NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MARY F. D’AMBROSIO, Plaintiff/Appellant,

v.

CITY OF PHOENIX, Defendant/Appellee.

No. 1 CA-CV 13-0459

Appeal from the Superior Court in Maricopa County

No. CV2009-026559

The Honorable Douglas L. Rayes, Judge

AFFIRMED

COUNSEL

Mary F. D’Ambrosio, Phoenix

Plaintiff/Appellant

Office of the Phoenix City Attorney, Phoenix

By Daniel L. Brown, Leslie S. Tuskai

Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which 

Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.
D’AMBROSIO v. PHOENIX

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2

H O W E, Judge:

¶1 Mary D’Ambrosio appeals the trial court’s order granting the 

City of Phoenix’s (“the City”) motion for judgment as a matter of law. We 

find no error and therefore affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶2 In November 2008, D’Ambrosio was walking on a sidewalk 

on Virginia Street when her “toe got caught between one slab and the next 

slab.” She tripped and fell. According to D’Ambrosio, the height difference 

was “maybe the difference of half an inch or so.” 

¶3 D’Ambrosio sued the City for negligence. The City moved for 

summary judgment, which the trial court granted. This Court reversed and 

remanded, ruling that the City was not entitled to summary judgment 

because whether the sidewalk was unreasonably dangerous was a question 

for the fact finder.

¶4 On remand, the trial court conducted a bench trial. After

D’Ambrosio’s case-in-chief, the City moved for judgment as a matter of law 

pursuant to Arizona Rule of Civil Procedure 52(c), and the court granted it. 

D’Ambrosio moved for reconsideration of the judgment and then for a new 

trial. She argued at trial and in her post-trial motions that a 1/2 inch defect 

in the sidewalk was an unreasonably dangerous condition as a matter of 

law. 

¶5 The trial court denied both motions, noting that D’Ambrosio’s 

position was “clearly . . . not the law. It is for the trier of fact to decide.” The 

court “determined that there was no legally sufficient evidentiary basis for 

a reasonable fact finder to find for [D’Ambrosio]” after reviewing all of the

evidence and exhibits. The court noted that its “decision to rule against 

[D’Ambrosio] was based solely on the finding that [she] failed to present 

sufficient evidence to go to the finder of fact that the sidewalk was 

unreasonably dangerous.” D’Ambrosio timely appealed.

DISCUSSION

¶6 As an initial matter, we note that D’Ambrosio’s opening brief 

does not comply with Arizona Rule of Civil Appellate Procedure 13(a). 

Notably, the brief does not contain any relevant legal argument, with 

citations to authorities, nor does it articulate the proper standard of review. 

See Ariz. R. Civ. App. P. 13(a)(6) (providing that the appellant’s brief shall 

state an “[a]rgument which shall contain the contentions of the appellant 
D’AMBROSIO v. PHOENIX

Decision of the Court

3

with respect to the issues presented, and the reasons therefor, with citations 

to the authorities” and identify “the proper standard of review on appeal”). 

Although D’Ambrosio is a non-lawyer representing herself, she is held to 

the same standards as a qualified attorney. See Kelly v. NationsBanc Mortg. 

Corp., 199 Ariz. 284, 287 ¶ 16, 17 P.3d 790, 793 (App. 2000). Nonetheless, we 

will exercise our discretion and attempt to discern and address

D’Ambrosio’s arguments because we prefer to decide cases on the merits. 

See DeLong v. Merrill, 233 Ariz. 163, 166 ¶ 9, 310 P.3d 39, 42 (App. 2013). 

¶7 D’Ambrosio argues primarily that the trial court erred 

because the uneven sidewalk was per se an unreasonably dangerous 

condition.1 Under Arizona Rule of Civil Procedure 52(c), when a party has 

been fully heard on an issue and the court finds against the party on that 

issue after determining the facts, the court may enter judgment as a matter 

of law against that party. The judgment “shall be supported by findings of 

fact and conclusions of law” if a party requests them. Ariz. R. Civ. P. 52(c). 

“Findings of fact, whether based on oral or documentary evidence, shall not 

be set aside unless clearly erroneous.” Ariz. R. Civ. P. 52(a). 

¶8 Thus, when reviewing the trial court’s judgment as a matter 

of law entered under Rule 52(c), we review its findings of fact for clear error, 

consistent with Rule 52(a), and its conclusions of law de novo. See Tobias v. 

Dailey, 196 Ariz. 418, 420 ¶ 7, 998 P.2d 1091, 1093 (App. 2000) (“In this timely 

appeal from the trial court’s findings of fact, conclusions of law, and 

judgment [pursuant to Rule 52(c)], we deferentially review the trial court’s 

findings of fact but independently review its conclusions of law.”). This is 

consistent with the standard of review for federal Rule 52(c): “[i]n 

reviewing the district court’s judgment . . . , we review its findings of fact 

for clear error and its conclusions of law de novo.” United Steel Workers Local 

12-369 v. United Steel Workers Intern., 728 F.3d 1107, 1114 (9th Cir. 2013); see 

also Waltner v. JPMorgan Chase Bank, N.A., 231 Ariz. 484, 488 ¶ 18, 297 P.3d 

176, 180 (App. 2013) (“Federal cases interpreting federal rules of civil 

procedure that are similar to our rules are instructive and persuasive in 

construing our rules, and we subscribe to the principle that uniformity in 

 

1 D’Ambrosio also raises other issues, including that the City’s offered 

settlement amount was insufficient, the trial court erred in refusing to 

sanction the City for alleged discovery abuses, and the City should have 

settled the case instead of taking it to trial. In view of our holding that the 

trial court did not err in granting the City’s motion, we need not address 

these issues.
D’AMBROSIO v. PHOENIX

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interpretation of our rules and the federal rules is highly desirable.”) 

(internal quotation marks and citation omitted). 

¶9 A plaintiff must prove four elements to prevail in a premise 

liability action: (1) an unreasonably dangerous condition existed at the time 

of the accident; (2) the owner of the premise knew or should have known

that the condition existed; (3) the condition was not discoverable by the 

plaintiff; and (4) the owner failed to exercise reasonable care in either 

providing a remedy or warning of the condition. See Moore v. Southwestern 

Sash & Door Co., 71 Ariz. 418, 422, 228 P.2d 993, 995 (1951); Restatement 

(Second) of Torts §§ 343–43A. Here, the parties only contest whether a

sidewalk with a height difference of 1/2 inch between the slabs was an 

unreasonably dangerous condition. 

¶10 D’Ambrosio argues that an uneven sidewalk is per se an 

unreasonably dangerous condition. But “not every defect or obstruction of 

the sidewalk gives rise to liability.” Beach v. City of Phoenix, 136 Ariz. 601, 

603–04, 667 P.3d 1316, 1319–20 (1983). “The City is not an insurer of the 

safety of pedestrians, and absent a finding of negligence, it is not liable for 

an injury.” Id. at 603, 667 P.2d at 1319. A condition is not unreasonably 

dangerous if it is open and obvious, that is, “[i]f people who are likely to 

encounter a condition may be expected to take perfectly good care of 

themselves without further precautions, then the condition is not 

unreasonably dangerous because the likelihood of harm is slight.” 

Cummings v. Prater, 95 Ariz. 20, 27, 386 P.2d 27, 31 (1963). 

¶11 Nothing in the record shows that the trial court erred by

finding that D’Ambrosio failed to present “a legally sufficient evidentiary 

basis for a reasonable fact finder to find for [D’Ambrosio].” A photograph 

of the sidewalk was admitted in evidence, and to the extent that the height 

difference in the sidewalk slabs created a danger of tripping, no evidence 

showed that D’Ambrosio and other pedestrians could not “be expected to 

take perfectly good care of themselves without further precautions.” Id.

Although D’Ambrosio testified on her own behalf, she did not include the 

transcripts of her trial testimony in the record on appeal, so we presume 

that the testimony supported the trial court’s ruling. See Kline v. Kline, 221 

Ariz. 564, 572 ¶ 33, 212 P.3d 902, 910 (App. 2009) (holding that “[w]hen no 

transcript is provided on appeal, the reviewing court assumes that the 

record supports the trial court’s decision”). Thus, although negligence is 

generally a fact question, Beach, 136 Ariz. at 604, 667 P.2d at 1320, the trial 

court did not err in granting judgment as a matter of law to the City under 

Rule 52(c). 
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CONCLUSION

¶12 We find no error and therefore affirm.