Hill v. Superior Property Management Services, Inc.
2013 UT 60
| Utah | 2013Background
- Plaintiff Colleen Hill tripped on clustered tree root offshoots (suckers/stumps) in a condominium common lawn and sued Superior Property Management (Superior) and the HOA for negligence.
- Superior had a longstanding maintenance contract with the HOA to mow and perform limited trimming; the HOA retained responsibility for "major" work (e.g., major tree trimming, major repairs, and other plenary control functions).
- At the time of the accident (April 2, 2009) the grass appeared dead and Superior had not yet begun its seasonal mowing; Superior historically began mowing mid-April.
- Hill alleged Superior breached duties based on (a) the maintenance contract, (b) Superior's control/possessor status, (c) voluntary undertaking of maintenance, and (d) affirmative creation of the hazardous stumps by repeated mowing.
- The district court granted summary judgment for Superior (denying Hill’s theories of contractual tort duty, possessor status, and voluntary undertaking); the HOA settled and was dismissed. Hill appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contract-based tort duty | Superior's contract to mow and trim created a tort duty; it breached provisions by failing to mow/trim root shoots | Contract breaches give rise to contract remedies; the cited contract provisions did not require the acts Hill alleges (seasonal mowing hadn't started; "branches" excludes root shoots) | No tort duty from contract; Superior did not breach contract provisions cited and course-of-performance cannot create a separate tort duty |
| Possessor liability | Superior effectively controlled the grounds and owed invitee duties to remedy/warn | Superior lacked plenary control (no right to exclude; HOA retained major repair/control rights) | Superior was not a possessor; no possessor-based duty |
| Contractor-as-possessor theories (Restatement §387/§383) | Superior performed extensive maintenance and thus assumed "entire charge" or acted on behalf of possessor, giving rise to possessor-like liability | Superior did not take "entire charge" (HOA retained key responsibilities and fee collection); §383 applies to harms from affirmative acts, not latent conditions | §387 inapplicable (no entire charge); §383 doesn't impose broad premises liability for land conditions created by inaction |
| Voluntary undertaking | Superior voluntarily mowed and thus undertook a duty to protect those who rely on that maintenance, including removing root shoots | Superior's voluntary activity was limited to mowing; the root hazard required additional, different measures, so mowing did not create liability for failing to abate the shoots | Voluntary undertaking duty limited to scope of the undertaking; mowing alone did not create a duty to remove root shoots |
| Affirmative-creation theory | Repeated mowing allegedly transformed flexible shoots into hardened stumps that created the hazard; that affirmative conduct gave rise to a duty | Hill did not preserve this theory below with specific argument tying acts to creation of hazard; district court had no meaningful opportunity to rule | Majority: theory was not preserved on summary judgment so court declined to reach merits; summary judgment for Superior affirmed. (Dissent would have found preservation and remanded.) |
Key Cases Cited
- Bahr v. Imus, 250 P.3d 56 (Utah 2011) (summary-judgment standard and review)
- Jeffs ex rel. B.R. v. West, 275 P.3d 228 (Utah 2012) (distinguishing duties for affirmative acts versus omissions)
- Hale v. Beckstead, 116 P.3d 263 (Utah 2005) (possessor duties to invitees)
- English v. Kienke, 848 P.2d 153 (Utah 1993) (possessor defined as actual physical possession/occupation)