Case Information
*1 IN THE UTAH COURT OF APPEALS
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Tasha Lee Jensen, ) MEMORANDUM DECISION
)
Plaintiff and Appellant, ) Case No. )
v. )
) F I L E D Alan Gardner, Kathy Gardner, Does ) (May 2012) 50, )
) App 146 Defendant Appellee. )
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Third District, West Jordan Department,
The Honorable Robert Adkins
Attorneys: Daniel F. Bertch Kevin R. Robson, Salt Lake City, Appellant
Carolyn Stevens Mark R. Anderson, Salt Lake City, for Appellee
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Before Judges Davis, Thorne, Christiansen.
CHRISTIANSEN, Judge: Plaintiff Tasha Lee sued defendants Alan Kathy for
negligence after suffered injury while Alan property. The district dismissed action after granting favor Alan Gardner. We affirm.
parties stipulated dismissal prejudice Jensen’s against Kathy Gardner. *2 The material facts undisputed. [2] Alan Gardner owned an apartment complex
in Midvale, Utah. On October 16, 2006, Jensen went to that apartment complex and met with Kathy Gardner to look at an available rental unit. Jensen parked her car behind the apartment complex in parking spot designated solely for tenants. The driveway leading to the tenant parking lot was private and was marked with “two clearly visible signs . . . which read: ‘Tenant Parking Only’ and ‘No Trespassing.’” Alan Gardner did not recall telling any prospective renter that he she could park in the tenant parking lot, and neither nor Kathy Gardner gave permission to Jensen to park in the tenant ‐ only parking. The Gardners did not know that Jensen had parked in tenant parking lot that day. Jensen met with Kathy Gardner inside unit, and it began to rain while they were inside. After Jensen left apartment, she ran toward her car with her “head down” and “was . . . watching [her] feet” because rain. As she was running, she hit her head on overhang, fell, broke her leg. balcony that Jensen hit her head on “extend[ed] approximately 3 feet 7 inches out from [the] driveway side building, [wa]s about 5 2 inches off ground 11 feet long, framed with 3 foot high white lattice all three sides.” Kathy had not seen which way Jensen headed after she left unit neither Kathy nor Alan expected had any reason to that Jensen “run along the [apartment c]omplex’s private driveway adjacent building get to car.” [2] In opposition memorandum Gardner’s motion for summary judgment, Jensen disputed very few Gardner’s facts. For facts she did dispute, the exception explained below in this footnote, Jensen did not “provide explanation of grounds any dispute, supported citation relevant materials, such as affidavits discovery materials.” See Utah R. Civ. P. 7(c)(3)(B). Jensen did submit any additional facts. See id. only that was sidewalk alongside private driveway adjacent apartment complex when she hit balcony. evidence demonstrates there is no such sidewalk. disputed fact material district court’s ruling, and we agree it material. See R. 56(c) (providing is proper when “there genuine issue material fact” (emphasis added)).
Although does dispute material facts, worth noting “we . . . review facts all inferences drawn therefrom light most favorable [Jensen],” we recite facts accordingly. v. Beckstead UT P.3d (internal quotation marks omitted). “The grant of is a question of law, we review trial court’s determination of legal issues for correctness, affording deference to trial court.” Johnson v. Gold ʹ s Gym , 2009 UT App 76, ¶ 9, 206 P.3d 302, cert. denied , 215 P.3d 161. “‘Most cases involving of negligence susceptible to summary disposition.’” Lyman v. Solomon , 2011 UT App 204, ¶ 3, 258 P.3d 647 (mem.) (quoting Schnuphase v. Storehouse Mkts., 918 P.2d 476, 477 (Utah 1996)). “the initial question of existence of a legal duty tort cases is a question of law for to determine.” Id. (citing Yazd v. Woodside Homes Corp. , 2006 UT 47, ¶ 14, 143 P.3d 283). ¶4 Assuming without deciding business invitee rather trespasser to apartment complex, we look to well ‐ established rule of law known “open obvious danger rule” to determine duty of care landowner owes to invitee his or property. generally Hale v. Beckstead , 2005 UT 24, ¶¶ 8 14, 116 P.3d 263; Restatement (Second) of Torts §§ 343, 343A (1965). According to section of Second Restatement of Torts,
A possessor of land is subject to liability for physical harm caused his invitees by condition land if, but only if, he
(a) knows or by exercise of reasonable care would discover condition, should realize involves an unreasonable risk harm such invitees, and (b) should they will discover or realize danger, will fail protect themselves against it, and (c) fails exercise care them danger. Id. § (emphases added); accord 8. This liability further limited by section 343A: “(1) A possessor land liable his invitees physical harm caused them activity condition land whose danger known or them, unless possessor should anticipate harm despite such knowledge obviousness.” Restatement (Second) Torts § 343A; see § *4 cmt. a (stating that “[s]ection [343] should be read together with” limited by section 343A); accord Hale , UT ¶ 9.
¶5 Jensen has not shown as a matter of law that Gardner should have realized that the balcony created an unreasonable risk of harm her an invitee. See Restatement (Second) of Torts § 343(a). Jensen that if the balcony was either higher or lower it have presented less of an unreasonable risk of harm her. the undisputed facts demonstrate that Gardner was not aware of anyone else ever hitting his or her head the balcony. [3] Jensen has not shown that balcony was a danger that she did not know
of or that was not obvious her. See id. § 343A(1). Rather, undisputed facts indicate that extended about three feet seven inches from side of the building, was about five off ground, was framed three foot white lattice all three sides. In other words, was an open obvious danger.
¶7 Nor has Jensen shown that Gardner should have anticipated that any harm could arise from balcony. See undisputed facts demonstrate that Gardner did know that Jensen coming from private tenant parking lot. Moreover, undisputed facts demonstrate that had knowledge of anyone else ever hitting his or head balcony.
¶8 As asserts, landowners should anticipate that certain harms may arise in spite of fact that dangers open obvious. (“[T]he Restatement . . . does absolutely bar party from recovering injuries sustained from open danger in all circumstances.”); Restatement (Second) of Torts § 343A cmt. 1(f) (“Where possessor has reason the invitee’s attention may be distracted, so he will discover what obvious, or will forget what he has discovered, or fail himself it,” possessor owes “duty of care” “to warn invitee, take other reasonable steps In opposition memorandum, objected lack of foundation for testimony, “No one other . . . [Jensen] has ever hit [his her] on balcony, been injured it.” Our interpretation assertion comports with Jensen’s restatement fact opposition memorandum, wherein agreed “could state aware other incidents.” him, known condition activity.”). Even though certainly could have anticipated rain, as matter law, could reasonably have anticipated have been with down looking at rather at balcony. ¶9 Therefore, matter law, has shown owed duty. Accordingly, district correctly dismissed action summary judgment.
¶10 Affirmed.
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Michele M. Christiansen, Judge
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¶11 I CONCUR:
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James Z. Davis, Judge
‐‐‐‐‐ I CONCUR IN THE RESULT ONLY:
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William A. Thorne Jr., Judge