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S Development Company v. Pima Capital Management Co.8/30/2001
pellees from damaging the property; 3) the appellants' property manager would not allow the appellees to inspect inside the walls of either building; and 4) all visible plumbing was copper piping. This is logical because, although a defect could be discovered upon inspection, preventing a party from conducting an inspection effectively turns what may be a patent defect into an undiscoverable-in-fact latent defect.
Simply stated, in the face of an "as is" sale, the rule of caveat emptor continues to apply and the vendor may be insulated from liability for nondisclosure of facts basic to the transaction if the facts at issue are patent, or if the purchaser has been given an appropriate opportunity to discover latent defects. See Universal Inv. Co. v. Sahara Motor Inn, Inc., 127 Ariz. 213, 215, 619 P.2d 485, 487 (App. 1980) (applying caveat emptor to the sale of real property when the defect would have been discovered upon a reasonable inspection and the evidence did not indicate that the purchaser was prevented from inspecting). If the vendor fails to disclose a known latent defect or fails to give appropriate opportunity to discover latent defects, caveat emptor does not apply and the vendor must disclose the defect or, at a minimum, be subject to tort liability for nondisclosure.
"We review de novo a trial court's ruling on a motion for [judgment as a matter of law]." Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 302, 6, 995 P.2d 735, 738 (App. 1999). "A trial court should grant a motion for [judgment as a matter of law] only when the facts presented in support of a claim have so little probative value that reasonable people could not find for the claimant." Id. Moreover, "we must view the evidence most favorably to sustaining the jury's verdict, and must not disturb that verdict 'if reasonable minds could differ as to the inferences to be drawn from the facts.'" Anderson v. Nissei ASB Mach. Co., 197 Ariz. 168, 172, 10, 3 P.3d 1088, 1092 (App. 1999) (quoting Adroit Supply Co. v. Elec. Mut. Liab. Ins. Co., 112 Ariz. 385, 390, 542 P.2d 810, 815 (1975)). added) (quoting 23 Am. Jur. 2d Fraud and Deceit § 80), rev'd for a trial on the merits, 378 Mich. 721 (Mich. 1966); see also Brooks v. Ervin Constr. Co., 116 S.E.2d 454, 457 (N.C. 1960) ("Where material facts are accessible to the vendor only, and he knows them not to be within the reach of the diligent attention, observation and judgment of the purchaser, the vendor is bound to disclose such facts, and make them known to the purchaser."); Kaze v. Compton, 283 S.W.2d 204, 207 (Ky. 1955) (" ctionable fraud or misrepresentation by a vendor may be by concealment or failure to disclose a hidden condition or a material fact . . . . If deception is accomplished, the form of the deceit is immaterial."); Rothstein v. Janss Inv. Corp., 113 P.2d 465, 467 (Cal. Dist. Ct. App. 1941) (holding that a vendee's personal inspection of property is not a defense to fraud when the vendor knew of the defects, "and 'where material facts are accessible to the vendor only, and he knows them not to be within the reach of the diligent attention and observation of the vendee, the vendor is bound to disclose such fact to the vendee.'" (quoting Clauser v. Taylor, 112 P.2d 661, 662 (Cal. Dist. Ct. App. 1941))).
All of the issues raised with regard to the "as is" clauses are questions of fact for the jury. It is for the jury to determine if the defective plumbing was a fact basic to the transaction, see Restatement (Second) of Torts § 551 cmt. j, whether a defect is latent or patent, see Tassan v. United Dev. Co., 410 N.E.2d 902, 910 (Ill. App. Ct. 1980) ("It would appear that whether a defect is latent or patent is generally a question of fact since i
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