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Johnson v. Almida Land & Cattle Co., LLC

Court of Appeals of Arizona, First Division

November 3, 2016

BARRETT JOHNSON, a single man, Plaintiff/Appellant,
v.
ALMIDA LAND & CATTLE COMPANY, LLC, an Arizona limited liability company, Defendant/Appellee.

         Appeal 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 Plaintiff/Appellant

          Lewis 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 joined.

          OPINION

          SWANN, Judge

         ¶1 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 duty.

         FACTS AND PROCEDURAL HISTORY

         ¶2 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.

         ¶3 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.[1] For the following reasons, we reverse.

         DISCUSSION

         ¶4 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 individual case.

         ¶5 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.

         ¶6 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 ...

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