Colleen HILL, Plaintiff and Appellant, v. SUPERIOR PROPERTY MANAGEMENT SERVICES, INC., Defendant and Appellee.
No. 20120428
Supreme Court of Utah
Oct. 11, 2013
2013 UT 60
Justice LEE
Justice LEE authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice NEHRING, Justice DURHAM, and Justice PARRISH joined.
Paul M. Belnap, David E. Brown, Salt Lake City, for appellee.
Justice LEE, opinion of the court:
¶ 1 A condominium resident was injured when she tripped on a group of tree root offshoots concealed within the grassy common area of her complex. She sued the complex‘s contract property management company, which was tasked with performing some maintenance activities in that area. She claimed that the company had been negligent in dealing with the tree offshoots, asserting that it had breached duties it owed her under its maintenance contract, arising from its status as a possessor of land, and based on its voluntary undertaking of root maintenance.
¶ 2 The district court granted the company‘s motion for summary judgment, concluding that the company owed the resident no duty of care. We affirm. The company lived up to its relevant obligations under the maintenance contract, exercised insufficient control to be treated as a possessor, and never voluntarily undertook the root maintenance activities alleged by the plaintiffs.
I
¶ 3 Colleen Hill has lived in the Waterbury
¶ 4 Because Hill was aware of these growths, and believed them to be trip hazards, she generally tried to avoid the common area. But on April 2, 2009, her dog ventured onto the lawn to relieve itself, and she followed it to clean up—as required by condominium regulations. In doing so, she proceeded cautiously, but nonetheless tripped on some of the tree shoots. She testified that they were difficult to see that day because they were “like sticks” and “blended in with the dead lawn.”2
¶ 5 To recover for her resulting injuries, Hill brought a negligence suit against Superior Property Management Services, Inc., and against the Waterbury Homeowners Association. Hill claimed negligence by Superior in the performance of its maintenance and landscaping responsibilities at Waterbury. She also asserted that Waterbury HOA was vicariously liable for Superior‘s failings and directly liable under theories of premises liability.
¶ 6 Superior performed maintenance and landscaping activities at Waterbury under a maintenance contract with the Waterbury HOA. It had done so since the mid-1990s. Under the parties’ contract, Superior performed certain maintenance activities relating to the common area, including mowing “lawn grass weekly and edg[ing] bi-weekly throughout the normal growing season” and “trim[ming] all small and lower branches when necessary.” Waterbury HOA retained responsibility, however, for a number of maintenance functions, including “major sidewalk repairs,” “major trimming of all large trees,” “major fence repairs,” “major breaks” of sprinklers, “major roof repairs,” and “major painting projects.”
¶ 7 Both Superior and Waterbury HOA moved for summary judgment, claiming that they owed Hill no duty of care—and thus could not have been negligent. Hill opposed both motions, asserting that Waterbury owed her a duty as a possessor of land and that Superior owed her a duty under its maintenance contract, based on a variety of premises liability theories, and due to its voluntary undertakings. The court granted Superior‘s motion, determining that Superior owed Hill no duty of care because it had not violated any contractual obligation, exercised insufficient control over the property to be subject to premises liability, and had not voluntarily undertaken to remedy the hazard posed by the tree shoots. The court denied Waterbury HOA‘s motion, however, concluding that it was potentially liable as a possessor. Thereafter, Waterbury HOA settled with Hill and was dismissed as a party to this action.
¶ 8 Hill then filed this appeal. We review the district court‘s summary judgment decision for correctness. See Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d 56.
II
¶ 9 Hill asserts that Superior owed her a duty of care (a) arising under Superior‘s maintenance contract, (b) due to its extensive control of the condominium premises, (c) based on its voluntary undertaking of tree maintenance activities, and (d) because it affirmatively created the hazardous clumps of tree shoots that allegedly caused her accident. We find no basis for a duty in any of the first three asserted grounds, and conclude that Hill failed to preserve the fourth. We accordingly affirm.
A. Contract Duty
¶ 10 Tort law draws a critical distinction between affirmative acts and omissions. As a general rule, we all have a duty to act reasonably in our affirmative acts; but no
¶ 11 Our cases have sometimes adverted to the possibility that a special relationship sustaining such a duty might be rooted in a contract. See id. ¶ 9 n. 7. Invoking this principle, Hill argues that Superior‘s maintenance contract gave rise to a tort duty, which it breached by failing to perform under two provisions of the contract. The first requires Superior to “mow ... lawn grass weekly and edg[e] bi-weekly throughout the normal growing season.” The second obligates it to “trim ... small and lower branches.” We disagree, and find that neither provision supports the imposition of tort liability.
¶ 12 In the first place, it is not at all clear that mere failure to perform would sustain liability in tort. A breach of contract, after all, typically gives rise to liability in contract, not in tort.3 Even assuming that Superior‘s maintenance contract could sustain a tort duty, moreover, there is still no basis for liability here, as neither of the provisions cited by Hill required Superior to perform the acts it is now charged with omitting.
¶ 13 The first-cited provision required Superior to mow the “lawn grass weekly and edg[e] bi-weekly throughout the normal growing season.” (Emphasis added). Yet it was undisputed that the normal growing season had not yet commenced at the time of Hill‘s injury. Hill effectively conceded as much in her assertion that the grass appeared to be dead at the time of the accident. And it was undisputed that Superior, which had performed mowing activities at Waterbury for many years prior to the accident, had never started mowing until at least the second week of April. This was further “course of conduct” evidence that April 2 fell outside of the “normal growing season” referenced in the contract.4 Thus, at the time of Hill‘s accident, Superior was not contractually required to mow the lawn, and accordingly not in breach for failing to do so.
¶ 14 The second-cited provision required Superior to “trim all smaller and lower branches when necessary.” This provision was not implicated in any way by the tree shoots in question. Though Hill characterizes the tree growths as “branches,” the contract does not bear that construction.
¶ 15 Dictionary definitions of “branch” (in the sense of a tree branch) refer uniformly to the notion of “a stem growing from the trunk
¶ 16 Hill nonetheless contends that Superior‘s obligations were not comprehensively detailed in its maintenance contract, but encompassed acts that it habitually engaged in over time. We see no basis for extending a duty encompassing Superior‘s extracontractual acts. Even if duties spelled out expressly by contract could sustain parallel tort duties—a question we need not and do not reach, see supra ¶ 11—there is no room in our law for a tort duty arising from course-of-performance acts that are nowhere provided by contract.
¶ 17 Where a duty is rooted in the express language of a written contract, the parties are on notice of their obligations, and are in a good position to plan their activities around them. That is not at all true for the extracontractual, course-of-performance acts relied on by Hill. If we were to impose a duty in connection with those acts, we would establish a troubling perverse incentive. A party facing a tort duty in connection with any undertaking not required by contract would be discouraged from such undertaking. And a disincentive for gratuitous service benefiting another is not the sort of conduct that our tort law ought to countenance.7 In any event, to the extent injuries ensue from negligence in the performance of such activities, liability would properly be governed by a different branch of our tort law—by the standards governing liability for a voluntary undertaking, a theory we consider (and find unavailing) below. See discussion infra ¶¶ 39-40.
¶ 18 We accordingly reject Hill‘s request that we overlook the express terms of Superior‘s maintenance contract in assessing whether Superior had a contract-based duty in tort law. And even assuming that a breach of the maintenance contract could give rise to tort liability, we conclude that Superior did not breach any provisions of the contract.
B. Premises Liability
¶ 19 We likewise reject Hill‘s assertion that a duty arose under three different theories of premises liability: (1) possessor liability, (2) liability of a party who receives the “entire charge of the land” from a possessor under section 387 of the Restatement (Second) of Torts, and (3) liability of a contractor “who does an act or carries on an activity upon land on behalf of the possessor” pursuant to section 383 of the Restatement.
¶ 20 None of these theories sustains a duty here. While Superior performed many maintenance functions, it exercised insufficient control of the Waterbury property to be deemed a possessor. As for section 387, the liability principles stated there do not extend to Superior for similar reasons; it did not take over the entire charge of the land. And section 383, which affords independent contractors the same immunity from liability to trespassers that possessors enjoy, would not require Superior to deal with the tree shoots differently than it did.
¶ 21 Under our precedent, possessors owe significant duties to invitees who come onto their property—including affirmative duties to remedy or warn against dangerous conditions. See Hale v. Beckstead, 2005 UT 24, ¶¶ 7-8, 116 P.3d 263. Hill‘s attempt to invoke this liability fails, however, because Superior exercises insufficient control over the land to qualify as a possessor.
¶ 22 Although we have not articulated a comprehensive list of attributes of a “possessor,” we have generally invoked the standard for invitees in the Restatement (Second) of Torts. See id. And that standard defines a “possessor” as “a person who is in occupation of the land with intent to control it“; “a person who has been in occupation of the land with intent to control it, if no other person has subsequently occupied it with intent to control it“; or “a person who is entitled to immediate occupation of the land, if no other person is in possession” under either of the other two tests.
¶ 23 Our caselaw carries forward this same focus. We have emphasized that a “possessor is one in actual physical possession” of property, English v. Kienke, 848 P.2d 153, 156 (Utah 1993), or one who is in “occupation of the land with intent to control it,” Stevens v. Colorado Fuel & Iron, 24 Utah 2d 214, 469 P.2d 3, 5 (1970). Those who have qualified as possessors in our cases have been landowners and others exercising plenary control over store premises. See Hale, 2005 UT 24, ¶¶ 7-8, 116 P.3d 263 (involving a landowner); English, 848 P.2d at 156 (assuming, “for the purposes of our analysis,” that a landowner was a possessor of land); Wheeler v. Jones, 19 Utah 2d 392, 431 P.2d 985, 986 (1967) (discussing possessor liability in the context of a suit against a business, where defendant operated a swimming pool “in connection with” a store that was in the “business of selling garden supplies and swimming pools and equipment“). Thus, while we have not yet articulated a comprehensive definition of “possessor,” our cases emphasize the importance of a key factor—control—and require that the degree of control be substantial.8
¶ 24 A person who has the control of a landowner in actual occupation of property has both the rights and the corresponding abilities to deal with the property as he sees fit. See Harris v. Traini, 759 N.E.2d 215, 225 (Ind.Ct.App.2001) (“[O]nly the party who controls the land can remedy the hazardous conditions which exist upon it and only the party who controls the land has the right to prevent others from coming onto it.” (alteration in original, internal quotation marks omitted)). Among these are (a) the right to exclude others from the property altogether9 and (b) the right to take all necessary precautions and make necessary repairs.10
¶ 26 The right to take necessary precautions and make repairs is also pivotal. A person with plenary control of property is entitled to take precautions to prevent business invitees or licensees from encountering dangerous conditions on the land. And where a repair is required, a person with plenary control is likely to be able to make it. Under the Restatement, possessors must “exercise reasonable care” in identifying dangerous conditions and in protecting invitees against them—conditions that invitees will not “discover or realize” on their own or “will fail to protect themselves against.”
¶ 27 Superior lacks these core capacities. In the first place, there is no indication that it has the right to exclude others from the Waterbury property. All indications are that Waterbury has retained that right—suggesting that Waterbury is the current possessor, and that Superior has not occupied the property “with intent to control it.”
¶ 28 Further, Superior has only limited authority to perform repairs. Most major repairs are beyond the scope of its authority. Under the maintenance contract, “major sidewalk repairs will be contracted out by Waterbury,” along with “major trimming of all large trees,” “major fence repairs,” “major breaks” of sprinklers, “major roof repairs,” and “major painting projects.”
¶ 29 Thus, despite Superior‘s many duties under the management contract, it lacks plenary authority to engage in whatever measures it might deem necessary to prevent harm to those who visit the property. Yet possessor liability would extend to injuries resulting from hazards Superior has little or no control over. Possessor liability is not strict liability. It is a negligence-based theory, which thus depends upon a failure to exercise “reasonable care.” See
2. Restatement section 387
¶ 30 Possessor liability, however, is not the only type of premises liability recognized by the law. Where an “owner or possessor of land turns over the entire charge of the land” to “[a]n independent contractor or servant,” that person “is subject to the same liability for harm as though he were the possessor of the land.” See
¶ 31 We see the matter differently. Even Superior‘s substantial maintenance responsibilities do not rise to the level of taking “entire charge” of property.13 As the comments to section 387 clarify, this theory of liability does not extend to a contractor who has merely “undertaken to make specific repairs, or even to inspect the land or building and from time to time make such repairs as he should discover to be necessary.”
¶ 32 Here, Waterbury retained responsibility for a variety of maintenance duties and also continued to be responsible for collecting fees from tenants. These retained responsibilities foreclose the imposition of section 387 premises liability on Superior.
3. Restatement section 383
¶ 33 Even if Superior had less than the “entire charge” of the property, Hill still seeks to impose a possessor-like duty on Superior under section 383 of the restatement. That provision, which we have never formally adopted, articulates a limitation of liability for “[o]ne who does an act or carries on an activity upon land on behalf of the possessor” for physical harm caused thereby to others upon and outside of the land.”
¶ 34 Hill reads section 383 as articulating a broad principle of possessor-like premises liability that attaches whenever an independent contractor undertakes activities on behalf of a possessor. And because Superior engaged in some activities related to the maintenance of the Waterbury common area (e.g., mowing), Hill maintains that it was also required to engage in others related to tree shoots as well (e.g., removal)—given that Waterbury, as a possessor, was allegedly required to do more.
¶ 35 Hill‘s expansive reading of section 383 is untenable. This provision reaches only “physical harm caused” by affirmative “act[s]” or “activit[ies]” actually carried out by the independent contractor.
¶ 36 These limitations are important. Section 383 articulates a liability limitation, not an expansive theory of premises liability for conditions on the land. An independent contractor engaged in a limited activity—such as painting—cannot properly be subject to possessor-like premises liability. For reasons
¶ 37 Thus, Hill‘s reliance on section 383 is misplaced. We decline her invitation to employ the liability-limiting principles in that provision to impose broad possessor-like premises liability.
C. Voluntary Undertaking
¶ 38 In addition to her premises liability theories, Hill advances a voluntary undertaking theory. She invokes section 323 of the Restatement, which provides that a person who “undertakes ... to render services to another which he should recognize as necessary for the protection of the other‘s person” is liable “for physical harm resulting from” a “failure to exercise reasonable care to perform [the] undertaking” if either (a) that “failure ... increases the risk of such harm,” or (b) that “harm is suffered because” the other person relies “upon the undertaking.”
¶ 39 This theory falters in its failure to connect up any activity that Superior voluntarily undertook with an allegation of negligence in the performance of that activity. Hill makes broad assertions relating to Superior‘s many maintenance activities, and its
¶ 40 That limited activity is insufficient to establish a broad duty to perform comprehensive maintenance activities related to the tree shoots. As Hill has acknowledged, the tree shoot hazard could not be remedied by mere mowing; additional activities were required to achieve that objective. So Superior did not undertake any voluntary action meaningfully aimed at remedying the tree shoots. And because it didn‘t, Hill cannot demonstrate that the harm she suffered “result[ed] from” a “failure to exercise reasonable care [in] perform[ing] [the] [voluntary] undertaking” of mowing.
¶ 41 Hill‘s claim is that her injury could have been prevented if Superior had chosen to undertake additional activities. Superior‘s more limited undertaking (mowing) did not establish a duty to take additional steps of a similar nature. Its duty, rather, was limited to the extent of its undertaking16—a duty that is narrowly construed,17 and not a basis for a general obligation to undertake affirmative acts in aid of third parties.
D. Affirmative Conduct
¶ 42 Hill‘s final theory, of a duty arising out of Superior‘s affirmative conduct, is arguably her strongest. See Jeffs ex rel. B.R. v. West, 2012 UT 11, ¶ 17, 275 P.3d 228 (noting that acts of “misfeasance ... typically carry a duty of care,” while those of “nonfeasance” do not). Under this theory, Hill claims a
¶ 43 The problem with this theory is that it was not preserved below. In the district court, Hill made a vague reference to the notion of a duty arising out of “affirmative creation of the harm,” but she never articulated any specific basis for imposing such a duty on Superior. Hill‘s summary judgment briefing alluded generally to the notion that one “who create[s] dangerous conditions on property ... owe[s] a duty of reasonable care to third persons.” But the brief never connected that theory with any actual act that Superior performed to create a dangerous condition. Instead, in the body of the argument following her invocation of the theory of a duty arising from affirmative creation of harm, Hill reverted to her allegations regarding Superior‘s omissions.
¶ 44 Specifically, after generally invoking this theory, Hill referred only to Superior‘s knowledge and its failures to act. The operative paragraph of Hill‘s summary judgment brief—the one immediately following the assertion of the general principle of a duty arising from affirmative creation of harm—is the following:
Superior was responsible for maintaining the grass common areas, including the common area in front of Plaintiff‘s unit. Superior was aware that residents of Waterbury were permitted to walk upon common areas, and were required to do so to pick up after their pets. Superior was aware of the existence of the “tree root problem” at Plaintiff‘s unit. Superior was aware that nothing had been done to address the “tree root problem.” Despite this knowledge, Superior failed to remove the roots, and failed to trim the grass such that it grew so long that it fully obscured the rigid tree roots below. Superior knew that, if the roots were hidden, it was impossible for someone walking on the common areas to ascertain the location of the roots, creating an even more dangerous condition.
Nowhere does Hill identify any affirmative act by Superior that created any harm. Instead she only repeats the charge that Superior knew about the risks and “failed to remove the roots, and failed to trim the grass such that it grew so long that it fully obscured the rigid tree roots below.”
¶ 45 Any doubt about the matter was resolved in the hearing on the motion for summary judgment. When questioned, Hill‘s counsel clarified that “our position is that it comes down to the fact that the grass had grown over the particular roots that tripped Hill,” and emphasized that “if the grass was not covering the roots, there wouldn‘t be a duty.” Nowhere did counsel ever assert the (contrary) point pressed on appeal—that a duty arose from the affirmative creation of harm by Superior‘s negligent mowing of the tree shoots over the years.
¶ 46 Hill accordingly failed to preserve the “affirmative creation of harm” theory she advances on appeal. The general invocation of a theory is insufficient. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (to be preserved, an issue must be (1) “raised in a timely fashion,” (2) be “specifically raised,” and (3) the “challenging party must introduce supporting evidence or relevant legal authority” (internal quotation marks omitted)). Preservation requires affording the district court a meaningful opportunity to rule on the ground that is advanced on appeal, and that implies, at a minimum, not just the invocation of a legal principle but also its application to the facts of the case. See Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (explaining, in the analogous context of our rules regarding adequate briefing on appeal, that we have “repeatedly noted that a brief is inadequate if it merely contains bald citations to authority [without] development of that authority and reasoned analysis based on that authority” (alteration
¶ 47 Our adversary system demands at least that much. Our judges cannot be expected to accept the parties’ theories as an invitation to root around in the record to see if they might apply. Like an appellate court, a district court “is not a depository in which [a party] may dump the burden of argument and research.” Allen, 2008 UT 56, ¶ 9 (alteration in original, internal quotation marks omitted). And we cannot accordingly reverse them for failing to undertake that task.
¶ 48 Hill‘s theory fails on that basis. She did make general reference to a duty arising from affirmative creation of harm, but she never identified a basis for applying that theory to the facts of this case. Her argument instead had only to do with Superior‘s knowledge and omissions, which of course have nothing to do with affirmative creation of harm.
¶ 49 The record citations relied on by the dissent are not to the contrary. It is true that Hill‘s declaration asserts that she “observed that there were rigid ‘stumps’ or clumps of sticks that appeared to have resulted from [Superior] repeatedly mowing down new shoots.” And that assertion was also repeated in Hill‘s summary judgment brief. But the brief makes this point only in the background statement of facts. It nowhere repeats it in the argument section—and certainly not as the basis for imposing a duty arising from the affirmative creation of harm.
¶ 50 The dissent‘s contrary conclusion is based on the portion of Hill‘s summary judgment brief that asserts that “[b]y virtue of its deficient maintenance ... Superior created a more dangerous situation than what existed previously.” Infra ¶ 61. But the quoted sentence itself makes no mention of any affirmative act creating any harm. This is accordingly just a repetition of the general theory. And this invocation of the theory follows immediately after the full paragraph quoted above (which is the only part of the brief that makes any effort to extend this theory to the facts of the case). Again, however, that paragraph makes no mention of any affirmative acts; it focuses only on Superior‘s knowledge and omissions. So in context, the assertion of a duty arising out of Superior‘s affirmative “maintenance” is insufficient, as the only deficient maintenance cited in the brief was that it “failed to remove the roots, and failed to trim the grass such that it grew so long that it fully obscured the rigid tree roots below.”
¶ 51 The dissent also cites Hill‘s supplemental brief on summary judgment, asserting that there “Hill argued that she ‘believed the sticks to be the remnants of tree growths or “suckers” that resulted from repeated mowing and other attempted maintenance by [Superior].‘” Infra ¶ 61. But the quoted statement is not argument; it is from the fact section of the brief. And in any event the supplement brief had nothing to do with the question of duty; it dealt only with whether tree shoots were an “unreasonably dangerous condition” and whether that question was one for the jury.
¶ 52 The problem with Hill‘s assertion of a duty arising from “affirmative creation of harm” is not that it was not “emphasized.” Infra ¶ 62. It is that it was not presented—or at least not presented in a way that gave the district court a meaningful opportunity to rule on it. Perhaps the court could have gone out of its way to connect the dots from Hill‘s declaration to her later assertion of a theory of a duty arising from the affirmative creation of harm. But we cannot fault the court for not performing that responsibility, which in our adversary system fell ultimately on Hill.
¶ 53 Thus, in the district court Hill focused on Superior‘s omissions, not its affirmative conduct. So the theory of affirmative creation of harm due to repeated mowing over fourteen years is not properly before us, as Hill never afforded the district court an “opportunity to rule on the issue.” Kell v. State, 2012 UT 25, ¶ 11, 285 P.3d 1133.
Justice LEE authored the opinion of the Court, in which Chief Justice DURRANT and Associate Chief Justice NEHRING joined.
Justice PARRISH filed an opinion concurring in part and dissenting in part, in which Justice DURHAM joined.
Justice PARRISH, dissenting:
¶ 55 While in agreement with the majority‘s conclusions that Superior did not owe Ms. Hill a duty of care based on theories of contract liability, premises liability, or voluntary undertaking, I respectfully dissent from the majority‘s holding that Ms. Hill failed to preserve in the district court her argument that Superior‘s affirmative conduct gave rise to a duty. Ms. Hill argued below that Superior affirmatively created the hazardous condition that caused her accident and she reiterated that argument on appeal. I find the argument persuasive. I would therefore hold that Superior owed a duty to Ms. Hill by virtue of its affirmative acts and would therefore reverse the district court‘s entry of summary judgment in favor of Superior.
I. MS. HILL ADEQUATELY PRESERVED HER ARGUMENT THAT SUPERIOR‘S AFFIRMATIVE ACTS CREATED A DUTY
¶ 56 Generally, an issue must be preserved below before we will consider it on appeal. H.U.F. v. W.P.W., 2009 UT 10, ¶ 25, 203 P.3d 943 (“We will not address an issue if it is not preserved or if the appellant has not established other grounds for seeking review.“). But preservation is not meant to be a trap for the unwary, preventing decisions on the merits of otherwise legitimate claims. Rather, preservation is designed to ensure that issues on appeal have been presented to a lower court such that the lower court has had the “opportunity to address the claimed error.” Kell v. State, 2012 UT 25, ¶ 11, 285 P.3d 1133 (internal quotations marks omitted). Further, “[o]ur preservation requirement is self-imposed and is therefore one of prudence rather than jurisdiction.” Patterson v. Patterson, 2011 UT 68, ¶ 13, 266 P.3d 828.
¶ 57 An issue is sufficiently raised below, and therefore preserved for appeal, when it has been “presented to the district court in such a way that the court has an opportunity to rule on [it].” Id. ¶ 12 (alteration in original) (internal quotation marks omitted). An issue may be raised directly or indirectly, so long as it is “raised to a level of consciousness such that the trial judge can consider it.” James v. Preston, 746 P.2d 799, 802 (Utah Ct.App.1987). Once an issue has been raised before the district court, the Utah Rules of Appellate Procedure require that, on appeal, an appellant‘s brief contain a “citation to the record showing that the issue was preserved in the [district] court.”
¶ 58 While Ms. Hill emphasized at the district court her argument that Superior failed to properly cut the grass and make the roots visible, she also presented the alternative argument that it was Superior‘s own affirmative conduct that had created the stumps that caused her fall. And this alternative argument was also briefed to this court with appropriate citations to the record below.1
¶ 59 Ms. Hill‘s initial complaint was sufficiently broad to encompass her theory that Superior owed a duty because its affirmative conduct was responsible for the creation of the hazard. Rule 8(a)(1) of the Utah Rules of Civil Procedure requires only that a plaintiff set forth “a short and plain ... statement of the claim showing that the party is entitled to relief” in her complaint. Under rule 8, a plaintiff‘s complaint must only provide “fair notice of the nature and basis or grounds of the claim and a general indication
¶ 60 Ms. Hill next asserted the affirmative conduct theory in her testimony. In her Declaration, filed in opposition to Superior‘s motion for summary judgment, Ms. Hill testified that she “observed that there were rigid ‘stumps’ or clumps of sticks that appeared to have resulted from [Superior] repeatedly mowing down new shoots.”2
¶ 61 Ms. Hill raised the argument again in her memorandum opposing Superior‘s motion for summary judgment. There, she argued that “there were rigid ‘stumps’ or clumps of sticks that appeared to have resulted from repeatedly mowing down new shoots.” (Emphasis added.) Ms. Hill also argued that because Superior had created the dangerous condition, it owed her a duty of care. She stated that “[b]y virtue of its deficient ... maintenance ... Superior created a more dangerous situation than what existed previously.” Finally, in her supplemental brief filed in support of her own motion for summary judgment, Ms. Hill argued that she “believed the sticks to be the remnants of tree growths or ‘suckers’ that resulted from repeated mowing and other attempted maintenance by [Superior].”
¶ 62 In short, Ms. Hill clearly raised below her theory that Superior owed her a duty of care as a result of its affirmative acts of negligently mowing the tree growths over a period of years. And the fact that Ms. Hill may have emphasized her theories arising from Superior‘s omissions, rather than her alternative theory of Superior‘s affirmative conduct, does not preclude our review of the issue. Our preservation jurisprudence does not dictate that only “emphasized” arguments made below are preserved. Rather, it requires only that an issue be “presented” to the district court. See Kell, 2012 UT 25, ¶ 11; Patterson, 2011 UT 68, ¶ 12; James, 746 P.2d at 802. I conclude that the issue of Superior‘s affirmative negligence was sufficiently presented to the district court. For that reason, I would hold that Ms. Hill adequately preserved her argument that Superior‘s affirmative acts gave rise to a duty.
II. SUPERIOR WAS REQUIRED TO ACT REASONABLY
¶ 63 Believing that the affirmative conduct issue was adequately preserved, I next turn to the merits. The distinction between an act and an omission is central to the assessment of any duty owed to one party by another. Outside of certain special relationships (including those of parent and child, spouses, common carriers and passengers, innkeepers and guests, and possessors of land and invitees), no duty is owed by one party to another for omissions. Webb v. Univ. of Utah, 2005 UT 80, ¶ 10, 125 P.3d 906. On the other hand, an affirmative act “carries with it a potential duty and resulting legal accountability for that act.”
¶ 64 Here, Superior tended and cared for the common areas of Waterbury. Superior‘s actions in repeatedly mowing down the tree growths, which led the growths to convert from flexible single, vertical growths into unyielding, horizontal, clustered stumps is the type of affirmative conduct that has the potential to create a risk of physical harm. Superior‘s affirmative acts in repeatedly mowing down the growths and shoots estab
¶ 65 Although Superior‘s affirmative acts established a duty of reasonable care, I do not necessarily conclude that its actions were objectively unreasonable. It may have been perfectly reasonable to simply mow over these kinds of tree growths in the course of lawn maintenance. But that is a question for the finder of fact.
¶ 66 Ms. Hill‘s claims were dismissed by the district court on summary judgment. On summary judgment, “the standard is not whether these parties’ minds differ—which they obviously do—but whether reasonable jurors, having been properly instructed by the [district] court, would be unable to come to any other conclusion.” USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 32, 235 P.3d 749 (internal quotation marks omitted). The facts here do not suggest that a reasonable juror could come to only one conclusion regarding the reasonableness of Superior‘s affirmative actions in repeatedly mowing down the shoots. I believe that summary judgment was therefore inappropriate. I would reverse the summary judgment on Ms. Hill‘s theory that Superior negligently undertook its mowing responsibilities and remand the case for a determination on the merits of that theory.
WEBER COUNTY, Plaintiff and Appellee, v. OGDEN TRECE aka Centro City Locos; Roman Hernandez; Chase Aeschlimann; Jesse Aeschlimann; Samuel Parsons; Jaime Gomez; and Willie Rodriguez; et al., Defendants and Appellants.
No. 20120852
Supreme Court of Utah
Oct. 18, 2013
2013 UT 62