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Jamerson v. Quintero

Court of Appeals of Arizona, First Division

November 7, 2013

CICLY PATRICIA YOUTSEY JAMERSON, an adult individual, Plaintiff/Appellant,
v.
ROBERT QUINTERO and JANE DOE QUINTERO; ROBERT QUINTERO, an adult individual doing business as AMERICAN FLOOR, Defendants/Appellees.

Appeal from the Superior Court in Maricopa County No. CV2010-052953 The Honorable Alfred M. Fenzel, Judge.

Zachar Law Firm, PC, Phoenix By Christopher J. Zachar Co-Counsel for Plaintiff/Appellant

Knapp & Roberts, PC, Scottsdale By David L. Abney Co-Counsel for Plaintiff/Appellant

O'Connor & Campbell, PC, Phoenix By Daniel J. O'Connor, Shane P. Dyet, J. Edward Doman, Jr. Counsel for Defendants/Appellees

Fennemore Craig, PC, Phoenix By Scott L. Altes, Theresa Dwyer-Federhar Counsel for Amicus Curiae Banner Health

Judge Diane M. Johnsen delivered the opinion of the Court, in which Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco.

OPINION

JOHNSEN, Judge

¶1 Cicly Patricia Youtsey Jamerson appeals the superior court's dismissal of her negligence claim against Robert Quintero and American Floor. We hold that by statute, when a principal is jointly and severally liable for the fault of its agent, a stipulated dismissal with prejudice of the principal does not as a matter of law bar a claim against the agent. Accordingly, we vacate the judgment against Jamerson and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 Jamerson allegedly slipped and fell in water a janitor left on the floor of a Coolidge drugstore. She sued the janitor, Quintero, and his employer, American Floor (collectively, "American"), alleging negligence. Her complaint also included a claim against the owner of the store, Walgreen Arizona Drug Co., alleging it had breached its non-delegable duty to keep the premises safe.

¶3 After mediation, Jamerson settled her claim against Walgreen, and the superior court entered a stipulated order dismissing Walgreen with prejudice. American then moved for summary judgment, arguing the dismissal of the claim against Walgreen constituted an adjudication on the merits that exonerated American. Citing De Graff v. Smith, 62 Ariz. 261, 269, 157 P.2d 342, 345 (1945), American argued that because American's negligence was imputed to Walgreen, the dismissal of Walgreen with prejudice barred Jamerson's claim against American.

¶4 The superior court granted American's motion "[f]or the reasons stated by [American]." We have jurisdiction of Jamerson's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2013) and -2101(A)(1) (2013).[1]

DISCUSSION

¶5 As American acknowledges, Walgreen has a non-delegable duty to keep its premises safe for its invitees. Accordingly, Walgreen is vicariously liable for any negligence of American, the independent contractor it hired to clean its store. See, e.g., Wiggs v. City of Phoenix, 198 Ariz. 367, 368, 369, ¶¶ 1, 7, 10 P.3d 625, 626, 627 (2000); Nelson v. Grayhawk Props. L.L.C., 209 Ariz. 437, 441, ¶ 14, 104 P.3d 168, 172 (App. 2004). In the event of a breach by American (the agent) of the duty Walgreen (the principal) ...


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