Smuin v. Flying J, Inc.

Smuin v. Flying J, Inc.

IN THE UTAH COURT OF APPEALS
 

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Robert Smuin,

Plaintiff and Appellant,

v.

Flying J, Inc.,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040798-CA
 

F I L E D
(December 23, 2004)
 

2004 UT App 486

 

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Third District, Salt Lake Department

The Honorable Denise P. Lindberg

Attorneys: Nathan N. Jardine, Salt Lake City, for Appellant

Rick L. Rose and Kristine M. Larsen, Salt Lake City, for Appellees

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Before Judges Billings, Bench, and Greenwood.

PER CURIAM:

    Robert Smuin appeals the trial court's order granting Flying J, Inc.'s (Flying J) motion for summary judgment. This case is before the court on Flying J's motion for summary disposition.

    Smuin's claims against Flying J are based upon an alleged slip and fall that took place in a restroom owned and operated by Flying J. Flying J filed a motion for summary judgment on June 22, 2004. Despite the existence of a scheduling order which set the response due date, and at least two extensions granted by Flying J, Smuin filed neither a memorandum nor an affidavit opposing this motion.

    Instead, Smuin filed an "Objection to [Flying J's] Notice to Submit for Decision," requesting additional time to file a memorandum in opposition to the motion for summary judgment. This "objection" was overruled by the trial court, and the motion for summary judgment was granted. Smuin appeals each of these rulings.

    First, Smuin provides this court with no reason to overturn the trial court's decision to disregard or overrule his "objection." He cites no rule or legal precedent, and makes many of the same factual arguments that he pressed below, which are without merit. There is simply no showing by Smuin that the district court abused its discretion when it overruled or disregarded his "objection." See, e.g., Stoddard v. Smith, 2001 UT 47,¶22, 27 P.3d 546 (noting that a district court's order denying a motion to extend time will be affirmed absent an abuse of discretion).

    Next, in reviewing the trial court's entry of summary judgment, "we consider the evidence in the light most favorable to the nonmoving party and affirm only where it appears that there is no genuine dispute as to any material issues of fact and the moving party is entitled to judgment as a matter of law." Robinson v. State, 2001 UT 21,¶6, 20 P.3d 396. Smuin, as the plaintiff, "has the ultimate burden of proving all the elements of his cause of action." Thayne v. Beneficial Utah, 874 P.2d 120, 124 (Utah 1994). Smuin alleged he slipped on water on the floor of Flying J's restroom. When liability is premised on an "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," fault is not imputed unless the defendant had knowledge of the condition, and "sufficient time elapsed that in the exercise of reasonable care he should have remedied it." Schnuphase v. Storehouse Mkts., 918 P.2d 476, 478 (Utah 1996).

    Flying J's motion for summary judgment set forth deposition testimony and a statement of facts specifically denying that Flying J knew of, or should have known of, the wet conditions that purportedly caused Smuin to slip and fall. Flying J also denied that sufficient time had elapsed such that in the exercise of reasonable care it should have remedied the wet conditions.

    Under rule 56(e) of the Utah Rules of Civil Procedure, when a motion for summary judgment is properly made and supported, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Utah R. Civ. P. 56(e). "If he does not so respond, summary judgment, if appropriate, shall be entered against him." Id.

    Thus, under rule 56(e) the burden shifted to Smuin to provide some evidence, by affidavit or otherwise, in support of his claim. See id.; see also Thayne, 874 P.2d at 124 ("In the face of [a] properly supported motion . . . [plaintiff] may not rest on his unverified complaint."). Smuin wholly failed in this regard. Smuin did not file anything in support of his complaint.
Smuin therefore raised no issues of material fact, and Flying J was entitled to judgment as a matter of law.

    Accordingly, we affirm the trial court's order.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge