Candelaria v. CB Richard Ellis

2014 UT App 1
_________________________________________________________
THE UTAH COURT OF APPEALS
BIANKA I. CANDELARIA,
Plaintiff and Appellant,
v.
CB RICHARD ELLIS; PARK WEST ENTERPRISES, LLC; AND CONCEPT
MAINTENANCE SPECIALTIES,
Defendants and Appellees.
Memorandum Decision
No. 20120818-CA
Filed January 3, 2014
Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 090903483
Bret M. Hanna and Kathleen E. McDonald,
Attorneys for Appellant
Joseph J. Joyce and Ryan J. Schriever, Attorneys for
Appellee CB Richard Ellis
Byron L. Ames, Attorney for Appellee Park West
Enterprises, LLC
Peter H. Barlow and Sade A. Turner, Attorneys for
Appellee Concept Maintenance Specialties
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES JAMES Z. DAVIS and
J. FREDERIC VOROS JR. concurred.
CHRISTIANSEN, Judge:
¶1 Bianka I. Candelaria challenges the district court’s grant of
summary judgment to defendants CB Richard Ellis (CBRE); Park
West Enterprises, LLC; and Concept Maintenance Specialties
(CMS) on Candelaria’s claims of negligence and negligent infliction

Candelaria v. CB Richard Ellis
1. In reviewing the district court’s grant of summary judgment, we
recite the facts in the light most favorable to Candelaria because she
is the nonmoving party. See Ross v. Epic Eng’g, PC, 2013 UT App
136, ¶ 2, 307 P.3d 576.
20120818-CA 2 2014 UT App 1
of emotional distress. We affirm in part, reverse in part, and
remand to the district court for further proceedings.
¶2 Candelaria’s claims arise from a slip-and-fall injury that
occurred at a property in downtown Salt Lake City managed by
CBRE (the Property). Candelaria operated a cafe in a commercial1
space that she leased from CBRE on the Property. On February 14,
2008, heavy snowfall in Salt Lake City resulted in an accumulation
of snow on the Property, specifically on the surface of the parking
lot behind the building and around the dumpsters located in the
parking lot. Though CBRE’s maintenance contractor for the
Property, Park West, had contracted with CMS for removal of
snow and ice from the Property, no snow or ice removal had
occurred on the Property since February 6.
¶3 On February 20, Candelaria was removing the trash
generated by the cafe’s morning food preparation and taking it to
the dumpsters in the parking lot behind the building. At that time,
there was snow on the ground in the parking lot and “a lot of snow
right in front of the dumpsters.” Candelaria pushed a cart with the
trash bags through the snow until the snow became too deep, at
which point she removed the bags from the cart and walked the
remaining distance to the dumpsters. After depositing the trash in
a dumpster, Candelaria stepped backward and slipped on a layer
of ice concealed beneath the snow that had accumulated around
the dumpsters. She fell and hit her head and back on the pavement,
and was knocked unconscious. As a result of the injuries she
sustained in the fall, Candelaria requires continuing pain
management therapy, is no longer able to perform all of her duties
at the cafe, and suffers from a variety of emotional or psychological
conditions.

Candelaria v. CB Richard Ellis
20120818-CA 3 2014 UT App 1
¶4 In March 2009, Candelaria filed a complaint against CBRE
alleging negligence and intentional and negligent infliction of
emotional distress. Park West and CMS were subsequently joined
as defendants. CBRE and CMS then moved for summary judgment
on Candelaria’s negligence claim, asserting that they owed no duty
to Candelaria because the hazardous conditions in the parking lot
were open and obvious. CBRE also moved for summary judgment
on Candelaria’s emotional distress claims, arguing that those
claims were unsupported by her factual allegations as a matter of
law. The district court granted both CBRE’s and CMS’s motions for
summary judgment and dismissed all of Candelaria’s claims
against the defendants.
¶5 Candelaria first challenges the district court’s grant of
summary judgment to the defendants on her negligence claim. We
review the district court’s legal conclusions and ultimate grant of
summary judgment for correctness. Orvis v. Johnson, 2008 UT 2, ¶ 6,
177 P.3d 600. “Summary judgment is appropriate only where there
are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.” Basic Research, LLC v.
Admiral Ins. Co., 2013 UT 6, ¶ 5, 297 P.3d 578. In reviewing a grant
of summary judgment, we view the facts and all reasonable
inferences in the light most favorable to the nonmoving party.
Magana v. Dave Roth Constr., 2009 UT 45, ¶ 5, 215 P.3d 143.
¶6 Candelaria argues that the district court erred in concluding
that “the conditions of snow and ice in the parking lot were open
and obvious to [Candelaria]” and that the defendants therefore
owed her no duty. “A possessor of land is not liable to his invitees
for physical harm caused to them by any activity or condition on
the land whose danger is known or obvious to them, unless the
possessor should anticipate the harm despite such knowledge or
obviousness.” Hale v. Beckstead, 2005 UT 24, ¶ 9, 116 P.3d 263
(citation and internal quotation marks omitted). This principle has
come to be known as the “open and obvious danger rule.” See
Jensen v. Gardner, 2012 UT App 146, ¶ 4, 279 P.3d 844 (internal
quotation marks omitted). Candelaria asserts that the defendants

Candelaria v. CB Richard Ellis
20120818-CA 4 2014 UT App 1
made no specific allegation that the ice, as opposed to the snow,
was an open and obvious danger, and that she specifically disputed
that ice was apparent in response to Park West’s allegation that she
was aware of “snow and winter conditions on the ground.” “[I]t
only takes one sworn statement under oath to dispute the
averments on the other side of the controversy and create an issue
of fact.” Holbrook Co. v. Adams, 542 P.2d 191, 193 (Utah 1975).
Accordingly, Candelaria argues that the district court erred in
concluding that the ice itself was an open and obvious danger
because the evidence she introduced established a genuine dispute
as to whether the ice was open and obvious.
¶7 Viewing the evidence and inferences drawn therefrom in the
light most favorable to Candelaria, we conclude that a disputed
issue of material fact remains regarding whether the ice was an
open and obvious danger. Candelaria’s deposition testimony
establishes that while there was accumulated snow in front of the
dumpster, she slipped on ice that was concealed beneath that snow.
She testified that she could not see the ice in that area and that it
was underneath the snow. Her affidavit establishes that she had
never experienced icy conditions near the dumpsters, that on the
day of her injury she did not feel ice beneath her feet or see any ice
in the dumpster area, and that prior to her fall she did not know
there was ice accumulated in the dumpster area.
¶8 For their part, the defendants concede that Candelaria
“slipped and fell on some snow and ice.” They argue, however,
that the presence of snow and the winter conditions in the parking
lot would necessarily result in an icy condition and that this would
have been obvious to “[a]ny person who lives in Utah.” But this
assertion is specifically disputed by Candelaria’s sworn statements
that the ice that caused her injury was both unexpected and
concealed. Candelaria’s testimony is sufficient evidence to place
into dispute the issue of whether the ice was open and obvious. We
therefore conclude that a genuine issue of material fact exists that

Candelaria v. CB Richard Ellis
2. The defendants also argue that they had no duty to warn
Candelaria of a danger of which she had knowledge. See Hale v.
Beckstead, 2005 UT 24, ¶ 9, 116 P.3d 263 (“A possessor of land is not
liable to his invitees for physical harm caused to them by any
activity or condition on the land whose danger is known or obvious
to them . . . .” (emphasis added) (citation and internal quotation
marks omitted)). However, Candelaria’s sworn testimony that she
had no such knowledge is also sufficient to create an issue of
material fact as to her knowledge of the icy condition.
3. Candelaria does not challenge on appeal the district court’s grant
of summary judgment to the defendants on her intentional
infliction of emotional distress claim.
20120818-CA 5 2014 UT App 1
precludes the entry of summary judgment in favor of the
defendants on Candelaria’s negligence claim.2
¶9 Candelaria also challenges the district court’s grant of
summary judgment to the defendants on her negligent infliction of
emotional distress claim. To establish a claim of negligent infliction3
of emotional distress, a plaintiff must show that (1) the defendant
unintentionally caused emotional distress to the plaintiff; (2) the
defendant “should have realized that his conduct involved an
unreasonable risk of causing the distress, otherwise than by
knowledge of the harm or peril of a third person”; (3) the
defendant, “from facts known to him, should have realized that the
distress, if it were caused, might result in illness or bodily harm”;
and (4) the emotional distress resulted in illness or bodily harm to
the plaintiff. See Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶ 57, 116
P.3d 323.
¶10 Here, Candelaria has presented no evidence that the
defendants caused emotional distress to her that resulted in illness
or bodily harm. Rather, Candelaria’s position is that “following the
accident, [she] has suffered from depression, severe anxiety, sleep
disturbance, uncontrollable bouts of crying, mood swings, and

Candelaria v. CB Richard Ellis
20120818-CA 6 2014 UT App 1
fatigue,” none of which she experienced prior to the accident. Thus,
Candelaria’s allegations would demonstrate that the defendants
caused physical injury to her that resulted in emotional distress,
and not the other way around. Candelaria has not alleged any
emotional injuries that do not stem from the physical injuries
sustained in her fall, or that she would have suffered absent her
physical injuries. These allegations do not support a claim for
negligent infliction of emotional distress. Instead, any emotional or
psychological harm suffered by Candelaria as a result of her
physical injuries is properly the subject of damages arising from
her negligence claim, and not a separate claim for negligent
infliction of emotional distress. See Dalley v. Utah Valley Reg’l Med.
Ctr., 791 P.2d 193, 201 (Utah 1990) (“[A]wards for pain and
suffering result when the emotional trauma arises from the
physical injury and awards for negligently inflicted emotional
distress arise when physical or mental illness results from the
emotional trauma itself.”).
¶11 “A plaintiff’s failure to present evidence that, if believed by
the trier of fact, would establish any one of the [elements] of the
prima facie case justifies a grant of summary judgment to the
defendant.” Niemela v. Imperial Mfg., Inc., 2011 UT App 333, ¶ 7, 263
P.3d 1191 (alteration in original) (citation and internal quotation
marks omitted). Because Candelaria failed to establish a prima facie
claim of negligent infliction of emotional distress, the district court
did not err in granting summary judgment to the defendants on
this issue.
¶12 We affirm the district court’s grant of summary judgment to
the defendants on Candelaria’s negligent infliction of emotional
distress claim. We reverse the district court’s grant of summary
judgment to the defendants on Candelaria’s negligence claim and
remand for further proceedings consistent with this decision.