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Alcombrack v. Ciccarelli

Court of Appeals of Arizona, First Division

December 3, 2015

KYLE ALCOMBRACK, a married individual, Plaintiff/Appellant,
ROBERT CICCARELLI and JANE DOE CICCARELLI, husband and wife, Defendants/Appellees

Editorial Note:

Counsel is cautioned to make an independent determination of the status of this case. This decision is subject to further appellate review. Motions for reconsideration or petitions for review to the Arizona Supreme Court may be pending.

Appeal from the Superior Court in Maricopa County. No. CV2009-027538. The Honorable Katherine M. Cooper, Judge.


Breyer Law Offices, Phoenix, By Mark P. Breyer, Counsel for Plaintiff/Appellant.

O'Connor & Campbell, PC, Tempe, By Michael R. Altaffer, J. Edward Doman, Jr., Counsel for Defendants/Appellees.

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge Randall M. Howe joined. Judge Diane M. Johnsen dissented.


Page 699

Samuel A. Thumma, Judge.

[¶1] A couple defaulted on their obligations to repay a lender on a loan for a house they leased to a tenant. The lender then hired a company to inspect the house. The inspection company then hired a locksmith company to change the locks. The locksmith company then sent a locksmith to change the locks. Mistaking the locksmith for an intruder, the tenant shot and seriously injured the locksmith. The locksmith filed a negligence claim against the couple who defaulted on the loan. The superior court granted the couple summary judgment, finding the locksmith had not shown a cognizable duty. The locksmith now appeals. Because the locksmith has not shown the couple owed him a duty, the grant of summary judgment is affirmed.


[¶2] In 2008, Robert and Dixie Ciccarelli leased a house in Phoenix to Jeffrey Harrison. By early 2009, the Ciccarellis had defaulted on a loan secured by the house and foreclosure had begun. The Ciccarellis did not tell Harrison of the foreclosure.

[¶3] In late February 2009, a notice of trustee's sale issued. The beneficiaries of the deed of trust[2] then hired LPS Field Services, Inc., to inspect the house. LPS then hired Sentinel Field Services, Inc., a locksmith company. Sentinel then sent employee locksmith Kyle Alcombrack to change the locks at the house. Mistakenly thinking the house was vacant, Alcombrack drilled out the lock on the front door of the house. Mistakenly thinking the house was being broken into, Harrison shot at the door, seriously injuring Alcombrack.

[¶4] Alcombrack sued the Ciccarellis, the beneficiaries of the deed of trust and LPS. Alcombrack alleged the Ciccarellis " had a duty to" him which they breached. More specifically, Alcombrack alleged the Ciccarellis created an unreasonably-dangerous condition by not telling Harrison the house was in foreclosure and that someone might inspect the house " and/or change the locks." The Ciccarellis moved for summary judgment, arguing they owed no duty. After briefing and oral argument, the superior court granted the motion, finding Alcombrack was a licensee, the Ciccarellis did not owe Alcombrack a duty, the Ciccarellis did not owe a duty to tell Harrison about the foreclosure and, even if they owed such a duty to Harrison, " that duty did not extend to a duty to [Alcombrack] to protect him from" Harrison.

[¶5] A jury later found Alcombrack sustained $849,026 in damages and that LPS was 34 percent at fault. Alcombrack reached a post-trial settlement with LPS and the beneficiaries of the deed of trust, and appealed the entry of summary judgment in favor

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of the Ciccarellis.[3] This court has jurisdiction over Alcombrack's timely appeal pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (2015).[4]


[¶6] Although described in various ways, a plaintiff alleging an Arizona common law negligence claim must show: (1) a duty requiring the defendant to conform to a certain standard of care; (2) defendant's breach of that duty; (3) cause in fact; (4) legal cause; and (5) actual damages. See Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228 (2007); Grafitti-Valenzuela ex rel. Grafitti v. City of Phoenix, 216 Ariz. 454, 457, 460 ¶ ¶ 6, 20-21, 167 P.3d 711 (App. 2007). " The first element, whether a duty exists, is a matter of law for the court to decide." Gipson, 214 Ariz. at 143 ¶ 9; accord Guerra v. State, 237 Ariz. 183, 185 ¶ 7 (2015). Absent duty, an action for negligence fails. Gipson, 214 Ariz. at 143 ¶ 11. The party claiming negligence has the burden to show a duty. Id. at 143 ¶ 9.

I. Alcombrack Has Not Shown A Duty Based On A Landowner-Licensee/Invitee Relationship.

[¶7] After rejecting foreseeability as a factor in determining duty, Gipson observed that " [d]uties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant." Id. at 145 ¶ 18. Gipson cited the landowner-invitee relationship as a " categorical relationship [that] can give rise to a duty." Id. at 145 ¶ 19 (citing cases); accord Restatement (Second) of Torts (Restatement Second) § § 333-50 (1965). Under a landowner-licensee/invitee relationship, however, a landowner not in possession of property owes no duty to a third party who is injured on the property. See, e.g., Rendall v. Pioneer Hotel, 71 Ariz. 10, 15-16, 222 P.2d 986 (1950) (" At common law, subject to certain exceptions not here material, the occupier or tenant and not the landlord was liable to a third person on the premises for injury caused by the condition or use of the demised premises." ); Clarke v. Edging, 20 Ariz.App. 267, 272-73, 512 P.2d 30 (1973) (noting landlord generally not considered possessor for premises liability); Restatement Second § 356 cmt. a (" [I]t is the general rule that the lessor is not liable to the lessee, or to others on the land, for injuries occurring after the lessee has taken possession." ). Accordingly, Alcombrack has not shown the Ciccarellis owed a relevant duty based on a landowner-licensee/invitee relationship, see Clarke, 20 Ariz.App. at 272-73, or based on contract or family relations, see Gipson, 214 Ariz. at 145 ¶ 18. That failure, however, does not end the inquiry. As Gipson recognized, even absent such relationships, a common law duty may arise based on " conduct undertaken by the defendant." 214 Ariz. at 145 ¶ 18.[5]

II. Alcombrack Has Not Otherwise Shown The Ciccarellis Owed A Duty Relevant To His Claim.

[¶8] Alcombrack argues a duty arose when the Ciccarellis defaulted on their loan, thereby

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empowering the beneficiaries of the deed of trust to change the locks on the house.[6] The Ciccarellis counter that they had no duty to notify Harrison of the foreclosure and, even if they did, such a duty would not extend to third parties like Alcombrack.[7] Because no Arizona case resolves this issue, this court ordered supplemental briefing on whether Alcombrack preserved for appellate review an argument that the Ciccarellis owed a duty on any basis other than as an invitee or a licensee and, if so, the applicability of specified legal authorities to this case. In that supplemental briefing, Alcombrack argues a duty should be recognized under La Raia v. Superior Court, 150 Ariz. 118, 722 P.2d 286 (1986); Maldonado v. Southern Pacific Transportation Co., 129 Ariz. 165, 629 P.2d 1001 (App. 1981); Restatement Second § § 321 and 322 and Restatement (Third) of Torts Liability for Physical and Emotional Harm (Restatement Third) § § 7 and 39 (2010). The Ciccarellis counter that Alcombrack, in part, waived the application of these authorities and, in any event, has not shown a duty in this case. This court addresses these arguments in turn, beginning with the case law and Restatement Second § 322.

A. Nether La Raia, Maldonado Nor Restatement Second § 322 Imposed A Duty On The Ciccarellis.

[¶9] In La Raia, a landlord applied a pesticide that caused the tenant to become ill. 150 Ariz. at 120. When the tenant asked for a list of the chemicals in the pesticide, the landlord provided a list that " omitted all toxic items" and, having been told by medical professionals that " none of the chemicals was toxic," the tenant " reentered her apartment only to become more seriously ill." Id. The tenant sued the landlord and, on appeal, the Arizona Supreme Court concluded plaintiff should have been allowed to amend her complaint. Id. ...

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