NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MACY'S, INC., a corporation, 

Plaintiff-Appellant, 

 v. 

H&M CONSTRUCTION COMPANY, 

INC., 

Defendant-third-partyplaintiff-Appellee, 

 v. 

S.A. COMUNALE COMPANY, INC., 

Third-party-defendant.

No. 19-16792 

D.C. No. 2:17-cv-00990-DWL 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Dominic W. Lanza, District Judge, Presiding

Argued and Submitted December 11, 2020

Pasadena, California

Before: GOULD and R. NELSON, Circuit Judges, and COGAN,** District Judge.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Brian M. Cogan, United States District Judge for the 

Eastern District of New York, sitting by designation.

FILED

FEB 5 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Macy’s, Inc. (“Macy’s”) appeals the district court’s grant of summary 

judgment to H&M Construction Co. (“H&M”) on Macy’s negligence claims 

regarding a fire protection system sprinkler leak at Macy’s facility in Arizona. 

H&M oversaw construction of the facility as the site’s general contractor, and the 

leak occurred approximately seven years after the sprinkler was installed by

H&M’s subcontractor, S.A. Comunale Company, Inc. (“Comunale”).1 The district 

court concluded that Macy’s failed to produce sufficient evidence to establish the 

standard of care applicable to H&M and Comunale, a prerequisite for submission 

of its claims to the jury, and that summary judgment was warranted on that basis.

We affirm.

“To establish a claim for negligence, a plaintiff must prove four elements: 

(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 (2007) (en banc). Whether the standard of care has been 

met is a distinct issue from whether a duty of care exists. Nunez v. Pro. Transit 

Mgmt. of Tucson, Inc., 229 Ariz. 117, 121 (2012) (en banc). The standard of care 

is “[w]hat the defendant must do, or must not do . . . to satisfy the duty.” Gipson, 

1 H&M filed a third-party complaint naming Comunale as a defendant.
3 

214 Ariz. at 143 (quoting Coburn v. City of Tucson, 143 Ariz. 50, 52 (1984)). In 

tort, the traditional negligence standard of care is to exercise reasonable care under 

the circumstances. Nunez, 229 Ariz. at 121–23. Although it is an objective 

standard, Valley Forge Ins. Co. v. Sam’s Plumbing, LLC, 220 Ariz. 512, 514 (Ct. 

App. 2009), it may be modified by the surrounding circumstances, including by 

any special relationship between the parties, Nunez, 229 Ariz. at 121–22. 

Macy’s argues that H&M can be held liable in tort for failing to measure up 

to its contractual promise to ensure that all work is performed in a “thoroughly 

first-class and workmanlike manner” and in accordance with manufacturers’ 

instructions. A contractor may be liable in both contract and tort for its negligent 

actions, but the claims are fundamentally different: “in the context of property 

damage, contract law focuses on standards of quality as defined by the contracting 

parties; tort law on the objective reasonableness of certain conduct and the actual 

harm it causes.” Valley Forge Ins. Co., 220 Ariz. at 514; see also Rawlings v. 

Apodaca, 151 Ariz. 149, 158 (1986) (noting that tort obligations are imposed by 

law “apart from and independent of promises made and therefore apart from the 

manifested intention of the parties” (citation omitted)). Even when an express 

contract exists between the parties, Arizona courts consistently identify the 

standard of care in a negligence action against a professional as the duty to act as a 

reasonable professional would under the circumstances. See, e.g., Teufel v. Am. 
4 

Family Mut. Ins. Co., 244 Ariz. 383, 387 (2018); Nunez, 229 Ariz. at 123; 

Woodward v. Chirco Constr. Co., 141 Ariz. 514, 516 (1984) (en banc); Easter v. 

Percy, 168 Ariz. 46, 49 (Ct. App. 1991). 

It is a plaintiff’s burden to establish the standard of care by presenting 

evidence of the accepted professional conduct. Bell v. Maricopa Med. Ctr., 157 

Ariz. 192, 194 (Ct. App. 1988). Expert testimony is required to establish the 

standard of care for a professional if the “factual issues are outside the common 

understanding of jurors.” Rossell v. Volkswagen of Am., 147 Ariz. 160, 167 (1985)

(en banc). However, no expert testimony is needed if “the negligence is so grossly 

apparent that a lay person would have no difficulty recognizing it.” Asphalt 

Eng’rs, Inc. v. Galusha, 160 Ariz. 134, 135–36 (Ct. App. 1989). A plaintiff’s 

failure to establish the applicable standard of care through expert testimony, if 

required, warrants judgment for defendant as a matter of law. See, e.g., Maricopa 

Cty. v. Cowart, 106 Ariz. 69, 72 (1970) (en banc); Thomas v. Goudreault, 163 

Ariz. 159, 171 (Ct. App. 1989); Powder Horn Nursery, Inc. v. Soil & Plant Lab., 

Inc., 119 Ariz. 78, 82–83 (Ct. App. 1978).

Here, Macy’s needed expert testimony on the standard of care applicable to

H&M, as a general contractor, to prove its direct negligence claim. Macy’s alleges

that the general contractor failed to supervise its subcontractor, Comunale, during 

installation of the fire protection system. The average juror lacks experience in 
5 

construction and thus does not have general knowledge of the standard of care for 

a general contractor in installing, constructing, or inspecting fire protection 

systems or supervising subcontractors performing the same. See, e.g., Easter, 168 

Ariz. at 49; Woodward v. Chirco Const. Co., 141 Ariz. 520, 521–22 (Ct. App.

1984), approved as supplemented, 141 Ariz. 514 (1984). It is also not grossly 

apparent that H&M was negligent. The record demonstrates that H&M provided 

general oversight over Comunale’s activities but did not direct subcontractors on 

detailed aspects of their work. 

For similar reasons, Macy’s also needed expert testimony on the standard of 

care for Comunale, as a fire protection contractor, to support its claim against 

H&M based on vicarious liability. Macy’s alleges that Comunale negligently 

failed to sufficiently tighten the sprinkler head during installation and, as described 

above, the average juror lacks experience with such matters of construction. 

Further, Comunale’s alleged negligence is not grossly apparent. The facility’s 

sprinkler failure occurred seven years after installation. Macy’s own expert had 

difficulty diagnosing the leak’s cause and had changed his opinion as to how 

corrosion had impacted the head. It is thus not grossly apparent that Comunale 

negligently installed the sprinkler system.

Macy’s failed to produce admissible evidence to demonstrate a basis for 

either its direct or vicarious liability claim. It offered no qualified expert testimony
6 

on the standards of care applicable to H&M and Comunale. Macy’s disclosed a 

single expert, Joseph E. Crosson, a metallurgical engineer. Macy’s admitted that 

Crosson could not offer opinions about the standards of care applicable to general 

contractors and fire installation subcontractors because he is not qualified to do so. 

Instead, Crosson testified that insufficient tightening of the sprinkler head caused 

corrosion and the leak, and that industry standards and the manufacturer’s 

instructions require wrench tightening to a specific torque level. 

Assuming the accuracy of that opinion, it still leaves open the question of 

whether a general contractor or a fire installation subcontractor, operating with due 

care, is expected to prevent this from happening and, if so, how. The district court 

properly concluded that it could not assume that these standards establish the 

applicable standard of care without expert testimony to that effect. Because 

Macy’s could not establish the standards of care applicable to H&M and 

Comunale, H&M was entitled to summary judgment as a matter of law.

For the first time on appeal, Macy’s argues that the district court should have 

afforded it the opportunity to file an amended complaint and retain a new expert on 

the standard of care. A district court should generally grant leave to amend the 

complaint even if no request is made before dismissing for failure to state a claim, 

Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th 

Cir. 1990), but this case was resolved on summary judgment. A district court is 
7 

well within its discretion to decline to offer leave to amend at this procedural 

posture, after the parties have concluded discovery and summary judgment has 

been granted. See M/V Am. Queen v. San Diego Marine Constr. Corp., 708 F.2d 

1483, 1492 (9th Cir. 1983). 

As for Macy’s request for leave to retain a new expert, this issue was not

raised before the district court and we will not consider it for the first time on 

appeal. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). 

AFFIRMED.