In Alcombrack v. Ciccarelli, No. 1 CA-CV 13-0148, 2015 Ariz. App. LEXIS 291 (Ct. App. Dec. 3, 2015), a premise liability action, a locksmith sued, among others, a couple that owned a home, after he was mistakenly shot by the tenant. In a 2-1 decision, the Arizona Court of Appeals affirmed summary judgment in favor of the couple, holding that a landowner not in possession of property owes no duty to a third party who is injured on the property. The majority further rejected the locksmith's request to adopt either Restatement (Third) of Torts § 39 or Restatement (Second) of Torts § 321 as the law in Arizona, stating that both were contrary to existing Arizona law. The majority further refused to adopt the Restatement (Third) of Torts § 7, because "adoption of the Third Restatement would do more than just modify existing Arizona negligence law; it would substantially change Arizona's longstanding conceptual approach to negligence law by effectively eliminating duty as one of the required elements of a negligence action."
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