318 P.3d 1198
Utah Ct. App.2014Background
- Porter injured May 23, 2009, by falling into a concealed sink hole in the City cemetery grounds.
- Hole was caused by water leaking from a damaged sprinkler joint in the cemetery's irrigation system.
- Hole was covered by grass and not detectable by reasonable visual inspection.
- City owned and maintained the cemetery and sprinkler system; the joint was not discovered until after injury.
- Parties stipulated the hole was at least one foot wide and three feet deep, and the City had operated the sprinkler system about 40 days before injury.
- Plaintiff alleged the City was negligent for failing to exercise ordinary care to protect against the dangerous condition; joint had been maintained prior to injury; joint’s malfunction was linked to City maintenance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City had notice as a matter of law because it created the condition. | Porter: City created the dangerous condition by operating the sprinkler system. | City: did not create the hole; no evidence of city-caused crack or intentional creation; not liable under creation rule. | No; City did not create the dangerous condition, so no per se notice. |
| Whether City had constructive notice of the hole. | Porter: hole large enough and existed long enough to trigger constructive notice. | City: Goebel/Goebel-related standard; no evidence reasonable inspection would have found concealed hole. | No; insufficient evidence of constructive notice; no reasonable basis for imputation. |
Key Cases Cited
- Jex v. JRA, Inc., 196 P.3d 576 (Utah, 2008) (creation-based notice rule; deemed knowledge when defendant creates the condition)
- Goebel v. Salt Lake City S.R.R., 104 P.3d 1185 (Utah, 2004) (insufficient notice even if unsafe condition existed a long time; no duty to discover absent reasonable inspection)
- Schnuphase v. Storehouse Mkts., 918 P.2d 476 (Utah, 1996) (slip-and-fall; gradual degradation requires notice to survive summary judgment)
- Fishbaugh v. Utah Power & Light, 969 P.2d 403 (Utah, 1998) (failure to discover/repair malfunctioning system; no constructive notice absent inspection)
- Price v. Smith's Food & Drug Ctrs., Inc., 252 P.3d 365 (Utah App. 2011) (creation vs. non-creation; notice standards depend on who created condition)
- Canfield v. Albertsons, Inc., 841 P.2d 1224 (Utah App. 1992) (premises liability: owners not insurers of safety; reasonable care standards)