2020-10-30 — Bergeson v. West Frontier Condominiums HOA, Inc. ↑ top

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IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

CHRISTOPHER BO BERGESON AND AMY LYNN BERGESON,
AS SURVIVING CHILDREN OF LYNN RENEE BERGESON, DECEASED,
Plaintiffs/Appellees,

v.

WEST FRONTIER CONDOMINIUMS HOA, INC.,
AN ARIZONA CORPORATION,
Defendant/Appellant.

No. 2 CA-CV 2019-0117
Filed October 30, 2020

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Gila County
No. CV20080002
The Honorable Bryan B. Chambers, Judge

VACATED AND REMANDED

COUNSEL

Lloyd Law Group of Arizona P.L.L.C., Payson
By Arthur E. Lloyd

and

Miller, Pitt, Feldman & McAnally P.C., Tucson
By Stanley G. Feldman and Timothy P. Stackhouse
Counsel for Plaintiffs/Appellees

BERGESON v. W. FRONTIER CONDOS. HOA, INC.
Decision of the Court

2

Tyson & Mendes LLP, Phoenix
By Lynn M. Allen
Counsel for Defendant/Appellant

MEMORANDUM DECISION

Judge Espinosa authored the decision of the court, in which Presiding Judge
Eppich and Judge Eckerstrom concurred.

E S P I N O S A, Judge:
¶1
West Frontier Condominiums HOA, Inc. (“West Frontier” or
“the HOA”) appeals from the trial court’s judgment, following a jury
verdict, in favor of Christopher and Amy Bergeson (“the Bergesons”),
arguing the court erred by denying West Frontier’s motion for judgment as
a matter of law, admitting irrelevant and prejudicial evidence, and
improperly instructing the jury. West Frontier also contends the jury’s
verdict was contrary to the evidence. For the following reasons, we vacate
the court’s judgment and remand for entry of judgment consistent with this
decision.
Factual and Procedural Background
¶2
West Frontier is the unit owners’ association for the Frontier
Condominiums in Payson, Arizona. In October 2005, unit owners David
and Joan Levengood rented their unit to Lynn Bergeson. In 2006, with the
Levengoods’ permission, but without seeking permission from West
Frontier or providing any notice that she was doing so, Lynn replaced an
overhead light fixture in the Levengoods’ unit with a ceiling fan. In 2007, a
smoldering fire ignited in the wiring above the fan, producing lethal levels
of carbon monoxide that killed Lynn.
¶3
The Bergesons, Lynn’s children, brought a wrongful death
suit against the Levengoods and West Frontier. This court twice reversed
the trial court’s entry of summary judgment in West Frontier’s favor,1 and

1See Bergeson v. W. Frontier Condos. HOA, Inc., No. 2 CA-CV 2016-
0134, ¶¶ 1, 25 (Ariz. App. Aug. 10, 2017) (mem. decision); Bergeson v. W.

BERGESON v. W. FRONTIER CONDOS. HOA, INC.
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in 2019, the case proceeded to trial on the Bergesons’ claim that West
Frontier had negligently caused Lynn’s death.2 The jury returned a verdict
for the Bergesons, apportioning seventy-five percent of fault to West
Frontier and twenty-five percent of fault to non-parties. After the trial court
entered an amended judgment in favor of the Bergesons, West Frontier filed
a renewed motion for judgment as a matter of law or in the alternative a
motion for new trial. The court denied its motions, after which West
Frontier brought this appeal. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1) and 12-2101(A)(1), (5)(a).
Discussion
¶4
West Frontier contends the trial court erred by denying its
motion for judgment as a matter of law (JMOL). We review the denial of a
JMOL motion de novo but view the evidence in the light most favorable to
the Bergesons. See Dupray v. JAI Dining Servs. (Phoenix), Inc., 245 Ariz. 578,
¶ 11 (App. 2018). A court may grant JMOL only when “a reasonable jury
would not have a legally sufficient evidentiary basis to find for [a] party”
on an issue that is necessary to the party’s claim or defense. Ariz. R. Civ. P.
50(a)(1). A court “may not weigh the credibility of witnesses or resolve
conflicts of evidence and reasonable inferences drawn therefrom,” McBride
v. Kieckhefer Assocs., Inc., 228 Ariz. 262, ¶ 11 (App. 2011), but “must give ‘full
credence to the right of the jury to determine credibility, weigh the
evidence, and draw justifiable conclusions therefrom,’” id. (quoting State v.
Clifton, 134 Ariz. 345, 348 (App. 1982)).
¶5
The Bergesons’ wrongful death action was based on their
claim that West Frontier had negligently failed to use reasonable care to

Frontier Condos. HOA, Inc., No. 2 CA-CV 2013-0045, ¶¶ 1, 22 (Ariz. App.
Dec. 24, 2013) (mem. decision).
2The Bergesons and the Levengoods entered into an agreement in
which the Levengoods stipulated to entry of judgment against them and
assigned their claims against West Frontier’s insurer to the Bergesons. The
insurer thereafter sought and received a declaratory judgment in federal
district court stating that any claim based on the Levengoods’ liability was
not covered by the insurance policy and the insurer had no duty to defend
the Levengoods. Am. Fam. Ins. Grp. v. Bergeson, No. CV09-0360-PHX-DGC,
2010 WL 3705344, at *2, *5 (D. Ariz. Sept. 14, 2010). The Ninth Circuit
affirmed the district court’s ruling. Am. Fam. Ins. Co. v. Bergeson, 472
F. App’x 604, 606 (9th Cir. 2012).

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discover and fix faulty wiring above the ceiling fan in the Levengoods’
living room. The basic elements of negligence are “a duty owed to the
plaintiff, a breach thereof and an injury proximately caused by the breach.”
Clark v. New Magma Irrigation & Drainage Dist., 208 Ariz. 246, ¶ 8 (App. 2004)
(quoting Ballesteros v. State, 161 Ariz. 625, 627 (App. 1989)). West Frontier
argues the trial court should have granted it JMOL because the Bergesons
failed to present any evidence that it breached its duty to Lynn.
¶6
At trial, the Bergesons introduced evidence that electrical
code violations in the ceiling, specifically the lack of a junction box and
unsecured electrical wiring, “could [have] create[d] some sort of” short
circuit in the ceiling. Although West Frontier controverted that theory
below and continues to do so on appeal,3 it chiefly maintains the Bergesons
failed to introduce any evidence of negligence on its part. Specifically, West
Frontier argues the Bergesons did not present evidence that it breached its
duty to maintain common areas by either causing the dangerous condition,
having actual notice of it, or having any reason to be aware of it. See Preuss
v. Sambo’s of Ariz., Inc., 130 Ariz. 288, 289 (1981).
¶7
The jury was instructed on a business owner’s duty to use
reasonable care to warn of or remedy an unreasonably dangerous condition
of which it had notice and that it could find West Frontier had notice of an
unreasonably dangerous condition if (1) West Frontier or its employees
created the condition, (2) West Frontier or its employees actually knew of
the condition, or (3) the condition existed for a sufficient length of time that
West Frontier or its employees, in the exercise of reasonable care, should
have known of it. See Andrews v. Fry’s Food Stores of Ariz., 160 Ariz. 93, 95
(App. 1989); Walker v. Montgomery Ward & Co., 20 Ariz. App. 255, 258 (1973).
West Frontier challenges the sufficiency of the evidence with regard to

3West Frontier disputes the Bergesons’ evidence, pointing to its
expert’s testimony that it was improper installation of the ceiling fan that
caused the fire, while the Bergesons’ expert “had no opinion as to what
specific electrical fault caused the fire.” But there was sufficient evidence
for a jury to infer that the fire was more probably than not caused by the
wiring in the ceiling rather than poor installation of the fan. See Brand v.
J.H. Rose Trucking Co., 102 Ariz. 201, 206 (1967) (“[I]f a possible reasonable
inference is present, the issue must be presented to the jury for its
determination.”); see also Ray v. Bush, 89 Ariz. 177, 179-80 (1961) (jury
permitted to infer unguarded lamp sitting on flammable material caused
fire despite no evidence lamp was knocked over).

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creation of the condition and constructive notice of the condition, and we
address those elements in turn.4
Creation of Condition
¶8
West Frontier contends there was no evidence that it or its
contractors were responsible for the creation of the dangerous condition,
either the lack of a junction box or any unsecured electrical wiring. It points
to evidence establishing that the condominiums were built in the mid-
1980s, and the electrical work on the building, which included the
Levengoods’ unit, was inspected and approved by the Town of Payson in
February 1985. Although the Condominium Declaration establishing the
Frontier Condominium was recorded in 1986, West Frontier was not
incorporated until March 2007.
¶9
The Bergesons concede that West Frontier did not incorporate
until years after the condominiums were built, but argue the HOA should
be deemed to stand in the shoes of the builder-developer of the
condominiums and any negligence at that time be attributed to it. They
assert “[t]he incorporation of West Frontier did not create a new entity but
merely changed the form of the statutorily required association.” And, it is
a “mere continuation” of the unincorporated association and liable to the
same extent because “[t]he developer and original declarant for West
Frontier were the same person.” The only authority they cite for that
proposition is A.R. Teeters & Assocs., Inc. v. Eastman Kodak Co., 172 Ariz. 324,
329 (App. 1992), a successor liability case. There, this court explained that
absent fraud to avoid debts, an assumption agreement, or the purchasing
corporation acting as a “mere continuation” or “reincarnation” of the
former, a transfer of assets and customers between corporations does not
make the successor corporation liable for the debts and liabilities of the
former. We thus rejected the argument that “substantial similarity of
ownership and control” between the two companies, alone, was “enough
to impose the debts and liabilities” of the former company on the successor.
Id. at 330-31.
¶10
The Bergesons presented no evidence of an assumption of
liabilities or that West Frontier was a “mere continuation” of a predecessor
entity, and they have not explained how this case supports holding West
Frontier liable for the creation of the allegedly deficient condition where the

4It is undisputed that West Frontier did not have actual knowledge
of the condition.

BERGESON v. W. FRONTIER CONDOS. HOA, INC.
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developer obtained the necessary permits and passed electrical inspections
in 1985. Moreover, the developer was no longer involved with the
condominiums since at least 1995.
5 We therefore find Teeters
distinguishable and inapposite, see Miller v. Hehlen, 209 Ariz. 462, n.7 (App.
2005) (to be a “successor in interest,” party must retain same rights as the
original owners without a change in ownership; change in form only not in
substance), and the Bergesons have not presented any other relevant
authority, nor are we aware of any, upon which to anchor its claim of
vicarious liability on this basis.
¶11
Furthermore, even assuming, without deciding, that West
Frontier is a continuation of the condominium association first created in
1986 and therefore liable to the same extent, we agree that it nevertheless
would not be responsible for the creation of the dangerous condition. The
evidence in the record establishes that the condominiums were built in the
mid-1980s, and the electrical work on the building that included the
Levengoods’ unit was inspected and approved by the Town of Payson in
October 1984 and February 1985, rather than in 1987 as the Bergesons
claimed at oral argument before this court, citing a form “inspection
request” for electrical work in the building. That document does not
demonstrate the electrical work had not previously been completed and
passed inspection, nor is it, in light of the other evidence in the record,
sufficient to withstand West Frontier’s JMOL motion on this basis. See Ariz.
R. Civ. P. 50(a)(1) (JMOL should be granted when “a reasonable jury would
not have a legally sufficient evidentiary basis to find for [a] party” on an
issue that is necessary to the party’s claim or defense). Thus, neither West
nor its employees or independent contractors can be deemed to have
created the defective condition in the ceiling of the Levengoods’ unit.
Constructive Notice of Dangerous Condition
¶12
We next consider West Frontier’s argument that the
Bergesons presented no evidence that West Frontier knew or should have
known of the condition of the wiring above the ceiling, including any
electrical problems or incidents that might have put West Frontier on notice
to investigate or inspect for latent wiring deficits. Both of the Bergesons’

5Another entity, West Frontier LLC, was the declarant for the first
amended declarations recorded in 1995, but it is unclear from the record
what, if any, relationship that LLC had to the defendant West Frontier here.
The original builder-developer of the condominiums, however, was not
involved with the LLC in 1995 or defendant West Frontier in 2007.

BERGESON v. W. FRONTIER CONDOS. HOA, INC.
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expert witnesses testified about possible causes of the fire, but neither
provided any reason for West Frontier to have known or suspected there
were any defects in the ceiling wiring. The Bergesons claim they
demonstrated such grounds, however, by presenting expert testimony
about electrical code violations in the Levengoods’ kitchen. We reject that
argument for several reasons.
Admission of Unrelated Kitchen Evidence
¶13
Over West Frontier’s objections, the Bergesons introduced
testimony that after cutting holes in the kitchen wall, their experts
determined there were missing “nail plates” where they were required
behind a section of drywall. There was also some exposed wiring behind
the range that was not visible until the range had been moved away from
the wall, and it was determined the electric outlet for the range was not
“where [it] is supposed to be to comply with [the] Code”; all situations
discovered through investigation of the Levengoods’ unit following the
accident. But there was no evidence that those “code violations” were
previously known to West Frontier or had been brought to its attention by
any condominium occupants, or that they were related to the wiring in the
living room ceiling.6 Thus, the kitchen deficits were irrelevant to the issue
of West Frontier’s notice of electrical issues that caused or contributed to
the accident, and that testimony was not competent evidence of its alleged
negligence regarding the ceiling wiring in the living room. See Ariz. R.
Evid. 401 (evidence is relevant if it makes fact “more or less probable than
it would be without the evidence” and “the fact is of consequence in
determining the action”); cf. Ong v. Pepsi Cola Metro. Bottling Co., 18 Ariz.
App. 457, 461 (1972) (trial court erred by instructing jury on potential
building code violations when no evidence of their relation to the cause of
fire had been admitted). And as West Frontier points out, absent any
reasons to suspect faulty wiring, it would not be reasonable for it to be
expected to cut open some or all ceilings and walls or remove all light
fixtures in the privately owned units.7 See Piccola v. Woodall, 186 Ariz. 307,

6In fact, one of the Bergesons’ experts expressly acknowledged that
the code violations in the kitchen had nothing to do with the cause of the
fire.
7The Bergesons introduced no evidence, nor do they assert, that
opening ceilings or removing light fixtures to inspect related electrical
wiring is the standard of care for a building owner or condominium
association to discover defective conditions, either routinely or after the

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311 (App. 1996) (landlord’s duty to inspect arises when “reason to suspect”
a defect); see also Brookover v. Roberts Enters., Inc., 215 Ariz. 52, ¶ 13 (App.
2007) (no notice of dangerous condition where accident was first reported
to occur and no evidence that business owner was aware of any previous
injuries).
¶14
We thus agree with West Frontier that the trial court abused
its discretion in admitting irrelevant testimony about the kitchen. See
Waddell v. Titan Ins. Co., 207 Ariz. 529, ¶ 28 (App. 2004). The existence of
code violations that were not discovered until after the accident could not
impute notice to West Frontier of the electrical defects that caused Lynn’s
death, particularly in the absence of any reason to suspect or investigate
latent wiring defects. See Piccola, 186 Ariz. at 311 (landlord’s duty of
reasonable care requires inspection if “reason to suspect defects”). The
Bergesons assert, “Actual notice of the dangerous condition is not
necessary. It is sufficient that the condition existed for a long enough period
of time that, in the exercise of reasonable care, the homeowners association
should have discovered it.” But they do not explain how the passage of
time would be germane here and they acknowledge Piccola’s requirement
of a “reason to suspect” defects, without identifying any such reason. See
id.; see also Sheppard v. Crow-Barker-Paul No. 1 Ltd. P’ship, 192 Ariz. 539, ¶ 24
(App. 1998) (duty to inspect arises when owner has reason to suspect
defect).
¶15
Nor did the Bergesons present any evidence of any previous
occurrences or accidents that might have provided such a reason to inspect
light fixtures or related wiring. Cf. Slow Dev. Co. v. Coulter, 88 Ariz. 122, 125
(1960) (evidence of other similar accident admissible to prove notice of
dangerous condition). Unlike the kitchen-violation evidence here, in cases
where previous incidents were relevant to proving notice, the defendants
actually knew of the incidents before the subsequent injury occurred. See,
e.g., Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 450 (1982) (evidence of
previous similar incidents relevant to prove notice of dangerous condition
or negligence in allowing condition to continue); Burgbacher v. Mellor, 112
Ariz. 481, 483 (1975) (evidence of similar prior accidents tends to prove

passage of some period of time. See Preuss, 130 Ariz. at 290 (no breach of
duty absent owner’s failure to comply with reasonable standard of care to
discover dangerous condition and no showing condition had existed for
sufficient length of time); Walker, 20 Ariz. App. at 259 (rejecting argument
that failure to initiate periodic inspection routine raises jury question of
breach of reasonable care).

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notice of a condition). Because there was no evidence that West Frontier
knew of any similar occurrences or wiring defects in the Levengoods’ or
any other condominium unit before the unprecedented ceiling fire that
occurred here, the Bergesons cannot claim notice to West Frontier on this
basis. See Slow Dev. Co., 88 Ariz. at 125-26.
¶16
Further,
the admission of the kitchen-code-violation
testimony was unfairly prejudicial to West Frontier. That improper
evidence allowed the jury to conclude West Frontier was at fault for Lynn’s
death on the basis of electrical issues that it was entirely unaware of. Absent
that testimony, the Bergesons could not have argued in closing, as they did,
that West Frontier should have known of hidden problems with the wiring
above the ceiling fan—an essential pillar of their theory of breach—because
of the code violations in the kitchen. See Preuss, 130 Ariz. at 289 (duty to
use reasonable care to warn of or remedy unreasonably dangerous
condition of which defendant had notice). Because the jury was permitted
to rely on this irrelevant evidence in reaching its verdict, its admission
cannot be deemed harmless and was reversible error. See Ariz. R. Evid. 402
(irrelevant evidence inadmissible); Brown v. U.S. Fid. & Guar. Co., 194 Ariz.
85, ¶ 7 (App. 1998); Elia v. Pifer, 194 Ariz. 74, ¶ 23 (App. 1998) (admission of
evidence prejudicial if it permits jury to decide case on factors other than
those related to negligence).
Non-Delegable Duty Theory
¶17
The Bergesons further maintain that even if West Frontier
lacked notice of the dangerous condition, it remains liable because it
improperly ceded responsibility for its “non-delegable duty,” citing Ft.
Lowell-NSS Ltd. P’ship v. Kelly, 166 Ariz. 96, 104 (1990), and the related
instruction provided to the jury at trial. In Ft. Lowell, our supreme court
held that under Restatement (Second) of Torts (1965), generally followed in
Arizona, and specifically under § 422, a landowner could not avoid liability
for the negligence of its independent contractor for work entrusted to it,
regardless of whether the landowner had notice of the condition. Id. at 102-
04.
¶18
Over West Frontier’s objection,8 the jury was instructed that
West Frontier “can be liable for the negligence of its employees and third

8The Bergesons’ contention that West Frontier waived any objections
to the non-delegable duty instruction is not supported by the record. West
Frontier objected to the instruction in a response to the Bergesons’ motion

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parties or independent contractors even if the HOA itself took every
precaution and did not know of the dangerous condition.” To the extent
the instruction permitted the jury to conclude that West Frontier could be
liable for the negligence of “third parties” who were neither its employees
nor independent contractors, the instruction was an incorrect statement of
law. See id. at 104. Moreover, the instruction was not appropriate in the
absence of any evidence that any West Frontier employee or independent
contractor was even involved, let alone negligent.9 See id. (“Although no
fault of the possessor need be shown, the negligence of the independent
contractor must be proven before liability may attach to the employer.”).
¶19
At trial, the Bergesons claimed negligence by West Frontier
maintenance employee Marc Furry. West Frontier had hired Furry as a
“manager” to inspect the premises and perform routine maintenance, and
he was also “expected to inspect and discover any unsafe conditions.” The
Bergesons, however, point to nothing that would have prompted Furry to
conduct any inspection inside the Levengoods’ unit or reasonably know of
any problems in the ceiling wiring. See Preuss, 130 Ariz. at 289 (premises
liability requires actual knowledge of condition or that owner should have
known of the condition “in the exercise of ordinary care” (quoting Walker,
20 Ariz. App. at 258)). West Frontier’s former president testified that he
had “no idea” how he would discover the allegedly faulty electrical work
“without tearing out walls.” As noted above, the Bergesons never
introduced any evidence, or even argued, that such an undertaking was
reasonably required as a basis for imputing notice of the condition to the
HOA. Rather, they suggested inspections could have occurred “when a

in limine, specifically arguing their “reliance on Ft. Lowell is misplaced.”
West Frontier also objected when settling final instructions with the trial
court, contending “I do not believe Fort Lowell says that even if the HOA
itself took every precaution and it did not know the dangerous condition
[—] that’s argument.”
9West Frontier did not make this argument when settling final jury
instructions, nor did it need to when, in context, the instruction referred to
West Frontier’s (“its”) employees, third parties, and subcontractors. In its
JMOL motion West Frontier specifically asserted “there are no facts in this
case from which any jury could conclude that the HOA hired contractors or
subcontractors to install that electrical work, because it was already
completed two years before.”

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unit sells or when tenants move in and out,” but did not explain how that
would have led to discovery of any electrical deficits in the ceiling.
¶20
In the absence of any evidence of negligence on Furry’s part,
or that of any other agent delegated by West Frontier, the non-delegable
duty instruction was not supported by acts or failure to act on the part of
any West Frontier employee or contractor. See Ft. Lowell, 166 Ariz. at 104.
Moreover, we agree with West Frontier that the instruction also was in
conflict with the landowner’s liability instruction on a business owner’s
duty to use reasonable care to warn of or remedy an unreasonably
dangerous condition of which it had notice, resulting in confusion, and
leading the jury to conclude that West Frontier was negligent despite the
legal standard and evidence to the contrary.
¶21
The
Bergesons
additionally
maintain,
however,
that
notwithstanding any lack of evidence regarding West Frontier’s employees
or contractors, West Frontier should be viewed as “entrust[ing] unit owners
with the responsibility of altering the common elements” involving such
things as fixtures and ceiling wiring, due to its alleged failure to enforce
permission and notice requirements. They point out that Furry was not
even aware that West Frontier’s permission was required.10 But the non-
delegable duty instruction could not, on the evidence presented, properly
refer to any delegation of duties to unit owners. Rather, as noted above, it

10West Frontier’s former president testified that unit owners are not
permitted to make physical modifications to “common element[s]” such as
electrical fixtures without prior permission from West Frontier. Although
the Bergesons argue unit owners were not informed of this, it is stated in
the condominium Declarations, a copy of which had been provided to and
reviewed by David Levengood:
Each Owner shall be responsible for the
maintenance, repair, or replacement of any . . .
electrical fixtures . . . that serve that Unit
only . . . . Each Owner will be responsible for
care [and] maintenance . . . of the Limited
Common Elements that are within his exclusive
(or joint if [they] serve more than one Unit)
control . . . . Owners may not, however,
modify . . . or in any way alter . . . Limited
Common Elements without prior written
approval of the Board . . . .

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should only have addressed the delegation of duties to West Frontier’s
employees and independent contractors. See Simon v. Safeway, Inc., 217
Ariz. 330, ¶ 20 (App. 2007) (“A nondelegable duty is one ‘for which the
employer must retain responsibility, despite proper delegation’” to an
independent contractor. (quoting Ft. Lowell, 166 Ariz. at 101)). The policy
reasons for imputing the negligence of an independent contractor to a
premises owner certainly do not support holding West Frontier liable for
any independent negligence of a unit owner. See Ft. Lowell, 166 Ariz. at 102
(under Restatement § 422, allocating risk of injury to premises owner
justified in part because owner “in a position to prevent or minimize the
risk of injury by selecting a competent contractor”). And, in fact, the jury
was separately instructed to determine the relative degrees of fault among
West Frontier and the unit owners and the unit owners’ independent
contractor; thus any negligence on the part of the Levengoods, Lynn
Bergeson, or their contractor was not properly attributable to West Frontier.
The non-delegable duty instruction was therefore erroneous and
misleading. See id. at 104 (non-delegable duty exception “does not impose
absolute liability”); cf. Spur Feeding Co. v. Fernandez, 106 Ariz. 143, 148 (1970)
(trial court commits reversible error to instruct on issue if no evidence to
support the instruction because it “invites the jury to speculate as to
possible non-existent circumstances”); Ong, 18 Ariz. App. at 460 (jury
instruction not supported by evidence reversible error).
¶22
Finally, the Bergesons’ summations to the jury are telling in
that they highlight the lack of notice to West Frontier—there was no
argument that the HOA, Furry, or anyone else directly connected to the
HOA, was aware of the faulty wiring and failed to take action; the claim
was rather, as noted earlier, that it should somehow have been discovered
due to the latent wiring deficits in the Levengoods’ kitchen, which had not
been discovered until after Lynn’s death. Not only was there no evidence
that West Frontier had any reason to suspect the wiring in the ceiling was
not code compliant, but it was denied the opportunity to enforce the notice
and permission requirements and to conduct or even consider an inspection
of the wiring or proper installation of the fan, due to Lynn’s and the
Levengoods’ undisclosed removal and replacement of the existing fixture.
Cf. Preuss, 130 Ariz. at 289 (notice imputed where owner should have
known of the condition “in the exercise of ordinary care” (quoting Walker,
20 Ariz. App. at 258)). In short, the Bergesons failed to present any evidence
that West Frontier had notice of a defective condition or delegated its duty
of care, and the trial court thus erred in denying its motion for JMOL. See
Ariz. R. Civ. P. 50(a); Sheppard, 192 Ariz. 539, ¶ 24 (duty to inspect arises
when owner “has reason to suspect” defect (quoting Piccola, 186 Ariz. at
311)); Ontiveros v. Borak, 136 Ariz. 500, 505 (1983) (causation requires proof

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13
that defendant’s conduct “helped cause the final result” and the result
“would not have happened without the defendant’s act”).11
Conclusion
¶23
Because the jury was permitted to rely on irrelevant evidence
and an inapplicable jury instruction to impute breach of duty to West
Frontier despite its lack of notice, the HOA was effectively held to an
improper standard approaching strict liability for the tragic accident that
occurred. But that is not the law. See A.R.S. § 33-1247(A); Preuss, 130 Ariz.
at 289 (premises owner liable for dangerous conditions of which it has
notice); Restatement § 343; see also Martinez v. Woodmar IV Condos.
Homeowners Ass’n, 189 Ariz. 206, 210-11 (1997) (association owes duty of
reasonable care to maintain common areas); cf. Vineyard v. Empire Mach. Co.,
119 Ariz. 502, 505 (App. 1978) (strict liability relieves plaintiff from proving
defendant’s specific acts of negligence and protects plaintiff from defense
of notice).
Disposition
¶24
For the foregoing reasons, the judgment is vacated and the
case is remanded to the trial court for entry of judgment in favor of West
Frontier and any further proceedings consistent with this decision.

11Because we conclude the trial court committed reversible error by
failing to grant West Frontier’s JMOL motion and admitting irrelevant
testimony, we need not address West Frontier’s remaining arguments.