Choate v. ARS-Fresno LLC, 20151054-CA

391 P.3d 344

Kachina CHOATE, Appellant,

v.ARS-FRESNO LLC, Appellee.

No. 20151054-CA

Court of Appeals of Utah.

Filed December 30, 2016

Levi H. Cazier, Attorney for Appellant

J. Angus Edwards, Salt Lake City, Attorney for Appellee

Judge David N. Mortensen authored this Memorandum Decision, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

Memorandum Decision

MORTENSEN, Judge:

¶1 Late in December of 2012, Kachina Choate slipped and fell on a sidewalk outside a convenience store owned by ARS–Fresno LLC (ARS). In the negligence suit that followed, a jury found that ARS and Choate were each the proximate cause of Choate's fall but determined that Choate bore 60% of the fault. Because Choate was more at fault than ARS, the jury did not reach the question of damages. Choate filed a motion for a new trial, which was denied. She now appeals the denial of that motion, and we affirm.

¶2 "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal." USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (citation and internal quotation marks omitted).

¶3 On December 28, 2012, Choate and her mother were grocery shopping. On their way between stores, they took a shortcut by walking across the convenience store parking lot. To avoid a car pulling into the convenience store, the two "stepped up onto the concrete walkway at the front of the store." Choate testified that although the sidewalk appeared wet, she did not see any ice. She nevertheless slipped on what she called "a patch of black ice" and fell. Once she landed on the ground, she saw and felt ice beneath her.

¶4 Choate's mother went into the store to report the accident. Choate eventually followed. The two women spoke with the clerk on duty, who had previously observed a water drip from the building's overhang onto the sidewalk in the area where Choate fell. The clerk called the manager of another ARS store and asked for assistance with the accident. The manager arrived ten to fifteen minutes later, but by that time, Choate and her mother had already left.

¶5 At trial, Choate argued that this drip led to the formation of black ice, including "a buildup of ice when the temperature was cold enough." It was the convenience store employees' practice to distribute ice melt over the spot where the water dripped if ice formation was likely. Choate's mother testified that there was no ice melt on the sidewalk when Choate fell, but the clerk testified he was "90% sure that he applied ice melt" that day "before" Choate's fall. The manager testified that when he arrived at the store, "there was adequate ice melt" on the sidewalk where Choate had fallen, and the clerk testified that he "was busy with customers and did not have time to apply ice melt between the time the accident was reported and when" the manager arrived, suggesting the ice melt the manager saw had been in place before Choate's fall. The manager also testified that he did not see any ice on the sidewalk.

¶6 Multiple expert witnesses testified concerning potential causes of Choate's fall, including weather conditions, the construction of the sidewalk, and the soffit overhang with the associated water drip. The clerk also testified that Choate had declined to have an ambulance called; that the clerk "had never seen anyone walk across the gas station at an angle and get up on the walkway at the front of the store, when there was a perfectly good sidewalk in the same direction they were going"; that Choate did not appear injured; and that he found it "odd" that Choate and her mother, after reporting the accident, walked back toward the spot where Choate had fallen.

¶7 The jury determined that ARS and Choate "were both at fault and their fault had caused harm." But on a special verdict form, the jury apportioned fault 60% to Choate and 40% to ARS, barring Choate from recovering damages. See Utah Code Ann. § 78B–5–818(2) (LexisNexis 2012) (allowing recovery only when the fault of "any defendant or group of defendants ... exceeds the fault of the person seeking recovery"). Choate moved for a new trial under rule 59(a) of the Utah Rules of Civil Procedure. The trial court denied the motion, concluding that "the evidence was sufficient for the jury to have decided in favor of either party."

¶8 In this appeal, Choate argues that the trial court should have granted her motion for a new trial because the "jury lacked sufficient evidence to determine that Choate was 60% at fault where ARS knew of the defect and failed to make [its] premises safe." "The trial court's denial of a motion for a new trial will be reversed only if the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust." Schreib v. Whitmer , 2016 UT App 61, ¶ 31, 370 P.3d 955 (citation and internal quotation marks omitted). The applicable standard is crucial to our disposition of this appeal. The Utah supreme court

has held that the existence of contradictory evidence or of conflicting inferences does not warrant disturbing the jury's verdict when the sufficiency of the evidence is challenged on appeal. Indeed, it is the exclusive function of the jury to weigh the evidence and to determine the credibility of the witnesses, and we will not overturn a verdict on a challenge to the sufficiency of the evidence so long as some evidence and reasonable inferences support the jury's findings.

Brewer v. Denver & Rio Grande W. R.R. , 2001 UT 77, ¶ 36, 31 P.3d 557 (alterations, citations, and internal quotation marks omitted).

¶9 To begin, Choate concedes the evidence was sufficient to support the jury's finding that she was at fault. She acknowledges:

The jury could reasonably have found some negligence on the part of [Choate] (if, for example, the jury determined that [the clerk] had applied some icemelt, it might have reasonably determined that there were icemelt remnants that [Choate] should have noticed and that she should therefore have proceeded more slowly, or that she should have walked around the area.)^{[1 ]}

In effect, Choate argues that while the jury could have found her negligent, it was wrong in finding her as negligent as it did. But Choate is unable to direct us to any law which provides that the exact percentage of negligence (or fault) can be determined as a matter of law. Instead, allocation of fault is quintessentially a jury question. See Harris v. Utah Transit Auth. , 671 P.2d 217, 222 (Utah 1983) (explaining that Utah's comparative negligence statute provides "the kind of comparison of fault that a jury ought to make").

¶10 But even without this concession, Choate's arguments fail. To begin the argument section of her brief, Choate sets forth the well-established negligence law of this state. She asserts that owners of premises are liable where there exists " ‘some unsafe condition of a permanent nature.’ " (Quoting Allen v. Federated Dairy Farms, Inc. , 538 P.2d 175, 176 (Utah 1975).) But that point is not disputed and, in fact, the jury found ARS negligent for failing to keep its premises safe.

¶11 Choate then asserts that the "verdict that [Choate] was more at fault than ARS was against the manifest weight of the evidence" and that the trial court should have granted her motion for a new trial. To support her position, she cites Sharp v. Williams , 915 P.2d 495 (Utah 1996), Wilhelm v. Great Falls , 211 Mont. 430, 685 P.2d 350 (1984), and Lehmkuhl v. Bolland , 114 Idaho 503, 757 P.2d 1222 (Idaho Ct. App. 1988). We consider each of these cases in turn.

¶12 In Sharp , a mail carrier was injured after she walked across a dog owner's lawn and, startled by the dog coming toward her, fell backward and seriously injured her back. 915 P.2d at 496. The mail carrier knew that a dog lived at that particular residence but she had never seen him prior to the incident causing her injury. Id. at 496–97. The jury found the mail carrier contributorily negligent, assigning her 50% of the fault and barring her recovery. Id. at 497. The trial court denied the mail carrier's subsequent motion for a new trial. Id. Yet our supreme court reversed, noting that the trial court's denial of the motion was based in part on the fact that there was no actual contact between the dog and the mail carrier. The supreme court explained, "This fact is of little or no importance," id. specifically because the relevant statute "makes a dog's owner or keeper strictly liable for damages caused by the dog, thus making it unnecessary for the injured party to allege and prove negligence on the part of the dog owner or keeper" and "does not specifically require physical contact between the dog and the injured party. It is only necessary that the dog ‘committed’ the injury." Id. at 498. Thus, the trial court in Sharp made an error of law.

¶13 As for the trial court's finding that the mail carrier had taken a shortcut across the dog owner's lawn, the supreme court concluded "that this fact says little, if anything, about [the mail carrier's] negligence" because mail carriers "are encouraged by the postal service to take shortcuts across lawns unless doing so would put them in danger." Id. Because the dog's owner "had a practice of keeping [the dog] indoors until the mail was delivered," the supreme court reasoned that the mail carrier "cannot be considered negligent for crossing the lawn since she could reasonably assume that [the dog] was inside the house as he had always been on prior deliveries." Id. at 498–99. For these reasons, among others, the supreme court concluded "that the trial court abused its discretion in denying [the mail carrier's] motion for a new trial." Id. at 499.

¶14 Choate uses this case to argue that just as the mail carrier in Sharp "could not be considered negligent for cutting across the defendant's lawn because [she] could...