Hevelone v. City Market

Hevelone v. City Market

IN THE UTAH COURT OF APPEALS
 

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Patty Hevelone,

Plaintiff and Appellant,

v.

City Market, Inc., a Colorado corporation; Barlow Nielsen Associates, Inc.;
and John Does 1-5,

Defendants and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040481-CA
 

F I L E D
(May 12, 2005)
 

2005 UT App 215

 

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Seventh District, Price Department, 020700047

The Honorable Bruce K. Halliday

Attorneys: Joane Pappas White, Price, for Appellant

Scott W. Christensen, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Thorne.

THORNE, Judge:

    Patty Hevelone appeals the trial court's grant of summary judgment to City Market, Inc. (City Market). We affirm.

    A party is entitled to summary judgment "'only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."'" Francisconi v. Union Pac. R.R. Co., 2001 UT App 350,¶8, 36 P.3d 999 (quoting Sittner v. Schriever, 2001 UT App 99,¶7, 22 P.3d 784 (other citations omitted)); see also Utah R. Civ. P. 56. Here, City Market provided no affidavits or discovery materials in support of its summary judgment motion, but instead relied on the facts alleged in Hevelone's pleading.

    Hevelone's suit seeks to impose premises liability upon City Market. The threshold question in any premises liability case is whether or not the defendant owned or possessed the property upon which the plaintiff was injured. See Hale v. Beckstead, 2005 UT 24,¶7, 523 Utah Adv. Rep. 22 ("The duty of care that possessors of land in Utah owe to invitees upon their property is set forth in sections 343 and 343A of the Second Restatement of Torts." (emphasis added)); see also English v. Kienke, 848 P.2d 153, 156 (Utah 1993) (applying sections 343 and 343A of the Restatement to determine the duty a possessor of land owes to invitees in a premises liability action). The expansive concepts of reasonableness and foreseeability argued by Hevelone come into play only after ownership or possession is established, or at least alleged. See, e.g., Carlile v. Wal-Mart, 2002 UT App 412,¶¶8-13, 61 P.3d 287.

    Hevelone's failure to allege City Market's ownership or possession of the fire lane where the hazard was located is fatal to her premises liability claim. Hevelone's complaint alleged that the hazard existed on property "adjacent to [the] City Market store," and that the property was owned by USRO and managed by Barlow Nielsen. While Hevelone is correct that City Market owed its business invitees a relatively high degree of care to ensure their safety, "to be a business invitee, one must not only be an invitee, but must also be on the premises of the defendant." Cannon v. University of Utah, 866 P.2d 586, 589 (Utah Ct. App. 1993). Here, the complaint does not allege or raise any inference that City Market owned or possessed the property where Hevelone's injury occurred, and the trial court was correct in concluding that she was therefore not a business invitee of City Market at the time of her injury.

    Hevelone argues that there is a material issue of fact on City Market's possession of the fire lane, created by an affidavit from an employee of the Price City planning department submitted in opposition to summary judgment. The affidavit stated, in effect, that Price City requires retail stores to provide certain amounts of off-street parking, and that City Market had represented to Price City that it was providing such parking. According to a site map attached to the affidavit, City Market identified 278 parking spaces as its own for purposes of the off-street parking requirements. Anyone parking in City Market's identified parking spaces would have to cross the fire lane and encounter the hole in order to enter or exit City Market.

    We disagree that the affidavit, or the attached site map, raises an issue of fact as to City Market's possession of the fire lane. The site map clearly depicts a mall containing multiple retail establishments. Neither the map, nor the affidavit, suggests that City Market leased or controlled the parking spaces allocated to it on the map. Rather, the map suggests that the mall had a large number of common parking spots, but that each business in the mall was allocated a number of spots on paper for purposes of complying with Price City's off-street parking requirements. Further, even if City Market were deemed to possess the parking spaces for purposes of premises liability, Hevelone still would not have been a business invitee of City Market while crossing the driveway and fire lane belonging to the mall. See id. (holding that a prospective attendee of a university basketball game was not a business invitee of the university while the attendee was crossing a public way between the university's parking lot and its basketball arena); see also Rose v. Provo City, 2003 UT App 77,¶12, 67 P.3d 1017 (holding that a landowner has a duty to use due care to keep an abutting public way in a suitable and safe condition only when the landowner makes "special use" of the public way for some other purpose than merely using it as a public way).

    Hevelone's complaint and the other materials before the trial court establish that Hevelone was not on City Market's property at the time of her injury. Accordingly, Hevelone was not City Market's business invitee at the time of her injury and City Market owed her no duty as a matter of Utah premises liability law. As this is the only theory of recovery pleaded by Hevelone, the trial court correctly granted City Market's motion for summary judgment.

    We affirm.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge