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

REYNA PEREZ, wrongful death statutory beneficiary, for and on behalf of 

herself and survivors of her husband, Decedent FRANCISCO FRAGOSO 

ERETZA, Plaintiff/Appellant,

v.

PALACE BANQUETS & EVENTS, LLC, a limited liability corporation 

doing business in the State of Arizona as BABYLON BANQUET HALL; 

RICARDO VALDEZ and GRACIA LUNA TORRES, husband and wife, 

Defendants/Appellees.

No. 1 CA-CV 15-0735

Appeal from the Superior Court in Maricopa County

No. CV2013-005043

The Honorable James T. Blomo, Judge

VACATED AND REMANDED

COUNSEL

Treon & Shook PLLC, Phoenix

By Douglas G. Shook

Counsel for Plaintiff/Appellant

Sanders & Parks PC, Phoenix

By J. Steven Sparks, Shanks Leonhardt 

Counsel for Defendants/Appellees
PEREZ v. PALACE

Decision of the Court

2

MEMORANDUM DECISION

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

Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined.

T H U M M A, Judge:

¶1 Plaintiff Reyna Perez appeals from the entry of summary 

judgment in favor of defendants Palace Banquets & Events, LLC, dba 

Babylon Banquet Hall, Ricardo Valdez and Gracia Luna Torres 

(collectively Babylon) in this wrongful death case. For the reasons that 

follow, the entry of summary judgment is vacated and this matter is 

remanded for further proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶2 This case arises out of the May 2011 electrocution death of 

Francisco Fragoso Eretza. At that time, Eretza owned Cool Busters Air 

Conditioning & Refrigeration, LLC, an air conditioning repair business, 

and worked under a Class K-39 license (air conditioning and 

refrigeration).

¶3 Construing the facts and reasonable inferences in a light 

most favorable to Perez, Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003), 

Babylon called Eretza when a roof-top heating, ventilation and air 

conditioning (HVAC) unit (the “Big Unit”) at a banquet hall operated by 

Babylon failed late one Friday night. Eretza arrived the next morning by 

8:00 a.m. and was on the roof until his body was found later that morning.

Eretza was electrocuted while inspecting an HVAC unit (Unit 1). Unit 1 

was one of several roof-top HVAC units that previously had been 

vandalized. Babylon asked Eretza to determine whether a compressor 

from a vandalized HVAC unit could be used to replace the compressor in 

the Big Unit that had stopped working the night before.

¶4 Unit 1 had been vandalized and inoperable for “a week or 

two” before Babylon called Eretza. Although the power to Unit 1 could be 

shut off at the main circuit breaker inside the hall, Babylon apparently had 

not turned the power off to Unit 1 after it was vandalized. As a result, the 

power to Unit 1 was still on when Eretza was on the roof.
PEREZ v. PALACE

Decision of the Court

3

¶5 There were no witnesses who saw how Eretza was 

electrocuted. Shortly after 10:00 a.m., however, Eretza was found dead in 

front of Unit 1, his sunglasses lying nearby; his tool belt, tools and a water 

bottle were found near the open doors of the Big Unit. An investigation 

determined that Eretza’s right hand likely contacted a live electrical wire 

coming from a junction box on Unit 1.

¶6 Perez filed a wrongful death claim as Eretza’s surviving 

spouse, for and on behalf of herself, their minor son and Eretza’s parents, 

based on premises liability. See Ariz. Rev. Stat. (A.R.S.) § 12-612 (2016).1

Babylon moved for summary judgment, arguing that as a matter of law,

Perez could not show, among other things, that Eretza “was killed by a 

concealed hazardous condition” and “did not receive a reasonable 

warning regarding the hazardous condition.” After briefing and oral 

argument, the superior court granted the motion. The resulting minute 

entry found “no evidence that . . . [Eretza’s] death was caused by a hidden 

or concealed danger” and Eretza “had actual knowledge of the vandalized 

condition” of the HVAC units and “was more than aware of electricity 

required to operate the units and the location of and the need to shut off 

the power to the units.” Perez unsuccessfully sought reconsideration.

Following entry of final judgment, see Ariz. R. Civ. P. 54(c), Perez timely 

appealed. This court has appellate jurisdiction pursuant to Article 6, 

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

2010(A)(1).

DISCUSSION

¶7 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). Summary judgment may 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 (1990). This court reviews de novo

the grant of a motion for summary judgment. See Parkway Bank & Trust Co. 

v. Zivkovic, 232 Ariz. 286, 289 (App. 2013).

 

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

refer to the current version unless otherwise indicated.
PEREZ v. PALACE

Decision of the Court

4

I. Babylon Owed Eretza A Duty As A Business Invitee.

¶8 Although described in various ways, by alleging an Arizona 

common law negligence claim, Perez had the burden to show: (1) duty; (2) 

breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation 

and (5) resulting damages. See, e.g., Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9 

(2007); Alcombrack v. Ciccarelli, 238 Ariz. 538, 540 ¶ 6 (App. 2015); Boisson v. 

Arizona Board of Regents, 236 Ariz. 619, 622 ¶ 5 (App. 2015) (citing cases).

¶9 The parties agree that Babylon owed Eretza a duty as a 

business invitee. See Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 

544 (1990). As such, Babylon had a duty “to discover and correct or warn 

of hazards which the possessor should reasonably foresee as 

endangering” Id. (quoting Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 355 

(1985)). This duty 

includes the obligation to warn invitees of any 

danger of which [Babylon] knows or should 

know and of which the invitee is unaware and 

unlikely to discover. The warning must allow 

the invitee to decide intelligently whether to 

accept an invitation to enter the property and, 

if the invitee chooses to do so, protect himself 

against any danger. 

Robertson, 163 Ariz. at 544 (citations omitted). A possessor of land, 

however, “is not ordinarily found negligent for injuries to those invitees 

from conditions which are open and obvious, nor for those which are 

known to the invitee.” Markowitz, 146 Ariz. at 356 (citing Tribe v. Shell Oil 

Co., Inc., 133 Ariz. 517, 519 (1982)). But because a landowner must “act 

reasonably in light of the known and foreseeable risks,” if the landowner

“should foresee that the condition is dangerous despite its open and 

obvious nature, neither the obvious nature nor the plaintiff’s knowledge 

of the danger is conclusive.” Markowitz, 146 Ariz. at 356-57.

II. The Record Presented Does Not Show That Perez’ Premises 

Liability Claim Fails As A Matter Of Law.

¶10 Babylon argues summary judgment was required because, 

as a matter of law, Perez cannot show: (1) Eretza was killed by a concealed 

hazard; (2) Babylon failed to warn Eretza and (3) Babylon acted 

unreasonably. These arguments require a finding that the hazard was 

“open and obvious” as a matter of law and that no reasonable juror could 

conclude that Babylon failed to properly warn Eretza. 
PEREZ v. PALACE

Decision of the Court

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A. On This Record, Whether Unit 1 Was An Open And 

Obvious Danger Is A Question Of Fact.

¶11 Whether a danger is open and obvious generally is a 

question of fact for the jury. See Andrews ex rel. Kime v. Casa Grande, 167 

Ariz. 71, 75 (App. 1990); McLeod ex rel. Smith v. Newcomer, 163 Ariz. 6, 10 

(App. 1989) (citing Tribe, 133 Ariz. at 519). Babylon suggests the issue can 

be decided as a matter of law here because “HVAC units are always 

connected to electricity.” But Unit 1 was a vandalized HVAC unit that the 

record suggests had been inoperable for “a week or two” before Eretza 

arrived, and Babylon did not engage Eretza to repair Unit 1. Babylon has 

not shown that these facts would overcome the general rule that such 

issues present questions of fact for the jury.

¶12 Babylon next argues that Perez’ “own expert has admitted 

that the vandalism and damage to the wiring on the HVAC units was a 

dangerous condition that was open and obvious to any trained HVAC 

technician.” But the deposition excerpt cited for this proposition does not 

mandate this legal conclusion, as demonstrated by the following exchange 

that begins with a follow up to a question not contained in the record:

Q. Why do you say that?

A. Because the unit was vandalized and the 

wiring was removed, damaged, disconnected 

and created a hazardous condition for anybody 

to be on the roof.

Q. And based upon your investigation and 

analysis of what happened here, because the 

vandalized Unit 1 was not de-energized, is that 

a critical factor, the fact that Francisco Eretza 

was electrocuted?

. . .

A. Yes, it was.

. . .

Q. Real quick on that point, you just listed a 

bunch of things that in your opinion created a 

dangerous condition, which is that the wiring 

had been removed, vandalized, et cetera. Those 
PEREZ v. PALACE

Decision of the Court

6

are situations that were equally visible to Mr. 

Eretza as they would have been to the owners 

of Babylon, correct?

A. I believe they were, yes.

Similarly, Babylon’s argument that Perez’ “electrical expert has changed 

his theory several times” may create a credibility issue for a finder of fact 

to resolve, but does not show that Babylon prevails as a matter of law. See, 

e.g., Pipher v. Loo, 221 Ariz. 399, 404 ¶ 17 (App. 2009) (“It is the jury’s 

function to determine accuracy, weight, or credibility.”) (citation omitted); 

Felder v. Physiotherapy Associates, 215 Ariz. 154, 164 ¶ 47 (App. 2007) (same) 

(citation omitted).

¶13 Babylon argues, with some force, that certain evidence 

supports its factual positions. And after seeking to impeach statements in 

a Phoenix Police Department Report, Babylon claims Perez provided “no 

evidence” to prove, among other things, that the power was on to Unit 1 

as Eretza began his work or that he was electrocuted by Unit 1 wires. But 

Babylon has not shown that Report is inadmissible. And that Report states 

Eretza “was accidentally electrocuted” by electrical wires, that he “died 

instantly,” that his body was found “in front of” Unit 1 and “that the 

contact point on [his] body was between his thumb and forefinger—

consistent with handling or touching an electrified wire.” That same 

Report notes Ricardo Valdez, a Babylon owner who was on site the 

morning of Eretza’s death, “said the power to . . . Unit #1 was not 

manually turned off prior to any repairs” and “there was still power going 

into” Unit 1 at the time Eretza was electrocuted. Ultimately, Babylon’s 

attempts to impeach these statements may or may not prevail. But 

whether they do is a fact-finding function, see, e.g., Pipher, 221 Ariz. at 404 

¶ 17; Felder, 215 Ariz. at 164 ¶ 47, not something mandating “that there is 

no genuine dispute as to any material fact,” Ariz. R. Civ. P. 56(a).

¶14 Similarly, assuming Babylon is correct in arguing that the 

police “photos are ‘worth 1,000 words’ when it comes to demonstrating 

the open and obvious nature of the significant destruction and damage to 

the HVAC units at Babylon, including but not limited to Unit 1,” Babylon 

has not shown that weighing and assessing those photos properly shows 

Perez’ claims fail as a matter of law. This is particularly true given that the 

open and obvious danger determination generally is a question of fact for 

the jury. See, e.g., Tribe, 133 Ariz. at 519; Andrews ex rel. Kime, 167 Ariz. at 

75; McLeod, 163 Ariz. at 10.
PEREZ v. PALACE

Decision of the Court

7

¶15 On this record, contrary to Babylon’s argument that there 

are no disputed genuine issues of material fact, a jury properly could 

conclude that Unit 1 had been vandalized2 and inoperable for a week or 

two before Eretza arrived; that Babylon did not turn off the power to Unit 

1 but did not tell Eretza that the vandalized HVAC units were still 

connected to power and that Babylon did not “expressly warn[]”Eretza 

that the power to Unit 1 was still “hot” (even though it had been 

inoperable for a week or two). Accordingly, on this record, whether Unit 1 

was an open and obvious danger is properly a question of fact for 

resolution by the jury, not by summary judgment. 

B. On This Record, Whether Babylon Failed To Properly 

Warn Eretza Is A Question Of Fact.

¶16 Babylon argues “[t]he undisputed evidence also shows that 

Babylon warned [Eretza] of the condition of the HVAC units on the roof.”

In support of this argument, Babylon points to evidence that its 

representative “spent 15 minutes walking the roof with [Eretza] before 

[Eretza] started his work;” explained which units the representative 

“believed to be non-functioning and explained to [Eretza] about the 

vandalism and the exposed wires in various locations of the roof;”

showed where the circuit breakers were located and that Eretza 

commented about the dangers of high voltage in the wires.

¶17 If Unit 1 was the only HVAC unit on the roof, or if it was 

undisputed that Babylon told Eretza Unit 1 was still connected to live 

electricity, or told Eretza he could not obtain parts from Unit 1 and he did 

so contrary to that directive, Babylon’s reference to the roof tour might 

suffice to show Perez’ claim failed as a matter of law. But that is not the 

record presented. Moreover, although offered for a different reason, 

Babylon argues on appeal that “[t]here is no evidence to show . . . what 

[Eretza] knew (other than having actual knowledge of the location of the 

breaker panel and that the HVAC units had been vandalized or were 

otherwise in disrepair),” negating any claim that, as a matter of law, 

Babylon had properly and sufficiently warned Eretza. Indeed, and unlike 

the authority upon which Babylon relies in making this argument, the 

record does not show that Babylon undisputedly warned Eretza “that the 

lines were hot.” Citizen’s Util., Inc. v. Livingston, 21 Ariz. App. 48, 53 

 

2 Contrary to Babylon’s argument on appeal, that it may have been “open 

and obvious” that the HVAC units had been vandalized does not mean, as 

a matter of law, that Unit 1 was an “open and obvious” danger.
PEREZ v. PALACE

Decision of the Court

8

(1973). Thus, whether Babylon failed to properly warn Eretza is a question 

of fact, not subject to resolution by summary judgment.

C. The Cases Relied Upon Show That Perez’ Premises 

Liability Claim Does Not Fail As A Matter Of Law.

¶18 Babylon argues summary judgment should be affirmed 

because “[t]he circumstances involving Decedent’s accident are materially 

indistinguishable from Mason, Cordova and Citizens Utility.” Given key 

differences, however, these three Court of Appeals cases show that 

summary judgment was not proper in this case. 

¶19 Mason v. Arizona Pub. Serv. Co., 127 Ariz. 546 (App. 1980) and 

Citizens Utility are powerline cases, which in some significant respects are 

analogous here. Those cases, however, involve appeals from jury verdicts

where it was undisputed that the plaintiff was told or understood the 

powerlines were electrified (or “hot”). See Mason, 127 Ariz. at 551

(reversing jury verdict for plaintiff where powerlines apparently were 

always electrified; “[t]here is no indication that the power line was 

anything but open and obvious, and [plaintiff] testified that he was aware 

of it and the danger it posed”); Citizens Utility, 21 Ariz. App. at 53 

(reversing jury verdict for plaintiff where power to powerlines was shut 

off and then turned back on; noting two witnesses testified a foreman 

warned plaintiff “that the lines were hot. There was no evidence to the 

contrary.”).

3 In this case, by contrast, the appeal is taken from the grant of 

summary judgment (not after trial) and Babylon points to no evidence that 

it told Perez (or that Perez undisputedly understood) that Unit 1 was 

electrified or hot.

¶20 Cordova v. Parrett involved a death resulting from the failure 

of a hydraulic supporting jack used in moving a mobile home, a far 

different factual setting than this case. 146 Ariz. 79, 80-81 (App. 1985). 

Cordova does not address the “open and obvious” issue Babylon argues, 

and although citing Mason, it does so for an unrelated proposition. Id. at 

82–83 (citing Mason for the proposition that, although Restatement 

(Second) of Torts § 414 (1965) (“Negligence in Exercising Control Retained 

 

3 For these same reasons, Babylon is incorrect in arguing that Mason and 

Citizens Utility support the proposition that “[t]he existence of power 

running to an HVAC unit is not a concealed hazardous condition as a 

matter of law since HVAC units are always connected to electricity.”
PEREZ v. PALACE

Decision of the Court

9

by Employer”) “does apply to employees of independent contractors, the 

retained control that triggers liability is not retained control over the 

premises but over the manner in which the work is done”). Moreover, in 

Cordova, the defendants’ only involvement with the move was to say 

where the mobile home was to be located, which “had nothing to do with 

the accident.” Id. at 81, 83. In short, Babylon has not shown that Cordova

supports the grant of summary judgment in this case.

4

¶21 More significantly, Babylon cites three Arizona Supreme 

Court cases that reversed decisions finding, as a matter of law, that a 

premises liability claim failed given disputed issues of material fact. See

Robertson, 163 Ariz. at 541 (vacating grant of motion for directed verdict;

“[b]ecause plaintiff presented sufficient evidence of negligent failure to 

warn to take the issue to the jury, we vacate the court of appeals decision 

and reverse and remand to the trial court for further proceedings 

consistent with this opinion”); Markowitz, 146 Ariz. at 359 (“there is duty 

and there are questions of fact on the issue of negligence and proximate 

cause. The summary judgment granted by the trial court is reversed.”); 

Tribe, 133 Ariz. at 519 (vacating summary judgment for defendant; 

“[r]easonable minds could easily disagree as to whether a sixteen-inch 

step down is open and obvious to one who has ascended a six-inch step;”

“Whether the step was dangerous, open and obvious or whether appellees 

should have anticipated the harm if open and obvious are issues to be 

decided by a jury in its capacity as triers of fact.”).

¶22 Viewed in a light most favorable to Perez, the record could 

support a finding that Valdez routinely went onto the roof of the hall to 

inspect the HVAC units and “check if anything else was stolen,” and he 

had done so the night before Eretza was electrocuted. The record also 

could support a finding that Valdez knew Unit 1 had been vandalized, 

leaving exposed electrical wires, and he knew the power was on to Unit 1. 

Valdez asked Eretza to see if Unit 1 had an operable compressor that 

 

4 Nor has Babylon shown how the analysis in Flowers v. K-Mart Corp., 

where the layout of a K-Mart “parking lot and the traffic therein” was an 

open and obvious danger, 126 Ariz. 495, 497 (App. 1980), supports 

summary judgment here. And although Babylon claims Silvas v. Speros 

Const. Co. is “inapplicable” to this case factually, that case found factual 

issues precluded resolution of the claims as a matter of law. 122 Ariz. 333, 

335 (App. 1979) (“The trial court erred in not submitting the case to the 

jury.”).
PEREZ v. PALACE

Decision of the Court

10

could be used to repair the Big Unit, and the evidence suggests Eretza was 

acting in conformance with that request. On this record, and without 

expressing a view of the ultimate resolution as a factual matter, Perez’

claim cannot be resolved as a matter of law. Accordingly, summary 

judgment for Babylon is vacated.

5 

CONCLUSION

¶23 The entry of summary judgment for Babylon is vacated and 

this matter is remanded for further proceedings consistent with this 

decision. Perez is awarded her taxable costs on appeal upon compliance 

with Arizona Rule of Civil Appellate Procedure 21.

 

5 For similar reasons, Babylon has not shown as a matter of law, and in the 

alternative, that it “undisputedly acted reasonably,” “even in the face of 

an open and obvious hazard.” See Robertson, 163 Ariz. at 545 (“the 

evidence could support many conclusions about what conduct would 

have been reasonable under the circumstances and we do not believe any 

of those conclusions apply as a matter of law”). In addition, given this 

resolution, this court also does not address Perez’ arguments regarding 

comparative fault and assumption of risk.