THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

SWANN, Judge

¶1 Plaintiffs/Appellants Francisca and Eduardo Elvira appeal the superior court's summary judgment for Defendant/Appellee Old Navy, Inc., on their claim for negligence. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY1

¶2 On July 22, 2006, while shopping in an Old Navy store with her sister, Francisca was injured when a sign fell from a display table and hit her foot. The Elviras sued Old Navy, alleging that it was negligent because it failed adequately to maintain its premises and failed to discover or correct a hazardous condition in the store.

¶3 Old Navy moved for summary judgment, arguing that the Elviras could not establish that a "dangerous condition" existed at the time of the incident because they had no evidence regarding how Francisca's injury occurred. It cited Francisca's deposition testimony that neither she nor her sister, Eloisa Cabrera, saw the sign fall. In response, the Elviras produced Eloisa's affidavit, in which she avowed that she did see the sign fall from a display table onto Francisca's heel, and the affidavit of mechanical engineer Mark Cannon, who opined that the unsecured sign and its location on a display table were a "dangerous condition." The court denied the motion.

¶4 Thereafter, Old Navy again moved for summary judgment on the ground that the sign was not in an "unreasonably dangerous" condition because there was no evidence that it was on the edge of the display table or otherwise placed in a dangerous manner. Citing Eloisa's deposition testimony, as well as the opinion of its expert, Dr. Frank Gomer, Old Navy argued that the evidence showed there was nothing dangerous about the sign or how it was placed on the table. The Elviras contended that the sign could be dangerous, even if it was not hanging over the edge of the table, because it was unsecured. The court granted the motion and entered judgment for Old Navy.

¶5 The Elviras timely appeal. We have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶6 The trial court may grant summary judgment when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1). Summary judgment "should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). The Elviras argue the superior court erred by granting Old Navy's motion for summary judgment because a material question of fact exists regarding whether Old Navy satisfied its duty to make its premises safe for Francisca's use.

¶7 A plaintiff in a negligence action must show the existence of a duty, a breach of that duty, and an injury proximately caused by the breach. Berne v. Greyhound Parks of Ariz., Inc., 104 Ariz. 38, 39, 448 P.2d 388, 389 (1968). A business owner "is not an insurer of the safety of a business invitee, but only owes a duty to exercise reasonable care to his invitees."2 Walker v. Montgomery Ward & Co., Inc., 20 Ariz.App. 255, 258, 511 P.2d 699, 702 (1973). This duty requires the premises owner to discover and correct, or warn of, hazards "which the [premises owner] should reasonably foresee as endangering an invitee." Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985), superseded on other grounds by statute, A.R.S. § 33-1551 (2011), as recognized in Wringer v. United States, 790 F.Supp. 210, 212 (D. Ariz. 1992). Whether a premises owner has exercised the care required to keep the premises in a reasonably safe condition for invitees is usually a question of fact for the jury. Walker, 20 Ariz. App. at 258, 511 P.2d at 702. The trial court may rule as a matter of law, however, if no reasonable jury could find that the defendant breached the duty of care it owed the plaintiff. Flowers v. K-Mart Corp., 126 Ariz. 495, 497, 616 P.2d 955, 957 (App. 1980).

¶8 To show that a premises owner breached the duty of care it owed to an invitee, a plaintiff must prove (1) that the "dangerous condition is the result of [the] defendant's acts"; (2) that the "defendant had actual knowledge or notice of the existence of the . . . dangerous condition"; or (3) that "the [dangerous] condition existed for such a length of time that in the exercise of ordinary care the [defendant] should have known of it and taken action to remedy it." Walker, 20 Ariz. App. at 258, 511 P.2d at 702; Preuss v. Sambo's of Ariz., Inc., 130 Ariz. 288, 289, 635 P.2d 1210, 1211 (1981).3

¶9 The Elviras contend that the superior court erred because there is a material question of fact regarding breach of the duty of care and because the motion involved the same facts and law raised in the first motion, which the court denied. They argue that they presented sufficient evidence4 to raise a material question of fact regarding whether Old Navy created a hazardous condition by placing the unsecured sign on the lower level of a two-tiered display table.5

¶10 A defective condition becomes actionable only "when [it] creates an unreasonable risk of harm," Burke, 12 Ariz. App. at 71, 467 P.2d at 783, as the standard of care does not impose "liability for conditions from which an unreasonable risk of harm is not to be anticipated." Berne, 104 Ariz. at 41, 448 P.2d at 391. "Since people can and daily do sustain injuries from almost all conceivable conditions under a multitude of varying circumstances, and since the possessor of the premises is not an insurer of the safety of invitees, the line between liability and nonliability must be drawn at some point." Id. We cannot presume that a defective condition created an unreasonable risk of harm simply because an injury occurred. Burke, 12 Ariz. App. at 71, 467 P.2d at 783 ("The mere fact that an injury has been sustained does not give rise to a presumption that a defective condition created an unreasonable risk of harm."); Berne, 104 Ariz. at 41, 448 P.2d at 391 ("Liability cannot be determined from hindsight . . . . From hindsight one could always postulate how an accident might have been prevented.").6

¶11 Here, the undisputed testimony showed that before the accident, the sign was "on the edge" of the lower level of a two-tiered display table. There was no evidence that the base of the sign was partially over the edge of the table or otherwise precariously placed.7 Given this evidence, the superior court correctly determined that the evidence could give rise to no reasonable inference but that the likelihood of harm was slight and therefore, as a matter of law, the condition was not unreasonably dangerous. Burke, 12 Ariz. App. at 72, 467 P.2d at 784.

¶12 We also observe that the reasoning of Burke applies with even greater force today than when it was written. The standard under which the Burke court operated prohibited summary judgment when there was the "slightest doubt as to the facts," Peterson v. Valley Nat'l Bank of Phoenix, 90 Ariz. 361, 362, 368 P.2d 317, 318 (1962). Under the more modern Orme School standard, evidence creating the "slightest" doubt is no longer sufficient to forestall summary judgment.

¶13 Finally, we address the Elviras' argument that the superior court erred by granting Old Navy's second motion for summary judgment because it involved the same facts and issues of law raised in the first motion. They cite Eloisa's affidavit, offered in opposition to Old Navy's first motion for summary judgment, in which she avowed that the sign was "on the edge" of the display table. The Elviras argue that because the court determined that a question of fact precluded summary judgment on Old Navy's first motion, it erred by granting the second motion based upon Eloisa's deposition testimony regarding the placement of the sign, because her testimony was consistent with the avowals contained in her affidavit. However, in ruling on the second motion for summary judgment, the superior court specifically stated that it denied the first motion for summary judgment because, based upon Eloisa's affidavit, a reasonable juror might "conclude that the sign may have been sticking off part of the table and was in a, maybe in a precarious position." The court went on to say that because Old Navy had deposed Eloisa and established that there was no evidence that the sign was "off the edge" of the table, there was "nothing about that sign in terms of its position or its construction that would give notice to the store owner that it was dangerous, potentially dangerous." Accordingly, we find no error.

CONCLUSION

¶14 For the foregoing reasons, we affirm.

MICHAEL J. BROWN, Judge, JON W. THOMPSON, Judge, concurring.