NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENT IAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

REYNA PEREZ , wrongful death statu tory 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 BANQU ET HALL; RICARDO VALDEZ and GRACIA LUNA TORRES, husband and wife
, Defendant s

/Appellee s

.

No. 1 CA

- CV 15

- 0735

Appeal from the Superior Court in Maricopa County

No. CV 2013

- 005043 The Honorable James T. Blomo
, Judge

VACATED AND REMANDED

COUNSEL

Treon & Sh ook PLLC , Phoenix By Douglas G. Shook Counsel for Plaintiff/Appellant

Sanders & Parks PC
, Phoenix By J. Steven Sparks, Shanks Leonhardt C ounsel for Defendant s

/Appellee sPEREZ 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 d efendants Palace Banquets & Events, LLC, dba Babylon Banquet Hall, Ricard o 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 remand ed for further proceedings consistent with this decision.

FACTS AND PROCEDURA L HISTORY

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

. At th at time, Eretza owned Cool Busters Air Conditioning & Refrigeration, LLC , an air conditioning repair business
, and worked under a Class K

- 39 license (air c onditioning and refrigeration).

¶3 Construing the facts and reasonable inferences in a light most favorable to Perez, A ndrews v. Blake , 205 Ariz. 236, 240 ¶ 12 (2003)
, Babylon called Eretza when a roof

- top heating, ventilation and air conditioning ( HVAC ) uni t ( the “ B ig U nit ” ) at a banquet hall operated by Babylon failed late on e 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 B ig U nit that had stopped working the night before

. ¶4 U nit 1 had been vandalized and inoperable for “ a week or
two ” before Babylon called Eretza . A lthough 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 ly ing nearby ; h is tool belt, tools and a water bottle were found near the open doors of the B ig U nit

. An investigation determined that Eretza ’ s right hand likely contact ed a live electrical wire coming from a junction box on Unit 1.

¶6 P erez filed a wrongful d eath 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
, P erez 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 su perior 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 th e units and the location of and the need to shut off the power to the units. ” P erez 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 enti tled to judgment as a matter of law. ” Ariz. R. Civ. P. 56(a). S ummary 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 propo nent of the claim or defense. ” Orme Sch. v. Reeve s , 166 Ariz. 301, 309 (1990)

. T his court review s de novo the grant of a motion for summary judgment

. See Parkway Bank & Trust Co. v. Zivkovic , 232 Ariz. 286, 2 89 (App. 2013)

.

1 Absent material revisions after the relevant dates, statute s 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 a n 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 pro ximate) 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 Th e 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 re as onably for esee as endangering ” Id. (quotin g 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 discov er. 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 knowle dge 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 tha t Babylon failed to properly warn Eretza

.PEREZ v. PALACE Decision of the Court

5 A. On This Record, Whether Unit 1 Was An Open A nd 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 G rande
, 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 depo sition 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 a nd the wiring was removed, damaged, disconnected and created a hazardous condition for anybody to be on the roof.

Q. And based up on your investigation and analysis of what happened here, because the vandalized Unit 1 was not de

- energized, is that a critica l 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 . ThosePEREZ 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 tim es ” 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 ac curacy, weight, or cred ibility. ” ) (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 support s its factual position s

. And after seeking to impeach statement s 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 Er e t z a began his work or that he was electrocuted by Unit 1 wires. But Babylon has not shown that Report i s inadmissible. And th at 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

— consist ent 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 stil l power going into ” Unit 1 at the time Eretza was electrocuted

. Ultimately, Babylon ’ s attempts to impeach these statements may or may not prevail . B ut whether they do is a fact

- finding function
, s ee , e.g. , Pipher, 221 Ariz. at 404 ¶ 17 ; Felder , 215 Ariz. a t 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 ope n 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 vandalized 2 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 Er e tza 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, o n 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 show s 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 wh ich 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 o f 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 fail ed 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 suff iciently 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, 5 3

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 j udgment 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 appeal s from jury verdict s 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 awar e 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 ev idence 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 settin g than this case . 1 4 6 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 a n unrelated proposition. Id. at 82

– 83 (citing Mason for the proposition that, although Resta tement (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 sin ce 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 defendant s ’ 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

s upport s the grant of summary judgment in this case

. 4

¶21 More significantly, Babylon cites t hree 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 54 1 (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 th e trial court for further proceedings consistent with this opinion ” ); Markowitz , 146 Ariz. at 35 9 ( “ 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 obv ious 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 V iewed in a light most favorable to Perez, the record could support a finding that Valdez routinely wen t onto the roof of the h all 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 V aldez knew Unit 1 had been vandalized
, leaving exposed electrical wires , and h e 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)
, su pports 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 reco rd, 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 a nd this matter is remand ed 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, g iven this resolution, this court also does not address Perez ’ arguments regarding comparative fault and assumption of risk.