Arizona Duty of Landowner to Invitee
In Arizona, a government possessor of land owes a duty to public invitees "to conform to a particular standard of conduct to protect against foreseeable and unreasonable risks of harm." Bellezzo v. State, 174 Ariz. 548, 550-51, 851 P.2d 847, 849-50 & n.3 (App. 1992)(stating that because plaintiff was a public invitee, State had a duty to discover and warn or protect her against unreasonable risks of harm); Markowitz, 146 Ariz. at 355, 706 P.2d at 367 (concluding that the State owed a duty to plaintiff because it "invited and indeed encouraged plaintiff and others to come to a parcel of land specifically dedicated to extensive public use and enjoyment").
Thus, to determine the existence of a duty, we must address whether the City "possessed" the Channel and whether Mark Tostado was an "invitee."
Restatement (Second) of Torts 328E(a) (1965) defines a possessor of land as "a person who is in occupation of the land with intent to control it." See also Clarke v. Edging, 20 Ariz. App. 267, 272-73, 512 P.2d 30, 35-36 (App. 1973)(relying on Restatement to determine whether lessor was a "possessor of land" and liable for the injuries of a child trespasser).
Unlike the issue of duty, which is a question of law, whether a party exercises control over the land is "a question of fact which ordinarily should be left to the fact finder." Sanchez v. City of Tucson, 191 Ariz. 128, 130, 133, PP 10, 23, 953 P.2d 168, 170, 173 (1998)(quoting Lewis v. N.J. Riebe Enters., Inc. 170 Ariz. 384, 389, 825 P.2d 5, 10 (1992)); see also Siddons v. Bus. Props. Dev. Co., 191 Ariz. 158, 159, PP 4-6, 953 P.2d 902, 903 (1998)(holding that whether landlord was a possessor was an issue of material fact).