Restatement (Second) of Torts 352 In Arizona
In Dorman v. Swift & Co., 162 Ariz. 228, 231, 782 P.2d 704, 707 (1989), the Arizona Supreme Court declined to apply 352 to bar the liability of a former property owner for the negligent construction and installation of machinery on the property.
The Dorman court declined to decide the abstract question whether 352 "always or never applies"; rather it "[left] open the question whether it might apply in a different case." Id.
The following year, in Andrews ex rel. Kime v. Casagrande, 167 Ariz. 71, 75, 804 P.2d 800, 804 (App. 1990), this court concluded that "if section 352 is ever to apply in Arizona, it is in just such a case as the one now before us." There, the Court applied 352 to relieve homeowner-vendors of liability for a dangerous condition on their property that was unconcealed and obvious at the time of sale. Id.
In Menendez v. Paddock Pool Constr. Co., 172 Ariz. 258, 268, 836 P.2d 968, 978 (App. 1991), the Court concluded that the liability relief that owner-vendors enjoyed under 352, according to Andrews, should extend to commercial builder-vendors as well.
Andrews and Menendez, however, were expressly cases of "vendor nonliability." See id. at 267, 836 P.2d at 977. No Arizona appellate court has imposed the liability barrier of 352 where ownership has not changed hands.