FITCH v. BANK 10 (2022)

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

This action arises out of a fall Ann Fitch suffered while on the premises of Defendant U.S. Bank in Hurricane, Utah. Ms. Fitch filed a complaint in September 2020 in Utah state court alleging that U.S. Bank had negligently maintained its premises, which caused her to trip over an unspecified “lump.” After the action was removed to this court, U.S. Bank filed a Motion for Summary Judgment (“Motion”)¹ arguing that no reasonable jury could find that U.S. Bank created an unreasonably dangerous condition. Ms. Fitch filed a response to the Motion ² and U.S. Bank filed a reply.³

On May 10, 2022, the court filed a notice stating that it intended to rule in favor of U.S. Bank, in part because the alleged dangerous condition was temporary in nature.⁴ Because neither party raised this argument in briefing, Ms. Fitch was provided 21 days to object to the proposed order pursuant to Federal Rules of Civil Procedure 56(f)(2). Ms. Fitch did not file objections.

Because no reasonable jury could find U.S. Bank was responsible for a condition that caused Ms. Fitch's injury, and because she has failed to show U.S. Bank had notice of a temporary condition created by a third party or that U.S. Bank created such a condition itself, U.S. Bank's Motion is GRANTED.

UNDISPUTED MATERIAL FACTS 5

1. On the morning of December 31, 2018, Ms. Fitch and a third party, Gail Freezer, visited the location of U.S. Bank in Hurricane, UT.⁶

2. Ms. Fitch fell as she was leaving the bank, injuring herself.⁷

3. Ms. Fitch's Complaint alleges that U.S. Bank was negligent in maintaining its “uneven sidewalk [in] an unsafe condition”, and that this negligence caused her injuries.⁸

4. Ms. Fitch specifically claimed that she had tripped over a “big lump” in U.S. Bank's parking lot.⁹

5. Ms. Fitch could not describe the lump with any more specificity than “big,” “dark colored,” “humped upward,” and on the asphalt next to the sidewalk.¹⁰

6. Ms. Fitch has not provided any pictures, measurements, or more detailed description of the lump.¹¹

7. Ms. Fitch could not describe the exact location of the lump.¹²

8. U.S. Bank has not had any falls in its sidewalk or parking lot areas reported to it before or after Ms. Fitch's fall.¹³

DISCUSSION

Summary judgment is appropriate if “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.”¹⁴ A genuine issue of material fact exists when there is evidence such that a reasonable jury could return a verdict for the nonmoving party.¹⁵ To prevail on a motion for summary judgment, the moving party need only show “that there is an absence of evidence to support the nonmoving party's case.”¹⁶ A court is required to construe all facts and make all reasonable inferences in the light most favorable to the nonmoving party.¹⁷ However, inferences unsupported by factual evidence, but only supported by speculation, are insufficient to defeat a motion for summary judgment.¹⁸

In a diversity action such as this one, a court applies the substantive law of the forum state.¹⁹ Because Utah is the forum state, Utah substantive law applies.

Duty of a Landowner to an Invitee

The Supreme Court of Utah has defined the duty a landowner owes to its invitees as follows:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (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.20

A property possessor is not a guarantor of an invitees’ safety, and negligence will not be presumed merely because an invitee suffered an injury.²¹ For permanent dangerous conditions, a plaintiff must prove both foreseeability and that the condition presented an unreasonable risk of harm.²² And for temporary conditions, such as the one alleged here, a plaintiff must show that (1) either the defendant had notice of or the defendant created the condition, and (2) that the defendant acted negligently in creating or failing to remedy the condition.²³

The alleged dangerous condition was a temporary condition

Utah courts have identified two types of dangerous conditions in premises liability cases: permanent conditions, where no proof of notice to a defendant is required, and temporary conditions, where proof of notice or proof the possessor created the condition is required.²⁴ Ms. Fitch argues that because the alleged condition was caused by failure to maintain a parking lot over which U.S. Bank had control and responsibility, the alleged dangerous condition was a permanent condition, and therefore proof of notice was not required. She is correct that a possessor of land is presumed to know of a permanent condition. But Ms. Fitch is incorrect that the condition she is alleging is a permanent condition.

Temporary dangerous conditions include “conditions that someone else creates ․, that arise from malfunctions ․, or that gradually evolve on their own.”²⁵ Conditions which were not directly created by a property possessor, but instead were caused by wear and tear or similar forms of degradation, or by inclement weather, are considered to be temporary dangerous conditions. For example, the Utah Supreme Court has held a failure to maintain streetlights ²⁶ and a failure to maintain a field crossing in a railroad which had mechanically degraded ²⁷ both involved temporary conditions, even though defendants in both cases had responsibility for maintenance and operation of the area. Permanent conditions, on the other hand, are created by a property owner's choice of a mode of operation (such as allowing customers to peel off lettuce leaves and drop them in boxes),²⁸ and therefore a court can safety presume the owner has notice of them.²⁹

The Utah Court of Appeals case of Johnson v. Gold's Gym involved analogous factual circumstances. In Johnson, a plaintiff fell and was injured after tripping over a section of broken asphalt in the defendant's parking lot.³⁰ Summary judgment was granted for the defendant. The plaintiff appealed, arguing the “broken asphalt [was] a permanent condition because Appellees [had] a permanent duty to maintain the parking lot,” and therefore proof of notice was not required.³¹ The Court of Appeals rejected this argument, reasoning that the defendant had not created or caused the broken pavement, and was responsible for it only insofar as it was responsible for the maintenance of the pavement.³² The Court of Appeals concluded that a condition created though a failure to maintain was better classified as a temporary condition, and therefore, proof of notice was required for the plaintiff to recover.³³

As in Johnson, the condition Ms. Fitch alleges is best classified as one caused by a failure to maintain. The complaint in this action supports this interpretation, as it states that U.S. Bank's was negligent in failing to “use reasonable care to maintain the subject premises.”³⁴ There is no allegation that U.S. Bank chose a method of operation that was more likely to result in a dangerous condition, or that U.S. Bank directly created the lump. Instead, Ms. Fitch alleges that U.S. Bank allowed the asphalt to degrade into a dangerous condition, which is a temporary unsafe condition.³⁵

Ms. Fitch Fails to Allege that U.S. Bank Had Notice of the Temporary Condition

Ms. Fitch's claim fails because she has alleged a temporary dangerous condition and presented no evidence from which a jury could find that U.S. Bank had notice of the condition. (She does not allege U.S. Bank created the condition, which would dispense with the requirement that U.S. Bank have notice of the condition.) “If a plaintiff alleges that a defendant ․ negligently allowed an otherwise safe condition to degrade over time into a dangerous condition (as in the instant case), then evidence of notice and a reasonable time to remedy are required to survive a motion for summary judgment or directed verdict.”³⁶ Accordingly, in order to establish that U.S. Bank was negligent in maintaining the premises, Ms. Fitch must establish that U.S. Bank had constructive or actual notice of the allegedly dangerous condition,³⁷ or that U.S. Bank created the condition.³⁸ This she has failed to do.

Ms. Fitch argues that there is evidence is the record that identifies the lump and shows U.S. Bank had notice of the lump. She points to two potential tripping hazards identified in the maintenance records for the bank: a “heaving at entry concrete” at the walkways to the bank;³⁹ and an unspecified “trip hazard” in March 2015 and April 2016 (years before her fall), located at the front and back of the building, which needed to be ground down.⁴⁰ However, no reasonable jury could find that these records were referring to the area where Ms. Fitch claimed she tripped without going beyond the record and engaging in speculation. The reference to the “heaving at entry concrete” is in a section of maintenance record dealing with the entrance to the bank, not the parking lot area where Ms. Fitch fell.⁴¹ Furthermore, Ms. Fitch described the lump as part of the asphalt of the parking lot, not concrete. And, regarding the “trip hazard,” there is no indication of what the tripping hazard was, where specifically it was located, or whether it was repaired prior to Ms. Fitch's fall. In sum, there is no evidence that the conditions described in the maintenance records have any type of connection to Ms. Fitch's fall.

Because Ms. Fitch has not shown evidence that would allow a reasonable jury to conclude that U.S. Bank had notice of the lump or time to correct it, summary judgment will be granted for U.S. Bank.

Ms. Fitch Presents No Evidence of the Condition Which Caused Her Injury

Even if Ms. Fitch had shown evidence of notice, or had alleged a permanent condition, no reasonable jury could find it was foreseeable that the alleged condition presented an unreasonable risk of harm. While a court is required to construe all facts in the light most favorable to the nonmoving party, summary judgment is appropriate when a finding in favor of the plaintiff would require inferences based on speculation and conjecture.⁴² Ms. Fitch has provided no pictures, measurements, or specific descriptions of what she tripped over. While exact measurements of an allegedly dangerous condition are not required, Ms. Fitch does need to provide description sufficient for a jury to determine if the condition presented an unreasonable risk of harm. Ms. Fitch is unable to offer any description of the lump besides it was “big,” “uneven,” and “dark colored”.⁴³ Without a description of what the mysterious lump was, there is no direct evidence, and no way for a jury to conclude, that the condition was inherently dangerous and presented a foreseeable risk of harm.⁴⁴ Based on the testimony given by Ms. Fitch, the lump might have presented an open and obvious danger ⁴⁵ , or it might not have been reasonably foreseeable that it would present a danger to anyone.⁴⁶ There is no evidence to support a jury determination that such a dangerous condition existed.

CONCLUSION AND ORDER

For the foregoing reasons, U.S. Bank's Motion ⁴⁷ is GRANTED. Summary Judgment will be entered in favor of U.S. Bank on all of Ms. Fitch's claims.

FOOTNOTES

1.   Defendant's Motion for Summary Judgment, docket no. 13, filed December 6, 2021.

2.   Memorandum in Opposition to Defendant's Motion for Summary Judgment (“Response”), docket no. 18, filed January 10, 2022.

3.   Defendant's Reply in Support of its Motion for Summary Judgment, docket no. 20, filed January 24, 2022.

4.   Notice from the Court, docket no. 26, filed May 10, 2022.

6.   Motion ¶ 1 at 2 (citing Deposition of Ann Fitch, dated March 22, 2021 (“Fitch Depo.”), Exhibit A to D's Motion, pgs. 2-11 of Exhibits in Support of Motion for Summary Judgment, docket no. 13-1, filed December 6, 2021, at 27:3-20).

7.   Motion ¶ 2 at 2 (citing Fitch Depo. at 41:3-43:23).

8.   Motion ¶ 3 at 2-3 (citing Complaint, docket no. 9-1, filed February 22, 2021, ¶¶ 15-17 at 3).

9.   Motion ¶ 6 at 3; Fitch Depo. at 42:8-16.

10.   Motion ¶ 4 at 3; id. ¶ 7 at 4-5; Plaintiff's Answers to Defendant's First Set of Interrogatories and Requests for Production of Documents, Exhibit C to D's Motion, pgs. 24-40 of Exhibits in Support of Motion for Summary Judgment, docket no. 13-1, filed December 6, 2021, at 11; Fitch Depo. at 42:8-16. Plaintiff also described the lump as “little” at one point. Fitch Depo. at 38:4-12.

11.   See Motion ¶ 8 at 5-6 (citing Fitch Depo.) While the cited deposition pages are not provided, Plaintiff does not challenge the pages’ authenticity or that Plaintiff was unable to provide a precise description of the lump. See Response at 8.

12.   Motion n.3 at 8; Response n.3 at 8 (citing Fitch Depo at 39:15-12).

13.   Motion ¶ 15 at 9 (citing Deposition of Jacob Browning, dated March 22, 2021, Exhibit E to D's Motion, pgs. 44-47 of Exhibits in Support of Motion for Summary Judgment, docket no. 13-1, filed December 6, 2021, at 24:15-17; Deposition of Nicole Navarette, dated March 22, 2021, Exhibit F to D's Motion, pgs. 49-52 of Exhibits in Support of Motion for Summary Judgment, docket no. 13-1, filed December 6, 2021 at 18:7-19:18; Deposition of Sherrie Hartinking, dated October 20, 2021, Exhibit G to D's Motion, pgs. at 54-62 of Exhibits in Support of Motion for Summary Judgment, docket no. 13-1, filed December 6, 2021, at 52:13-24; Deposition of Jaime Bo, dated March 22, 2021, Exhibit H to D's Motion, pgs. 64-67 of Exhibit in Support of Motion for Summary Judgment, docket no. 13-1, filed December 6, 2021, at 18:11-16).

14.   Universal Money Centers, Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994) (quoting Fed. R. Civ. P. 56(c)).

15.   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

16.   Universal Money Centers, Inc., 22 F.3d at 1529 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

17.   Universal Money Centers, Inc., 22 F.3d at 1529.

18.   Self v. Crum, 439 F.3d 1227, 1236 (10th Cir. 2006).

19.   Pepsi–Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

20.   Hale v. Beckstead, 116 P.3d 263, 266 (Utah 2005) (quoting Restatement (2d) of Torts § 343, (1965))(emphasis in original).

21.   Jex v. JRA, Inc., 196 P.3d 576, 582 (Utah 2008).

22.   Id.

23.   Id. at 581-82.

24.   See Johnson v. Gold's Gym, 206 P.3d 302, 307 (2009). Typically, notice is required in cases involving temporary conditions. The Utah Court has identified a narrow exception to this rule when a temporary unsafe condition is directly created by a property owner. Cochegrus v. Herriman City, 462 P.3d 357, 363 (Utah 2020).

25.   Goebel v. Salt Lake City S. R. Co., 104 P.3d 1185, 1194 (Utah 2004).

26.   Fishbaugh v. Utah Power & Light, 969 P.2d 403, 407 (Utah 1998).

27.   Goebel, 104 P.3d at 1193.

28.   Jex, 196 P.3d at 579.

29.   Plaintiff suggest that a recent case, Cochegrus v. Herriman City, 462 P.3d 357, 363 (Utah 2020), changed Utah law concerning permanent conditions because it included in the definition of permanent conditions those conditions “for which [a property owner] is responsible.” This language is a direct quote from a 1975 Supreme Court of Utah case, Allen v. Federated Dairy Farms, Inc., 538 P.2d 175, 176 (Utah 1975). Cochegrus is a restatement of the long-standing principle in Utah that a permanent condition in Utah includes those conditions that the owner is responsible for creating through action.

30.   Johnson, 206 P.3d at 304.

31.   Id. at 307.

32.   Id. at 308.

33.   Id.

34.   Complaint ¶ 15 at 3 (emphasis added).

35.   See Goebel v. Salt Lake City S. R. Co., 104 P.3d at 1193-1194.

36.   Id.

37.   Michelle Fontenette–Wilson v. Driftwood Hosp. Mgmt., No. 2:13-CV-832-JNP, 2016 WL 6108528, at *4 (D. Utah Oct. 19, 2016).

38.   Jex, 196 P.3d at 581-583.

39.   Inspection Records, Exhibit A to Response, docket no. 18-1, filed January 10, 2022, at 1.

40.   Response at 13; Deposition of Sherrie Hartinking, dated October 20, 2021, at 34:1-25.

41.   Inspection Records at 1.

42.   See Pioneer Centres Holding Co. Emp. Stock Ownership Plan & Tr. v. Alerus Fin., N.A., 858 F.3d 1324, 1334 (10th Cir. 2017).

43.   Plaintiff's Answers to Defendant's First Set of Interrogatories and Requests for Production of Documents at 11; Fitch Depo. at 42:8-16.

44.   See Jex, 196 P.3d at 580.

45.   Coburn v. Whitaker Constr. Co., 445 P.3d 446, 450 (Utah 2019).

46.   See Schnuphase v. Storehouse Markets, 918 P.2d 476, 479 (Utah 1996).

47.   Docket no. 63, filed September 16, 2021.

David Nuffer, United States District Judge