grant of summary judgment in 

favor of the previous owner (Yuma Hotel) and its management company 

(Sunridge) and against the Carminuccis. Because those entities prevailed 

against the Carminuccis, we award those entities their costs on appeal once 

those entities comply with Rule 21, Arizona Rules of Civil Appellate 

Procedure.