Hone v. ZZXYZ Mngmnt

Hone v. ZZXYZ Mngmnt

IN THE UTAH COURT OF APPEALS

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Neil D. Hone and Paula A. Hone,

Plaintiffs and Appellants,

v.

ZZXYZ Management Group, L.C., a Utah limited liability company dba Chevy's Fresh Mex; and John Does I through V,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030099-CA
 

F I L E D
(March 11, 2004)
 

2004 UT App 53

 

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Fourth District, Provo Department

The Honorable Steven L. Hansen

Attorneys: M. Dayle Jeffs, Provo, for Appellants

Scott W. Christensen, Salt Lake City, for Appellees

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Before Judges Bench, Davis, and Jackson.

BENCH, Associate Presiding Judge:

The trial court granted Defendants' motion for summary judgment on the basis that Plaintiffs failed to establish proximate cause, and thus, a prima facie case for negligence. We need not reach the issue of proximate cause because Plaintiffs failed to show that Defendants breached a duty of care.

For the purpose of determining breach of duty, slip-and-fall cases usually fit into one of two categories.

The first involves some unsafe condition of a temporary nature, such as a slippery substance on the floor and usually where it is not known how it got there. In this class of cases . . . fault cannot be imputed to the defendant . . . unless two conditions are met: (A) that he had knowledge of the condition . . . because the condition had existed long enough that he should have discovered it; and (B) that after such knowledge, sufficient time elapsed that in the exercise of reasonable care he should have remedied it.

The second class of cases involves some unsafe condition of a permanent nature, such as: in the structure of a building, or of a stairway, etc. or in equipment or machinery, or its manner of use, which was created . . . or for which he is responsible. In such circumstances, where the defendant either created the condition, or is responsible for it, he is deemed to know of the condition; and no further proof of notice is necessary.

Allen v. Federated Dairy Farms, Inc., 538 P.2d 175, 176 (Utah 1975). The court in Allen indicated that temporary hazards may be treated as permanent hazards if they are caused by a permanent structure. See id. at 177. For instance, in referring to Maugeri v. Great Atlantic Pacific Tea Co., 357 F.2d 202 (3d Cir. 1966), the court held that vegetable leaves dropped on the floor of a grocery store were permanent hazards where "vegetable racks were slanted in such a way that it should have been anticipated that leaves would fall on the floor." Allen, 538 P.2d at 177. For the design of the landscape here to be treated as a permanent hazard, as Plaintiffs urge, Plaintiffs must show that Defendants should have anticipated that rocks would end up on the sidewalk even in the absence of an intervening act. Plaintiffs have failed to offer any evidence that the rocks could move from the landscape to the sidewalk solely because of the nature of the landscape. The only evidence related to that matter is the expert report obtained by Defendants, which showed that it was impossible for rain to move the rocks from the landscaping onto the sidewalk.

Alternatively, Plaintiffs contend that Defendants chose "a method of operation where it is reasonably foreseeable that the expectable acts of third parties will create a dangerous condition." Canfield v. Albertsons, Inc., 841 P.2d 1224, 1226 (Utah Ct. App. 1992). In Canfield, Albertsons had

a method of displaying and offering lettuce for sale where it was expected that third parties would remove and discard the outer leaves from heads of lettuce . . . . It was reasonably foreseeable that under this method of operation some leaves would fall or be dropped on the floor by customers thereby creating a dangerous condition.

Id. at 1227. Albertsons admitted that "empty boxes were placed around the display so that customers could discard leaves." Id. Canfield is easily distinguished from this case. Contrary to Plaintiffs' assertion, in this case, landscaping is not a method of operation, and is unrelated to the way Defendants conduct their business. Defendants did nothing to encourage patrons to interact with the landscape or to remove rocks from the landscape.

For the foregoing reasons, Plaintiffs failed to show that Defendants breached a duty of care. We therefore affirm.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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James Z. Davis, Judge

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Norman H. Jackson, Judge