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What happened

West Frontier Condominiums HOA, Inc. 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 or notifying the association, Lynn replaced an overhead light fixture in the 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.

Lynn’s children, Christopher and Amy Bergeson, brought a wrongful-death action against the Levengoods and West Frontier, claiming the association had negligently failed to use reasonable care to discover and fix faulty wiring above the ceiling fan. The Court of Appeals twice reversed the trial court’s entry of summary judgment in the association’s favor, and in 2019 the case proceeded to a jury trial on the negligence claim.

The jury returned a verdict for the Bergesons, apportioning seventy-five percent of the fault to West Frontier and twenty-five percent to non-parties. After the trial court entered an amended judgment for the Bergesons, the association filed a renewed motion for judgment as a matter of law or, alternatively, for a new trial. The trial court denied the motions, and West Frontier appealed.

On appeal, the association argued the plaintiffs had presented no evidence it breached any duty to Lynn. The court agreed there was no evidence the association created the defect: the units were built in the mid-1980s and the electrical work passed Town of Payson inspection in 1984-85, years before the HOA incorporated in March 2007. The plaintiffs’ ‘mere continuation’ successor-liability theory, resting solely on A.R. Teeters & Associates, failed because they showed no assumption of liabilities and no genuine continuation, and even a continuation would not have created a defect that pre-dated the association.

On the question of notice, the court held the trial court abused its discretion by admitting testimony about kitchen code violations (missing nail plates, exposed wiring behind the range, and a misplaced outlet) that were discovered only after the fire. That evidence was irrelevant and unfairly prejudicial: it was unrelated to the living-room ceiling wiring, one of the plaintiffs’ own experts admitted the kitchen defects had nothing to do with the fire, and it allowed the jury to impute notice the association never had. A duty to inspect arises only when there is a reason to suspect a defect, and no prior similar incident provided one.

Finally, the court held the non-delegable-duty instruction (drawn from Ft. Lowell-NSS Ltd. Partnership v. Kelly and Restatement (Second) of Torts Section 422) was erroneous. It reached ‘third parties’ who were neither employees nor independent contractors, no association employee or contractor was shown to be negligent, and the doctrine could not be used to make the association liable for a unit owner’s own alteration of a fixture the recorded Declaration made the owner responsible to maintain. Because the irrelevant evidence and the flawed instruction together held the association to a standard approaching strict liability, the court vacated the judgment and remanded for entry of judgment in favor of West Frontier.

This decision illustrates that an Arizona condominium association is not an insurer of its members’ safety. Under the Arizona Condominium Act (A.R.S. Section 33-1247(A)) and Martinez v. Woodmar IV Condominiums Homeowners Ass’n, an association owes a duty of reasonable care to maintain the common elements, but ordinary premises-liability principles still require proof that the association created a dangerous condition, actually knew of it, or should have discovered it in the exercise of reasonable care. A duty to inspect arises only when the association has some reason to suspect a latent defect. The court refused to let a tragic outcome, standing alone, convert that reasonable-care standard into strict liability for a hidden wiring condition the association had no way to know about, especially where a unit owner altered a fixture without the notice or permission the recorded Declaration required. Just as important, this is an unpublished memorandum decision. Under Ariz. R. Sup. Ct. 111(c) and Ariz. R. Civ. App. P. 28, it does not create legal precedent and may be cited only as authorized by rule; it is persuasive at most, not binding. It is useful as an educational illustration of how notice, relevance, and non-delegable-duty doctrines are applied to a condominium association, and of the practical value of the maintenance-and-alteration allocations in a condominium Declaration, but it should not be treated as a controlling statement of Arizona law. It also shows how evidentiary and jury-instruction errors can independently require reversal even after a jury verdict.

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