Durborow v. IHC Hospital, Inc.; and Cottonwood Hospital Medical Center

Catherine L. Durborow v. IHC Hospital, Inc.; and Cottonwood Hospital Medical Center, Case No. 971309-CA, Filed October 1, 1998. IN THE UTAH COURT OF APPEALS

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MEMORANDUM DECISION (Not For Official Publication)


Catherine L. Durborow, 

Plaintiff and Appellant, 

v. 

IHC Hospital, Inc.; and Cottonwood Hospital Medical Center, 

Defendants and Appellees. 

Case No. 971309-CA

F I L E D
(October 1, 1998)   -----  

Third District, Salt Lake Department

The Honorable Glenn A. Iwasaki

Attorneys: Samuel King and David J. Friel, Salt Lake City, for Appellant

Charles Dahlquist, Merrill F. Nelson, and David J. Hardy, Salt Lake City, for Appellees -----  

Before Judges Davis, Wilkins, and Greenwood.

WILKINS, Associate Presiding Judge:

Appellant Catherine L. Durborow brought suit against defendant IHC Hospital (Hospital) for personal injuries sustained as a result of a slip and fall in the entrance of its Cottonwood Hospital Medical Center. Durborow appeals the trial court's grant of summary judgment to IHC. We affirm. 


STANDARD OF REVIEW

Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). In determining whether the trial court properly granted summary judgment, we review the facts in the light most favorable to the losing party and give no deference to the trial court's legal conclusions. See Lister v. Utah Valley Community College, 881 P.2d 933, 937 (Utah Ct. App. 1994). Typically, claims involving negligence are not susceptible to summary judgment; however, where the "facts are undisputed and only one conclusion can be drawn from them," summary disposition is appropriate. Silcox v. Skaggs Alpha Beta, Inc., 814 P.2d 623, 624 (Utah Ct. App. 1991).
 

 ANALYSIS

Appellant does not dispute the trial court's factual findings. Rather, appellant contests the legal conclusion that a wind blown mat is a temporary condition for purposes of analysis under our case law. Appellant argues that because the Hospital created the condition that injured her this case must be analyzed under the principles relating to an unsafe condition of a permanent nature. Also, appellant contests the trial court's determination that she is not entitled to fees and costs against the Hospital under Rule 11.
1. Negligence

Under Utah law there are two negligence theories by which a business owner can be held liable for injuries incurred by patrons. The first theory requires that the business owner have actual or constructive knowledge of a temporarily unsafe condition and sufficient time has passed after discovery of the condition so that the owner, in the exercise of reasonable care, should have remedied the condition. See Schmuphase v. Storehouse Markets, 918 P.2d 476, 478 (Utah 1996). The second theory involves an unsafe condition of a permanent nature which the business owner created or controls. See id. Under this theory the owner is deemed to be aware of the condition and therefore, notice is immaterial. See id.

Appellant contends that the trial court erred by finding that a wind blown mat is a temporary condition and therefore, misapplied the law. However, the uncontested facts are that the mat had been in the same place for five years without incident. Furthermore, there was no evidence presented that the mat had ever flipped in the wind before that day. The trial court determined that the mat only became unsafe momentarily when it was blown by wind strong enough to move it.

Although the wind is a permanent feature of the environment, it does not follow that the mat's unforseen yet potential susceptibility to the wind makes it a permanently unsafe condition. In other words, the dangerous condition arose only momentarily when the mat was lifted by the wind. In Allen v. Federated Dairy Farms, Inc., 538 P.2d 175 (Utah 1975) the Utah Supreme Court provided examples of what constitutes a permanent as opposed to a temporary unsafe condition. The court stated that a slippery substance on the floor is a condition of a temporary nature, whereas, the structure of a building or a stairway is a permanent condition. See id. at 176. A wind blown mat is more akin to a slippery substance on the floor because both the mat and the floor become dangerous only when coupled with another element. See Long v. Smith Food King Store, 531 P.2d 360, 362 (Utah 1973). Because there were no facts presented, nor any basis from which a fair inference could be drawn that the wind blown mat is a permanent condition, we cannot agree with Durborow's contention that the trial court improperly applied the law.

Because we agree with the trial court's determination that a wind blown mat is a temporary condition we also concur in its determination that appellant has failed to establish the Hospital's liability under that theory. It is undisputed that the Hospital did not have actual notice that the mat had or would flip in the wind. Furthermore, appellant has offered no evidence to show that the Hospital had constructive notice of this condition.
2. Rule 11

Appellant asserts that she is entitled to attorney fees and costs under Rule 11 because the Hospital's arguments are not warranted by the existing law. See Utah R. Civ. P. 11. When reviewing a trial court's Rule 11 determination, we review the trial court's conclusion under a correction of error standard. See Barnard v. Sutliff, 846 P.2d 1229, 1235 (Utah 1992). In determining whether conduct violates Rule 11, the court must focus on whether the alleged violater's research into the law and facts surrounding a filing is "objectively reasonable under all circumstances." Id. at 1236. After reviewing the record, we have determined that the trial court's conclusion that the Hospital did not violate Rule 11 is correct. The Hospital's claim that appellant's accident was the result of an "Act of God" was not objectively unreasonable nor meritless under the circumstances. Furthermore, the Hospital's argument that this case should be analyzed as a temporary condition is warranted by the law. Therefore, we affirm the trial court's conclusion that the Hospital did not violate Rule 11.

Affirmed.
 
 

______________________________

Michael J. Wilkins,

Associate Presiding Judge -----  

WE CONCUR:
 
 

______________________________

James Z. Davis,

Presiding Judge
 
 

______________________________

Pamela T. Greenwood, Judge