Warrick v. Prop. Reserve Inc.

2018 UT App 197

THE UTAH COURT OF APPEALS

CURTIS W. WARRICK AND SHAWNA J. WARRICK,
Appellants,
v.
PROPERTY RESERVE INC.,
Appellee.

Opinion
No. 20170188-CA
Filed October 12, 2018

Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 150900203

George S. Diumenti, Clifton W. Thompson, and
Karra J. Porter, Attorneys for Appellants
Thomas D. Walk, Swen R. Swenson, and Ryan R.
Beckstrom, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M.
CHRISTIANSEN FORSTER concurred.

MORTENSEN, Judge:

¶1 In mid-January, during subfreezing temperatures,
Plaintiff Curtis W. Warrick cut across Defendant Property
Reserve Inc.’s (PRI) parking lot on his way to work. Before he
could complete his sojourn, he slipped and fell on a patch of ice.
Warrick and his wife, Shawna J. Warrick (collectively, the
Warricks), sued PRI for negligence, but the district court
dismissed their claims on summary judgment on the basis that
the Warricks provided no evidence of how long the temporary
condition had existed. The Warricks appeal, and we affirm.
Warrick v. Property Reserve

BACKGROUND

¶2 Warrick left for work early one January morning in 2011.
He boarded a bus and arrived in Salt Lake City just before 8:00
a.m. The weather was below freezing with light snowfall.

¶3 Warrick walked until he came to a private walkway that
cut across a commercial property. The walkway had apparently
been cleared of snow and salted. Warrick traveled along the
walkway until it came to a pay-to-use parking lot owned by PRI.
Warrick noticed a skiff of snow on the parking lot and piles of
plowed snow, roughly two feet high, around the perimeter of
the lot.

¶4 While attempting to cross the parking lot, Warrick slipped
and fell, breaking his leg. After the fall, Warrick found that he
had slipped on “crystal clear” ice, which he described as “just
water under that thin layer of snow.” The Warricks sued PRI for
negligence.

¶5 After discovery, PRI moved for summary judgment,
arguing (1) that Warrick was a trespasser and (2) that even if he
was a licensee, PRI did not breach any duties because it did not
have actual or constructive notice of the ice. The district court
granted the motion, considering Warrick an invitee for purposes
of the motion and ruling that Warrick presented no evidence
that PRI had actual or constructive notice of the ice. The
Warricks appeal.

ISSUE AND STANDARD OF REVIEW

¶6 The Warricks contend that the district court erroneously
granted summary judgment. We review the district court’s grant
of summary judgment for correctness, “considering only
whether the [district] court correctly applied the law and
correctly concluded that no disputed issues of material fact

20170188-CA 2 2018 UT App 197
Warrick v. Property Reserve

existed.” North Fork Special Service District v. Bennion, 2013 UT
App 1, ¶ 12, 297 P.3d 624 (cleaned up).

ANALYSIS

¶7 The Warricks’ argument on appeal is twofold. First, the
Warricks assert that the district court misapplied controlling case
law when it required them to demonstrate that PRI had actual or
constructive notice of the ice. Second, in the alternative, the
Warricks argue that the evidence presented on summary
judgment reasonably supported an inference that the ice existed
long enough for PRI to have discovered and remedied it. Before
turning to issues of preservation and the merits of the district
court’s grant of summary judgment, we first address the
procedural parameters of summary judgment. Particularly, we
focus on what constitutes the facts to be considered by the
district court.

I. The Constellation of Facts on Summary Judgment

¶8 We acknowledge the black letter law that the court must
construe all facts and draw all reasonable inferences in favor of
the non-moving party. 1 Less clear is which facts the district court
may consider in the first place. A conclusion that a genuine issue
of fact exists, even when based upon a reasonable inference,
must flow from a specific fact or set of facts.

1. A non-moving party is not entitled to “every possible
inference of fact, no matter how remote or improbable, in favor
of the nonmoving party.” IHC Health Services, Inc. v. D & K
Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588. The district court is
required, however, only to draw reasonable inferences, and such
inferences must present something more than speculation.
Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 21, 390 P.3d 314.

20170188-CA 3 2018 UT App 197
Warrick v. Property Reserve

¶9 Rule 56 of the Utah Rules of Civil Procedure is explicit in
this regard. Subsection (a)(1) of rule 56 provides:

[A] motion for summary judgment must contain a
statement of material facts claimed not to be
genuinely disputed. Each fact must be separately
stated in numbered paragraphs and supported by
citing to materials in the record under paragraph
(c)(1) of this rule.

Utah R. Civ. P. 56(a)(1). Correspondingly, subsection (a)(2)
provides:

[A] memorandum opposing the motion must
include a verbatim restatement of each of the
moving party’s facts that is disputed with an
explanation of the grounds for the dispute
supported by citing to materials in the record
under paragraph (c)(1) of this rule. The
memorandum may contain a separate statement of
additional material[] facts in dispute, which must
be separately stated in numbered paragraphs and
similarly supported.

Id. R. 56(a)(2). Finally, subsection (a)(4) provides:

Each material fact set forth in the motion or in the
memorandum opposing the motion under
paragraphs (a)(1) and (a)(2) that is not disputed is
deemed admitted for the purposes of the motion.

Id. R. 56(a)(4). Thus, the fact statements of the moving and
opposing memoranda constitute the constellation of facts to be
considered by the district court on summary judgment. Those
same facts are to be considered by the reviewing court on
appeal. Limiting consideration to this array of facts is
fundamentally fair. Although a summary judgment motion

20170188-CA 4 2018 UT App 197
Warrick v. Property Reserve

commences with the moving party’s statement of allegedly
undisputed facts, the non-moving party ultimately controls the
totality of facts to be considered because the rule specifically
allows for additional statements of facts. Id. R. 56(a)(2). And
indeed, these additional facts come not only by way of discovery
responses already made, but also by way of affidavits of parties
or other witnesses filed in response to the motion. Id. R. 56(c)(4).
Beyond that, where facts essential to a determination of
summary judgment cannot be presented, counsel may file an
affidavit or declaration asking for additional time to obtain
discovery justifying an opposition. See id. R. 56(d).

¶10 Such considerations are material here. On appeal, both in
the briefing and at oral argument, the Warricks claim that the ice
on which Warrick slipped was one inch thick, but that assertion
is not found anywhere in the statements of fact before the district
court. Instead, as discussed above, supra ¶ 4, the only factual
statements provided to the district court indicate that the ice was
clear and under a thin layer of snow. 2 And while the district
court would have been well within its discretion to limit its
consideration to only those facts asserted in the statements of
fact, the district court apparently looked elsewhere in the record
to infer and characterize the ice as “thick,” but it did not
expressly infer that it was one inch thick. As such, we conclude
that consideration of the fact now asserted on appeal that the ice
was one inch thick would be improper. 3 We nevertheless note

2. Similarly, the Warricks attached to their appellate brief
photographs of ice in a parking lot. However, the record reflects
that when asked in his deposition whether the photos
represented the ice on which he fell, Warrick stated: “I think it
isn’t . . . . I’m thinking not.”

3. We recognize that the district court has discretion to grant or
deny a motion for summary judgment based on a “mere
(continued…)

20170188-CA 5 2018 UT App 197
Warrick v. Property Reserve

that even if evidence were properly before us that the ice was
one inch thick, Warrick’s claim would still fail for the reasons we
next explain.

II. The Requirement to Demonstrate Actual or
Constructive Notice

¶11 The Warricks claim on appeal that the district court
misapplied Utah case law by requiring a showing of actual or
constructive notice. They argue that a showing of notice is not
required in a situation where a defendant creates the dangerous
condition. We conclude that this argument is unpreserved.

¶12 “When a party fails to raise and argue an issue in the trial
court, it has failed to preserve the issue, and an appellate court
will not typically reach that issue absent a valid exception to
preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443.
“An issue is preserved for appeal when it has been presented to
the district court in such a way that the court has an opportunity
to rule on it.” Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d
828 (cleaned up). “To provide the court with this opportunity,

(…continued)
technical” failure to meet briefing requirements. See Jennings Inv.,
LC v. Dixie Riding Club, Inc., 2009 UT App 119, ¶ 24, 208 P.3d
1077. But regardless of whether there has been a “technical
violation” of the rules, the existence of a fact somewhere in the
record does not absolve a party from its duty to include that fact
in its summary judgment memorandum. Id. ¶ 25; see also id. ¶ 26
(“A district court is not obliged to comb the record to determine
whether a genuine issue as to any material fact exists to prevent
summary judgment. Rather, it is the nonmoving party’s burden
to demonstrate that such a conflict exists.”); Utah R. Civ. P.
56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”).

20170188-CA 6 2018 UT App 197
Warrick v. Property Reserve

the issue must be specifically raised by the party asserting error,
in a timely manner, and must be supported by evidence and
relevant legal authority.” Johnson, 2017 UT 76, ¶ 15 (cleaned up).

¶13 The Warricks’ argument on appeal relies on principles
articulated in Jex v. JRA, Inc., 2008 UT 67, 196 P.3d 576. In that
case, the court held that the notice requirement does not apply to
temporary unsafe conditions created by owners. Id. ¶ 24.
Although the Warricks point to no argument below applying
this doctrine, they argue that their mention of the conditions of
the parking lot preserved the argument. We disagree. All of the
Warricks’ arguments on summary judgment asserted that PRI
had constructive notice of the temporary condition, and nowhere
in the Warricks’ statement of preservation do they identify
where they argued that the notice requirement does not apply. 4
The Warricks’ argument was not preserved for two reasons.

¶14 First, the Warricks’ statements before the district court
lack specificity to preserve the argument. See Johnson, 2017 UT
76, ¶ 15. The Warricks cite parts of the record where they discuss
snow being piled on an island, the lack of a drain to absorb
melting snow, and the path created by the sidewalks and
plowed snow. The Warricks also cite to their argument that PRI
had constructive notice of the ice. These statements, without
more, do not amount to an argument that the notice
requirement, actual or constructive, was inapplicable.

¶15 Further, the Warricks specifically argued that PRI had
constructive notice because the ice had been on the ground for a
sufficient amount of time and the surrounding sidewalks had
been salted. And when the district court asked at the hearing on

4. Indeed, at oral argument the Warricks acknowledged that they
neither made this argument in the briefing before the district
court nor at the hearing on the motion for summary judgment.

20170188-CA 7 2018 UT App 197
Warrick v. Property Reserve

the motion for summary judgment whether the Warricks “ha[d]
any facts that would indicate that the owner . . . actually knew”
about the ice, they responded, “We’re not asserting that . . . .
We’re not saying that this was an obvious condition . . . .” Such
an argument that PRI had constructive notice cuts against a
conclusion that the Warricks argued that their claim did not
require a showing of constructive notice. Accordingly, we cannot
conclude that the Warricks raised this argument with adequate
specificity for the district court to rule on it. See Johnson, 2017 UT
76, ¶ 15.

¶16 Second, the Warricks failed to provide the district court
with “relevant legal authority.” Id. The Warricks direct us to no
place in the record where they cited Jex or any similar authority
to the district court. Again, the Warricks argued only that the
existence of the ice and the presence of salt on the sidewalks
were sufficient to show that PRI had constructive notice of the
ice. Thus, the issue of whether PRI created a dangerous
condition was not preserved and we will not consider it.

III. The Sufficiency of the Evidence to Support
Constructive Notice

¶17 Having rejected the Warricks’ first argument, we now
consider their alternative argument—that the evidence
presented to the district court was sufficient, under the summary
judgment standard, to support the conclusion that PRI had
constructive notice of the ice. We disagree and conclude that the
existence of the ice and the presence of salt on the surrounding
sidewalks demonstrate neither how long the ice had been on the
ground nor whether PRI had sufficient time to recognize and
remedy the hazard.

¶18 “The mere presence of a slippery spot on a floor does not
in and of itself establish negligence.” Price v. Smith’s Food & Drug
Centers, Inc., 2011 UT App 66, ¶ 8, 252 P.3d 365 (cleaned up). A
business owner is not charged with insuring the safety of all

20170188-CA 8 2018 UT App 197
Warrick v. Property Reserve

those who enter the property, but he must “use reasonable care
to maintain the floor of his establishment in a reasonably safe
condition for his patrons.” Id. (cleaned up).

¶19 To show that a landowner is liable for damages caused by
a temporary unsafe condition, a plaintiff must show that “(1) the
defendant had knowledge of the condition, that is, either actual
knowledge or constructive knowledge because the condition had
existed long enough that he should have discovered it; and
(2) after obtaining such knowledge, sufficient time elapsed that
in the exercise of reasonable care he should have remedied it.”
Jex v. JRA, Inc., 2008 UT 67, ¶ 16, 196 P.3d 576 (cleaned up).

¶20 The district court ruled that the mere presence of ice and
salt on the sidewalks nearby was not enough to demonstrate,
without speculation, that the ice had been on the ground for a
sufficient amount of time to allow PRI to discover the condition
and to remedy it. The Warricks argue on appeal that the
evidence “implies it took at least a day of melting and a night of
freezing; and a long winter’s night is plenty of time for
constructive notice to be reasonably found,” especially with “the
ongoing mitigation of ice on other portions of the property.” We
agree with the district court.

¶21 In slip-and-fall cases such as this, a factfinder will often be
required to make reasonable inferences based on the evidence to
decide whether a dangerous condition existed for an appreciable
amount of time. “A reasonable inference is a conclusion reached
by considering other facts and deducing a logical consequence
from them.” State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d
1096 (cleaned up). For example, in Ohlson v. Safeway Stores, Inc.,
568 P.2d 753 (Utah 1977), our supreme court held that evidence
showing spilled spaghetti that was dirty, crushed, broken into
pieces, and strewn from one aisle to another was sufficient on
summary judgment to show that the hazard existed for enough
time for the store to act. Id. at 754.

20170188-CA 9 2018 UT App 197
Warrick v. Property Reserve

¶22 However, “where conjecture and speculation are the only
ways to determine the length of time a substance was on the
floor, constructive notice should not be imputed.” Price, 2011 UT
App 66, ¶ 12 (cleaned up). “[S]peculation is defined as the act or
practice of theorizing about matters over which there is no
certain knowledge.” Cristobal, 2010 UT App 228, ¶ 16 (cleaned
up). For example, where the evidence showed that the
defendant’s employees shoveled snow and that the employees
wore boots with deep treads, our supreme court concluded that
while these arguments helped show “who created the puddle,”
there was no evidence to prove how long the puddle that caused
the plaintiff’s fall had been on the floor. Jex, 2008 UT 67, ¶ 21.

¶23 Here, the Warricks present no evidence that demonstrates
approximately when the ice formed. There is no evidence
showing the temperatures on the preceding days or nights.
There is also no evidence showing how long it takes for ice as
described in the statements of fact to form. Further, while the
Warricks insist that the ice formed from melting piles of snow,
there is no evidence demonstrating that the piles of snow were
the source of the water that turned to ice, as opposed to ice
forming from precipitation. For all the evidence shows, the ice
could have been there for several days or it could have been
there for several minutes.

¶24 As for the salt on the surrounding sidewalks, there is no
evidence that PRI was responsible for managing those sidewalks
or that PRI employees cleared snow and spread salt on those
sidewalks. It is unclear how the mere presence of salt on adjacent
sidewalks tells us anything about how long the ice in the parking
lot existed. The salt could have been applied days before and
simply remained on the sidewalk.

¶25 Because inferring that the ice existed for an appreciable
time requires “theorizing about matters over which there is no
certain knowledge,” see Cristobal, 2010 UT App 228, ¶ 16 (cleaned

20170188-CA 10 2018 UT App 197
Warrick v. Property Reserve

up), we conclude, as did the district court, that the Warricks
presented no evidence going to the amount of time the ice
existed. And absent evidence upon which a factfinder could
conclude that PRI should have known about the hazardous
condition and remedied it, the Warricks’ claim fails as a matter
of law.

CONCLUSION

¶26 We conclude that the district court properly granted
summary judgment. The Warricks’ argument that they were not
required to show actual or constructive notice of the dangerous
condition was not preserved. Further, the Warricks presented no
competent evidence going to the amount of time that the
dangerous condition existed.

¶27 Affirmed.

20170188-CA 11 2018 UT App 197