Liley v. Cedar Springs Ranch

2017 UT App 166
THE UTAH COURT OF APPEALS
PATRICK LILEY ,
Appellee,
v.
C EDAR S PRINGS R ANCH I NC .,
Appellant.
Opinion
No. 20150267-CA
Filed August 31, 2017
Fourth District Court, Nephi Department
The Honorable Jennifer A. Brown
No. 120600012
Brent D. Wride, Attorney for Appellant
Joseph E. Wrona and Jared C. Bowman, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES S TEPHEN L. R OTH and K ATE A. TOOMEY concurred.1
MORTENSEN, Judge:
¶1 	A Black Angus cow strayed from the safety of its herd on
property 	owned 	by 	Cedar 	Springs 	Ranch 	Inc., 	wandered
through a hole in a poorly maintained fence, and found its way
onto Highway 28 near Levan, Utah. While returning home one
night, Patrick Liley collided with the cow, killing it and suffering
injuries himself. Liley brought a negligence claim against Cedar
Springs and prevailed at trial despite Cedar Springs’ insistence
1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court before this
decision issued.

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that Warm Creek Ranch, which leased Cedar Springs’ property
and owned the cows at the time of the accident, was responsible
for 	Liley’s 	injuries. 	Cedar 	Springs 	appeals 	the 	trial 	court’s
decisions 	on 	its 	summary 	judgment 	and 	directed 	verdict
motions. We reverse.
BACKGROUND
¶2 	Dale Dorius and his wife own Cedar Springs Ranch.
Dorius is also one of six shareholders in Warm Creek Ranch.
Dorius testified that in 1972, while acting on behalf of both
entities, Dorius entered into an oral lease between Cedar Springs
and Warm Creek. The lease allowed Warm Creek to use Cedar
Springs’ land to graze cattle for approximately four months of
every year. Warm Creek was running cattle on Cedar Springs’
property in October 2009—the time of Liley’s accident. Liley
admitted that Cedar Springs did not own the cattle.
¶3 	At 2:00 a.m. on October 4, 2009, Liley was driving home
from an elk hunting trip, heading north on Highway 28 near
Levan, 	Utah. 	Liley’s 	truck 	collided 	with 	a 	cow 	that 	had
wandered onto the road. Liley pulled over and called 911. He
heard a number of cows bellowing on the east side of the
freeway—the direction of Cedar Springs’ property. Liley also
noted large holes in the fence along Cedar Springs’ property and
observed a tag on the cow’s ear, which read “Dorius Family.”2
¶4 	In November 2011 Liley filed this action for negligence,
naming 	Cedar 	Springs, 	Dorius, 	the 	Utah 	Department 	of
Transportation (UDOT), Juab County, and Sanpete County as
defendants. Dorius, Juab County, and Sanpete County were
2. The tag, along with the cow’s head, went missing sometime
between the night of the accident and a follow-up investigation
one or two days later.

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20150267-CA 	3 	2017 UT App 166
dismissed from the action and their dismissal is not the subject
of this appeal. UDOT prevailed on a directed verdict motion at
trial, leaving Cedar Springs as the last remaining defendant.
Liley never brought a claim against Warm Creek.
¶5 	Before trial, Cedar Springs filed a motion for summary
judgment. Cedar Springs argued that Liley failed to establish
that it owed him any duty. In his response, Liley admitted that
“Warm Creek . . . is a Corporation [that] owns and operates
cattle and leases property from Cedar Springs.” Liley argued
that Cedar Springs owed him a duty under section 41-6a-407 of
the Utah Code, which states,
A person who owns or is in possession or control
of any livestock may not willfully or negligently
permit any of the livestock to stray or remain
unaccompanied on a highway[.]
Utah Code Ann. § 41-6a-407(1)(a) (LexisNexis Supp. 2016).3 The
thrust of Liley’s argument was that “Dorius[] fits the definition
as either ‘owning or controlling the possession of any livestock’
under the statute and it [4] therefore has a duty.”
¶6 	The trial court did not issue a written ruling on Cedar
Springs’ motion for summary judgment. On the first day of trial,
the trial court met with counsel in chambers. The minute entry
reflects that the trial court made “findings” and denied Cedar
Springs’ 	motion 	for 	summary 	judgment. 	The 	in-chambers
meeting, however, was held off the record, meaning the trial
3. We cite the most current version of the Utah Code. The statute
has not substantively changed since the time of the accident.
Compare Utah Code Ann. § 41-6a-407 (LexisNexis Supp. 2016),
with id. (LexisNexis 2005).
4. Presumably, “it” refers to Cedar Springs.

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court’s findings and basis for denying Cedar Springs’ summary
judgment motion are not available to us.5
5. The parties give us some clues as to the basis of the trial
court’s ruling on summary judgment from the context of the
arguments 	on 	appeal. 	Cedar 	Springs 	states 	its 	first 	issue
presented 	for 	review 	is 	whether 	the 	trial 	court 	erred 	“in
essentially ruling that, as a matter of law, a landlord that owns
real 	property 	on 	which 	a 	tenant’s 	cows 	are 	grazing 	is 	‘in
possession or control’ of the livestock [under Utah Code section
41-6a-407(1)(a)].” 	Liley 	responds 	to 	Cedar 	Springs’ 	issue
statement, explaining,
The trial court made no such ruling. The trial court
found that evidence existed to suggest that [Cedar
Springs] had “some duty to control the actions of
its tenant,” and the trial court opined that [Cedar
Springs’] 	duty 	could 	be 	impacted 	by 	the 	fact
[Cedar Springs] and tenant [Warm Creek] are both
owned and controlled by Dale Dorius. The trial
court therefore denied summary judgment on the
question of duty and allowed trial to proceed on
the question of the scope of [Cedar Springs’] duty
versus [Warm Creek’s] duty.
Liley does not cite the quoted language in his explanation,
though it appears to be a quote from the trial court’s ruling on
Cedar Springs’ motion for a directed verdict, not summary
judgment. In any event, without a record of the trial court’s
ruling, we are left in the dark, and neither party has attempted to
supplement 	the 	record 	as 	permitted 	under 	the 	appellate
procedure rules. We also note that trial courts are not required to
specify the grounds on which they deny summary judgment. See
Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 9, 215 P.3d 152.
Either way, a trial court’s decision on summary judgment is
reviewed for correctness. See Lyman v. Solomon, 2011 UT App
204, ¶ 3, 258 P.3d 647.

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¶7 	The jury trial commenced, and, at the close of Liley’s case-
in-chief, Cedar Springs moved for a directed verdict. Cedar
Springs 	again 	argued 	that 	Liley 	had 	not 	established 	that
Cedar Springs owed Liley any duty. Liley again argued that
Cedar Springs owed him a statutory duty under section 41-6a-
407. Liley additionally argued that Cedar Springs had a duty to
use reasonable care in controlling Warm Creek as its lessee.
¶8 	The trial court, this time on the record, denied Cedar
Springs’ motion for a directed verdict. The trial court concluded,
There is a landlord/tenant relationship based upon
his own testimony, and I do find that a landlord
does have some duty to control the actions of its
tenant, and I would say that at least in this case I
would think that duty perhaps is slightly greater
given the close interrelationship of the parties. And
so . . . I am going to find that there is sufficient
competent evidence to go to the jury on the issue of
negligence with regard to Cedar Springs[.]
¶9 	Following 	the 	trial 	court’s 	ruling, 	Cedar 	Springs
presented additional evidence as part of its defense. At the
conclusion of the trial the jury returned a special verdict form in
which it allocated 85% fault for the accident to Cedar Springs,
15% to Liley, and no fault to Warm Creek. The trial court entered
judgment on the special verdict. Cedar Springs appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 	Cedar 	Springs 	appeals 	the 	trial 	court’s 	denial 	of 	its
motions for summary judgment and directed verdict that it

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owed Liley a duty.6 We review whether the trial court erred in
denying those motions.
¶11 	The grant or denial of summary judgment presents a
question of law and is reviewed for correctness. See Lyman v.
Solomon, 2011 UT App 204, ¶ 3, 258 P.3d 647. Liley argues we
should not review the summary judgment motion because the
case proceeded to trial where the parties fairly litigated the facts.
This premise applies when the issue on appeal is “whether a
dispute of material fact existed at the summary judgment stage.”
See Kerr v. City of Salt Lake, 2013 UT 75, ¶ 29, 322 P.3d 669 (stating
that we “do not review on appeal . . . whether a dispute of
material 	fact 	existed 	at 	the 	summary 	judgment 	stage 	of 	a
litigation if the trial court denies summary judgment”). But
appellate review is available “when a motion for summary
judgment is denied on a purely legal basis.” See ASC Utah, Inc. v.
Wolf Mountain Resorts, LC, 2013 UT 24, ¶ 12, 309 P.3d 201. As this
court has explained, “[m]ost cases involving claims of negligence
are 	not 	susceptible 	to 	summary 	disposition, 	but 	the 	initial
question of the existence of a legal duty in tort cases is a question
of law for the court to determine.” Lyman, 2011 UT App 204, ¶ 3
(citation and internal quotation marks omitted). “[W]hether a
duty 	exists 	is 	a 	question 	of 	law 	which 	we 	review 	for
correctness.” Wood v. Salt Lake City Corp., 2016 UT App 112, ¶ 8,
374 	P.3d 	1080 	(alteration 	in 	original) 	(citation 	and 	internal
quotation marks omitted).
¶12 	The grant or denial of a directed verdict is also a question
of law reviewed for correctness. See Proctor v. Costco Wholesale
Corp., 2013 UT App 226, ¶ 6, 311 P.3d 564. Liley argues that our
6. Cedar Springs also challenges the internal consistency of the
jury’s findings on its special verdict. Because we reverse the trial
court’s legal determinations on duty, we do not reach the jury’s
findings on the special verdict.

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20150267-CA 	7 	2017 UT App 166
review of the directed verdict motion must be highly deferential
in favor of the trial court’s determination. See State v. Hawkins,
2016 	UT 	App 	9, 	¶ 	32, 	366 	P.3d 	884 	(“When 	an 	appellant
challenges the denial of a motion for a directed verdict based on
the sufficiency of the evidence, [t]he applicable standard of
review is . . . highly deferential.” (alterations in original) (citation
and internal quotation marks omitted)). Again, this is true when
the basis of our review involves facts and the sufficiency of the
evidence; however, “[w]hether a duty exists is a question of law
which we review for correctness,” Wood, 2016 UT App 112, ¶ 8
(citation and internal quotation marks omitted), and we give “no
particular deference to the trial court’s legal conclusions,” State
v. Skousen, 2012 UT App 325, ¶ 6, 290 P.3d 919 (citation and
internal quotation marks omitted).
ANALYSIS
¶13 	Cedar 	Springs 	challenges 	the 	trial 	court’s 	summary
judgment and directed verdict rulings, specifically regarding
whether a duty exists. “In order to recover for negligence, the
plaintiff must affirmatively establish . . . that the defendant owed
the plaintiff a duty.” Callister v. Snowbird Corp., 2014 UT App 243,
¶ 11, 337 P.3d 1044 (citation and internal quotation marks
omitted). We first examine the trial court’s ruling on summary
judgment.
I. Summary Judgment
¶14 	Where a motion for summary judgment is denied and the
parties go to trial, “[a]ppellate review is available only when
[the] motion for summary judgment is denied on a purely legal
basis.” See ASC Utah, Inc., 2013 UT 24, ¶ 12. A record of the trial
court’s reason for denying Cedar Springs’ summary judgment
motion is not available to us, but the trial court could not have
permitted the claim to proceed to trial without first concluding
that Cedar Springs owed Liley a duty. Further, the parties’

Liley v. Cedar Springs Ranch
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moving 	papers 	are 	available 	for 	our 	review, 	and 	we 	can
ascertain the purported duty that Liley advanced before the trial
court. Because “[w]hether a duty exists is a question of law,”
Wood, 2016 UT App 112, ¶ 8 (citation and internal quotation
marks omitted), appellate review is available on this issue even
in the absence of a complete record.
¶15 	In arguing against Cedar Springs’ motion for summary
judgment, Liley claimed that Cedar Springs owed him a duty
under section 41-6a-407(1)(a) of the Utah Code, which states,
A person who owns or is in possession or control
of any livestock may not willfully or negligently
permit any of the livestock to stray or remain
unaccompanied on a highway[.]
Utah Code Ann. § 41-6a-407 (LexisNexis Supp. 2016). In its
response to the motion, Liley admitted that Cedar Springs does
not own any cattle and that “Warm Creek . . . is a Corporation
[that] owns and operates cattle and leases property from Cedar
Springs.” 	The 	question 	is, 	then, 	whether 	a 	landlord 	is 	“in
possession 	or 	control 	of 	any 	livestock” 	when 	it 	leases 	its
property to a tenant that brings livestock onto the property.7 See
id. Moreover, for liability to attach, the owner or the person in
possession or control of the livestock must “permit” the livestock
to stray or remain on a highway. See id.
¶16 	Section 41-6a-407 makes no mention of a landlord or any
other 	third 	party, 	nor 	does 	it 	contain 	a 	definition 	for
“possession” 	or 	“control.” 	We 	interpret 	statutory 	language
7. We note that Liley disputed whether the lease contained a
provision charging Warm Creek with the obligation to maintain
the fences. But this dispute does not alter our analysis of Liley’s
argument that a landlord has a duty under Utah Code section
41-6a-407.

Liley v. Cedar Springs Ranch
20150267-CA 	9 	2017 UT App 166
“according 	to 	its 	ordinary 	and 	usually 	accepted 	meaning.”
Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶ 14, 267 P.3d
863 (citation and internal quotation marks omitted). A statute is
ambiguous when “its terms remain susceptible to two or more
reasonable 	interpretations 	after 	we 	have 	conducted 	a 	plain
language analysis.” Id. ¶ 15. When a statute is unambiguous “no
other interpretive tools are needed.” Id. (citation and internal
quotation marks omitted).
¶17 	Section 41-6a-407 is unambiguous. “A person who . . . is
in possession or control of any livestock,” whether or not he or
she is the owner of the animals, may not permit the livestock to
be on certain highways. We first look to the plain meaning of the
specific terms “possession” and “control.” Possession means
“actual holding or occupancy, either with or without rights of
ownership.” Possession, Dictionary.com, http://www.dictionary
.com/browse/possession 	[https://perma.cc/NZF7-CLM6?type=
image]. 	The 	plain 	meaning 	of 	the 	term 	“possession” 	is
unambiguous. See In re M.B., 2008 UT App 433, ¶ 19, 198 P.3d
1007 (concluding that the term “possession” is unambiguous
while deciding whether the term encompassed both actual and
constructive possession in a burglary statute). Control means “to
exercise 	restraint 	or 	direction 	over; 	dominate; 	command.”
Control, 	Dictionary.com, 	http://www.dictionary.com/browse/
control 	[https://perma.cc/KL6X-U24W?type=image]. 	The 	term
“control” is also unambiguous. See Turner v. Staker & Parson Cos.,
2012 UT 30, ¶ 13, 284 P.3d 600 (conducting a plain language
analysis 	of 	the 	term 	“actual 	possession 	or 	control” 	and
discerning no ambiguity). Mere status as a landlord does not
make the landlord a possessor or a person in control of the
tenant’s personal property, in this case the cows. Liability under
the statute flows only from possession or control of the livestock,
not possession or control of the land. As such, the statute does
not apply to Cedar Springs merely by virtue of its status as a
lessor.

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20150267-CA 	10 	2017 UT App 166
¶18 	By 	the 	plain 	meaning 	of 	the 	statute, 	and 	under 	the
undisputed 	facts 	of 	this 	case, 	Cedar 	Springs 	did 	not 	have
possession or control over the cattle owned by Warm Creek. A
landlord does not actually hold its tenant’s property, as would
be indicative of having possession. Nor does a landlord direct or
command 	its 	tenant’s 	property, 	as 	would 	be 	indicative 	of
control, except by some term of the lease. Here, Cedar Springs
owns no cattle and leases its property to Warm Creek, which
uses the land to run cattle. There is no evidence of any lease term
allowing Cedar Springs to dispose of or manage the cattle
belonging to Warm Creek. Therefore, the unambiguous statutory
language, 	as 	applied 	to 	the 	undisputed 	facts, 	provides 	no
support for a claim that Cedar Springs owed any duty to Liley
under section 41-6a-407.
¶19 	Liley’s failure to show a duty means he did not meet his
burden on summary judgment.
A summary judgment movant, on an issue where
the nonmoving party will bear the burden of proof
at 	trial, 	may 	satisfy 	its 	burden 	on 	summary
judgment 	by 	showing, 	by 	reference 	to 	the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits,
if any, that there is no genuine issue of material
fact. 	Upon 	such 	a 	showing, 	whether 	or 	not
supported 	by 	additional 	affirmative 	factual
evidence, the burden then shifts to the nonmoving
party, who may not rest upon the mere allegations
or denials of the pleadings, but must set forth
specific facts showing that there is a genuine issue
for trial.
Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d 600 (citations and
internal quotation marks omitted).

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20150267-CA 	11 	2017 UT App 166
¶20 	Here, 	Liley 	ultimately 	bore 	the 	burden 	at 	trial 	to
demonstrate that Cedar Springs owed him a duty. See Callister v.
Snowbird Corp., 2014 UT App 243, ¶ 11, 337 P.3d 1044. Cedar
Springs demonstrated by Dorius’s testimony that Warm Creek
had leased the property and was using the property to graze
cows—and Liley admitted as much. Thus, Cedar Springs carried
its initial burden on summary judgment, and the burden then
shifted to Liley as the party ultimately bearing the burden of
proof at trial to show that Cedar Springs had possession or
control of the cattle. The mere fact that Dorius is a principal of
both Cedar Springs and Warm Creek is not enough. While legal
doctrines exist, such as piercing the corporate veil,8 which can
impose a company’s liability personally on its principal, see, e.g.,
Lodges at Bear Hollow Condo. Homeowners Ass’n, Inc. v. Bear Hollow
Restoration, LLC, 2015 UT App 6, ¶ 13, 344 P.3d 145, we are
aware of no doctrine that imposes the liabilities of one company
onto another solely by virtue of a shared principal. And Liley
points to none. The fact that Dorius is a principal of both Warm
Creek and Cedar Springs does not establish a duty held by
Cedar Springs with respect to the activities of Warm Creek’s
cattle.
¶21 	Ultimately, Liley’s arguments in support of affirmance
miss the mark. He focuses on the existence of disputes of
material facts that should be decided by the jury. But these
arguments ignore that “[w]hether a duty exists is a question of
law.” Wood v. Salt Lake City Corp., 2016 UT App 112, ¶ 8, 374 P.3d
1080 (citation and internal quotation marks omitted). In his own
words, Liley asserts, “[W]hether [Cedar Springs] had a duty to
control the cattle . . . was a question of fact for the jury.” This
assertion ignores that “appellate courts have consistently held
8. Here, the trial court expressly held that the piercing-the-
corporate-veil doctrine did not apply, and no one challenges this
conclusion on appeal.

Liley v. Cedar Springs Ranch
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that ‘[t]he determination of whether a legal duty exists falls to
the court.’” Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 18,
215 P.3d 152 (alteration in original) (quoting Yazd v. Woodside
Homes Corp., 2006 UT 47, ¶ 14, 143 P.3d 283). Liley’s contention
confirms the very error that Cedar Springs argues on appeal—
that the trial court erroneously denied its motion for summary
judgment.
¶22 	In sum, under the plain language of the statute, the
landlord-tenant relationship here does not establish that Cedar
Springs was in possession or control of cattle owned by Warm
Creek. Insofar as the trial court ruled that Cedar Springs owed
Liley a duty stemming from the statute, such ruling was in error.
From 	the 	record 	we 	have 	before 	us, 	it 	appears 	summary
judgment should have been granted. However, because the
complete record of the trial court’s findings and ruling on
summary judgment is not before us, and because we typically
presume the regularity of the proceedings, we are loath to base a
reversal on the incomplete record of the summary judgment
motion alone. Therefore, we turn to the motion for directed
verdict where the issue was essentially presented anew.
II. Directed Verdict
¶23 	A court may grant a directed verdict motion “[i]f a party
has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.” Utah R. Civ.
P. 50(a)(1). Cedar Springs moved for a directed verdict and, just
as it did in its summary judgment motion, argued that Liley did
not establish that Cedar Springs owed him any duty. Liley
asserted again that Cedar Springs owed him a statutory duty
under section 41-6a-407 of the Utah Code. Liley additionally
argued that Cedar Springs had a duty to use reasonable care in
controlling Warm Creek as its lessee. But Liley articulated to the

Liley v. Cedar Springs Ranch
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trial court no legal basis for this alleged latter duty during the
arguments on the motion.
¶24 	On directed verdict, however, the trial court ruled that a
duty arose from the relationship of landlord and tenant:
There is a landlord/tenant relationship based upon
[Dorius’s] own testimony, and I do find that a
landlord 	does 	have 	some 	duty 	to 	control 	the
actions of its tenant, and I would say that at least in
this case I would think that duty perhaps is slightly
greater 	given 	the 	close 	interrelationship 	of 	the
parties. And so . . . I am going to find that there is
sufficient competent evidence to go to the jury on
the 	issue 	of 	negligence 	with 	regard 	to 	Cedar
Springs[.]
¶25 	Thus, the basis of Cedar Springs’ duty, as articulated by
the trial court, stems solely from its relationship as landlord with
Warm Creek and imposes a duty, not to use reasonable care in
controlling 	the 	cattle, 	but 	to 	control 	its 	tenant. 	Liley 	has
identified no such duty in Utah jurisprudence that applies to the
facts of this case, and our review of applicable law does not
support the trial court’s conclusion.
¶26 	The law generally imposes a duty on a landlord to tenants
and 	third 	parties 	for 	portions 	of 	property 	over 	which 	it
maintains possession or control, such as common areas, that
pose a danger. See Wilson v. Woodruff, 235 P. 368, 369 (Utah 1925).
The law also generally imposes a duty on a landlord to ensure
the 	leased 	premises 	intended 	for 	housing 	are 	suitable 	for
habitation. See, e.g., Davencourt at Pilgrims Landing Homeowners
Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65, ¶ 56, 221
P.3d 234. A landlord that leases property for purposes of public
admission is responsible “to at least inspect the property and
make reasonable efforts to ensure that conditions creating a
reasonably foreseeable risk of harm are corrected before the

Liley v. Cedar Springs Ranch
20150267-CA 	14 	2017 UT App 166
property is delivered to a tenant.” See Darrington v. Wade, 812
P.2d 452, 458–59 (Utah Ct. App. 1991). Lastly, a landlord may be
liable for injury where it knows of a dangerous condition on the
property before leasing the property. See English v. Kienke, 848
P.2d 153, 155 (Utah 1993). Absent these exceptions, a landlord is
under no obligation to make repairs, even where the property
becomes hazardous. See id. at 156 (explaining that a landlord is
not liable for an injury caused by a dangerous condition created
by the tenant). Liley has not demonstrated that, under the
circumstances of this case, any of these exceptions apply here or
provide support for the trial court’s ruling that a landlord must
use reasonable care to control its tenant.
¶27 	“[A] landlord is not deemed to be the principal of his
tenant merely because of the landlord-tenant relationship[.]”
Stephenson v. Warner, 581 P.2d 567, 568 (Utah 1978). Furthermore,
a landlord is “not responsible for the tenant’s torts, nor for the
tenant’s failure to keep the premises reasonably safe and in good
repair.” Id. “On the contrary, . . . it is the tenant who is liable for
any dangerous condition on the premises which he creates or
permits to come into existence after he has taken possession.” Id.
at 568–69. Thus, while there is a general duty for a landlord to
exercise reasonable care over areas in which it has retained
control, see MacFarlane v. Applebee’s Rest., 2016 UT App 158, ¶ 21,
378 P.3d 1286 (explaining that a lessor was not a possessor of
land in relation to a parking lot because the landlord retained the
responsibility to maintain common areas in the lease agreement),
no general duty exists for a lessor to control a lessee.
¶28 	Much was made at trial about the condition of the fence
and whether the fence was in disrepair before or after Warm
Creek took possession of the land. Liley essentially argued that
because the fence had not been maintained in years, a dangerous
condition existed on the land prior to Warm Creek taking
possession of the land and that Cedar Springs had a duty to
repair the fence. However, a derelict fence on rural property is

Liley v. Cedar Springs Ranch
20150267-CA 	15 	2017 UT App 166
not 	itself 	a 	dangerous 	condition. 	And 	here, 	the 	allegedly
dangerous condition that Liley relies on—the potential for cattle
to escape through an unrepaired fence—did not exist when the
leasehold was delivered; Warm Creek created the dangerous
condition when it brought livestock to the property. In any
event, whether the fence was broken before or after Warm Creek
took possession of the land is not pertinent to the basis upon
which 	the 	trial 	court 	allowed 	the 	case 	to 	proceed—that 	a
landlord has a duty to control its tenant.
¶29 	Further, as discussed above in the analysis of summary
judgment, Utah Code section 41-6a-407 does not impose liability
upon a landlord who leases its property to a tenant who in turn
grazes cattle on the property. Supra Part I. Insofar as the court’s
ruling on directed verdict can be read as an extension of a duty
based on section 41-6a-407, we reject that reasoning for the same
reasons stated above.
¶30 	Liley asserts, while rearticulating what he believes is the
question presented for our review, that Cedar Springs’ issue
statement “should read: Did the district court err by finding that
the question of [Cedar Springs’] duty to ensure that cattle on its
property were properly fenced involved questions of fact for the
jury to decide?” The question of whether a duty has been
breached usually involves questions of fact. See, e.g., Normandeau
v. Hanson Equip., Inc., 2009 UT 44, ¶ 21 n.2, 215 P.3d 152
(“[W]hen there is a dispute about the foreseeability of an injury
occurring, the questions relating to negligence and proximate
cause are generally for the fact-trier, court or jury, to determine.”
(citation and internal quotation marks omitted)). But “appellate
courts 	have 	consistently 	held 	that 	‘[t]he 	determination 	of
whether a legal duty exists falls to the court,’” id. ¶ 18 (alteration
in original) (quoting Yazd v. Woodside Homes Corp., 2006 UT 47,
¶ 14, 	143 	P.3d 	283). 	Like 	his 	argument 	against 	summary
judgment, this argument confirms the very error that Cedar

Liley v. Cedar Springs Ranch
20150267-CA 	16 	2017 UT App 166
Springs 	argues 	on 	appeal—that 	the 	trial 	court 	erroneously
denied its motion for a directed verdict.
¶31 	We conclude that the trial court incorrectly determined
that Cedar Springs owed a duty to control its tenant and thus
owed a duty to Liley.
CONCLUSION
¶32 	The trial court erred in its rulings on summary judgment
and directed verdict. Liley failed to establish below that Cedar
Springs owed him a duty under the law. Under the plain
language of the statute, Cedar Springs did not have possession
or control of the cow merely because it owns the land from
which the cow wandered. Further, there is no general duty
under the law for a landlord to use reasonable care in controlling
its tenants, even where entities share a principal.
¶33 	Reversed.