Porter v. Farmington City

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 12
_________________________________________________________
THE UTAH COURT OF APPEALS
DUANE PORTER,
Plaintiff and Appellant,
v.
FARMINGTON CITY CORPORATION AND FARMINGTON
CITY CEMETERY,
Defendants and Appellees.
Memorandum Decision
No. 20120911-CA
Filed January 16, 2014
Second District Court, Farmington Department
The Honorable Thomas L. Kay
No. 100700521
Brian C. Stewart, Attorney for Appellant
Allan L. Larson and Heather S. White,
Attorneys for Appellees
SENIOR JUDGE PAMELA T. GREENWOOD authored this
Memorandum Decision, in which JUDGES J. FREDERIC VOROS JR.
and STEPHEN L. ROTH concurred.1
GREENWOOD, Senior Judge:
¶1 Duane Porter appeals from the trial court’s entry of
summary judgment against him and in favor of Farmington City
Corporation and Farmington City Cemetery (collectively, the City).
We affirm.

Porter v. Farmington City
20120911-CA 2 2014 UT App 12
¶2 Porter was injured on May 23, 2009, when he fell into a
concealed hole on the grounds of the City’s cemetery. Porter was
walking across the cemetery lawn to visit his deceased wife’s grave
when the ground below him gave way into a hole where the soil
had washed away beneath the grass. Subsequent investigation
revealed that the hole was created by water escaping from a
damaged swing joint that was part of the cemetery’s sprinkler
system.
¶3 Porter sued the City, alleging that it was negligent in failing
to exercise ordinary care to protect him from the dangerous
condition presented by the hole. The parties filed a joint motion for
partial summary judgment with a stipulated statement of facts and
asked the trial court to determine if the City could be held liable
based on those facts. The joint statement of facts stipulated that the
City owned and maintained the cemetery, that the hole was caused
by water leaking from the damaged sprinkler joint, and that the
damaged joint was not discovered by anyone until after Porter’s
injury. The parties agreed that the hole was at least one foot wide
and three feet deep, that it was covered by grass, and that it “could
not [have been] detected by reasonable visual inspection of the
area.” The parties also stipulated that the City operated the
sprinkler system for approximately forty days in 2009 prior to
Porter’s injury, that the sprinkler head attached to the damaged
joint could still work properly, and that the City had conducted
various maintenance activities relating to the sprinkler system and
the cemetery grounds in the days and weeks before Porter’s injury
occurred. The stipulated issue submitted to the trial court was as
follows: “[Is the City] liable, as a matter of law, for injuries caused
to [Porter], a business invitee, as a result of a sink hole on [the
City’s] land, created by [the City’s] sprinkling system where [the
City] did not have actual knowledge of the dangerous condition?”
¶4 The trial court granted summary judgment in favor of the
City. Porter appeals, arguing (1) that the City was deemed to have
notice of the unsafe condition as a matter of law because the City
created the condition through the operation of its sprinkler system

Porter v. Farmington City
20120911-CA 3 2014 UT App 12
and (2) that even if the City was not deemed to have notice as a
matter of law, there was a material fact question as to whether the
City had constructive notice. We review the grant of a motion for
summary judgment for correctness. Ross v. Epic Eng’g, PC, 2013 UT
App 136, ¶ 13, 307 P.3d 576; see also Orvis v. Johnson, 2008 UT 2, ¶ 6,
177 P.3d 600 (“An appellate court reviews a trial court’s legal
conclusions and ultimate grant or denial of summary judgment for
correctness and views the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”
(citation and internal quotation marks omitted)).
¶5 Porter concedes in his reply brief that this case involves a
temporary or transient hazard rather than a permanent one.
Generally, a landowner is liable for injuries resulting from a
temporary hazard only if it “knew, or in the exercise of reasonable
care should have known, of any hazardous condition and had a
reasonable opportunity to remedy the same.” Canfield v. Albertsons,
Inc., 841 P.2d 1224, 1226 (Utah Ct. App. 1992) (citation and internal
quotation marks omitted). It is undisputed that the City did not
have actual knowledge of the hole that injured Porter. Thus, the
arguments on appeal center on whether the City should be deemed
to have had knowledge of the hole’s existence because it created
the hole or, in the alternative, whether the City could be found to
have had constructive knowledge of the hole due to the length of
time it had existed.
¶6 Porter first argues that the City created the dangerous
condition on its property and that landowners are “deemed to
know of the condition[s] they create.” See Jex v. JRA, Inc., 2008 UT
67, ¶ 26, 196 P.3d 576 (alteration in original) (citation and internal
quotation marks omitted); see also Price v. Smith’s Food & Drug Ctrs.,
Inc., 2011 UT App 66, ¶ 10, 252 P.3d 365 (stating that the notice
requirement does not apply if the “condition or defect was created
by the defendant himself or his agents or employees” (citation and
internal quotation marks omitted)). Porter asserts that the City was
solely responsible for the cemetery’s sprinkler system and that it
operated the sprinkler system in a defective state, thereby creating

Porter v. Farmington City
20120911-CA 4 2014 UT App 12
the hole. Accordingly, Porter argues that the City created the hole
and is therefore deemed to have knowledge of its existence. See Jex,
2008 UT 67, ¶ 26. The City responds that it did not “create” the
hole, as Porter has presented no evidence that the City created the
crack in the swing joint, failed to properly maintain the sprinkler
system, or “did anything to break the pipe.” The City argues that
these circumstances distinguish the case from Jex, where the
defendant’s employee allegedly created a slippery condition by
tracking snow onto a wood floor. See id. ¶ 27.
¶7 We conclude that the facts of this case are distinguishable
from Jex, involving a visible but undetected hazard, but rather are
similar to cases involving allegations of insufficient maintenance or
inspection over a period of time. See Goebel v. Salt Lake City S. R.R.,
2004 UT 80, 104 P.3d 1185 (analyzing a claim arising from a gap in
the road surface at a railroad crossing); Fishbaugh v. Utah Power &
Light, 969 P.2d 403 (Utah 1998) (analyzing a defendant’s failure to
discover and repair malfunctioning streetlights); cf. Schnuphase v.
Storehouse Mkts., 918 P.2d 476 (Utah 1996) (analyzing a slip-and-fall
claim arising from ice cream that a third-party customer had spilled
on the floor of a grocery store). In particular, the following passage
in Goebel forecloses Porter’s argument here:
If a plaintiff alleges that a defendant
negligently failed to remedy a dangerous condition
that the defendant did not create (as in Schnuphase),
negligently failed to repair a dangerous malfunction
in an otherwise safe system (as in Fishbaugh), or
negligently allowed an otherwise safe condition to
degrade over time into a dangerous condition (as in
the instant case), then evidence of notice and a
reasonable time to remedy are required to survive a
motion for summary judgment or directed verdict.
These requirements do not apply where the
negligence claim requires the plaintiff to establish
that the defendant actually created the dangerous

Porter v. Farmington City
2. Porter does not contend or provide evidence that the City’s
sprinkler system was inherently unsafe. See generally Jex v. JRA, Inc.,
2008 UT 67, ¶¶ 14–15, 196 P.3d 576 (explaining that the installation
of a standard wooden floor did not create an inherently dangerous
condition).
20120911-CA 5 2014 UT App 12
condition or purposefully built the dangerous
condition into the system for which the defendant is
responsible. The rationale behind these distinct rules
is that it is reasonable to presume that a party has
notice of conditions that the party itself creates, but
it is not reasonable to presume notice of conditions
that someone else creates (as in Schnuphase), that
arise from malfunctions (as in Fishbaugh), or that
gradually evolve on their own.
2004 UT 80, ¶ 22.
¶8 There is no evidence here that the City “actually created the
dangerous condition or purposefully built the dangerous condition
into the system.” See id. To the contrary, the City was2
“‘responsible’ for [the hole] only in the context of maintenance, not
for its existence in the first place.” See id. ¶ 20. At most, the City
“failed to repair a dangerous malfunction in an otherwise safe
system” or “allowed an otherwise safe condition to degrade over
time into a dangerous condition.” See id. ¶ 22. However, under
such circumstances, “it is not reasonable to presume notice,” id.,
and the trial court’s refusal to impute notice to the City in this case
was correct as a matter of law.
¶9 Porter also asserts a public policy argument that notice
should be imputed to the City because it was in the best position to
prevent the injury from occurring. See generally Davencourt at
Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims
Landing, LC, 2009 UT 65, ¶ 53, 221 P.3d 234 (“[As] between two
innocent parties, the one in the better position to prevent the harm

Porter v. Farmington City
20120911-CA 6 2014 UT App 12
ought to bear the loss.”). However, such policy considerations are
already accounted for in the various rules enunciated in Utah’s
statutes and premises liability case law. See Goebel, 2004 UT 80, ¶ 22
(“The rationale behind these distinct rules is that it is reasonable to
presume that a party has notice of conditions that the party itself
creates, but it is not reasonable to presume notice [under other
circumstances].”); see also Canfield v. Albertsons, Inc., 841 P.2d 1224,
1226 (Utah Ct. App. 1992) (“[P]roperty owners are not insurers of
the safety of those who come upon their premises.” (citation and
internal quotation marks omitted)).
¶10 Porter further argues that a material fact issue exists as to
whether the City had constructive notice of the hole. A landowner
has constructive notice of a dangerous condition when the
condition has “existed long enough that [the landowner] should
have discovered it.” Jex v. JRA, Inc., 2008 UT 67, ¶ 16, 196 P.3d 576
(citation and internal quotation marks omitted). To establish
constructive notice of an unsafe temporary condition, “a plaintiff
must present evidence that would show . . . that it had been there
for an appreciable time.” Id. ¶ 19 (omission in original) (citation and
internal quotation marks omitted). Porter argues that the large size
of the hole suggests it had existed for a significant period of time
and thus provides a sufficient factual basis from which a jury could
conclude that the City should have discovered the danger and
corrected the condition.
¶11 The City responds that Goebel also governs constructive
notice claims in the context of an allegation that negligent
inspection or maintenance failed to discover an unsafe condition
that has developed over time. See 2004 UT 80, ¶¶ 24–25. We agree.
In Goebel, the plaintiff was injured when his bicycle tire lodged in
a gap in the road surface at a railroad crossing. See id. ¶ 6. In
holding that the defendant was entitled to summary judgment on
the issue of constructive notice, the Utah Supreme Court stated that
“even if the gap had existed for a very long time, there is no reason

Porter v. Farmington City
3. In the Goebel opinion, the supreme court determined that there
was no evidence of the defendant’s failure to reasonably inspect the
crossing. See Goebel v. Salt Lake City S. R.R., 2004 UT 80, ¶ 23, 104
P.3d 1185. There is no evidence that the City failed to reasonably
inspect its sprinkler system in this case.
4. In support of his constructive notice argument, Porter cites an
Arkansas case with somewhat similar facts—a hole in the grounds
of a golf course, covered and concealed by grass, that caused injury
to a plaintiff who stepped into it. See Little v. Jonesboro Country Club,
212 S.W.3d 57, 58 (Ark. Ct. App. 2005). In that case, the court held
that a question of fact existed as to whether the defendant should
have discovered the danger through the use of ordinary care. See
id. at 59–60. However, the hole in Little was a preexisting sprinkler
valve enclosure, created by the defendant, that should had been
capped but was not. In addition, there were known prior incidents
of caps needing to be repaired or replaced, giving rise to
knowledge of possible defects by the defendant. By contrast, there
(continued...)
20120911-CA 7 2014 UT App 12
to believe that [the defendant] should have noticed it.” Id. ¶ 25.3
That reasoning is especially applicable here, where the parties
stipulated that “[p]rior to [Porter’s] fall, the sink hole was covered
by grass and could not be detected by reasonable visual inspection of the
area.” (Emphasis added.)
¶12 The parties’ stipulated facts include no evidence that other
types of reasonable inspection could have discovered the concealed
hole. On appeal, Porter argues only that the City was “solely
responsible for the maintenance, repair, and inspection of the
sprinkling system” and that the City’s agents “routinely drive lawn
mowers and trucks over the cemetery grounds.” However, the
mere possibility that a City vehicle might have eventually revealed
the hole by driving across it does not provide a reasonable basis for
a jury to conclude that the City “should have discovered” the hole.
See Jex, 2008 UT 67, ¶ 16.4

Porter v. Farmington City
4. (...continued)
is no evidence here that the City had any reason to know that the
hole might exist until Porter fell into it.
20120911-CA 8 2014 UT App 12
¶13 For these reasons, the trial court correctly concluded that the
City cannot be deemed to have had notice of the hole as a condition
created by the City. The trial court also correctly concluded that
there was no evidence to support Porter’s constructive notice
theory. Accordingly, we affirm the trial court’s entry of summary
judgment in favor of the City.