Opinion
1 CA-CV 22-0255
03-21-2023
MICHAEL OVIEDO, et al., Plaintiffs/Appellants, v. AVENUE 5 RESIDENTIAL LLC, Defendant/Appellee.
AJ Law PLC, Phoenix By Abdoukadir Jaiteh, Elizabeth M. Gonzalez Co-Counsel for Plaintiffs/Appellants Burch &Cracchiolo PA, Phoenix By Kenneth Januszewski Co-Counsel for Plaintiffs/Appellants Udall Law Firm L.L.P., Phoenix By Elizabeth L. Fleming Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV 2018-053187 The Honorable Sally Schneider Duncan, Judge Retired
VACATED AND REMANDED.
AJ Law PLC, Phoenix By Abdoukadir Jaiteh, Elizabeth M. Gonzalez Co-Counsel for Plaintiffs/Appellants
Burch &Cracchiolo PA, Phoenix By Kenneth Januszewski Co-Counsel for Plaintiffs/Appellants
Udall Law Firm L.L.P., Phoenix By Elizabeth L. Fleming Counsel for Defendant/Appellee
Judge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge Cynthia J. Bailey and Judge David D. Weinzweig joined.
MEMORANDUM DECISION
CAMPBELL, Judge:
¶1 Michael and Andrea Oviedo appeal the superior court's grant of partial summary judgment to Avenue 5 Residential, LLC, and denial of their motion for new trial. For the following reasons, we vacate the court's judgment and remand.
BACKGROUND
¶2 In 2017, Avenue 5 managed an apartment complex in Tempe, Arizona. In June 2017, Dominique Williams signed a lease agreement for an apartment. The lease required Williams to obtain prior authorization before acquiring a pet to reside on the premises. Under the lease terms, tenants were also restricted from keeping certain dog breeds on the premises, including German Shepherds and mixes thereof. Williams did not receive preauthorization for having a pet. At some point after moving in, Williams got a German Shepherd.
¶3 In September of 2017, Williams' child took the family German Shepherd for a walk. While in the complex courtyard, the dog attacked the Oviedos' minor daughter, who was a guest of another tenant, causing injury.
¶4 The Oviedos sued Avenue 5 and Williams for negligence. Avenue 5 moved for summary judgment, arguing it had no notice Williams had a dog living at his apartment or that the dog was dangerous. Avenue 5 argued it did not owe a duty to the Oviedos based on its restricted pet policy. The superior court granted summary judgment to Avenue 5, denied the Oviedos' motion for new trial, and entered final judgment in favor of Avenue 5 under Arizona Rule of Civil Procedure 54(b). The Oviedos timely appealed.
The Oviedos also alleged strict liability under A.R.S. §§ 11-1025 and 13-1208 and negligence per se under the alleged statutory violations. Neither claim is before this court on appeal.
Williams did not file an answer. The Oviedos moved for a default judgment, but the superior court never ruled on that motion.
DISCUSSION
¶5 We review de novo a grant of summary judgment to determine if the superior court properly applied the law and whether any genuine issues of material facts exist. Ariz. R. Civ. P. 56(a); Dinsmoor v. City of Phoenix, 251 Ariz. 370, 373, ¶ 13 (2021). We view the record in the light most favorable to the Oviedos. Dinsmoor, 251 Ariz. at 373, ¶ 13.
¶6 "To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). Avenue 5 does not dispute that a landowner owes a duty of care to its invitees; it thereby conceded the first prong of the negligence analysis. Duty is a question of pure law and once established, whether the following three factors have been met is generally left to the providence of the finder of fact. See Ritchie v. Krasner, 221 Ariz. 288, 295, ¶ 11 (App. 2009).
¶7 To find a breach of duty, a landowner must have actual or constructive knowledge of a dangerous condition before liability can be imposed. Contreras v. Walgreens Drug Store No. 3837, 214 Ariz. 137, 139, ¶ 7 (App. 2006). The Oviedos argue that reasonable minds could determine Avenue 5 knew about the dog because a neighbor had complained about the dog on at least two occasions, and its employees working on the premises should have seen and reported the dog. In response, Avenue 5 argues the Oviedos presented no evidence that it had actual knowledge that Williams had a dog; Williams did not declare the dog, and a neighbor only informed Avenue 5 about a dog barking rather than identifying Williams' dog as a prohibited-breed dog. Avenue 5 also contends it did not have constructive knowledge because no evidence was presented on how long the Williams' dog was on the premises. See Contreras, 214 Ariz. at 13839, ¶ 7 (requiring a proprietor to know of the dangerous condition for such a length of time as to know about the condition and remedy it). This leads us to an analysis of the second prong of the negligence factors-did Avenue 5 breach its duty? For this court to affirm the lower court's grant of summary judgment, the record must show no genuine issues of material fact. See Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142 (1982).
¶8 The Oviedos argue that a genuine fact dispute exists regarding whether Avenue 5 should have known there was a dangerous, restricted-breed dog on the premises that posed a risk to residents and their invitees. This necessarily required the court to determine the issue of breach -an inquiry solely within the purview of the finder of fact if any fact material to the issue of breach is contested. See Hale v. Window Rock Unified Sch. Dist., 252 Ariz. 420, 425, ¶ 13 (App. 2021) ("[I]ssues of breach . . . necessarily implicate factual determinations that are reserved to designated fact finders, making summary judgment inappropriate when disputed issues of material fact exist.")
¶9 Avenue 5 counters that the Oviedos presented no evidence that it knew about Williams' dog or that the dog had dangerous propensities. In support of its position, Avenue 5 generally focuses on Arizona common law that subjects dog owners to liability if the owner has reason to know of dangerous propensities abnormal to the dog's class. See James v. Cox, 130 Ariz. 152, 154 (App. 1981). However, Avenue 5 is not the dog owner and as such, Arizona cases like James are inapposite here.
¶10 The Oviedos presented evidence that while Avenue 5's lease restricted residents from keeping German Shepherds at the complex, Avenue 5 knew some tenants kept restricted breeds for pets on the property. While the record shows that Williams did not receive preauthorization to obtain a pet, Avenue 5 did not dispute that two of Williams' neighbors complained to its office staff and maintenance personnel about Williams' dog barking.
¶11 Avenue 5 conceded that Williams' dog was a restricted breed, and evidence was also presented that Williams' "small" or "young" child walked the dog daily and had trouble controlling the dog while in the common areas.
The Oviedos allege the dog was a German Shepherd/Pit Bull mix. Avenue 5 admits the dog was a restricted breed according to its policy, referring to a report by Maricopa County Animal Care and Control that the dog was a Shepherd mix.
¶12 The record also establishes that Avenue 5 typically had seven employees on the premises daily and enforced the pet restrictions by having its employees watch for violations. Avenue 5 asked maintenance personnel to advise management if there were animals on the premises to ensure the owner had received the necessary pet authorizations and the animals were approved breeds. Avenue 5 adopted a restricted-breed list to keep out animals that were "mostly considered aggressive breeds" and could present a risk to its tenants.
¶13 Because the record reflects a genuine issue of material fact- whether Avenue 5 should have known there was a dangerous, restricted dog on the premises that posed a risk to residents and their invitees-we cannot affirm.
CONCLUSION
¶14 For the foregoing reasons, we vacate the superior court's judgment and remand for further proceedings. We award costs to the Oviedos upon compliance with ARCAP 21.