Choate v. ARS-Fresno LLC

2016 UT App 249

THE UTAH COURT OF APPEALS

KACHINA CHOATE,
Appellant,
v.
ARS-FRESNO LLC,
Appellee.

Memorandum Decision
No. 20151054-CA
Filed December 30, 2016

Third District Court, Salt Lake Department
The Honorable Paige Petersen
No. 130907594

Levi H. Cazier, Attorney for Appellant
J. Angus Edwards, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and JILL M.
POHLMAN concurred.

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
Choate v. ARS-Fresno

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

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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

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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]

1. In her briefing and in argument before this court Choate
conceded that sufficient evidence existed to support a jury
finding that Choate was 49% at fault, while maintaining that
even one percent more was manifestly against the great weight
of evidence.

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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, 685
P.2d 350 (Mont. 1984), and Lehmkuhl v. Bolland, 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

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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 reasonably assume that the
dog was inside the house as he always had been on prior
deliveries, [Choate] should not be considered negligent for
cutting across the ARS property.‛ But this reading of Sharp
cherry picks facts from that case that sound similar to the case
before us without analyzing or applying the Sharp court’s
reasoning. That court held that the evidence in support of the
finding of 50% fault was so slight and unconvincing as to make

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the verdict unreasonable and unjust. Id. at 499. The present case
is far different.

¶15 Additionally, Sharp was decided the way it was largely
because of the strict-liability dog-owner statute. See id. at 497–99.
No strict-liability statute applies here. Furthermore, we are not
persuaded that the use of a shortcut in both Sharp and the
present case is as similar as Choate suggests. The Sharp court
determined that the mail carrier’s choice of a shortcut said ‚little,
if anything, about [her] negligence.‛ Id. at 498. The mail carrier
had been on the property countless times before, mail carriers
are encouraged by the postal service to take shortcuts across
lawns, and the mail carrier had never before seen the dog. Id. at
498–99. Indeed, she did not see the dog on the day of her injury
until she was already near the house. Id. at 499. But in the
present case, Choate ‚admitted that the sidewalk looked wet‛
and nevertheless ‚took a shortcut through the store’s property,‛
despite ‚there [being] some danger in choosing this path.‛ And
the jury heard evidence ‚that the sidewalk was not consistently
dangerous, but depended on the weather conditions.‛ In other
words, while the Sharp plaintiff had no reason to believe the dog
owner’s property was dangerous, Choate saw potential
danger—by recognizing that the sidewalk appeared wet—and
others testified that the cold and snowy weather on the day of
Choate’s accident impacted the safety of the shortcut she took.

¶16 We next consider Choate’s reliance on Wilhelm v. Great
Falls, 685 P.2d 350 (Mont. 1984). There, a jury’s verdict
apportioned fault 90% to the plaintiffs and 10% to the
defendants. Id. at 351. The trial court determined that the
evidence was insufficient to support the verdict and ordered a
new trial, and the Montana Supreme Court affirmed. Id. at 350.
The facts of the Wilhelm case are inapplicable to the present case.
Wilhelm involved plaintiffs who purchased a house near a dump
and defendants who were responsible for a fire at the dump that
damaged the plaintiffs’ home. Id. at 350–51. Aside from the
presence of a jury verdict apportioning liability between two

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parties and a motion made for a new trial, Wilhelm appears to
have little applicability to this case.

¶17 Similarly, Lehmkuhl v. Bolland, 757 P.2d 1222 (Idaho Ct.
App. 1988), lacks any helpful direction for us. Lehmkuhl, an
automobile personal injury case, involved mostly undisputed
facts with one central dispute: ‚the precise location of the
[involved] vehicles prior to the accident.‛ Id. at 1223 (emphasis
omitted). For reasons inapplicable to the case before us, the
Lehmkuhl court determined ‚that the jury’s assessment of
negligence equally between [the parties] was against the great
weight of the evidence. Similarly, the jury’s finding of no
damage was contrary to the evidence.‛ See id. at 1226 (relying on
the duty imposed by Idaho law upon ‚a person operating a
motor vehicle‛ to ‚keep a proper lookout‛).

¶18 Choate’s only analysis of these cases is that ‚[c]ase law
from several other states is also instructive‛ because it supports
the proposition that a trial court may grant a motion for a new
trial even when a jury has found a plaintiff to be more at fault
than the defendant. Then, without more, Choate concludes:
‚Examining the comparative fault of the parties in this case
makes it clear that the evidence of contributory negligence here
is slight and unconvincing and the verdict itself is plainly
unreasonable and unjust and certainly against the great weight
of the evidence.‛ But in our view, what is ‚clear‛ is actually the
opposite of this conclusion.

¶19 There were two stories told at trial: In one, Choate was
careful and reasonable and slipped by no fault of her own. In the
other, ARS was careful and reasonable and Choate slipped
despite its efforts. The jury heard these two stories, including the
evidence that supported and contradicted each, and it found that
neither story was exactly right. Instead, it determined that both
Choate and ARS bore responsibility for the fall. It weighed the
evidence, the testimony presented, and the credibility of the
witnesses, and it determined that responsibility belonged 40% to

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ARS and 60% to Choate. This allocation of responsibility is a
determination for the jury, one that an appellate court is loath to
disturb absent compelling analysis.

¶20 Outside her limited analysis of the cases previously
discussed, Choate’s only attempt to persuade us to reverse
consists of rearguing the evidence in her favor. She highlights
the facts that supported her case at trial, and she indicates what
evidence existed to contradict ARS’s case. But there is perhaps
no more basic tenet of appellate law than that we will not find
new facts or reweigh evidence. See, e.g., Van Den Eikhof v. Vista
School, 2012 UT App 125, ¶ 5 n.1, 278 P.3d 622. We accept the
facts that support the jury’s verdict and that were reiterated by
the trial court in denying Choate’s motion for a new trial. In
doing so, we acknowledge the following: (1) Choate and her
mother testified that there was no ice melt on the sidewalk when
Choate fell, but the clerk testified that he was 90% sure he had
applied ice melt, and the manager testified that there was ice
melt on the sidewalk when he arrived at the store; (2) Choate
and her mother testified that the clerk had told them that he had
just begun his shift and had not had time to apply ice melt, but
time records contradicted this account, indicating that the clerk
had been working for nearly two hours before Choate’s fall;
(3) Choate and her mother testified that the clerk should have
been aware of Choate’s injuries, but the clerk testified that
Choate did not appear injured; and (4) Choate argued at trial
that a roof leak caused an accumulation of ice outside the store
that caused her fall, but multiple witnesses testified on behalf of
ARS that the roof leaked only when melting and thawing
occurred and could not have caused an accumulation of ice on
that day because of the below-freezing temperatures. If the jury
resolved each of these contradictions in favor of Choate, it could
have conceivably found ARS 100% liable for Choate’s fall. If, on
the other hand, the jury had resolved each of these
contradictions in favor of ARS, it could have found ARS 0%
liable. This is precisely what the trial court indicated when it
denied Choate’s motion for a new trial. It concluded that ‚the

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evidence was sufficient for the jury to have decided in favor of
either party.‛

¶21 It is reasonable that the jury did not find either party
solely liable for the fall but instead resolved some disputes in
favor of Choate, some disputes in favor of ARS, and apportioned
liability 60/40 between the two parties. The verdict is therefore
supported by the evidence, and so we affirm the trial court’s
denial of Choate’s motion for a new trial.

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