Business-Invitee Duty Is Not Condition-Dependent: “Unreasonably Dangerous” and “Open and Obvious” Go to Breach, Not Duty

I. Introduction

Perez v. Circle K Convenience Stores, Inc. (Ariz. Mar. 12, 2025) addresses a recurring fault line in Arizona tort law: whether, in a premises-liability case, a court may deny the existence of a landowner’s duty by deciding—at the duty stage—that the alleged condition was not “unreasonably dangerous” or was “open and obvious.”

Plaintiff Roxanne Perez alleged she tripped over a single case of bottled water placed on the floor as an end-cap display while shopping at a Circle K Convenience Stores, Inc. location. The superior court granted summary judgment for Circle K on duty, reasoning the display was open and obvious and did not pose an unreasonable risk of harm sufficient to “impose a duty.” A divided court of appeals affirmed. The Arizona Supreme Court reversed, clarifying the proper boundary between duty and breach in invitee premises cases and explaining the limited role of case-specific facts in duty analysis after Dinsmoor v. City of Phoenix.

II. Summary of the Opinion

The Court held that because Perez was Circle K’s business invitee, Circle K owed her a duty to keep the store in a reasonably safe condition while she shopped. The questions whether the end-cap display was an unreasonably dangerous condition and whether it was open and obvious are not duty questions; they bear on whether Circle K breached the standard of reasonable care.

The Court vacated the court of appeals’ opinion except paragraphs 30–31 (an evidentiary issue not before the Supreme Court), reversed summary judgment, and remanded for further proceedings. Because Circle K’s summary-judgment motion challenged only duty, the Court declined to decide whether Circle K might still prevail on breach or causation as a matter of law on remand.

III. Analysis

A. Precedents Cited

1. Core negligence framework and the place of “duty”

  • Cal-Am Props. Inc. v. Edais Eng'g Inc. and Dabush v. Seacret Direct LLC are cited for the standard four elements of negligence/premises liability, including that a plaintiff must establish the defendant owed a duty to conform to a standard of conduct protecting the plaintiff from an unreasonable risk of harm.
  • Dinsmoor v. City of Phoenix is cited for de novo review of summary judgment and de novo review of duty, but it becomes the central interpretive battleground: defendants had been reading Dinsmoor to allow courts to decide whether a condition is “unreasonably dangerous” as part of duty.
  • Quiroz v. ALCOA Inc. is cited for the proposition that duties arise from special relationships recognized by the common law or from public policy.

2. Business-invitee duty and Arizona’s longstanding premises-liability line

  • Tribe v. Shell Oil Co. and Nicoletti v. Westcor, Inc. support the foundational rule that a proprietor owes invitees an affirmative duty to make premises reasonably safe. Chiara v. Fry's Food Stores of Ariz., Inc., Preuss v. Sambo's of Ariz., Inc., and Walker v. Montgomery Ward & Co., Inc. reinforce the invitee duty and the typical slip/trip-and-fall proof structure (creation, actual notice, or constructive notice).
  • McMurtry v. Weatherford Hotel, Inc. is used to illustrate that the invitee duty is framed as a duty of reasonable care, and that safeguarding/warning against “unreasonably dangerous conditions” is part of how breach is evaluated.

3. Dinsmoor’s “scope of the relationship” limitation (and why it does not convert breach facts into duty facts)

  • Dinsmoor v. City of Phoenix held that a duty grounded in a special relationship applies only to “risks that arise within the scope of the relationship,” and that such scope is generally “bounded by geography and time.” The Court in Perez emphasizes Dinsmoor’s use of antecedent facts to locate the risk in time/space (inside or outside the relationship), not to decide whether the risk was “unreasonable” in the breach sense.
  • Boisson v. Ariz. Bd. of Regents and Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40 cmt. f. (Am. L. Inst. 2012) supply the “bounded by geography and time” framing and the list-based approach to special relationships.
  • Avitia v. Crisis Preparation & Recovery Inc. is cited (a concurrence/dissent) to confirm that examining case-specific facts can be consistent with Gipson v. Casey when the purpose is to determine whether an unreasonable risk arose within the special relationship’s scope.
  • The Court notes that some decisions had interpreted Dinsmoor more aggressively, including Ager v. A Better Today Recovery Servs. LLC, and it expressly rejects that extrapolation in the premises context.

4. Markowitz and the “open and obvious/unreasonably dangerous” facts belong to breach

  • Markowitz v. Ariz. Parks Bd. is the opinion’s centerpiece. Perez treats Markowitz as controlling on the duty/breach divide in land-possessor cases: duty arises from invitee status on possessed land; whether the condition presented an unreasonable risk or was open and obvious goes to breach. The Court also references the court of appeals decision it reversed there: Markowitz v. Ariz. Parks Bd., 146 Ariz. 260 (App. 1984).
  • Gipson v. Casey provides the anti-conflation principle: defining duty in case-specific terms risks collapsing duty into breach and causation.
  • Additional reinforcement comes from: Coburn v. City of Tucson (standard of care describes what must be done to satisfy duty), Beach v. City of Phoenix (obvious character of obstruction relates to breach, not duty), Tribe v. Shell Oil Co. (dangerousness/open and obvious are jury issues as triers of fact), Shaw v. Petersen and McLeod ex rel. Smith v. Newcomer (open-and-obvious/unreasonably dangerous are breach-related factual questions).

5. Proper (limited) antecedent facts in the duty inquiry

  • The Court acknowledges that some fact questions may be necessary to decide duty—e.g., whether a statute applies, or whether plaintiff is an invitee/licensee/trespasser, or whether the alleged risk arose within the scope of a special relationship. It cites Westerman v. Ernst as an example where status (invitee vs. trespasser) could preclude summary judgment on duty.

6. Summary judgment remains available—on breach and causation when supported

  • To answer the court of appeals’ concern that recognizing duty would eliminate summary judgment, the Court points to cases permitting dispositive rulings on breach/cause: McFarland v. Kahn, Cummings v. Prater, and Gipson v. Casey (footnote) for the general proposition; and Grafitti-Valenzuela ex rel. Grafitti v. City of Phoenix, Coburn v. City of Tucson, and Church of Jesus Christ of Latter Day Saints v. Superior Court for examples where no breach (or no causation) was found as a matter of law.

B. Legal Reasoning

  1. Duty is triggered by the special relationship and its scope, not by adjudicating the condition’s dangerousness. The Court restates that the business-invitee relationship creates an affirmative duty to make and keep premises reasonably safe. The only “case-specific” question relevant to duty here is whether Perez was an invitee and whether the risk arose while she was within that relationship (i.e., while shopping). She was, so duty exists as a matter of law.
  2. Dinsmoor is clarified, not expanded. The Court explains that Dinsmoor permits limited fact-consideration to determine where and when the risk arose relative to the special relationship’s time-and-space bounds. Dinsmoor does not authorize courts to decide, at the duty stage, whether the risk was “unreasonable” in the breach sense.
  3. Markowitz controls the duty/breach line in premises cases. Just as Markowitz rejected denying duty based on “unreasonable risk” or “open and obvious,” Perez holds the same reasoning applies to Circle K’s end-cap display. Whether the display was unreasonably dangerous and/or open and obvious is evaluated under breach (and potentially comparative fault), not duty.
  4. Procedural restraint on remand. Because Circle K sought summary judgment only on duty, the Court declines to decide breach/cause in the first instance, emphasizing those issues should be developed, briefed, and ruled on by the trial court before appellate review.

C. Impact

  • Re-centers premises cases on invitee status for duty. After Perez, defendants in ordinary business-invitee cases should expect that arguing “not unreasonably dangerous” or “open and obvious” will not defeat duty. Those arguments must be framed as breach (and sometimes causation) issues.
  • Limits Dinsmoor-based “no duty” motions in premises litigation. Perez curbs an emerging trend—reflected in the court of appeals majority here and in decisions like Ager v. A Better Today Recovery Servs. LLC—to convert dangerousness into a duty gatekeeping mechanism.
  • Preserves summary judgment, but channels it to the correct element. The Court signals that dispositive rulings remain available on breach/cause (e.g., no notice, reasonable inspection, lack of causal link), citing multiple examples. The practical shift is doctrinal hygiene: courts should not short-circuit cases by relabeling breach determinations as duty determinations.
  • Likely increases jury involvement where facts are disputed. Because “open and obvious” and “unreasonably dangerous” are typically fact-intensive, more premises cases may survive the duty stage and turn on evidentiary development and jury evaluation—unless the defendant can show no reasonable juror could find breach or causation.

IV. Complex Concepts Simplified

  • Duty vs. Breach: Duty asks whether the defendant owed the plaintiff a legally recognized obligation of reasonable care (often based on relationship/status). Breach asks whether the defendant failed to act as a reasonable person/business would under the circumstances. Perez holds “unreasonably dangerous” and “open and obvious” generally evaluate how careful the defendant was (breach), not whether any obligation existed (duty).
  • Special relationship “scope” (time and geography): Some duties exist only while the relationship is “on”—for example, while a student is under school control (as in Dinsmoor v. City of Phoenix) or while a customer is shopping in a store. Courts may look at facts to decide whether the harm-producing risk arose inside that window.
  • “Open and obvious”: This does not automatically erase the landowner’s duty. It is typically relevant to whether the landowner acted reasonably (breach) and may also bear on comparative fault (how much the plaintiff’s own conduct contributed).
  • “Unreasonably dangerous condition”: A shorthand for a condition posing a risk beyond what a reasonable invitee should be expected to encounter without precautions. Under Perez, this is mainly a breach question: should the business have removed it, modified it, or warned about it?

V. Conclusion

Perez reaffirms and strengthens Arizona’s traditional premises-liability architecture: in business-invitee cases, duty is established by the invitee relationship and whether the risk arose while the invitee was within that relationship. Courts may not deny duty by deciding—at the threshold—that a condition was not “unreasonably dangerous” or was “open and obvious.” Those issues belong to breach (and sometimes causation), where they can be decided by a jury or, in appropriate cases, as a matter of law on a properly presented motion.

Equally important, the decision cabins Dinsmoor v. City of Phoenix to its intended function—locating risks within the time-and-space scope of a special relationship—while preserving Markowitz v. Ariz. Parks Bd. as the guiding precedent preventing duty from collapsing into an early merits determination.