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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARIA LAFFOON, Plaintiff/Appellant,
v.
SAFEWAY, INC., et al., Defendants/Appellees.
No. 1 CA-CV 23-0096
FILED 10-17-2023
Appeal from the Superior Court in Maricopa County
No. CV2021-017914
The Honorable Joan M. Sinclair, Judge
REVERSED AND REMANDED
COUNSEL
Gallagher & Kennedy PA, Phoenix, AZ
By Kevin D. Neal, Ashley E. Fitzgibbons
Counsel for Plaintiff/Appellant
Ray Lego & Associates, St. Paul, MN
By Christopher L. Wilson
Co-Counsel for Defendant/Appellee Kalil Bottling Company
Woner Hoffmaster Peshek & Gintert PC, Scottsdale, AZ
By Margaret K. Hoffmaster, Keaton C. Brown
Co-Counsel for Defendant/Appellee Kalil Bottling Company
Jones Skelton & Hochuli PLC, Phoenix, AZ
By David L. Stout, Jr., Michael R. Brown, Justin M. Ackerman, Arcangelo
S. Cella
Co-Counsel for Defendant/Appellee Safeway, Inc.
Rose Law Group PC, Scottsdale, AZ
By C. Ryan Curry
Co-Counsel for Defendant/Appellee Safeway, Inc.
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Michael S. Catlett and Judge Maria Elena Cruz joined.
W E I N Z W E I G, Judge:
¶1 Maria Laffoon (“Plaintiff”) appeals the superior court’s order
granting summary judgment in favor of Kalil Bottling Company and
Safeway, Inc. (collectively, “Defendants”) on her tort claims. We reverse
and remand.
FACTS AND PROCEDURAL HISTORY
¶2 Plaintiff was injured while shopping at Safeway when she
reached for a six-pack of soda placed on the top shelf of a beverage display
and several cans fell on her head. Plaintiff was briefly rendered
unconscious and taken to the hospital.
¶3 The beverage display had been prepared by Kalil, which
created a schematic directing that only two rows of six-packs be stacked on
the top shelf. When Plaintiff was injured, however, three rows of six-packs
were stacked on the top shelf. A Safeway employee completed an incident
report after the accident, blaming a Kalil employee for stacking too many
rows of soda cans on the top shelf. At her deposition, the Safeway
employee said she used Kalil’s schematic to inspect the beverage display,
ensuring “they have the right flavors in the right slots.” The Safeway
employee added, however, that she trusted Kalil’s employees to stack the
product safely.
¶4 Plaintiff sued Defendants in November 2021, asserting
negligence and premises liability claims. Defendants moved for summary
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LAFFOON v. SAFEWAY, et al.
Decision of the Court
judgment. After briefing and oral argument, the superior court granted
summary judgment to Defendants, reasoning that Defendants were not
liable to Plaintiff because the danger was open and obvious. Plaintiff timely
appealed. We have jurisdiction under A.R.S. § 12-2101(A)(1).
DISCUSSION
¶5 We review de novo the entry of summary judgment, viewing
the facts and reasonable inferences in the light most favorable to the non-
movant. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). “Summary
judgment is generally not appropriate in negligence actions,” Tribe v. Shell
Oil Co., 133 Ariz. 517, 518 (1982), but the superior court may enter summary
judgment when there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law, Ariz. R. Civ. P. 56(a).
¶6 A negligence claim requires the plaintiff to prove four
elements: (1) a duty requiring the defendant to conform to the standard of
care, (2) the defendant’s breach of that standard, (3) a causal connection
between the defendant’s conduct and the resulting injury, and (4) actual
damages. Quiroz v. ALCOA Inc., 243 Ariz. 560, 563–64, ¶ 7 (2018).
¶7 A business owner has “an affirmative duty to make [its]
premises reasonably safe for use by invitees.” Tribe, 133 Ariz. at 519. An
owner is not liable to the invitee, however, “for injuries from dangerous
conditions which are obvious or as well known to the invitee as to the
[owner].” Id. But if the owner “should anticipate the harm from the
condition despite its obviousness, he may be liable for physical injury
caused by that condition.” Id. Whether a defendant “should have
anticipated the harm if open and obvious are issues to be decided by a jury
in its capacity as triers of fact.” Id.
¶8 The superior court granted summary judgment to Defendants
because the dangerous condition was open and obvious. That was error
because “[t]he fact that the injured party knew of the danger is not
conclusive,” id., and the record evidence created a fact question on whether
Defendants should have anticipated the harm. First, Kalil produced a
schematic for the beverage display directing that six-packs should be
stacked in two rows on the top shelf, but the six-packs were stacked in three
rows when Plaintiff was injured. Second, Safeway produced an incident
report from its employee blaming Kalil for deviating from the schematic.
Third, that Safeway employee testified that she compared the beverage
display to Kalil’s schematic to ensure that products were properly located.
Based on this evidence, a reasonable person could infer the Defendants
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Decision of the Court
knew, or should have known, the beverage display presented an
unreasonable risk of harm to customers.
¶9 The superior court relied on Daugherty v. Montgomery Ward,
102 Ariz. 267 (1967). Daugherty is distinguishable, however, because the
defendant there possessed no superior knowledge about the dangerous
condition from which to anticipate the harm. Because there were disputed
issues of material fact at summary judgment, we reverse and remand.1
CONCLUSION
¶10 We vacate the superior court’s grant of summary judgment
and remand for further proceedings consistent with this decision. We
award taxable costs to Plaintiff upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: JT
1 Defendants also argue that Quiroz overruled “older authority relying
on foreseeability as part of the duty analysis,” but Quiroz held that
“foreseeability may still be used in determining breach and causation.” 243
Ariz. at 565, ¶ 13.
4