Babbitt v. 7-Eleven

----ooOoo----

Gayle Babbitt,
Plaintiff and Appellant,

v.

7-Eleven Sales Corporation
dba 7-Eleven Food Stores Corporation,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981755-CA

F I L E D
February 25, 2000
  2000 UT App 50 -----

Third District, Salt Lake Department
The Honorable Anne Stirba

Attorneys:
David Grindstaff, Salt Lake City, for Appellant
Scott W. Christensen, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Bench, and Billings.

GREENWOOD, Presiding Judge:

Gayle Babbitt appeals the trial court's grant of summary judgment in favor of Southland Corporation (7-Eleven) dismissing her claim for injuries sustained when she slipped and fell on a mayonnaise packet on a handicap ramp outside a 7-Eleven store. We affirm.

Babbitt alleges that 7-Eleven left condiment packets out for its customers' use and negligently failed to monitor its premises for fallen debris. Babbitt essentially claims the trial court erred because it applied the standard of premises liability based on a temporary condition rather than a permanent condition.

"In reviewing the trial court's grant of summary judgment, this court views the facts in the light most favorable to the non-moving party." Schnuphase v. Storehouse Markets, 918 P.2d 476, 477 (Utah 1996). Summary judgment presents only questions of law and this court reviews the trial court's ruling under "a standard of correctness, according no deference to the trial court's legal conclusions." Mills v. Brody, 929 P.2d 360, 362 (Utah Ct. App. 1996).

"Most cases involving claims of negligence are not susceptible to summary disposition; however, where the evidence 'is free from doubt so that all reasonable [persons] would come to the same conclusion,' summary disposition is appropriate." Schnuphase, 918 P.2d at 477 (quoting Anderson v. Toone, 671 P.2d 170, 172 (Utah 1983) (alteration in original)). As the Utah Supreme Court noted, "'bare contentions, unsupported by any specification of facts in support thereof, raise no material questions of fact as will preclude the entry of summary judgment.'" Id. at 477-78 (quoting Massey v. Utah Power & Light, 609 P.2d 937, 938 (Utah 1980)).

In premises liability cases, the Utah Supreme Court has identified two negligence standards. The first class of negligence applies to cases alleging a temporary unsafe condition which is generally created by a third party rather than the defendant or its agent. See id. at 478. In order to hold a defendant liable for a temporary condition, plaintiff must show: (1)that the defendant had either actual knowledge of the condition or constructive knowledge because the condition existed long enough that it should have been discovered; and (2) that after learning of the condition, defendant had sufficient time to remedy the problem. See id.

Under the second class of cases, the unsafe condition is permanent, such as "the structure of the building, or of a stairway, etc. or in the equipment or machinery, or in the manner of use, which was created or chosen by the defendant (or his agents), or for which he is responsible." Id. Under this theory of liability, knowledge is imputed to the defendant because the defendant either created the condition or is responsible for it. See id.

In two recent opinions, the Utah Supreme Court clarified that the temporary negligence standard applies in slip and fall cases such as this case when the substance is spilled by a third party. In Merino v. Albertsons, Inc., 1999 UT 14, 975 P.2d 467, a store patron slipped on a kiwi in the produce section and a year later slipped on a jalapeno in the same store. See id. at ¶2. The supreme court held that the presence of produce on the floor on two separate occasions does not rise to the level of a "permanent, or even semi-permanent, nature," specifically stating, "[t]here is no testimony that the floor was permanently covered with fruit or vegetable debris." Id. at ¶7.

Similarly, in Schnuphase, the plaintiff slipped on ice cream that a customer spilled in the deli section. See 918 P.2d at 477. The plaintiff could not present any evidence that the store's employees had actual or constructive knowledge of the ice cream. See id. at 478. Unable to prevail under a temporary condition theory, the plaintiff argued that store was negligent because it should have been more vigilant in finding and removing the spill. See id. The court stated that plaintiff had made only "the bare assertion that Storehouse Markets' method of operation created a situation where it was reasonably foreseeable that the expectable acts of third parties would create a dangerous condition or defect." Id. at 479. In holding that the store was sufficiently vigilant, the court stated that "foreseeability and inherent danger are key elements of a negligence action under the second theory of liability." Id. The court also expressed concern with extending store owner liability in method of operation cases. See id.

In this case, plaintiff presented no evidence that defendant knew or should have known about the mayonnaise packet and had time to remedy the problem. Further the trial court correctly concluded that there was simply no evidence that 7-Eleven chose "a method of operation where it [was] reasonably foreseeable that the expectable acts of third parties [would] create a dangerous condition." Canfield v. Albertsons, Inc., 841 P.2d 1224, 1226 (Utah Ct. App. 1992).

Plaintiff's inability to produce evidence that 7-Eleven had either notice of a foreseeable condition or knowledge of the mayonnaise packet causes her claim to fail as a matter of law. Accordingly, we affirm the trial court's grant of summary judgment dismissing Babbitt's claim.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge