Downham v. Arbuckle

502 P.3d 312

Tara DOWNHAM, Appellant,

v.Alan ARBUCKLE, Appellee.

No. 20200612-CA

Court of Appeals of Utah.

Filed November 12, 2021

Ron J. Kramer and Allen M. Young, Attorneys for Appellant

Mitchel T. Rice, Andrea M. Keysar, and Marianne Schumann, Attorneys for Appellee

Judge Ryan D. Tenney authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.

Opinion

Tenney, Judge:

¶1 Tara Downham rented a home from Alan Arbuckle. Outside one of the back doors was a wooden pallet that served as the back step. After this wooden step broke one day, allegedly injuring Downham in the process, Downham sued Arbuckle for negligence.

¶2 Arbuckle moved for summary judgment based on the "open and obvious danger" rule. This is a "duty-defining rule" that shields land possessors from liability for injuries that were sustained on their property if those injuries were caused by open and obvious dangers. Lyman v. Solomon , 2011 UT App 204, ¶ 4, 258 P.3d 647 (quotation simplified). Applying this rule, the district court granted summary judgment to Arbuckle.

¶3 We disagree with the district court's application of this rule to this case. Contrary to the court's conclusion, this rule doesn't stop with a determination that there was an open and obvious danger. Instead, even where there is an open and obvious danger, the land possessor may still be liable if, under the circumstances, he should anticipate that the invitee will encounter the dangerous condition. Because a jury could reasonably conclude that this was the case here, we reverse the grant of summary judgment.

BACKGROUND¹

¶4 Tara Downham lived in a home that she rented from Alan Arbuckle. The home had two doors that led to the backyard: one was a wooden swinging door, and the other was a sliding glass door. To bridge the gap between the home and the backyard, a wooden step had been placed outside the sliding glass door.

¶5 Downham used this make-shift step for at least 18 months before the incident in question. During that time, Downham complained to Arbuckle that the step was "very wobbly, unsafe[,] and that it was moving." Still, she kept it there because "[t]here was a drop-off from the door to the ground." So although her family acknowledged that it "was safer than not having a step," they "expected a replacement with a permanent step." But Arbuckle didn't provide one.

¶6 One day in June 2015, Downham stepped on the wooden step as she entered the backyard. It broke as she did, and she was injured as a result.

¶7 Downham sued Arbuckle for negligence based on principles of premises liability. Arbuckle later moved for summary judgment, arguing that the "open and obvious danger rule" barred Downham's recovery. The district court granted Arbuckle's motion, holding that Arbuckle owed no duty to Downham because the wooden step presented an "open and obvious" danger to her.

¶8 Downham now appeals the court's grant of summary judgment.

STANDARD OF REVIEW

¶9 "We review the district court's decision on summary judgment de novo." Potter v. South Salt Lake City , 2018 UT 21, ¶ 16, 422 P.3d 803 (quotation simplified).

ANALYSIS

¶10 Downham argues that summary judgment was improper because the district court misapplied the open and obvious danger rule to this case. We agree.²

¶11 In Utah, "a possessor of land may be subject to liability for injuries to invitees caused by a condition on the land if" the possessor

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.

Lyman v. Solomon , 2011 UT App 204, ¶ 4, 258 P.3d 647 (quotation simplified); see also Restatement (Second) of Torts § 343 (1965).

¶12 The open and obvious danger rule provides an exception to the possessor's duty of care. Under this rule, a "possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them." Lyman , 2011 UT App 204, ¶ 4, 258 P.3d 647 (quotation simplified); cf. Coburn v. Whitaker Constr. Co. , 2019 UT 24, ¶ 12, 445 P.3d 446 (noting that the Utah Supreme Court has "adopted the open and obvious danger rule as embodied in sections 343 and 343A of the Restatement (Second) of Torts"); Hale v. Beckstead , 2005 UT 24, ¶ 17, 116 P.3d 263 (same). "If the open and obvious danger rule applies, then the land possessor owes no duty to its invitees with respect to the open and obvious danger and therefore cannot be held liable for any injury caused thereby." Coburn , 2019 UT 24, ¶ 12, 445 P.3d 446.

¶13 But this rule does not always shield a land possessor from liability where the danger is later determined to have been open and obvious. Instead, a possessor may still be liable if the possessor should have "anticipate[d] harm despite" the invitee's knowledge of the danger or the danger's obviousness. Restatement (Second) of Torts § 343A(1) ; see also Coburn , 2019 UT 24, ¶ 12, 445 P.3d 446 ; Lyman , 2011 UT App 204, ¶ 4, 258 P.3d 647. In other words, the "possessor is not relieved of the duty of reasonable care which he owes to the invitee for [the invitee's] protection" if the possessor had "reason to expect that the invitee" would "nevertheless suffer physical harm" from the open and obvious danger. Restatement (Second) of Torts § 343A cmt. f. "Such reason may ... arise," for example, "where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk." Id. The same is true where there is "reason to expect" that the invitee "would forget the danger, would become distracted from it, or would reasonably encounter the danger despite the risk." Hale , 2005 UT 24, ¶ 34, 116 P.3d 263.

¶14 In this sense, there are two key steps to this analysis—the "open and obvious danger" step and the "anticipated harm" step. And as evidenced by the parties’ arguments in this case, these can sometimes seem to be in tension. After all, if the danger is truly open and obvious, then one could argue that the possessor should always anticipate that the invitee will encounter it. But if that were always enough to open the possessor to liability, the rule's practical effect would be something of a nullity.

¶15 It's not. Properly understood, the open and obvious danger rule calls for a context-specific analysis that takes into account both steps to determine whether the possessor should be legally shielded from liability. This rule "simply states that, under appropriate circumstances, a landowner's duty of care might not include warning or otherwise protecting visitors from obvious dangers," but it nevertheless "does not operate to allow a landowner to act negligently and remain free from liability" just because "his negligence was obvious to those who were injured thereby." Id. ¶ 23.

¶16 Thus, when the rule is invoked, a court must "inquir[e] into whether factors existed to vest in the [land possessor] a duty to warn or otherwise protect the [invitee]" from the obvious danger. Id. ¶ 32. Among other considerations, application of the rule will "var[y] in stringency depending upon the nature of the invitee and the nature of the possessor of land." Id. ¶ 31.

¶17 A few cases illustrate how this plays out. In Lyman, for example, we held that the open and obvious danger rule shielded a land possessor from liability for injuries that an invitee suffered when traversing the possessor's unlit driveway. 2011 UT App 204, ¶¶ 5–6, 258 P.3d 647. Considering the first part of this rule, we concluded that the dangers associated with the unlit and uneven driveway were open and obvious. Id. ¶ 5. This was so because "[t]he driveway's uneven surface condition was familiar" to the invitee, "as she had encountered it many times," and also because "the indentation alleged [was] typical of unpaved roads." Id. Considering the second part, we held that although the possessor "could have expected" that the invitee "would choose to traverse the driveway despite the potential danger," there was nothing in the record suggesting that the possessor "should have expected" that her invitee "would not do so safely." Id. ¶ 6. For instance, "there [was] no suggestion that" the possessor had told the invitee to "hurry" or that the possessor knew of "any physical condition" that would render the invitee "incapable of safely negotiating the driveway." Id. "In the absence of such factors," we affirmed the grant of summary judgment to the possessor. Id. ¶¶ 6–7.

¶18 We reached a similar conclusion in Jensen v. Gardner , 2012 UT App 146, 279 P.3d 844. There, we held that an apartment complex owner was not liable to a prospective tenant who hit her head on a balcony during a rainstorm. Id. ¶¶ 8–9. Although the balcony presented an "open and obvious danger," id. ¶ 6, the "undisputed facts demonstrate[d]" that the complex owner "did not know" that the prospective tenant "was coming from and running to the private tenant parking lot" and did not have any "knowledge of anyone else ever hitting his or her head on the balcony." Id. ¶ 7. We thus held that the owner "could not reasonably have anticipated that [the prospective tenant] would have been running by that balcony with her head down and looking at her feet rather than at the balcony" when she returned to the private parking lot in the rain. Id. ¶ 8. And because of this, the open and obvious danger rule relieved the owner from liability for the prospective tenant's subsequent injuries. Id. ¶ 9.

¶19 By contrast, our supreme court in Hale concluded that the rule did not shield a homeowner from liability after a hired painter fell from the homeowner's unenclosed balcony. 2005 UT 24, ¶¶ 3–6, 39–40, 116...