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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LARRY E. FRANCIS, a single man, Plaintiff/Appellant,

v.

DONALD W. PURK, a single man, Defendant/Appellee.

No. 1 CA-CV 16-0006

Appeal from the Superior Court in Maricopa County

No. CV2014-010016

The Honorable James T. Blomo, Judge

VACATED AND REMANDED

COUNSEL

Schmitt Schneck Smyth Casey & Even, P.C., Phoenix

By Timothy J. Casey

Counsel for Plaintiff/Appellant

Law Office of Denise L. Amanatidis, Phoenix

By Michael E. Palumbo

Counsel for Defendant/Appellee
FRANCIS v. PURK

Decision of the Court

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MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Maurice Portley1 joined.

W I N T H R O P, Judge:

¶1 Plaintiff/appellant Larry E. Francis appeals the superior 

court’s summary judgment in favor of defendant/appellee Donald W. 

Purk. Because Purk owed Francis a duty as a matter of law, and questions 

of fact exist regarding whether Purk breached the duty of care he owed 

Francis and whether Francis was contributorily negligent and/or assumed 

the risk, we vacate the judgment in favor of Purk and remand for further 

proceedings.

FACTS AND PROCEDURAL HISTORY2

¶2 Purk owned a residential property (“the home”) in Phoenix. 

Purk had hired Francis to paint and work on other projects at the home, and 

on April 22, 2014, Francis prepared to paint an eave—the lower portion of 

the roof that overhangs the exterior wall. Francis laid a small plywood 

board on top of part of a horizontal trellis3 attached to the home next to and 

below the eave, climbed onto the board, and was injured when the 

ostensible supporting portion of the trellis collapsed under his weight.

¶3 Francis filed a complaint against Purk, alleging negligence -

premises liability. The parties filed cross-motions for summary judgment, 

with Purk arguing in part that he did not know, have reason to know, or 

 

1 The Honorable Maurice Portley, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article 6, Section 3, of the Arizona Constitution.

2 In reviewing summary judgment, we view the evidence in the light 

most favorable to the appellant, Francis. See Nat’l Bank of Ariz. v. Thruston, 

218 Ariz. 112, 116, ¶ 17, 180 P.3d 977, 981 (App. 2008).

3 The trellis consisted of lightweight, hollow metal beams used as a 

patio covering or solarium to provide light shade.
FRANCIS v. PURK

Decision of the Court

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create the condition of the trellis; the condition of the trellis did not 

constitute an unreasonably dangerous condition or pose an unreasonable 

risk of harm, and to the extent it did, he had reason to expect Francis would 

discover the condition or realize its danger; and, ultimately, that he (Purk)

owed no duty to Francis.4 After further briefing by the parties, the superior 

court held oral argument on the motions.5

¶4 After taking the matter under advisement, the superior court 

granted Purk’s motion for summary judgment and denied Francis’s 

motion, reasoning as follows:

Plaintiff was able to view the fake hollow metal beams 

and was concerned enough that he took a number of steps to 

ensure that the fake beams were sufficient to hold his weight. 

Plaintiff was a painter with 30 to 35 years’ experience. The 

Court finds that Defendant had no duty to Plaintiff regarding 

the structural integrity of the hollow metal fake beams.

¶5 We have jurisdiction over Francis’s appeal of the superior 

court’s judgment. See Ariz. Rev. Stat. § 12-2101(A)(1) (2016).

ANALYSIS

¶6 Francis argues the superior court erred by granting summary 

judgment in favor of Purk because, as a matter of law, Purk owed Francis a 

duty of reasonable care, and genuine issues of material fact otherwise 

preclude judgment as a matter of law.

¶7 The superior court shall grant summary judgment when

“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). Summary 

judgment “should be granted if the facts produced in support of the claim 

or defense have so little probative value, given the quantum of evidence 

required, that reasonable people could not agree with the conclusion 

advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves, 

166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). If the evidence would allow 

a jury to resolve a material issue in favor of either party, summary judgment 

 

4 Because we vacate the judgment on other grounds, we need not and 

do not decide Francis’s argument that Purk’s “no duty” argument was 

untimely.

5 During oral argument, Francis conceded that his motion for 

summary judgment should be denied.
FRANCIS v. PURK

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is improper. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 

1016 (App. 1990).

¶8 To establish negligence, a plaintiff must show (1) a duty 

requiring the defendant to conform to a certain standard of care, (2) a breach 

of that standard that (3) causes injury, and (4) actual damages. Gipson v. 

Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). “The issue of duty is 

not a factual matter; it is a legal matter to be determined before the casespecific facts are considered.” Id. at 145, ¶ 21, 150 P.3d at 232 (citing 

Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985); 1 

Dan B. Dobbs, The Law of Torts § 226, at 577 (2001)).6

¶9 Arizona law imposes a duty on a possessor of land to use 

reasonable care to make the premises safe for invitees. McMurtry v. 

Weatherford Hotel, Inc., 231 Ariz. 244, 252, ¶ 22, 293 P.3d 520, 528 (App. 2013)

(citing Markowitz, 146 Ariz. at 355, 706 P.2d at 367); see also Piccola v. Woodall, 

186 Ariz. 307, 310, 921 P.2d 710, 713 (App. 1996) (holding that a landlord 

has a duty to exercise reasonable care for the safety of tenants and others). 

“The standard of reasonable care generally includes an obligation to 

discover and correct or warn of unreasonably dangerous conditions that the 

possessor of the premises should reasonably foresee might endanger an 

invitee.”7 McMurtry, 231 Ariz. at 252, ¶ 23, 293 P.3d at 528.

¶10 In this case, as a handyman and painter hired by Purk to work 

on Purk’s home, Francis was an invitee; accordingly, Purk owed Francis a 

duty to use reasonable care to make the premises safe for Francis. The 

superior court therefore erred in finding Purk owed no duty to Francis as a 

matter of law.

¶11 Purk suggests that the trellis was not unreasonably dangerous 

because there is no evidence that it would have collapsed if Francis had not 

climbed on it. That is a question for the jury, however, which could find 

that Purk violated the standard of care if it determines that he should have 

reasonably foreseen that an invitee, including Francis, would climb on the 

structure. See McMurtry, 231 Ariz. at 252-53, ¶ 23, 293 P.3d at 528-29. “A 

 

6 Although whether a duty exists is a matter of law, the other 

elements, including breach and causation, are factual matters generally 

decided by the jury. Gipson, 214 Ariz. at 143, ¶ 9, 150 P.3d at 230 (citing 

Markowitz, 146 Ariz. at 356, 358, 706 P.2d at 368, 370).

7 This statement and our decision should not be construed as adopting 

the strict standard of care advocated by Francis.
FRANCIS v. PURK

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reasonably foreseeable event is one that might ‘reasonably be expected to 

occur now and then, and would be recognized as not highly unlikely if it 

did suggest itself to the actor’s mind.’” Id. at 253, ¶ 23, 293 P.3d at 529

(citation omitted). If reasonable people could differ about whether a danger 

is foreseeable, the jury must resolve the issue. Id. (citing Markowitz, 146 

Ariz. at 357-58, 706 P.2d at 369-70).

¶12 Moreover, to the extent the superior court’s ruling may be 

construed as relying on contributory negligence or assumption of the risk

to obviate any duty owed to Francis, such ruling invaded the province of 

the jury. Pursuant to Article 18, § 5, of the Arizona Constitution, “[t]he 

defense of contributory negligence or of assumption of risk shall, in all cases 

whatsoever, be a question of fact and shall, at all times, be left to the jury.” 

Accord Gunnell v. Ariz. Pub. Serv. Co., 202 Ariz. 388, 394, ¶ 23, 46 P.3d 399, 

405 (2002) (“[I]n a negligence case, the jury is the sole arbiter of fact and law 

as to the defenses of contributory and comparative negligence.” (citations

omitted)). By deciding as a matter of law that Purk owed Francis no duty, 

ostensibly because Francis had fully assumed the risk, the court’s ruling ran 

afoul of Article 18, § 5, of the Arizona Constitution.

8

 

8 Of course, our decision would not prevent a jury from finding 

Francis one hundred percent at fault under comparative fault or 

assumption of the risk principles. See Franklin v. Clemett, 240 Ariz. 515, 521, 

¶ 10, 382 P.3d 802, 808 (App. 2016) (“[J]ury instructions that are ‘permissive 

and leave the plaintiff’s recovery to the discretion of the jury if it finds that 

the plaintiff was negligent or assumed the risk’ also pass muster under 

Article 18, § 5.” (quoting Salt River Project Agric. Improvement & Power Dist. 

v. Westinghouse Elec. Corp., 176 Ariz. 383, 386, 861 P.2d 668, 671 (App. 1993)

(quoting with approval permissive instructions, such as “[p]laintiff may not 

be entitled to recover and your verdict may be for the defendant,” and 

“[y]our verdict may, but need not be, in favor of Defendants”))).
FRANCIS v. PURK

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CONCLUSION

¶13 For the foregoing reasons, we vacate the judgment and 

remand for further proceedings consistent with this decision. We award 

taxable costs to Francis upon compliance with Arizona Rule of Civil 

Appellate Procedure 21.