Wood v. UPS

2019 UT App 168

THE UTAH COURT OF APPEALS

STUART WOOD AND LAURIE WOOD,
Appellants,
v.
UNITED PARCEL SERVICE INC.,
Appellee.

Opinion
No. 20180040-CA
Filed October 18, 2019

Third District Court, Salt Lake Department
The Honorable Patrick Corum
The Honorable Matthew Bates
No. 160900437

Douglas B. Cannon, Christopher F. Bond, and Craig
T. Jacobsen, Attorneys for Appellants
Andrew M. Morse and Nathan R. Skeen, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Stuart Wood and Laurie Wood appeal from the district
court’s grant of summary judgment in favor of United Parcel
Service Inc. (UPS). We affirm.
Wood v. UPS

BACKGROUND

¶2 In 2013, a UPS truck driver backed up and collided with
a loading dock at a warehouse managed and operated by
KNS International LLC (KNS). 1 The collision damaged the
loading dock and an overhead vinyl curtain system KNS
had purchased and installed to regulate warehouse temperature.
To install the curtain system, KNS drilled sixteen holes in
the cinderblock above the loading dock and attached a
metal bracket in line with the holes using sixteen concrete
anchors. Vinyl curtains were then attached to the overhead
bracket.

¶3 On inspection of the area after the collision, one of KNS’s
assistant managers noticed that the cinderblock to which
the curtain system was attached had cracked, that several of
the concrete anchors were loose, and that one or two of the

1. In its summary judgment motion, UPS did not dispute that
one of its trucks collided with the building. But the record also
indicates that Stuart Wood’s own delivery truck had, “on
multiple occasions,” struck the loading dock, “connecting with
the building and causing damage.” KNS’s warehouse manager
explained that some delivery trucks, including the one used by
Wood, were “non-dock high” and should not have been backed
up to the dock because their bumpers would make contact with
the building below the rubber pads that protected the dock door.
The warehouse manager also stated that he recalled multiple
trucks “sounding like they were hitting the building, but [he did
not] know if they actually did.” He said these incidents occurred
about once a month. The assistant manager also recalled that
trucks hit the dock “multiple times.” KNS’s vice president stated
that he was unaware of any efforts KNS took to investigate how
the company could have prevented trucks from hitting the dock.

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Wood v. UPS

concrete anchors had fallen out altogether. 2 The assistant
manager recalled that he “probably tightened a couple” of
the concrete anchors on the overhead bracket, but he did not
put the dislodged anchors back into the bracket, because
“the structure was compromised” and no longer would have
held the anchors. No evidence was submitted to demonstrate
that KNS took any further steps to fix the cracked cinderblock or
install new concrete anchors to replace the one or two that had
fallen out. After tightening the anchors, the assistant manager
felt that the curtain system was “secure enough at least for [his]
liking.”

¶4 On February 4, 2013, sometime from a week to a month
after the collision, the vice president of KNS noticed the damage
to the same vinyl curtain system above the loading dock door.3
As he was driving away from the warehouse, he “had a clear
view” and could see that approximately “8 to 12 inches” of the
curtain bracket was “hanging down at an angle.” The vice
president did not immediately contact anyone at KNS because
he “didn’t think that there was any risk [in] it hanging down” as
there were “a lot of bolts holding it.” He also “didn’t think there
was any danger to anyone,” because “no one, to [his]
knowledge, ever goes there throughout the rest of the day.”

2. The assistant manager, who had helped install the curtain
system, claimed that there was no problem with the installation
of the vinyl curtains. The assistant manager also performed
regular inspections of the building and claimed that he had not
seen any problems with the structure of the building in that area
before the collision.

3. The record is silent as to the exact date that the UPS truck
collided with the dock. UPS did not have any records indicating
that damage was sustained by one of its trucks hitting the KNS
warehouse during the relevant time period.

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Wood v. UPS

¶5 Unfortunately, that same day, Stuart Wood, a driver for a
delivery company used by KNS, was present at that same
loading dock. As Wood walked through the loading dock door,
the curtain system dislodged from the cinderblock, and a bracket
fell on his head, knocking him to the ground. The bracket
weighed approximately forty-five pounds. After Wood was able
to stand, a KNS employee helped him wash blood off of his face.
Another employee approached and asked Wood if he was all
right. The employee told Wood that “he was sorry, [and] that he
knew [the bracket] was going to fall,” saying that KNS “should
have taken care of it.” Wood suffered permanent injuries from
the accident.

¶6 Thereafter, Wood filed negligence claims against UPS and
KNS, alleging each was liable for his injuries. Wood argued that
UPS was negligent as the party that caused the dangerous
condition and that KNS was negligent as the party on whose
property the dangerous condition existed. At the close of fact
discovery, UPS moved for summary judgment, arguing that
(1) UPS owed no duty to Wood because UPS did not possess or
control the property and (2) UPS’s actions were not the
proximate cause of Wood’s injury. The district court granted
UPS’s motion on both bases, and the Woods appeal. 4

ISSUE AND STANDARD OF REVIEW

¶7 To answer whether UPS is liable for the harm to Wood,
the threshold issue is whether UPS owed a legal duty of care to
Wood at the time of his injury. 5 “Whether a duty of care is owed

4. The Woods settled their claims against KNS, resulting in the
entry of a final, appealable judgment.

5. On appeal, Wood raises three discrete issues, but our
determination concerning UPS’s duty to Wood at the time he
(continued…)

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is entirely a question of law to be determined by the court.” Rose
v. Provo City, 2003 UT App 77, ¶ 8, 67 P.3d 1017 (quotation
simplified). “Duty must be determined as a matter of law and on
a categorical basis for a given class of tort claims.” B.R. ex rel. Jeffs
v. West, 2012 UT 11, ¶ 23, 275 P.3d 228. We therefore review the
district court’s determination on duty for correctness, giving no

(…continued)
was injured by the curtain dictates our approach to all the issues
raised on appeal. Wood contends (1) that UPS owed him a duty
to use reasonable care in the operation of its truck to avoid
creating a dangerous condition on property that could injure
him, (2) that he submitted sufficient evidence to establish a
prima facie case of negligence against UPS, and (3) that the
district court erred when it took the issue of causation away
from the jury and found that KNS’s actions were an intervening
cause that cut off UPS’s liability. Because UPS does not dispute
that it had a duty to use reasonable care in operating its trucks,
we do not address Wood’s first issue on appeal. But the duty
question relevant to our resolution of this appeal is not UPS’s
general duty to safely operate its vehicles but its specific duty
owed to Wood at the time he was injured. Because we determine
that UPS did not owe a duty to Wood at the time of his injury,
Wood’s prima facie negligence claim necessarily fails. See Young
v. Salt Lake City School Dist., 2002 UT 64, ¶ 12, 52 P.3d 1230
(“Absent a showing that the defendant owed any duty, the
plaintiff’s [negligence] claim has no merit, and he or she may not
recover.”). And absent a duty, it is also unnecessary for us to
address the issue of causation as it relates to UPS. See Smith v.
Frandsen, 2004 UT 55, ¶¶ 9, 12, 94 P.3d 919 (explaining that to
prevail in an action for negligence, “a plaintiff must demonstrate
the existence of a duty running between the parties” and
pointing out that “it is well-established in our law that without a
duty, there can be no negligence as a matter of law” (quotation
simplified)).

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Wood v. UPS

deference to that decision. See Drake v. Industrial Comm’n, 939
P.2d 177, 181 (Utah 1997).

ANALYSIS

¶8 “In order to prevail in an action for negligence, a plaintiff
must prove that (1) the defendant owed the plaintiff a duty of
care, (2) the defendant breached that duty, and (3) the breach
proximately caused (4) the plaintiff to suffer legally compensable
damages.” Cope v. Utah Valley State College, 2014 UT 53, ¶ 11, 342
P.3d 243. Wood and UPS dispute the duty that is at issue in this
case. Wood argues that “UPS owed a duty to . . . Wood” because
“UPS’s drivers have a duty to use reasonable care to avoid
creating a dangerous condition on property which could cause
injury to the property’s users.” (Quotation simplified.) UPS, not
disputing the duty of truck drivers to use reasonable care, argues
that it owed no duty to Wood at the time of his injury “because
UPS did not control the property, and the possessor of the
property had actual knowledge of the dangerous condition but
failed to remedy it.” The district court concluded that UPS owed
no duty to Wood because “UPS’s duty ended when KNS became
aware of the damage UPS caused to its building.” We agree and
affirm.

¶9 “In negligence cases, a duty is an obligation, to which the
law will give recognition and effect, to conform to a particular
standard of conduct toward another.” B.R. ex rel. Jeffs v. West,
2012 UT 11, ¶ 5, 275 P.3d 228 (quotation simplified). The
Restatement (Second) of Torts explains how a duty can shift
from one party to another: “Where, because of lapse of time or
otherwise, the duty to prevent harm to another threatened by the
actor’s negligent conduct is found to have shifted from the actor
to a third person, the failure of the third person to prevent such
harm is a superseding cause.” Restatement (Second) of Torts
§ 452(2) (Am. Law Inst. 1965). This rule “covers the exceptional
cases in which, because the duty, and hence the entire

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responsibility for the situation, has been shifted to a third
person, the original actor is relieved of liability for the result
which follows from the operation of his own negligence.” Id.
§ 452 cmt. d. Because the responsibility shifts, “the duty, or
obligation, of the original actor in the matter has terminated, and
has been replaced by that of the third person.” Id.

¶10 Our courts have identified several factors relevant to the
question of whether a duty exists, including “(1) whether the
defendant’s allegedly tortious conduct consists of an affirmative
act or merely an omission, (2) the legal relationship of the
parties, (3) the foreseeability or likelihood of injury, (4) public
policy as to which party can best bear the loss occasioned by the
injury, and (5) other general policy considerations.” Jeffs, 2012
UT 11, ¶ 5 (quotation simplified). “Legal duty, then, is the
product of policy judgments applied to relationships.” Yazd v.
Woodside Homes Corp., 2006 UT 47, ¶ 17, 143 P.3d 283. “Not every
factor is created equal . . . . [S]ome factors are featured heavily in
certain types of cases, while other factors play a less important,
or different, role.” Jeffs, 2012 UT 11, ¶ 5. Applying these factors
to this case, we determine that while UPS initially owed a duty
to Wood because UPS’s truck caused damage to the loading
dock, the duty owed to invitees such as Wood shifted to KNS
when it learned of and failed to adequately remedy the
dangerous condition on its property that UPS created. We now
consider the duty factors articulated in Jeffs in turn.

I. The Act in Question and the Legal Relationship
Between the Parties

¶11 “As a general rule, we all have a duty to exercise care
when engaging in affirmative conduct that creates a risk of
physical harm to others.” Sumsion v. J. Lyne Roberts & Sons, Inc.,
2019 UT 14, ¶ 12, 443 P.3d 1199 (quotation simplified).
“Nonfeasance—passive inaction, a failure to take positive steps
to benefit others, or to protect them from harm not created by
any wrongful act of the defendant—by contrast, generally

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Wood v. UPS

implicates a duty only in cases of special legal relationships.”
Jeffs, 2012 UT 11, ¶ 7 (quotation simplified). This case involves
both an affirmative act, namely UPS’s truck damaging KNS’s
warehouse, and an omission, namely KNS’s failure to remedy
the dangerous condition created by UPS. But the critical question
in establishing responsibility is whether UPS owed a continuing
duty to prevent harm to Wood once UPS no longer had any
control over the damaged loading dock. While normally we
would look to whether a special relationship existed between
Wood and UPS, Wood concedes that there was not an external
circumstance that created a special relationship between Wood
and UPS post-accident—and no facts in the record demonstrate
otherwise. UPS never assumed the responsibility to ensure that
KNS’s warehouse and vinyl curtain were made safe, and nothing
in the record suggests that UPS deprived KNS of the ability to fix
its building. But KNS, as the possessor of the property, had such
a special relationship with Wood. Our supreme court has held
that “[i]n cases where the alleged negligence consists of a failure
to act, the person injured by another’s inaction must
demonstrate the existence of some special relationship between
the parties creating a duty on the part of the latter to exercise . . .
due care in behalf of the former.” DCR Inc. v. Peak Alarm Co., 663
P.2d 433, 435 (Utah 1983). And the relationship between “owners
and invitees” gives “rise to such a duty.” Id.; see also Johanson v.
Cudahy Packing Co., 152 P.2d 98, 108 (Utah 1944) (stating that
delivery drivers are invitees). Because nothing created a legal
relationship between Wood and UPS, and because Wood
already had a legal relationship with a present third party, i.e.,
KNS, who had a responsibility to provide for Wood’s safety, this
factor weighs against UPS owing a duty to Wood at the time of
his injury.

II. The Party Best Positioned to Bear the Loss

¶12 To determine which party is best positioned to bear the
loss, we look to who “is in a superior position of knowledge or
control to avoid the loss in question.” Jeffs, 2012 UT 11, ¶ 30. A

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party “is not in a position to bear the loss, not because his
pockets are shallow, but because he lacks the capacity that others
have to avoid injury by taking reasonable precautions.” Id. UPS
initially was in a position to avoid damaging KNS’s warehouse
and vinyl curtain, but after the damage was done and had
become known to KNS, UPS had (1) no ability or obligation to
warn others of the damage it caused to KNS’s property, (2) no
right or ability to restrict access to KNS’s property, and (3) no
further ability to repair the property. UPS, being an invitee itself,
was also not in a superior position to inspect the property to
determine the extent of the damage it had caused. KNS, on the
other hand, had (1) immediate knowledge of the damage,
(2) control of the property, (3) the right to warn others about the
condition, (4) the right to restrict access to the hazardous area,
and (5) the right to repair the damage. KNS’s control of its own
property also provided it with a superior position to know the
extent of the damage. Succinctly put, UPS “lack[ed] the capacity
that [KNS had] to avoid injury [to others] by taking reasonable
precautions.” See id. Thus, given the facts of this case, UPS was
not best situated to bear the loss of Wood’s injury at the time the
vinyl curtain fell on Wood.

III. The Foreseeability and Likelihood of Injury

¶13 Wood contends that it was foreseeable “that a damaged
or compromised building could injure people in, and
particularly underneath, that structure” and that his injury falls
within the “same general nature” as the type of injuries a person
could be expected to suffer from a truck negligently and
forcefully hitting a building and overhead bracket assembly.
Wood further argues the fact that the damaged part of the
building “failed one week to a month after the blow rather than
immediately does not take this case out of the foreseeable
general harm identified above.” He also argues that “it is equally
foreseeable that an owner of the property may not properly fix
the damaged building part.”

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¶14 “[F]oreseeability in [the context of a] duty analysis is
evaluated at a broad, categorical level.” Jeffs, 2012 UT 11, ¶ 25. In
determining a duty, “foreseeability does not question the
specifics of the alleged tortious conduct such as the specific
mechanism of the harm” but “instead relates to the general
relationship between the alleged tortfeasor and the victim and
the general foreseeability of harm.” Id. (quotation simplified).
“Drivers delivering goods purchased by the occupier of
premises are invitees” that have “the right to expect to find the
premises in a reasonably safe condition.” Johanson, 152 P.2d at
108–09; see also Price v. Smith’s Food & Drug Centers, Inc., 2011 UT
App 66, ¶ 26, 252 P.3d 365 (“Store operators and other business
owners have a nondelegable duty to the public to keep their
place of business in a reasonably safe condition and free from
danger of personal injury.” (quoting 41 Am. Jur. 2d Independent
Contractors § 45 (2005))). In determining foreseeability, a plaintiff
is not required to show certainty “that the particular accident
would occur, but only that there is a likelihood of an occurrence
of the same general nature.” Steffensen v. Smith’s Mgmt. Corp., 862
P.2d 1342, 1346 (Utah 1993) (quotation simplified).

¶15 Because Wood’s injury did not happen
contemporaneously with UPS’s truck colliding with the dock,
but one week to one month after that collision, no continuing
relationship existed between UPS and Wood. This lack of a
continuing relationship informs our foreseeability analysis. It
was certainly foreseeable that damaging the loading dock
created a potentially unsafe condition. The key here is not the
foreseeability of the potential harm to a third person but UPS’s
inability to do anything to prevent that injury. On the other
hand, KNS had a relationship with Wood and owed him, as its
invitee, a continuing duty to keep its property safe. See Hill v.
Superior Prop. Mgmt. Services, Inc., 2013 UT 60, ¶ 21, 321 P.3d
1054 (“[P]ossessors owe significant duties to invitees who come
onto their property—including affirmative duties to remedy or
warn against dangerous conditions.”). We agree with Wood that
it is foreseeable that harm may result from a compromised

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Wood v. UPS

building structure and that the mere passage of time does not
take an injury from the danger posed by the unsafe condition out
of the realm of foreseeability. But given that KNS owed a duty to
Wood to maintain safe premises and that it alone had the ability
to rectify the unsafe condition on its property, the extent to
which the potential harm was foreseeable to UPS is largely a
non-factor in our analysis. Though future harm from the
damaged vinyl curtain to an invitee may well have been
foreseeable to UPS, UPS was not in a position to adequately
remedy the condition giving rise to it. In other words, because
KNS was uniquely positioned to prevent the curtain from falling
and UPS was incapable of doing so, see supra ¶ 11, the degree to
which UPS may have recognized foreseeable harm to a third
party is irrelevant here.

IV. Other General Policy Considerations

¶16 Wood acknowledges public policy considerations cut
“both for and against imposing a duty,” stating that “UPS, as the
original tortfeasor, was in the best position to prevent injury in
the first place if it had simply followed the proper rules for
backing.” And KNS, as the owner of “the damaged bracket
system, also had an opportunity to fix the problem and prevent
the injury.” Therefore, Wood argues, he should be allowed to
pursue a remedy against both KNS and UPS, and the jury
should allocate fault between KNS and UPS.

¶17 In this instance, the public policy considerations weigh
against imposing a duty on UPS when KNS was the party that
failed to adequately remedy known damage to its building. Our
conclusion is meant to incentivize the party that has knowledge
of a dangerous condition, has control of the property to remedy
that dangerous condition, and can take the proper steps to
ensure that its premises are made safe for invitees. Certainly UPS
may be liable to pay the cost of any required repairs for the
damage its truck caused, but the law cannot be stretched to
allocate a continuing responsibility on UPS to ensure that KNS

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actually took steps to repair its own property. As UPS argues,
imposing a duty on UPS in this circumstance could leave “a
person . . . perpetually liable for all harm that results from the
hazardous condition he or she creates on property possessed by
someone else,” which would “ignore KNS’s ability—and UPS’s
inability—to remedy the hazardous condition.” Absent such a
rule, property owners might be incentivized to not remedy a
hazard caused by a third party on their own property in order to
limit the property owner’s liability despite the third party’s
inability to repair or warn others about the hazard.

¶18 In considering the relevant factors, we conclude that the
district court correctly determined that UPS did not owe a duty
to Wood at the time of his injury. And without a duty owed by
UPS, Wood’s negligence claim against the company necessarily
fails. See Hughes v. Housley, 599 P.2d 1250, 1253 (Utah 1979) (“A
finding of negligence requires the presence of certain elements,
one of which is a duty running between the parties.”).

CONCLUSION

¶19 The district court correctly determined that UPS owed no
duty to Wood at the time of his injury. Accordingly, we uphold
the district court’s grant of summary judgment in favor of UPS.

¶20 Affirmed.

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