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Diaz v. Phoenix Lubrication Services, Inc - 5/4/2010

Arizona Court of Appeals Division One Holds That Defendant’s Limited Undertaking of Performing an Oil Change With Tire Pressure Check Did Not Create a Duty to Inspect Tires for Worn Tread.


Plaintiff Joseph Bryant Diaz (“Bryant”) purchased an oil change from Defendant which included, among other things, a check of the vehicle’s tire pressure.  Defendant does not sell or replace tires but does offer tire inspection and rotation services for a fee; Bryant did not purchase these services.  A few weeks after purchasing the oil change from Defendant, Bryant lost control of his vehicle and the car rolled, causing Bryant serious injuries.  Bryant and his parents (collectively “Plaintiffs”) filed suit against various defendants, claiming the worn condition of the tread on the rear tires on the vehicle caused or contributed to the accident.  Defendant was not initially named in the suit but was later brought in as a third-party defendant.  Plaintiffs then added Defendant as a defendant to the case, asserting a claim for negligence.  Plaintiffs alleged that during the course of the services provided by Defendant, Defendant should have discovered and notified Bryant of the worn tread on the rear tires.  Defendant filed motion for summary judgment which was initially denied on grounds of untimeliness but then granted by the trial court on a motion for reconsideration.  Plaintiffs timely appealed.  On appeal, Plaintiffs argued that Defendant owed them a duty to inspect the vehicle’s tires because the services included a tire pressure check and because the standard in the industry called for Defendant to inspect all visible parts for hazards.   

The Arizona Court of Appeals affirmed.  Applying principles set forth in Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228 (2007), the Court concluded that Defendant did not owe Plaintiffs a legal duty that would permit recovery.  Analyzing the relationship between the parties, the Court explained that the relationship did not create a duty because the agreement for services between Bryant and Defendant did not include an overall tire inspection.  The Court further reasoned that because Defendant’s actions did not create the risk resulting from the work tires, public policy considerations do not create a duty from Defendant to Plaintiffs.  Although the Court did not adopt the Restatement (Third) of Torts, it found guidance from Section 37 of that Restatement.  Finally, the Court concluded that any alleged industry standard would apply to whether a duty of care was breached, not whether a duty exists.       

Judge Gemmill authored the opinion, Judges Weisberg and Hall concurred.

Posted By: Kristin L. Windtberg 

Posted On: 5/11/2010