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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JANIECE R. GILLIS, Plaintiff/Appellant,
v.
NORTHSAND, LLC, et al., Defendants/Appellees.
No. 1 CA-CV 21-0397
FILED 4-26-2022
Appeal from the Superior Court in Maricopa County
No. CV2019-005893
The Honorable Andrew J. Russell, Judge
VACATED AND REMANDED
COUNSEL
Riviere Law Group, PLLC, Phoenix
By Roger W. Riviere, Daniel T. Benchoff
Counsel for Plaintiff/Appellant
Jones, Skelton & Hochuli, P.L.C., Phoenix
By J. Gary Linder, Petra L. Emerson, Kimberly K. Page
Counsel for Defendants/Appellees
GILLIS v. NORTHSAND, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.
T H U M M A, Judge:
¶1 Plaintiff Janiece Gillis appeals from the entry of summary
judgment on her negligence and premises liability claims against
defendants Northsand, LLC (Sandbar), and Justin Jereb. Because the record
presented does not support entry of summary judgment, the ruling is
vacated, and this matter is remanded for further proceedings consistent
with this decision.
FACTS AND PROCEDURAL HISTORY
¶2 Northsand operates Sandbar Mexican Grill in Phoenix. One
day in July 2018, Gillis and about 15 friends and family arrived at the
Sandbar around 6:00 p.m. for her “birthday happy hour.” The group went
to the Sandbar patio to drink and eat appetizers. Later, they saw a “huge
dog” and its owners on the patio. Jereb, Sandbar’s manager on duty who
was circulating around the patio “[e]very five minutes,” noticed the dog,
which “was sitting. He looked hot. He was panting.” Jereb agreed the dog
“was very big, about 110 pounds” and looked like a blue nose pit bull.
¶3 After sunset and after spending several hours on the patio,
Gillis approached the dog. Gillis, who is five feet tall, spoke with the dog’s
owners, who said he was friendly. Precisely what happened next is
disputed. After first petting the dog, defendants claim Gillis “began to pull
on the dog’s head and ears, with her face nearly pressed to the dog’s face,”
and the dog bit her. Gillis testified that, while she was standing and petting
the dog, the dog first licked and then bit her: “it was like two licks and then
a super fast bite. It wasn’t even a growl, a bark. It was just lick, lick, and
then bite.” Gillis was seriously injured and took an Uber to the hospital,
where she was admitted. The next day, she underwent surgery involving
40 stitches on her face.
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GILLIS v. NORTHSAND, et al.
Decision of the Court
¶4 Sandbar’s video tape system captured the incident, and the
time stamp shows the dog biting Gillis at 10:54 p.m. Gillis later testified that
her Uber receipt showed the ride beginning at 10:29 p.m. A Sandbar waiter
testified the incident occurred at or just before 10:00 p.m. Jereb testified the
video time stamp likely was incorrect, estimating the incident occurred
around 8:00 p.m.
¶5 Sandbar had a policy regarding dogs on the patio. Although
dogs were allowed during the day, at night, the policy changed. The
Sandbar lead server, who had worked there for six years, testified
management had implemented a “no dogs allowed” on the patio policy
“after 10:00 P.M.” He added “after 10:00 P.M., it’s 21 and up [on the patio]
and it kind of becomes more of a party scene. The music gets a little bit
louder, and [Sandbar] didn’t want any of that commotion around.” Jereb
confirmed the Sandbar policy that no non-service dogs were allowed on the
patio after 10:00 p.m., adding the prohibition was “just because it’s . . . more
of a club atmosphere, I guess, if you will.”
¶6 In the commotion after the dog bit Gillis, the dog’s owners
quickly paid their Sandbar bill in cash and left. Notwithstanding the video
tape of the incident, the dog’s owners have never been located.
¶7 In March 2019, Gillis filed this lawsuit. As applicable here,1
Gillis alleged premises liability and negligence claims against Sandbar and
Jereb, in his individual capacity. Defendants moved for summary
judgment, and after full briefing and oral argument, the court granted the
motion. As to Jereb, the court found that, individually, he owed Gillis no
duty. As to Gillis’ premises liability claim, the court found that Jereb was
neither the property owner nor the tenant and the court found “no case
where a plaintiff maintained a premises liability claim against someone in
Jereb’s position.”
¶8 As to Sandbar, the court noted it had a duty to keep the
premises (including the patio) reasonably safe for invitees, but that Sandbar
was not an insurer “liable for every injury suffered on the business’s
premises.” Although acknowledging the “reasonably safe” issue typically
would be a jury decision, the court noted Gillis provided no evidence
1 Gillis named fictitious defendants as well as the operator of the shopping
mall where Sandbar is located. None of those defendants are parties to this
appeal. Gillis also alleged negligence per se claims against Sandbar and
Jereb, which the superior court rejected on summary judgment, a ruling
Gillis does not challenge on appeal.
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GILLIS v. NORTHSAND, et al.
Decision of the Court
suggesting that the dog was dangerous, and no one had actual knowledge
or notice that the dog would bite Gillis. Finding that the dog was only at
Sandbar for a short period of time, the court added that even if the dog was
a dangerous condition, “such condition did not exist ‘for such a length of
time that in the exercise of ordinary care” Sandbar should have known
about and remedied the condition.
¶9 Gillis unsuccessfully sought reconsideration, and this appeal
followed. This court has jurisdiction over Gillis’ appeal pursuant to Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1) (2022).2
DISCUSSION
¶10 This court reviews the entry of summary judgment de novo,
“viewing the evidence and reasonable inferences in the light most favorable
to the party opposing the motion,” Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12
(2003), to determine “whether any genuine issues of material fact exist,”
Brookover v. Roberts Enters. Inc., 215 Ariz. 52, 55 ¶ 8 (App. 2007). This court
will affirm the entry of summary judgment if it is correct for any reason.
Hawkins v. State, 183 Ariz. 100, 103 (App. 1995). When uncontroverted,
“facts alleged by affidavits attached to motions for summary judgment may
be considered as true.” Portonova v. Wilkinson, 128 Ariz. 501, 503 (1981).
I. The Superior Court Properly Found Jereb Did Not Owe a Duty to
Gillis.
¶11 Although stated in different ways at times, for her premises
liability and negligence claims, Gillis was required to plead and prove (1)
duty; (2) breach of duty; (3) cause-in-fact; (4) legal (or proximate) cause and
(5) resulting damages. See, e.g., Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9 (2007);
Alcombrack v. Ciccarelli, 238 Ariz. 538, 540 ¶ 6 (App. 2015); Boisson v. Ariz.
Bd. of Regents, 236 Ariz. 619, 622 ¶ 5 (App. 2015) (citing cases). Whether a
duty exists is a matter of law. Alcombrack, 238 Ariz. at 540 ¶ 6. The question
of duty focuses on the relationship, if any, between the plaintiff and the
specific defendant. Gipson, 214 Ariz. at 145 at ¶¶ 18-19.
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated. Gillis does not
appeal the negligence per se arguments.
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GILLIS v. NORTHSAND, et al.
Decision of the Court
¶12 Gillis sued Jereb in his individual capacity, not as an
employee or agent of Sandbar. The superior court found that Sandbar owed
Gillis a duty as an invitee, but that Gillis “has not identified any duty that
Jereb, as an individual, owed to her.” Gillis challenges that ruling on appeal.
¶13 Citing Arizona authority, Gillis correctly argues that an
employer like Sandbar may be held liable for the negligent acts of its
employees “under the doctrine of respondeat superior.” See Engler v. Gulf
Interstate Eng’g, Inc., 230 Ariz. 55, 57 ¶ 9 (2012). But Gillis then argues,
without any supporting authority, that because Sandbar owed a duty to
her, that “duty should be imputed to Sandbar’s employees and agents such
as Jereb.” Respondeat superior, as its name suggests, holds an employer
responsible for negligent acts of its employees, but it does not result in an
employee being responsible for the negligent acts of an employer. And
there is no allegation that Jereb was acting outside of the scope of his
employment. Accordingly, the superior court properly concluded that
Jereb did not owe a duty to Gillis in his individual capacity.
II. The Record Presented Does Not Show Gillis’ Claims Against
Sandbar Fail as a Matter of Law.
¶14 Gillis argues summary judgment was not appropriate on her
negligence and premises liability claims against Sandbar. Gillis claims that
“[t]he question of whether Sandbar was negligent or made and kept its
premises safe for customers when it allowed a 110-pound Pitbull/mastiff
on the patio at 10:54 p.m. is for the jury.” She further argues that whether
the owner of a premises exercised the necessary care to keep the premises
in a reasonably safe condition for invitees is a question of fact for the jury.
¶15 Although not an insurer of the safety of the patio, Sandbar
had “an affirmative duty to make and keep [its] premises reasonably safe
for customers.” Contreras v. Walgreens Drug Store No. 3837, 214 Ariz. 137, 138
¶ 7 (App. 2006); accord Preuss v. Sambo’s of Ariz., Inc., 130 Ariz. 288, 289 (1981)
(noting business “is not an insurer of their safety and is not required to keep
the premises absolutely safe”). Although citing no Arizona premises
liability dog bite cases, the parties on appeal (and the superior court in its
ruling) cite to slip-and-fall cases as providing the applicable legal analysis.
As set forth in Walker v. Montgomery, 20 Ariz. App. 255 (1973), and later
adopted in Preuss,
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GILLIS v. NORTHSAND, et al.
Decision of the Court
[T]he general proposition [is] that in order to
impose liability on the proprietor for injuries
sustained by an invitee, the plaintiff must prove
either, 1) that the foreign substance or
dangerous condition is the result of defendant’s
acts or the acts of his servants, or 2) that
defendant had actual knowledge or notice of the
existence of the foreign substance or dangerous
condition, or 3) that the condition existed for
such a length of time that in the exercise of
ordinary care the proprietor should have
known of it and taken action to remedy it (i.e.,
constructive notice).
Walker, 20 Ariz. App. at 258, quoted in Preuss, 130 Ariz. at 289.
¶16 The superior court rejected all three alternatives as imposing
a duty on Sandbar. Focusing on the third alternative, the court concluded
that, even if it constituted a dangerous condition, “the dog was only at
Sandbar for a short period of time.” The record presented, however,
contains disputed issues of material fact about the application of this third
alternative.
¶17 Jereb admitted to seeing the “very big” dog, weighing “about
110 pounds” on the patio before it bit Gillis. Jereb testified that the dog
looked like a pit bull and “looked hot. He was panting.” The precise time
the dog and its owners arrived at Sandbar is disputed. From the facts
presented, however, a jury could conclude that the dog had been on the
patio for thirty minutes to an hour before the incident. Moreover, Sandbar’s
policy prohibited non-service dogs on the patio after 10:00 p.m. According
to Jereb, this policy was given a concern that too much stimuli in this
nightclub atmosphere might cause a dog to act unpredictably. Given
Sandbar’s admission that the patio became a “party scene” after 10:00 p.m.,
and non-service dogs were not allowed, a jury could determine that the
policy was to prevent a dangerous condition for patrons on the patio.
¶18 Although the parties dispute when the dog bit Gillis, a jury
could conclude she was bitten nearly an hour after dogs were not allowed
by Sandbar policy. And given Jereb’s testimony that he walked around the
patio “every five minutes” on the night of the incident, a jury could
conclude that Sandbar (through Jereb) had knowledge of the dog being on
the patio after 10:00 p.m. contrary to Sandbar’s policy. These disputed
issues of material fact relevant to this third Walker alternative preclude
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GILLIS v. NORTHSAND, et al.
Decision of the Court
entry of summary judgment. See Tom v. S.S. Kresge Co., Inc., 130 Ariz. 30, 33
(App. 1981) (although primarily addressing the first “mode of operation
rule” Walker alternative, which contemplates “the reasonable anticipation
of patrons’ carelessness under the circumstances,” also concluding
summary judgment was improper under the third Walker alternative where
“a reasonable inference from” the record could establish that the defendant
“in the exercise of ordinary care, should have known of the condition,”
adding that “where the facts of what caused the condition are difficult to
ascertain, issues of negligence are not proper subjects for summary
judgment”).
¶19 Sandbar counters that the policy of prohibiting non-service
dogs on the patio after 10:00 p.m. is “not evidence of industry standards
and the record contains no admissible standard-of-care expert opinion.”
Sandbar cites no authority for these propositions, which are not dispositive
in any event. Gillis argues the policy is evidence that Sandbar knew that
allowing non-service dogs on the patio after 10:00 p.m. could create a
dangerous condition, but it failed to act on that knowledge by failing to
comply with its own policy, not that the policy was an industry standard.
As to Sandbar’s expert evidence argument, Gillis tendered an opinion by
Dr. Richard Polsky that the dog’s presence constituted an unreasonably
dangerous condition. On appeal, Sandbar claims this expert testimony
report is inadmissible. Sandbar, however, did not object to the evidence
when Gillis offered it to the superior court, meaning that argument is
waived. See Ariz. R. Civ. P. 7.1(f)(3)(A). Moreover, the record presented
does not support Sandbar’s argument that the superior court found the
report inadmissible. No objection was made to the report and the superior
court did not state it was excluding the report.
¶20 Other authorities cited by Sandbar do not negate these
disputed issues of material fact. This is not a statutory claim against the
owner of a dog, negating the applicability of Spirlong v. Browne, 236 Ariz.
146 (App. 2014) (construing A.R.S. §§ 11-1001, et seq.). This case also does
not turn on “the appropriate standard of care,” distinguishing Nunez v. Pro.
Transit Mgmt., 229 Ariz. 117 (2012). And there is no claim that duty here
turns on foreseeability. See Quiroz v. Alcoa Inc., 243 Ariz. 560, 565 ¶ 12 (2018)
(citing Gipson v. Kasey, 214 Ariz. 141 (2007)). Nor has Sandbar shown that
the standards applied here were abrogated or otherwise altered by Orme
Sch. v. Reeves, 166 Ariz. 301 (1990).
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GILLIS v. NORTHSAND, et al.
Decision of the Court
¶21 To be sure, it is unknown at this point what a jury would
make of these disputed material facts. But summary judgment is not
appropriate if there are disputed issues of material fact. Here, viewing the
facts in the light most favorable to Gillis, a trier of fact could find for the
version of the facts she presents and, on those facts, could find for Gillis on
her negligence and premises liability claims. Accordingly, summary
judgment on those claims is not appropriate.
CONCLUSION
¶22 The superior court’s finding that Jereb did not owe Gillis a
duty is affirmed. The entry of summary judgment for Sandbar on Gillis’
negligence and premises liability claims is vacated and this matter is
remanded for further proceedings.
AMY M. WOOD • Clerk of the Court
FILED: AA
8