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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRIAN SHAVER, Plaintiff/Appellant, 

v.

CIRCLE K STORES INC, Defendant/Appellee. 

No. 1 CA-CV 20-0574 

Appeal from the Superior Court in Maricopa County

No. CV2018-014289 

The Honorable Daniel G. Martin, Judge

AFFIRMED

COUNSEL

Jones Raczkowski PC, Phoenix

By Sara Thomas 

Counsel for Plaintiff/Appellant

The Sorenson Law Firm LLC, Tempe

By Wade R. Causey 

Counsel for Defendant/Appellee

FILED 10-5-2021
SHAVER v. CIRCLE K

Decision of the Court

2 

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in 

which Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

B A I L E Y, Judge:

¶1 Brian Shaver tripped and injured himself as he entered a 

convenience store owned by Circle K. He now appeals the superior court’s

entry of summary judgment against him on his claim for negligence. For 

the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 As Shaver approached the store one morning, he stepped up 

onto a six-inch high concrete pad about five feet long. A yellow stripe had 

been painted on the far edge of the pad, closest to the entrance. Shaver did 

not see the yellow stripe and fell off the edge of the pad, hurting his right 

leg. 

¶3 Shaver filed a complaint against Circle K alleging the pad was 

unreasonably dangerous, and Circle K knew it was unreasonably 

dangerous but failed to adequately warn of the hazard or remove it. During 

his deposition, Shaver testified he did not see the step down because he was 

distracted by other patrons around him and because the sun was in his eyes. 

He stated that had the sun not been in his eyes, he would have seen the 

yellow paint on the step and recognized it as a warning. Shaver also 

provided an expert report stating sun glare is a common occurrence that 

can temporarily obscure a person’s vision. Circle K moved for summary 

judgment arguing the stripe was a legally sufficient warning. The superior 

court agreed and granted summary judgment in its favor. Shaver timely 

appealed. We have jurisdiction over Shaver’s timely appeal under Article 

6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21(A)(1) and 

-2101(A)(1). 

DISCUSSION

¶4 We review de novo the superior court’s grant of summary 

judgment, viewing the facts in the light most favorable to Shaver. See 

Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). We will affirm a grant of 

summary judgment if there is no genuine issue of material fact and the 
SHAVER v. CIRCLE K

Decision of the Court

3 

moving party is entitled to judgment as a matter of law. See id. at 240, ¶13;

Ariz. R. Civ. P. 56(a). 

¶5 A landowner has an affirmative duty to make the premises 

reasonably safe. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 355 (1985). 

Because Shaver was a business invitee, Circle K owed him a duty to use 

reasonable care to warn of or remedy an unreasonably dangerous condition 

of which it had notice. See Walker v. Montgomery Ward & Co., 20 Ariz. App. 

255, 258 (1973); Pruess v. Sambo’s of Ariz. Inc., 130 Ariz. 288, 289 (1981); 

Andrews v. Fry’s Food Stores of Ariz., 160 Ariz. 93, 95 (App. 1989); see

Restatement (Second) of Torts § 343, comment d (negligence is the failure 

to warn of or correct an unreasonably dangerous condition).

¶6 The landowner, however, is not an “insurer” of visitors’ 

safety, nor required to keep the premises “absolutely safe.” Preuss v. Sambo’s 

of Ariz., Inc., 130 Ariz. 288, 289 (1981). The occurrence of a fall, by itself,

cannot prove negligence. Id.

¶7 The adequacy of a warning may be a question for a jury if, for 

example, the landowner had “reason to expect that the invitee’s attention 

[would be] distracted.” Silvas v. Speros Const. Co., 122 Ariz. 333, 335 (App. 

1979) (citation omitted). Alternatively, the court may decide negligence as 

a matter of law if any reasonable person would agree the defendant fulfilled 

its duty to act with reasonable care. Markowitz, 146 Ariz. at 357; see also

Coburn v. City of Tucson, 143 Ariz. 50, 54 (1984) (affirming summary 

judgment in roadway case, reasoning that the city “is not bound to provide 

perfect intersections or streets, but only those which are ‘reasonably safe’”).

¶8 We agree with the superior court that, as a matter of law,

Circle K discharged its duty to act with reasonable care. Shaver argues a 

jury may find the yellow paint was not an adequate warning because Circle 

K should have expected that customers would not see the stripe if they were 

distracted by other store patrons or by the sun. Shaver supported his claim 

with his deposition testimony that the sun was in his eyes and an expert 

report noting sun glare is a common experience generally. He offered no 

evidence on summary judgment, however, that sunshine regularly or 

frequently impaired patrons’ vision of the stripe or had previously caused

someone to be distracted and fall. Nor did he establish how many other 

patrons were typically walking to and from the store enough to cause a 

distraction. There is therefore no evidence Circle K had reason to expect its

customers would be distracted. 
SHAVER v. CIRCLE K

Decision of the Court

4 

¶9 In Silvas, 122 Ariz. at 335, which Shaver cites, the court held 

that whether a contractor, who knew employees would be hauling 

wheelbarrows back and forth on top of a roof dotted with holes, should 

have expected the workers may be distracted and injured was a question 

for the jury. Not so here where there is no evidence Circle K had knowledge

of or reason to expect its patrons to be distracted. Shaver also cites Tribe v. 

Shell Oil Co., 133 Ariz. 517, 519 (1982), in which the court reversed summary 

judgment against a distracted patron who fell from a raised concrete pad.

In that case, however, the court ruled a jury could find the contrastingcolored step was an inadequate warning because the pad was uneven, six 

inches high on one side but sixteen inches high on the other. Tribe, 133 Ariz. 

at 519. 

¶10 Contrary to Shaver’s contention, because its warning was 

sufficient, Circle K did not have to remove the concrete pad. See Markowitz, 

146 Ariz. at 355. In addition, because we are affirming summary judgment 

in Circle K’s favor based on the reasonableness of its warning, we need not 

address Shaver’s argument that the open and obvious nature of a hazard is 

usually a jury question. See id. at 356 (“‘[O]pen and obvious’ is a factor to be 

considered in determining whether the possessor’s failure to . . . provide a 

warning was unreasonable.”) (emphasis added). 

CONCLUSION

¶11 We affirm.