Mingolello v. Megaplex Theaters

2017 UT App 4

THE UTAH COURT OF APPEALS

RALPH MINGOLELLO,
Appellant,
v.
MEGAPLEX THEATERS,
Appellee.

Memorandum Decision
No. 20150914-CA
Filed January 6, 2017

Fifth District Court, St. George Department
The Honorable Jeffrey C. Wilcox
No. 140500180

Douglas D. Terry and Trevor D. Terry, Attorneys
for Appellant
Geoffrey C. Haslam, Kristen C. Kiburtz, and Jeremy
S. Stuart, Attorneys for Appellee

JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and JILL M. POHLMAN
concurred.

TOOMEY, Judge:

¶1 Ralph Mingolello appeals the district court’s grant of
summary judgment in favor of Megaplex Theaters. We affirm.

¶2 Mingolello and his stepson attended an afternoon matinee
at Megaplex Theaters (Megaplex) in January 2013. They arrived
about ten minutes early and were some of the first people in the
theater. Choosing seats in the back, they waited for the feature to
begin as more people arrived. Half an hour into the movie,
Mingolello got up to leave for a few minutes. As he descended
the stairs, he slipped on a small, camouflage-patterned
flashlight. Mingolello was injured and taken to the hospital in an
Mingolello v. Megaplex Theaters

ambulance. Neither Mingolello nor his stepson knew how the
flashlight came to be on the stairs or how long it had been there.
The manager had never seen the flashlight before; Megaplex
only used flashlights that were large and black or made from
blue-colored plastic. The manager had inspected the theater
earlier that morning and did not see the flashlight.

¶3 The manager testified that she inspected the theater at
10:30 a.m. and that her inspection occurred thirty minutes before
the accident. She also testified she believed the movie began
around 11:30 a.m. Mingolello maintains the movie began at 3:00
p.m.

¶4 Mingolello sued Megaplex, and the district court
ultimately granted summary judgment in Megaplex’s favor.
Mingolello appeals.

¶5 Mingolello contends the district court erred in granting
Megaplex’s motion for summary judgment because there is a
genuine issue of material fact and Megaplex was therefore not
entitled to judgment as a matter of law. He argues there is a
dispute “as to when the theater was inspected in relation to the
time of the accident.”

¶6 We review a district court’s ruling on a motion for
summary judgment for correctness. Prince, Yeates & Geldzahler v.
Young, 2004 UT 26, ¶ 10, 94 P.3d 179. A court may grant
summary judgment when “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a
matter of law.” Utah R. Civ. P. 56(a). When reviewing a district
court’s grant of summary judgment, we view all facts and
reasonable inferences in a light most favorable to the nonmoving
party. Surety Underwriters v. E & C Trucking, Inc., 2000 UT 71,
¶ 15, 10 P.3d 338.

¶7 A business owner has a “duty to use reasonable care to
maintain the floor of his establishment in a reasonably safe

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Mingolello v. Megaplex Theaters

condition for his patrons.” Jex v. JRA, Inc., 2008 UT 67, ¶ 25, 196
P.3d 576 (citation and internal quotation marks omitted). There
are generally two types of premises liability cases, “those
involving temporary conditions and those involving permanent
conditions.” Price v. Smith’s Food & Drug Centers, Inc., 2011 UT
App 66, ¶ 9, 252 P.3d 365. Mingolello concedes the incident in
this case involved a temporary condition. He also acknowledges
that Megaplex did not have actual notice of the condition.
Mingolello must therefore show that Megaplex had
“constructive knowledge [of the temporary condition] because
the condition had existed long enough that [Megaplex] should
have discovered it” and that after obtaining such knowledge,
“sufficient time elapsed that in the exercise of reasonable care
[Megaplex] should have remedied it.” 1 See Jex, 2008 UT 67, ¶ 16
(citation and internal quotation marks omitted). A court may
impute constructive notice only “when there is some evidence of
the length of time the debris has been on the floor.” Id. ¶ 19.

¶8 Mingolello has provided no evidence regarding when the
flashlight came to be on the stairs in relation to the accident.
Instead, he claims there is a dispute over the amount of time
between the manager’s inspection and the accident. The
manager testified she inspected the theater at 10:30 a.m. She also
testified her inspection was half an hour before the accident, but
Mingolello testified the accident occurred after 3:00 p.m.
Mingolello argues this discrepancy demonstrates there were up
to four and a half hours the flashlight could have been on the floor.
He concludes the grant of summary judgment was in error

1. In Jex v. JRA, Inc., 2008 UT 67, 196 P.3d 576, the Utah Supreme
Court also noted that if the temporary condition was created by
the defendant or his agents or employees, then this notice
requirement does not apply. Id. ¶ 16. Mingolello does not argue
Megaplex caused the flashlight to be on the floor, and we do not
address this issue further.

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because the jury should have been allowed to determine
whether the length of time between the inspection and the
accident constituted a breach of duty. But summary judgment is
not precluded “simply whenever some fact remains in dispute.”
Heglar Ranch, Inc. v. Stillman, 619 P.2d 1390, 1391 (Utah 1980).
Rather, the factual dispute must be “material to [the] resolution
of the underlying legal issue.” See Wilberg v. Hyatt, 2012 UT App
233, ¶ 16, 285 P.3d 1249.

¶9 The dispute regarding the inspection time of the theater is
not material to the resolution of the underlying legal issue in this
case. Jex requires that a plaintiff “present evidence that would
show that . . . [the temporary condition] had been [on the floor]
for an appreciable time.” See 2008 UT 67, ¶ 19 (omission in
original) (citation and internal quotation marks omitted).
Though there was some inconsistency in the testimonies,
Mingolello has not presented any evidence about how the
flashlight came to be on the floor or how long it might have been
on the floor before the accident. Mingolello conceded that
neither he nor his stepson knew to whom the flashlight
belonged, when it was dropped, or how long it was on the floor.
Given this lack of evidence, there was no way to determine
whether “the condition had existed long enough that [Megaplex]
should have discovered it” or whether “sufficient time elapsed
that in the exercise of reasonable care [Megaplex] should have
remedied it.” See id. ¶ 16 (citation and internal quotation marks
omitted). Mingolello was required to make this showing; a jury
cannot speculate whether there was a breach of duty based only
on evidence of a lapse of time between an inspection and an
accident. See Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d 600
(requiring the moving party to show that there is no genuine
issue of material fact where the nonmoving party will bear the
burden of proof at trial, but “[u]pon such a showing,” “the
burden then shifts to the nonmoving party, who . . . must set
forth specific facts showing that there is a genuine issue for
trial”(emphasis, citation, and internal quotation marks omitted)).

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Mingolello v. Megaplex Theaters

¶10 Sometimes, however, evidence of an inspection can help
determine how long a temporary condition existed. In Price v.
Smith’s Food & Drug Centers, Inc., 2011 UT App 66, 252 P.3d 365, a
plaintiff used inspections to help demonstrate how long a
puddle of water had remained on a grocery store floor. There,
the plaintiff slipped on water that a visitor had spilled on the
store floor. Id. ¶¶ 1, 14. The plaintiff presented evidence the
visitor left by 5:00 p.m., and the floor inspections that took place
at 4:50 p.m. and 5:12 p.m. did not reveal the water. Id. ¶¶ 4, 14.
The plaintiff testified she slipped between 5:00 p.m. and
5:20 p.m. Id. The evidence of the floor inspections helped narrow
the possible amount of time the water was on the floor to a
period of between ten to twenty-two minutes. Id. ¶ 17. Though
the decision was a close call, this court determined the plaintiff
had shown some evidence of the length of time the water was on
the floor and reversed the grant of summary judgment. Id. ¶¶ 17,
19.

¶11 Unlike the plaintiff in Price, Mingolello did not provide
any additional evidence that helps narrow the time frame the
flashlight was on the stairway. Viewing the facts in the light
most favorable to Mingolello—and therefore assuming the
inspection took place at 10:30 a.m. as the manager testified, and
the accident occurred after 3:00 p.m. as Mingolello testified,
there was as much as a four-and-a-half-hour gap between the
inspection and the accident. But Mingolello pointed to no
evidence that would suggest how long the flashlight had
actually been on the floor before the accident, and so there is no
way to determine whether the flashlight was on the floor for
hours or only seconds before he slipped on it.

¶12 Mingolello provided no evidence that demonstrates “how
the [flashlight] got onto the floor, by whom it was deposited,
exactly when it arrived there or that the defendant had
knowledge of its presence.” See Lindsay v. Eccles Hotel Co., 284
P.2d 477, 478 (Utah 1955). There is no basis for the jury to
determine the amount of time the flashlight was on the floor

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before the accident, and Mingolello would be unable to establish
“that a temporary condition existed long enough to give
[Megaplex] constructive notice of it.” See Jex v. JRA, Inc., 2008 UT
67, ¶ 19, 196 P.3d 576. Mingolello has not shown that a genuine
issue of material fact exists with respect to the element of
constructive notice. We therefore affirm the district court’s grant
of summary judgment in favor of Megaplex.

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