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Knauss v. DND Neffson Co.11/6/1997
Honorable Bernardo P. Velasco, Judge
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Gabroy, Rollman & Bossé, P.C.
This wrongful death action arose from the after-hours abduction of decedent, Ellen Marie Knauss, from a shopping mall parking lot and her ensuing rape and murder. Decedent's surviving parent, plaintiff/appellant William Knauss, sued defendants/appellees DND Neffson Company, Oracle-Wetmore Company, and Forest City Enterprises, Inc., owners/operators of the Tucson Mall (the mall defendants), alleging they breached their common law duty to protect or warn invitees against foreseeable criminal acts of third parties on mall property, causing his daughter's death. Plaintiff also sued Walden Book Company, a mall tenant, alleging it breached a voluntarily assumed duty to inform mall management that decedent and others would be working after hours so that the mall could make appropriate security arrangements.
The trial court granted summary judgment for Walden and partial summary judgment for the mall defendants, concluding they owed no common law duty to decedent. Plaintiff challenges those rulings in this appeal. In their cross-appeal, the mall defendants contend the trial court should have dismissed the action because the personal representative of decedent's estate, rather than decedent's father, is the only proper plaintiff under A.R.S. § 12-612. We reject that contention, affirm the judgment for Walden, and reverse the partial summary judgment for the mall defendants because it is incompatible with our supreme court's recent decision in Martinez v. Woodmar IV Condominiums Homeowners Ass'n, ___ Ariz. ___, 941 P.2d 218 (1997).
FACTUAL AND PROCEDURAL BACKGROUND
We view the facts and reasonable inferences therefrom in the light most favorable to plaintiff. Martinez. Decedent, an employee of RGIS Inventory Specialists, was performing an inventory at Walden in the Tucson Mall on Sunday night, September 19, 1993. The mall had closed at 5:00 p.m. that day, and the mall's security personnel had left the premises at approximately 9:00 p.m. Walden's manager had made arrangements for RGIS to conduct the inventory and knew that its employees would be working that evening. Walden typically notified mall management to obtain permission for employees to work in the mall after hours. In keeping with that practice, Walden's manager believes she informed the mall that an inventory would be performed after closing time on September 19.
After finishing her work around 11:45 p.m., decedent walked to her car in the mall parking lot. Two young men, David Trostle and Jack Jewitt, Jr., accosted her, forced her into her car, and drove her to the desert, where she was sexually assaulted, shot in the head, and killed. Decedent's body was discovered on September 24, after Trostle and Jewitt had been arrested.
In their motions for summary judgment, all defendants contended they owed decedent no duty. The mall defendants also argued that the criminal acts against her were unforeseeable. In opposition, plaintiff asserted, inter alia, that the mall defendants owed decedent a common law duty and that all defendants had voluntarily assumed a duty towards her. He also requested additional time for discovery under Rule 56(f), Ariz. R. Civ. P., 16 A.R.S.
The trial court ruled that this court's opinion in Martinez, 187 Ariz. 408, 930 P.2d 485 (App. 1996), which the supreme court later vacated, was "dispositive of the plaintiff's action on the issue of common law duty." The trial court later denied plaintiff's motion for reconsideration of that ruling, but granted his motion under Rule 56(f) "for purposes of det
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