Alcombrack v. Ciccarelli – 12/3/2015

December 9, 2015

Arizona Court of Appeals Division One declines to adopt Restatement and holds that landlord does not owe duty of care to worker invited onto property by landlord’s lender without landlord’s knowledge.

A landlord defaulted on a loan for a house that was occupied by a tenant.  The lender hired a locksmith to change the locks.  The locksmith, not knowing that the house was occupied, began drilling through a door to change the locks.  The tenant, not knowing that the locksmith was there to change the locks, mistook him for an intruder and shot him.  The locksmith brought a negligence claim against the landlord.

To succeed in a negligence claim, a plaintiff must establish that the defendant owed a duty of care as a matter of law.  A duty may arise out of a contract, an undertaking, certain categorical relationships (such as a landowner-invitee relationship), or other relationships formed through the parties’ conduct.  One such duty formed by conduct is described by the Restatement (Second) of Torts § 321, under which an actor who “realizes or should realize that it has created an unreasonable risk of causing physical harm to another, . . . is under a duty to exercise reasonable care to prevent the risk from taking effect.”

In a split decision, the Court held that there was no duty of care.  The majority and dissent both agreed that the landlord did not have a landowner-invitee relationship with the locksmith because a landowner not in possession of property owes no duty to a third party who is injured on the property.  The majority also held that Arizona should not adopt § 321 of the Restatement (Second) of Torts because that section is superseded by the Restatement (Third) of Torts, and because it is vague and over-inclusive.  The dissent disagreed, arguing that the Restatement (Second) § 321 is consistent with existing Arizona law and should apply in this case to create duty of care.

The parties also argued over whether Arizona should adopt either § 7 or § 39 of the Restatement (Third) of Torts.  Under § 7, “[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm,” and under § 39, “[w]hen an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.”  The Court expressly declined to adopt the Restatement (Third), in part because “such a fundamental change in the common law requires an evaluation of competing public policies that is more appropriately addressed to the Arizona Supreme Court.”

Judge Thumma delivered the opinion, in which Judge Howe joined.  Judge Johnsen dissented.