Coburn v. Whitaker Construction, 445 P.3d 446

Whitaker Construction was installing a pipeline in a public park (Kays Creek Parkway) and posted a “Trail Closed Ahead” sign and orange netting across a paved public trail to deter access.
The orange netting was repeatedly removed by members of the public and Whitaker replaced it frequently; the netting served mainly as a visual barrier.
Julie Coburn encountered the netting lying across the trail a few inches off the ground; she acknowledged seeing it as a hazard but chose to step over it, tripped, and was injured.
Coburn sued Whitaker for negligence; Whitaker moved for summary judgment arguing the open-and-obvious danger rule (Restatement (Second) of Torts §§ 343, 343A) barred a duty to warn.
The district court granted summary judgment for Whitaker; the Utah Court of Appeals affirmed by Rule 31 order without opinion, and the Utah Supreme Court granted certiorari on several issues.
The Utah Supreme Court (1) declined to address whether the Court of Appeals erred in issuing a Rule 31 order because Coburn did not preserve that argument in her certiorari petition, (2) declined to overrule Hale v. Beckstead and abandon the open-and-obvious rule, and (3) affirmed summary judgment for Whitaker under the open-and-obvious rule.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court of Appeals erred by issuing a Rule 31 order without explanation	Coburn contended the Rule 31 order should be challenged (she sought review)	Whitaker relied on the Court of Appeals’ disposition	Court: Not reached — Coburn failed to preserve/raise this issue adequately in her certiorari petition
Whether Utah should abandon the open-and-obvious danger rule (Secs. 343/343A Restatement Second)	Coburn urged replacing it with Restatement (Third) approach, arguing the old rule can bar recovery and is ill-suited to comparative fault	Whitaker defended Hale and the Second Restatement rule as settled, workable precedent	Court: Declined to overturn Hale; Coburn failed to meet burden to rework precedent
Whether Whitaker owed a duty under the open-and-obvious rule given the public nature of the trail	Coburn argued public ownership heightens foreseeability and Whitaker should have anticipated harm despite obviousness	Whitaker argued the netting posed a non-extreme, open-and-obvious hazard with safe alternatives (stepping over or walking around) so no duty existed	Court: Held Whitaker owed no duty; danger was open and obvious, not extreme, and a reasonable alternative existed
Proper disposition if rule changed	Coburn argued for different rule and remand under Restatement (Third) approach	Whitaker argued existing rule controls	Court: Not reached — because court declined to change the rule it affirmed summary judgment under current law

Hale v. Beckstead, 116 P.3d 263 (Utah 2005) (adopts the open-and-obvious danger rule from Restatement (Second) to define landowner duty to invitees)
Marziale v. Spanish Fork City, 423 P.3d 1145 (Utah 2017) (standard of review for summary judgment; review for correctness)
Eldridge v. Johndrow, 345 P.3d 553 (Utah 2015) (factors for considering whether to overrule precedent)
Neese v. Utah Bd. of Pardons & Parole, 416 P.3d 663 (Utah 2017) (cautionary standard for overruling precedent)