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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KATHLEEN SHAFER, Plaintiff/Appellant, 

v.

WALGREEN ARIZONA DRUG COMPANY, an Arizona corporation, 

Defendant/Appellee. 

No. 1 CA-CV 17-0243 

Appeal from the Superior Court in Maricopa County

No. CV2014-002127 

The Honorable Christopher T. Whitten, Judge

AFFIRMED

COUNSEL

Law Office of Donald Smith PLLC, Glendale

By Donald H. Smith

Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli PLC, Phoenix

By Douglas R. Cullins, Jennifer B. Anderson, Kenneth L. Moskow

Counsel for Defendant/Appellee

FILED 6-5-2018
SHAFER v. WALGREEN

Decision of the Court

2 

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.

P E R K I N S, Judge:

¶1 Kathleen Shafer challenges the trial court’s entry of summary 

judgment in favor of Walgreen Arizona Drug Company (“Walgreen”) on 

her premises liability claim for negligence. For the following reasons, we 

affirm. 

FACTUAL AND PROCEDURAL HISTORY

¶2 While shopping at a Walgreen store, Shafer picked up a glass 

air freshener refill from a shelf and the product fell out from the bottom of 

the package. The glass container dropped onto Shafer’s foot, lacerating her 

left big toe. Shafer had not noticed anything wrong with the package before 

she picked it up. Shafer suffered damages as a result of her injury.

¶3 Shafer sued Walgreen, alleging negligence. The trial court 

granted Walgreen’s motion for summary judgment. Shafer timely 

appealed.

DISCUSSION

¶4 We review a grant of summary judgment de novo to determine 

whether any issue of material fact exists and whether the trial court 

correctly applied the law. Cannon v. Hirsch Law Office, P.C., 222 Ariz. 171, 

174, ¶ 7 (App. 2009). Summary judgment is appropriate when there is no 

genuine issue of material fact and the moving party is entitled to judgment 

as a matter of law. Ariz. R. Civ. P. 56(a). In our review of summary 

judgment, we view evidence and reasonable inferences in the light most 

favorable to the non-moving party. Wells Fargo Bank v. Ariz. Laborers Local 

No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13 (2002). 

¶5 Shafer argues the trial court erred in granting summary 

judgment on her theories of mode of operation and res ipsa loquitur. She also 

argues the court erred in denying her request for a spoliation instruction. 

For the following reasons, we affirm the trial court’s judgment. 
SHAFER v. WALGREEN

Decision of the Court

3 

I. The Mode of Operation Rule Is Inapplicable.

¶6 “A business proprietor has an affirmative duty to make and 

keep [its] premises reasonably safe for customers. However, a proprietor 

who is not directly responsible for a dangerous condition is not liable 

simply because an accident occurred on [its] property.” Chiara v. Fry’s Food 

Stores of Ariz., Inc., 152 Ariz. 398, 399 (1987) (citation omitted). 

¶7 A plaintiff suing a place of business for negligence

traditionally must show the proprietor failed to act reasonably after having

notice of a dangerous condition. Id. at 400. Under the mode of operation

rule, however, “the plaintiff is not required to prove notice if the proprietor 

could reasonably anticipate that hazardous conditions would regularly 

arise.” Id. Under this theory, liability may attach if there is a “likelihood that 

certain hazardous conditions will recur as a result of the particular method 

of doing business.” Bloom v. Fry’s Food Stores, Inc., 130 Ariz. 447, 451 (App. 

1981); see also Contreras v. Walgreens Drug Store No. 3837, 214 Ariz. 137, 139, 

¶ 9 (App. 2006) (“It is insufficient . . . to demonstrate that spills of some kind 

regularly occur; the business must be able to reasonably anticipate that a 

condition hazardous to customers will regularly occur.”). Thus, Shafer did 

not have to prove that Walgreen had notice of the particular hazard that 

injured her if she could show Walgreen could reasonably anticipate that 

hazardous conditions would regularly arise from its method of doing 

business.

¶8 In Chiara, the Arizona Supreme Court examined the mode of

operation rule in the context of hazards caused by the customers of a 

business, and determined that the rule “is of limited application because 

nearly every business enterprise produces some risk of customer 

interference.” Chiara, 152 Ariz. at 400–01. The Chiara court noted that if the 

mode of operation rule applied “whenever customer interference was 

conceivable, the rule would engulf the remainder of negligence law” and 

“[a] plaintiff could get to the jury in most cases simply by presenting proof 

that a store’s customer could have conceivably produced the hazardous 

condition.” Id. at 401. Thus, the rule applies only “when a business can 

reasonably anticipate that hazardous conditions will regularly arise.” Id. at 

401. 

¶9 Shafer argues she offered evidence that Walgreen employees 

knew customers opened products and put them back on the shelves,

thereby creating a hazardous condition for other customers, including 

Shafer. 
SHAFER v. WALGREEN

Decision of the Court

4 

¶10 In Contreras, the plaintiff slipped on liquid on the floor of a 

store, and the store manager testified that liquid spills occurred “a couple” 

of times per week. Contreras, 214 Ariz. at 139, ¶9. The Contreras court held

that the evidence presented was insufficient to demonstrate spills regularly 

occurred in a manner that enabled the business to “reasonably anticipate 

that a condition hazardous to customers will regularly occur.” Id. at 139– 

40, ¶9, ¶12. 

¶11 Here, as Shafer asserts, Walgreen employees testified that 

customers regularly opened products and put them back on the shelves. 

However, as in Contreras, the record lacks evidence that Walgreen could 

reasonably anticipate that a hazardous condition would regularly occur as 

a result. Id. at 139, ¶9. In fact, Walgreen employees testified that other than 

Shafer’s injury, the only other known injuries in the store occurred during 

two unrelated events, one when a customer tripped over a rug coming 

through the front door and another when a child had a seizure. The mere 

fact that customers open products and put them back on the shelves is not 

sufficient for a reasonable jury to conclude that a hazardous condition 

would regularly occur. Id. at 140, ¶12. Thus, the trial court correctly 

determined that the mode of operation theory is inapplicable.

II. Res Ipsa Loquitur Does Not Apply. 

¶12 Shafer contends res ipsa loquitur applies and defeats summary 

judgment. As an initial matter, Shafer argues that the trial court’s failure to 

specifically address her res ipsa loquitur argument in its ruling requires this 

Court to remand the matter. We disagree. We will affirm entry of summary 

judgment if correct for any reason supported by the record, “even if not 

explicitly considered by the superior court.” KB Home Tucson, Inc. v. Charter 

Oak Fire Ins., 236 Ariz. 326, 329, ¶ 14 (App. 2014) (citation omitted). 

¶13 Res ipsa loquitur allows the trier of fact to infer negligence if an 

accident occurs that does not normally occur when due care is exercised.

Brookover v. Roberts Enterprises, Inc., 215 Ariz. 52, 57, ¶ 19 (App. 2007). The 

doctrine requires a plaintiff to demonstrate (1) the accident is of a kind that 

ordinarily does not occur in the absence of negligence, (2) the accident was 

caused by an agency or instrumentality subject to the control of the 

defendant, and (3) the plaintiff is not in a position to show the 

circumstances that caused the agency or instrumentality to operate to its 

injury. Id. at 57–58, ¶ 19. The trial court may grant summary judgment to 

the defendant if any one of these three elements is not present. Ward v. 

Mount Calvary Lutheran Church, 178 Ariz. 350, 354 (App. 1994). 
SHAFER v. WALGREEN

Decision of the Court

5 

¶14 We focus on the first element, under which the plaintiff must

show through common knowledge or expert testimony that the 

probabilities weigh heavily in favor of negligence causing the incident. 

Brookover, 215 Ariz. at 58, ¶ 20; see also Capps v. Am. Airlines, Inc., 81 Ariz. 

232, 234 (1956) (“The doctrine applies only where the physical cause of the 

injury and the attendant circumstances indicate such an unusual occurrence 

that in their very nature they carry a strong inherent probability of 

negligence . . . .”). Shafer argues that because Walgreen checked the entire 

store for damaged products only in the evening, it was highly probable 

Walgreen’s negligence caused her injury. But there was no evidence that 

the purpose of Walgreen’s nightly inspections was to prevent injuries like 

the one that occurred here, or that opened packages through which heavy 

items could fall was a known danger that could have been averted through 

more frequent inspections. Further, there was no evidence that opened 

packages generally result in injury to customers, or that a store owner acts 

negligently by not inspecting packages more frequently. Res ipsa loquitur

therefore does not apply. See Faris v. Doctors Hosp., Inc., 18 Ariz. App. 264, 

270 (1972) (res ipsa loquitur does not apply “where there is no evidence that 

a negligent act of the appellees is more likely to cause the injury than any 

other possible cause”). We thus conclude that the trial court properly 

granted summary judgment to Walgreen. 

III. The Issue of a Spoliation Instruction is Not Relevant at Summary 

Judgment. 

¶15 Shafer argues the trial court erred in declining to give a 

spoliation instruction as a result of Walgreen’s failure to produce the air 

freshener packaging. Shafer fails to cite any legal authority and includes 

only a single citation to the record in support of her spoliation arguments, 

in clear violation of Arizona Rule of Civil Appellate Procedure (“ARCAP”) 

13(a)(7). Failure to include references to the record and citation to legal 

authority is, as a general matter, insufficient to preserve an issue on appeal. 

Flood Control Dist. Of Maricopa Cty. v. Conlin, 148 Ariz. 66, 68 (App. 1985); 

Joel Erik Thompson, Ltd. v. Holder, 192 Ariz. 348, 351, ¶ 20 (App. 1998). As 

such, Shafer has not properly preserved her spoliation claim. 

¶16 Even assuming Shafer properly preserved this claim, it is 

unclear how Shafer’s argument is relevant in the context of summary 

judgment. She does not argue that alleged spoliation alters the parties’ 

summary judgment burdens. In any event, the issue of spoliation of 

evidence does not go to whether Walgreen was aware that a dangerous 

condition regularly occurred. Accordingly, Walgreen’s failure to produce 

the air freshener packaging does not provide a basis for relief. 
SHAFER v. WALGREEN

Decision of the Court

6 

CONCLUSION

¶17 We affirm summary judgment and award Walgreen its 

taxable costs incurred on appeal upon compliance with ARCAP 21.