Berrett v. Albertsons Inc., 293 P.3d 1108

Irene Berrett was injured when she fell into an open, unbarricaded manhole in an Albertsons parking lot while A-1 Septic Tank Services serviced a grease trap.
A-1 had removed the manhole cover and left it uncovered; the truck operated nearby and did not barricade the area.
Surveillance video shows the manhole area with multiple people passing by; Miner’s periodic absence from the hole is disputed.
Albertsons had no written contract with A-1 and did not control how or when A-1 performed the work or barricades, though some Albertsons employees observed A-1 in the lot.
The Berretts sued for negligence/premises liability; the trial court granted summary judgment for Albertsons; the case proceeded against A-1 but later settled.
A survival-action posture arose after Irene Berrett’s death; the trial court then addressed which survival statute version applied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Duty due to notice and premises liability	Berretts contend Albertsons had actual or constructive notice of the hazard and owed a duty to invitees.	Albertsons argues there was no actual or constructive notice of an unattended open manhole.	Genuine issues preclude summary judgment on duty
Applicability of Restatement § 413 peculiar risk	Section 413 imposes direct liability where peculiar risk exists and precautions were not taken.	Section 413 is not adopted in Utah and would burden employers; not applicable.	Section 413 is part of Utah common law and may apply
Survival statute version governing damages	The 2009 version allowing general damages should apply because death occurred after amendment.	Law at injury governs; 2002 version controls as the event giving rise to the action.	2002 survival statute controls; damages limited to special damages

Magana v. Dave Roth Constr., 215 P.3d 143 (Utah 2009) (establishes when a duty may exist for contractor-related premises risks)
Jex v. JRA, Inc., 196 P.3d 576 (Utah 2008) (evidence of constructive notice requires appreciable time)
Price v. Smith's Food & Drug Centers, Inc., 252 P.3d 365 (Utah App. 2011) (constructive notice shown by observable hazardous condition with time frame)
Ohlson v. Safeway Stores, Inc., 568 P.2d 753 (Utah 1977) (early constructive-notice analysis for floor hazards)
Thompson v. Jess, 979 P.2d 322 (Utah 1999) (peculiar risk and exceptions to contractor-control rule)
Privette v. Superior Court, 854 P.2d 721 (Cal. 1993) (history and rationale of peculiar risk doctrine)
Poteet v. White, 2006 UT 63, 147 P.3d 439 (Utah 2006) (analysis of inherently dangerous work doctrine relevance)
Berneau v. Martino, 2009 UT 87, 223 P.3d 1128 (Utah 2009) (approach to appellate review of statutory and procedural issues)