Schiager v. Landmark Land

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

SANDRA SCHIAGER, Plaintiff/Appellant,

v.

LANDMARK LAND MANAGEMENT, Defendant/Appellee.

No. 1 CA-CV 20-0226
FILED 3-9-2021

Appeal from the Superior Court in Maricopa County
No. CV 2017-014321
The Honorable Danielle J. Viola, Judge

AFFIRMED

COUNSEL

Brown Engstrand & Shely Accident Law Group, Tempe
By Robert W. Shely
Counsel for Plaintiff/Appellant

Jones Skelton & Hochuli PLC, Phoenix
By Lori L. Voepel, Alejandro Barrientos
Counsel for Defendant/Appellee
 SCHIAGER v. LANDMARK LAND
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Sandra Schiager appeals from the superior court’s summary
judgment dismissing her negligence claim against Landmark Land
Management (“Landmark”). For the following reasons, we affirm.

BACKGROUND

¶2 While attending an outdoor event held at a recreational
property (“the property”) managed by the Salt River Project Employee’s
Recreational Association, Inc. (“PERA”), Schiager stepped off the cement
floor of a ramada onto the surrounding grass. As she did so, Schiager’s left
foot sank into an “unseen” six-inch-deep depression in the ground, causing
her to fall and fracture her left ankle. Four days later, she underwent
surgery, which included the placement of 11 pins and screws and a metal
plate to repair the ankle.

¶3 Schiager filed a negligence claim against PERA, alleging
PERA owed her, a business invitee, a non-delegable duty to maintain the
property in a reasonably safe condition. In an amended complaint, Schiager
added a negligence claim against Landmark, alleging that by virtue of its
contract with PERA, to provide regular lawn and landscaping services for
the property, Landmark owed a duty “to foreseeable users” of the property,
such as herself, to discover the subsidence and alleviate its risk of harm. She
further alleged that Landmark mowed the property in a manner that
concealed the subsidence, aggravating the danger.

¶4 Landmark answered, denying liability, and moved for
summary judgment. Specifically, Landmark asserted that it “owed no legal
duty” to Schiager. In response, Schiager argued that Landmark, “in the
course and scope of its landscaping duties . . . , hid a pre-existing hazard
from foreseeable users.”

¶5 After oral argument on the motion, the superior court granted
summary judgment in favor of Landmark, agreeing that it owed no duty to
Schiager and her negligence claim failed as a matter of law. Following that

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ruling, Landmark submitted its verified statement of costs, asserting it was
entitled to recover, among other things, its share of mediation expenses.
Schiager objected to Landmark’s inclusion of the mediator’s fees, citing the
mediator’s letter to counsel, which stated, “unless the parties direct me
otherwise, I will send a statement representing a pro rata portion of the total
to counsel for each of the parties at the conclusion of the hearing.” Because
no party objected, Schiager argued that the parties agreed to split the
mediation expenses and Landmark’s share of the mediator’s fees therefore
were not recoverable. Without disputing the content of the mediator’s
letter, Landmark contended that the mediation expenses were, in fact,
recoverable as taxable costs.

¶6 Overruling Schiager’s objection, the superior court awarded
Landmark its requested costs and entered a final judgment in its favor.
Schiager timely appealed.

DISCUSSION

I. Summary Judgment Ruling

¶7 Schiager challenges the superior court’s summary judgment
ruling. She contends that Landmark owed a duty to PERA’s business
invitees to inspect the property and remove any hazards.

¶8 In reviewing a grant of summary judgment, we view the facts
and the reasonable inferences to be drawn from those facts in the light most
favorable to the non-moving party and affirm “if the evidence produced in
support of the defense or claim has so little probative value that no
reasonable person could find for its proponent.” State Compensation Fund v.
Yellow Cab. Co., 197 Ariz. 120, 122, ¶ 5 (App. 1999). “We review de novo the
[superior] court’s application of the law and its determination whether
genuine issues of material fact preclude summary judgment.” Id.; see also
Ariz. R. Civ. P. 56(a) (“The court shall grant summary judgment if the
moving party shows that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.”). We will
affirm the court’s “decision if it is correct for any reason, even if that reason
was not considered by the [] court.” Glaze v. Marcus, 151 Ariz. 538, 540 (App.
1986).

¶9 “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). While

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breach, causation, and damages “are factual issues usually decided by [a]
jury,” the “first element, whether a duty exists,” is a question of law that we
review de novo. Id. at ¶ 10; see also Guerra v. State, 237 Ariz. 183, 185, ¶ 7
(2015).

¶10 “Whether the defendant owes the plaintiff a duty of care is a
threshold issue; absent some duty, an action for negligence cannot be
maintained.” Gipson, 214 Ariz. at 143, ¶ 11. A duty is an “obligation,
recognized by law, which requires the defendant to conform to a particular
standard of conduct in order to protect others against unreasonable risks of
harm.” Id. at ¶ 10 (quotation omitted). “The existence of a duty of care is a
distinct issue from whether the standard of care has been met in a particular
case.” Id.

¶11 “As a legal matter, the issue of duty involves generalizations
about categories of cases.” Id. “Thus, a conclusion that no duty exists is
equivalent to a rule that, for certain categories of cases, defendants may not
be held accountable for damages they carelessly cause, no matter how
unreasonable their conduct.” Id. at 143–44, ¶ 11.

¶12 “Duties of care may arise from special relationships based on
contract, family relations, or conduct undertaken by the defendant,” as well
as from public policy considerations. Id. at 145, ¶¶ 18, 23. “Foreseeability of
harm is not a relevant consideration in determining the threshold legal
issue of whether a duty exists, nor are case-specific facts.” Guerra, 237 Ariz.
at 183, 185, ¶ 8; see also Quiroz v. ALCOA Inc., 243 Ariz. 560, 563, ¶ 2 (2018);
Gipson, 214 Ariz. at 144, ¶ 15.

¶13 Under the terms of its written contract with PERA, Landmark
agreed to provide weekly lawn services (“mow grass”) and “maintain
landscaping” on the 83-acre property. As outlined in its landscaping bid,
which was incorporated by reference into the lawn-and-landscaping
services contract, the scope of Landmark’s work was limited to
“provid[ing] and furnish[ing] all horticultural supervision, labor, material,
equipment and transportation required to maintain the landscape.” Given
the agreement’s terms, Landmark, without question, owed PERA a duty to
perform its contracted services in a non-negligent manner. See Gipson, 214
Ariz. at 145, ¶ 18. But nothing in the lawn-and-landscaping-services
contract extended that duty of care to PERA’s business invitees.

¶14 Acknowledging that Landmark owed her no contractual duty
of care, Schiager first argues that Landmark owed her a duty based on its
“exclusive control” over the property. As support for this contention,

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Schiager cites Martinez v. Woodmar IV Condominiums Homeowners Ass’n, 189
Ariz. 206, 224 (1997), in which the Arizona Supreme Court found the
defendant homeowners’ association owed a duty of reasonable care to
invitees to maintain the safety of its common areas.

¶15 To have “actual control over premises,” a party “must have
the authority to: (1) exclude others from the premises; and (2) direct how
the premises is repaired, maintained, and used.” Dabush v. Seacret Direct
LLC, 250 Ariz. 264, 269, ¶ 18 (2021). “Both the authority to exclude others
and control over repairs are necessary to impose a duty of care on a
possessor of land.” Id. at ¶ 19.

¶16 Unlike the homeowners’ association in Martinez, which
exercised exclusive control over the premises at issue in that case,
Landmark did not exercise control over the property here. 189 Ariz. at 209–
10 (“[W]ith respect to common areas under its exclusive control, a
condominium association has the same duties as a landlord[,] . . .
[including] a duty to maintain the common areas it controls in a safe
condition and protect both owners and their guests from dangerous
conditions.”). Put simply, there is no question that Landmark lacked
authority to exclude Schiager, or any other PERA invitee, from the
property. Equally important, Landmark had no power to direct the repair,
maintenance, or use of the property beyond the scope of its own services.
Of particular relevance to this case, PERA, not Landmark, hired an electrical
contractor to dig a utility trench and install an electrical conduit to the
ramada and PERA, not Landmark, oversaw the backfill of that trench,
which likely caused the subsidence at issue.

¶17 Because Schiager and Landmark have neither a contractual
relationship nor any other relationship specifically recognized by common
law or created by public policy, Quiroz, 243 Ariz. at 563, 565, ¶¶ 2, 13, the
issue before us is whether Landmark, by undertaking lawn maintenance
services on the property, assumed a duty to PERA’s invitees. Gipson, 214
Ariz. at 145, ¶ 18; Quiroz, 243 Ariz. at 565, ¶ 14.

¶18 “Arizona recognizes a cause of action for negligent
performance of an undertaking as it is summarized in the Restatement
(Second) of Torts.” Steinberger v. McVey ex rel. County of Maricopa, 234 Ariz.
125, 137, ¶ 45 (App. 2014); Quiroz, 243 Ariz. at 565, ¶ 14; see also Lips v.
Scottsdale Healthcare Corp., 224 Ariz. 266, 268, ¶ 10 (2010) (“[T]he common
law imposes a duty of reasonable care on a party who voluntarily
undertakes to protect persons or property from physical harm.”); Lloyd v.
State Farm Mut. Auto. Ins. Co., 176 Ariz. 247, 250 (App. 1992) (“When a

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person voluntarily undertakes an act, even when there is no legal duty to
do so, that person must perform the assumed duty with due care and is
liable for any lack of due care in performing.”).

¶19 Under Restatement (Second) of Torts §§ 323 and 324A (1965),
a party may assume a duty to act with reasonable care “by undertaking
(with or without a formal relationship) to perform services” for another,
Acri v. State, 242 Ariz. 235, 240, ¶ 17 (App. 2017), even though the party
“otherwise had no duty to do so.” Steinberger, 234 Ariz. at 137, ¶ 46; see also
Barnum v. Rural Fire Protection Co., 24 Ariz. App. 233, 237 (1975) (explaining
a duty arises “by reason of an affirmative undertaking by one who, under
the circumstances, has no duty to act”). Restatement § 323 states:

One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as necessary
for the protection of the other’s person or things, is subject to
liability to the other for physical harm resulting from his failure
to exercise reasonable care to perform his undertaking, if (a)
his failure to exercise such care increases the risk of such
harm, or (b) the harm is suffered because of the other’s
reliance upon the undertaking.

(Emphasis added.) Restatement § 324A likewise provides for the voluntary
assumption of a duty:

One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as necessary
for the protection of a third person or his things, is subject to
liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking,
if (a) his failure to exercise reasonable care increases the risk
of such harm, or (b) he has undertaken to perform a duty
owed by the other to the third person, or (c) the harm is
suffered because of reliance on the other or the third person
upon the undertaking.

(Emphasis added.)

¶20 Considering Restatement § 323, Schiager does not allege that
Landmark undertook to render services to her, personally, and the record
reflects that Landmark contracted only to provide services to PERA, not
PERA’s invitees. Therefore, because Landmark did not undertake any
action directly on Schiager’s behalf, Restatement § 323 does not apply in
this case. See U.S. Airways, Inc. v. Qwest Corp., 238 Ariz. 413, 421, ¶ 30 (App.

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2015), ordered depublished in part on other grounds by U.S. Airways, Inc. v.
Qwest Corp., 241 Ariz. 182 (2016).

¶21 To maintain a claim for negligence predicated on an
undertaking of services pursuant to Restatement § 324A, Schiager was
required to allege that: (1) Landmark undertook to render services to PERA
that it should have recognized were necessary to protect PERA’s business
invitees, such as herself, (2) Landmark failed to exercise reasonable care
while performing the services, thereby increasing her risk of harm, and (3)
she was in fact harmed by Landmark’s actions. Restatement § 324A; see also
Steinberger, 234 Ariz. at 137, ¶ 48.

¶22 Relying primarily on Nelson v. Grahawk Properties L.L.C., 209
Ariz. 437 (App. 2004), Schiager contends that landscapers, generally, are
liable to third parties for negligent services that cause injury, and that
Landmark, specifically, is liable to her because it both failed to detect the
subsidence and mowed the grass in a manner that concealed it. Nelson
involved a property development for residential and commercial use. Id. at
438, ¶ 2. To obtain municipal approval for the project, the developer “was
required” to dedicate a right-of-way intersection to the municipality,
construct certain roadways and related improvements, and maintain
landscaping for the right-of-way after its dedication. Id. Although its plans
for the intersection included a traffic signal, the developer installed median
landscaping before the traffic light was installed. Id. at ¶ 3. Thereafter, the
plaintiff was injured in an automobile accident at the intersection and
alleged that “sight-obscuring landscaping,” in combination with “no
operational traffic signal,” created an unreasonably dangerous condition
that prevented him from seeing an approaching motorcyclist before their
vehicles collided. Id. at 438–39, ¶¶ 4–5. On appeal, this court reversed the
superior court’s entry of summary judgment in favor of the developer,
concluding the local municipality’s non-delegable duty did not, as a matter
of law, shield the developer from liability. Id. at 440–41, ¶¶ 14–15.

¶23 While Nelson supports the proposition that Landmark is not
absolved of liability simply because PERA, as the property owner, owes a
non-delegable duty of care to its invitees to maintain the property in a
reasonably safe manner, it does not, as Schiager contends, stand for the
proposition that a landscaper owes a general duty of care to third parties.
And, unlike the property developer in Nelson, Landmark neither shared
control of the property at issue nor created the dangerous condition that

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caused injury―the subsidence. Therefore, Schiager’s reliance on Nelson is
misplaced.1

¶24 Schiager has not alleged that Landmark knew of the
subsidence before she fell. Instead, she asserts that Landmark owed invitees
a duty to inspect the property and discover and remedy the hazard.
Therefore, the dispositive question is whether Landmark, by undertaking
mowing and landscaping services for PERA, assumed a duty to inspect the
83-acre property to ensure no potential dangers befell a PERA invitee.

¶25 We conclude that Landmark did not owe PERA’s invitees a
duty to inspect the property for hazards. In reaching this conclusion, we
find Diaz v. Phoenix Lubrication Service, 224 Ariz. 335 (App. 2010),
instructive. In Diaz, the plaintiff took a vehicle to the defendant for an oil
change service that included a check of the vehicle’s tire pressure. Id. at 337,
¶ 2. The plaintiff did not purchase separate tire rotation or inspection
services. Id. A short time later, the plaintiff lost control of the vehicle and
attributed the accident to “the worn condition of the tread” of the tires. Id.
at ¶ 3. After the plaintiff filed a negligence claim against various parties, the
defendant was named as a non-party at fault based on its failure to inspect
the tires during the oil change. Id. at ¶ 6. The superior court granted the
defendant’s motion for summary judgment, finding the defendant did not
owe the plaintiff a duty to inspect the vehicle’s tires. Id. at 337–38, ¶ 8. On
appeal, this court affirmed, rejecting the plaintiff’s contention that the
defendant owed a duty to inspect the vehicle for hazards. Id. at 339, ¶ 15.

¶26 Under the plain language of Restatement § 324A, the scope of
a party’s assumed duty to a third party is clearly limited to the services it
undertook to render to “another.” In this case, Landmark contracted with

1 We find no merit to Schiager’s claim that the superior court violated
her due process rights by distinguishing Nelson on a basis neither advanced
by Landmark nor mentioned by the court at oral argument. Due process
guarantees a party notice and an opportunity to be heard. Wales v. Ariz.
Corp. Comm’n, 249 Ariz. 263, 267, ¶ 9 (App. 2020) (“To comply with due
process, a party must have had notice and an ‘opportunity to be heard at a
meaningful time and in a meaningful manner.’”) (citation omitted). Here,
Schiager received both. At oral argument, Schiager’s attorney argued his
interpretation of Nelson at length. Moreover, contrary to Schiager’s
contention, a court’s interpretation and application of case law is not
constrained by the parties’ framing. To be clear, a court may independently
assess whether a case is controlling or distinguishable and is not bound by
the interpretations offered by counsel.

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PERA to provide mowing and landscaping services for the property.
Because Landmark did not undertake to inspect the 83-acre property for
unseen hazards, Restatement § 324A did not impose a duty on it to inspect
with care. Furthermore, to the extent Schiager contends that Landmark is
liable because it mowed the lawn in a way that concealed the subsidence
(meaning the grass in the subsidence was taller than the grass in the
surrounding areas so the overall height of the grass appeared uniform), she
has not offered any evidence that Landmark should have recognized a need to
mow the grass in a manner that protected third parties, as required to
establish an assumed duty under Restatement § 324A. In other words,
absent evidence that Landmark knew of the subsidence, there is no basis to
conclude that its method of mowing the grass to achieve a uniform
appearance was in any way negligent. Therefore, because Landmark owed
Schiager no duty to inspect the property, the superior court did not err by
granting summary judgment in Landmark’s favor.

II. Award of Mediation Fees as Taxable Costs

¶27 Schiager challenges the superior court’s award of mediation
expenses as taxable costs. She contends the court should have upheld the
parties’ pre-mediation agreement “to split” the mediation fees.

¶28 “A party to a civil action cannot recover its litigation expenses
as costs without statutory authorization.” Reyes v. Frank’s Serv. & Trucking,
LLC, 235 Ariz. 605, 608, ¶ 6 (App. 2014) (quoting Schritter v. State Farm Mut.
Auto. Ins. Co., 201 Ariz. 391, 392, ¶ 6 (2001). As identified in A.R.S. § 12-
332(A)(6), taxable costs include “disbursements that are made or incurred
pursuant to an order or agreement of the parties.” “Whether a particular
expenditure qualifies as a taxable cost is a question of law that we review
de novo.” Reyes, 235 Ariz. at 608, ¶ 6.

¶29 As recognized in Reyes, “the relevant inquiry” under A.R.S.
§ 12-332(A) “is whether the parties agreed to incur the costs, not whether
they reached a specific agreement about how the costs would ultimately be
classified.” 235 Ariz. at 612, ¶¶ 28–29 (upholding an award of mediation
expenses under A.R.S. § 12-332(A), noting the parties “initially” agreed to
share the expense of mediation but “did not specify how the mediation
costs would be treated at the conclusion of the litigation”).

¶30 Here, the parties do not contest that they agreed to attend
mediation. Although Schiager asserts that she proceeded to mediation with
the understanding that each party would bear its share of the mediation
expenses, like the litigants in Reyes, the parties did not specify how the costs

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would be allocated at the conclusion of the litigation if the dispute was not
resolved through mediation. Therefore, under these circumstances, the
mediation expenses were properly awarded as taxable costs under A.R.S.
§ 12-332(A).

CONCLUSION

¶31 For the foregoing reasons, we affirm the superior court’s
summary judgment in favor of Landmark. We award Landmark its costs
incurred on appeal, conditioned upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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