Warrick v. Prop. Reserve Inc.

437 P.3d 439

Curtis W. WARRICK and Shawna J. Warrick, Appellants,

v.PROPERTY RESERVE INC., Appellee.

No. 20170188-CA

Court of Appeals of Utah.

Filed October 12, 2018

George S. Diumenti, Bountiful, Clifton W. Thompson, and Karra J. Porter, Salt Lake City, Attorneys for Appellants.

Thomas D. Walk, Swen R. Swenson and Ryan R. Beckstrom, Salt Lake City, Attorneys for Appellee.

Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.

Opinion

MORTENSEN, Judge:

¶1 In mid-January, during subfreezing temperatures, Plaintiff Curtis W. Warrick cut across Defendant Property Reserve Inc.'s (PRI) parking lot on his way to work. Before he could complete his sojourn, he slipped and fell on a patch of ice. Warrick and his wife, Shawna J. Warrick (collectively, the Warricks), sued PRI for negligence, but the district court dismissed their claims on summary judgment on the basis that the Warricks provided no evidence of how long the temporary condition had existed. The Warricks appeal, and we affirm.

BACKGROUND

¶2 Warrick left for work early one January morning in 2011. He boarded a bus and arrived in Salt Lake City just before 8:00 a.m. The weather was below freezing with light snowfall.

¶3 Warrick walked until he came to a private walkway that cut across a commercial property. The walkway had apparently been cleared of snow and salted. Warrick traveled along the walkway until it came to a pay-to-use parking lot owned by PRI. Warrick noticed a skiff of snow on the parking lot and piles of plowed snow, roughly two feet high, around the perimeter of the lot.

¶4 While attempting to cross the parking lot, Warrick slipped and fell, breaking his leg. After the fall, Warrick found that he had slipped on "crystal clear" ice, which he described as "just water under that thin layer of snow." The Warricks sued PRI for negligence.

¶5 After discovery, PRI moved for summary judgment, arguing (1) that Warrick was a trespasser and (2) that even if he was a licensee, PRI did not breach any duties because it did not have actual or constructive notice of the ice. The district court granted the motion, considering Warrick an invitee for purposes of the motion and ruling that Warrick presented no evidence that PRI had actual or constructive notice of the ice. The Warricks appeal.

ISSUE AND STANDARD OF REVIEW

¶6 The Warricks contend that the district court erroneously granted summary judgment. We review the district court's grant of summary judgment for correctness, "considering only whether the [district] court correctly applied the law and correctly concluded that no disputed issues of material fact existed." North Fork Special Service District v. Bennion , 2013 UT App 1, ¶ 12, 297 P.3d 624 (cleaned up).

ANALYSIS

¶7 The Warricks' argument on appeal is twofold. First, the Warricks assert that the district court misapplied controlling case law when it required them to demonstrate that PRI had actual or constructive notice of the ice. Second, in the alternative, the Warricks argue that the evidence presented on summary judgment reasonably supported an inference that the ice existed long enough for PRI to have discovered and remedied it. Before turning to issues of preservation and the merits of the district court's grant of summary judgment, we first address the procedural parameters of summary judgment. Particularly, we focus on what constitutes the facts to be considered by the district court.

I. The Constellation of Facts on Summary Judgment

¶8 We acknowledge the black letter law that the court must construe all facts and draw all reasonable inferences in favor of the non-moving party.¹ Less clear is which facts the district court may consider in the first place. A conclusion that a genuine issue of fact exists, even when based upon a reasonable inference, must flow from a specific fact or set of facts.

¶9 Rule 56 of the Utah Rules of Civil Procedure is explicit in this regard. Subsection (a)(1) of rule 56 provides:

[A] motion for summary judgment must contain a statement of material facts claimed not to be genuinely disputed. Each fact must be separately stated in numbered paragraphs and supported by citing to materials in the record under paragraph (c)(1) of this rule.

Utah R. Civ. P. 56(a)(1). Correspondingly, subsection (a)(2) provides:

[A] memorandum opposing the motion must include a verbatim restatement of each of the moving party's facts that is disputed with an explanation of the grounds for the dispute supported by citing to materials in the record under paragraph (c)(1) of this rule. The memorandum may contain a separate statement of additional material[ ] facts in dispute, which must be separately stated in numbered paragraphs and similarly supported.

Id. R. 56(a)(2). Finally, subsection (a)(4) provides:

Each material fact set forth in the motion or in the memorandum opposing the motion under paragraphs (a)(1) and (a)(2) that is not disputed is deemed admitted for the purposes of the motion.

Id. R. 56(a)(4). Thus, the fact statements of the moving and opposing memoranda constitute the constellation of facts to be considered by the district court on summary judgment. Those same facts are to be considered by the reviewing court on appeal. Limiting consideration to this array of facts is fundamentally fair. Although a summary judgment motion commences with the moving party's statement of allegedly undisputed facts, the non-moving party ultimately controls the totality of facts to be considered because the rule specifically allows for additional statements of facts. Id. R. 56(a)(2). And indeed, these additional facts come not only by way of discovery responses already made, but also by way of affidavits of parties or other witnesses filed in response to the motion. Id. R. 56(c)(4). Beyond that, where facts essential to a determination of summary judgment cannot be presented, counsel may file an affidavit or declaration asking for additional time to obtain discovery justifying an opposition. See id. R. 56(d).

¶10 Such considerations are material here. On appeal, both in the briefing and at oral argument, the Warricks claim that the ice on which Warrick slipped was one inch thick, but that assertion is not found anywhere in the statements of fact before the district court. Instead, as discussed above, supra ¶ 4, the only factual statements provided to the district court indicate that the ice was clear and under a thin layer of snow.² And while the district court would have been well within its discretion to limit its consideration to only those facts asserted in the statements of fact, the district court apparently looked elsewhere in the record to infer and characterize the ice as "thick," but it did not expressly infer that it was one inch thick. As such, we conclude that consideration of the fact now asserted on appeal that the ice was one inch thick would be improper.³ We nevertheless note that even if evidence were properly before us that the ice was one inch thick, Warrick's claim would still fail for the reasons we next explain.

II. The Requirement to Demonstrate Actual or Constructive Notice

¶11 The Warricks claim on appeal that the district court misapplied Utah case law by requiring a showing of actual or constructive notice. They argue that a showing of notice is not required in a situation where a defendant creates the dangerous condition. We conclude that this argument is unpreserved.

¶12 "When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443. "An issue is 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." Patterson v. Patterson , 2011 UT 68, ¶ 12, 266 P.3d 828 (cleaned up). "To provide the court with this opportunity, the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority." Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443 (cleaned up).

¶13 The Warricks' argument on appeal relies on principles articulated in Jex v. JRA, Inc. , 2008 UT 67, 196 P.3d 576. In that case, the court held that the notice requirement does not apply to temporary unsafe conditions created by owners. Id. ¶ 24. Although the Warricks point to no argument below applying this doctrine, they argue that their mention of the conditions of the parking lot preserved the argument. We disagree. All of the Warricks' arguments on summary judgment asserted that PRI had constructive notice of the temporary condition, and nowhere in the Warricks' statement of preservation do they identify where they argued that the notice requirement does not apply.⁴ The Warricks' argument was not preserved for two reasons.

¶14 First, the Warricks' statements before the district court lack specificity to preserve the argument. See Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443. The Warricks cite parts of the record where they discuss snow being piled on an island, the lack of a drain to absorb melting snow, and the path created by the sidewalks and plowed snow. The Warricks also cite to their argument that PRI had constructive notice of the ice. These statements, without more, do not amount to an argument that the notice requirement, actual or constructive, was inapplicable.

¶15 Further, the Warricks specifically argued that PRI had constructive notice because the ice had been on the ground for a sufficient amount of time and the surrounding sidewalks had been salted. And when the district court asked at the hearing on the motion for summary judgment whether the Warricks "ha[d] any facts that would indicate that the owner ... actually knew" about the ice, they responded, "We're not asserting that.... We're not saying that this was an obvious condition...." Such an argument that...