from the Superior Court in Yavapai County No.
P1300CV201300017 The Honorable David L. Mackey, Judge
Murphy, Schmitt, Hathaway & Wilson, P.L.L.C., Prescott By
Robert E. Schmitt, Andrew J. Becke Counsel for
Brisbois Bisgaard & Smith LLP, Phoenix By Matthew D.
Kleifield, Robert C. Ashley Counsel for Defendant/Appellee
Presiding Judge Peter B. Swann delivered the opinion of the
court, in which Judge Jon W. Thompson and Judge Donn Kessler
This case presents the question whether a permittee operating
on federal land owes a duty of care to the public when it
erects improvements on the land. We hold that such a duty
exists as a matter of law, and that the concept of
foreseeability in the relevant section of the Restatement
(Second) of Torts does not bear on the existence of legal
AND PROCEDURAL HISTORY
The United States Forest Service granted a permit to Almida
Land and Cattle Company, LLC ("Almida"), that
allowed Almida to graze cattle on certain federally owned
land within the Prescott National Forest. In accordance with
the terms of the permit, Almida erected an electric fence in
its grazing area. In June 2011, Barrett Johnson collided with
the fence while riding an off-road motorcycle on an
unimproved, non-Forest Service route.
Johnson brought negligence claims against Almida. Almida
moved for summary judgment, arguing that it owed no duty of
care to Johnson under Restatement (Second) of Torts §
386. The superior court agreed and granted summary judgment
for Almida. For the following reasons, we reverse.
Negligence requires proof of a legal duty, a breach of that
duty, a causal connection between the breach and an injury,
and actual damages. Gipson v. Kasey, 214 Ariz. 141,
143, ¶ 9 (2007). There can be no liability if the court
determines that no duty exists as a matter of law.
Id. at ¶ 11. But the existence of a legal duty
does not imply that liability necessarily exists in any
We generally follow the Restatement unless it is contrary to
Arizona law. Barnes v. Outlaw, 192 Ariz. 283, 285,
¶ 6 (1998). The parties agree that Almida, a permittee,
was not a "possessor of land" as defined by
Restatement (Second) of Torts § 328E. But while Almida
acknowledges that Restatement (Second) § 386 recognizes
a duty owed by certain nonpossessory users of land, it
contends that the Restatement doctrine is outdated and
superseded by Gipson. Almida contends that the
superior court correctly held that § 386 conflicts with
Gipson's directive that "foreseeability is
not a factor to be considered by courts when making
determinations of duty." 214 Ariz. at 144, ¶ 15.
Section 386 provides:
Any person, except the possessor of land or a member of his
household or one acting on his behalf, who creates or
maintains upon the land a structure or other artificial
condition which he should recognize as involving an
unreasonable risk of physical harm to others upon or
outside of the land, is subject to liability for physical
harm thereby caused to them, irrespective of whether they are
lawfully upon the land, by ...