Berrett v. Albertsons Inc.

• Decision Date: 28 December 2012
• Docket Number: No. 20110233–CA.,20110233–CA.
• Citation: 724 Utah Adv. Rep. 7,293 P.3d 1108
• Parties: Frank E. BERRETT, Plaintiff and Appellant, v. ALBERTSONS INCORPORATED, Defendant and Appellee.
• Court: Utah Court of Appeals

293 P.3d 1108

724 Utah Adv. Rep. 7

Frank E. BERRETT, Plaintiff and Appellant,

v.ALBERTSONS INCORPORATED, Defendant and Appellee.

No. 20110233–CA.

Court of Appeals of Utah.

Dec. 28, 2012.

Roger P. Christensen, L. Rich Humpherys, and Karra J. Porter, Salt Lake City, for appellant.

Mitchel T. Rice, Todd C. Hilbig, and Stephen F. Edwards, Salt Lake City, for appellee.

Before Judges ORME, THORNE, and VOROS.

OPINION

VOROS, Judge:

¶ 1 This is an appeal from a grant of summary judgment. The case involves a personal injury claim originally brought by Irene B. Berrett and her husband, Frank E. Berrett, and later continued by Frank Berrett on behalf of himself, Irene Berrett's heirs, and the Estate of Irene B. Berrett (collectively, the Berretts). Irene Berrett was injured when she fell twenty feet into an open manhole while walking to her car in an Albertsons parking lot in Draper, Utah. The trial court granted summary judgment in favor of Albertsons. We affirm in part, reverse in part, and remand.

BACKGROUND ¹

¶ 2 On the morning of January 17, 2006, Irene Berrett drove into the Albertsons parking lot in the Hidden Valley Shopping Center on Draper Parkway. Near her parking stall was a manhole. When she arrived, the manhole was attended by Austin Miner, an employee of A–1 Septic Tank Services. Albertsons had hired A–1 to service a grease trap located approximately twenty feet below the surface of the parking lot. That morning, Miner had parked his septic tank truck six to ten feet from the manhole. He removed the manhole cover and inserted into the manhole a hose attached to the tank of the A–1 truck.

¶ 3 After visiting another business in the shopping center, Irene Berrett returned to the parking lot. While walking toward her vehicle, Irene Berrett fell into the open shaft. Surveillance video of the parking lot shows a shadow move toward the open manhole, then abruptly disappear.² When Irene Berrett fell into the open manhole, the hose was no longer inside the manhole but on the ground next to it, and Miner was away from the spot with his back turned. The Berretts allege that Miner had been away from the manhole for four or more minutes before she fell.³

¶ 4 Miner noticed car keys lying on the ground near the manhole. Walking toward the keys, he heard cries for help coming from inside the manhole. Miner looked in and discovered Irene Berrett. She had fallen twenty feet into the uncovered manhole. A rescue team required an hour and a half to extract her. She was seriously injured.

¶ 5 Albertsons maintains grease traps at most of its grocery stores. Water from the store's bakery, sometimes reaching two hundred degrees, discharges into the trap. The trap must be serviced about every six weeks. At the Draper Parkway store, where Irene Berrett fell, the grease trap is located in front of the store in its main parking lot, a few feet from the shopping cart return, and directly in line with a crosswalk leading from the front doors of the store to the parking stall where Irene Berrett parked her car.

¶ 6 A–1 had cleaned the grease trap at the Draper Parkway store many times before Irene Berrett's accident. That morning, Miner was following his usual procedure. Albertsons was aware that this would include removing the manhole cover and leaving it uncovered during servicing. At least two Albertsons employees—the lobby supervisor and a checker—observed Miner servicing the grease trap that morning. The checker saw cars parked near the manhole while the cover was off, and Miner stated that “dozens of people” walked in and out of the parking lot past the open manhole. Neither Miner nor Albertsons placed any barricades around the manhole.

¶ 7 Albertsons had no written contract with its independent contractor, A–1. Albertsons did not dictate the method for servicing the grease trap, direct A–1 on the frequency of its visits or how to barricade or isolate its work, provide training or instruction on safety or customer interactions, or otherwise supervise, assist, or direct A–1's work. However, Miner testified that, had Albertsons instructed A–1 to take safety precautions when servicing its grease trap, A–1 would have complied.

¶ 8 The Berretts sued Albertsons and A–1 for damages, alleging negligence and premises liability. At completion of discovery, Albertsons moved for summary judgment on the ground that it owed Irene Berrett no duty. The trial court granted the motion. The Berretts moved for reconsideration, arguing that the supreme court's decision in Magana v. Dave Roth Construction, 2009 UT 45, 215 P.3d 143, issued after the trial court's order, undercut the rationale for the grant of summary judgment. The trial court denied the Berretts' motion. The Berretts appealed.

¶ 9 Meanwhile, the Berretts continued to pursue their remaining claims against co-defendant A–1. Less than a week before trial was set to begin, Irene Berrett died of causes unrelated to the accident. Frank Berrett amended the pleadings to assert a wrongful death claim on behalf of Irene Berrett's heirs and a survival action on behalf of her estate, implicating Utah's survival statute, see generallyUtah Code Ann. § 78–11–12 (LexisNexis 2002) (current version at id.§ 78B–3–107 (2012)). The Berretts prevailed at trial, settled with A–1 while post-trial motions were pending, and dismissed their claims against A–1.

¶ 10 The Berretts now appeal both the trial court's grant of summary judgment in favor of Albertsons and a ruling of the trial court that the survival statute in effect at the time of the injury applies.

ISSUES AND STANDARDS OF REVIEW

¶ 11 On summary judgment, the trial court ruled that Albertsons owed Irene Berrett no duty of care. The Berretts challenge this ruling on two grounds. First, they contend that they have demonstrated facts showing that Albertsons had actual or constructive notice of a hazardous condition, and thus owed a duty to Irene Berrett as a business invitee. Second, they contend that Albertsons owed a duty to Irene Berrett under the doctrine of peculiar risk as described in section 413 of the Restatement (Second) of Torts. SeeRestatement (Second) of Torts § 413 (1965).

¶ 12 Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). “An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted). Whether a legal duty exists is a question of law for the court. See Yazd v. Woodside Homes Corp., 2006 UT 47, ¶ 14, 143 P.3d 283.

¶ 13 In addition, the Berretts challenge the trial court's ruling that the version of the survival statute in effect at the time of Irene Berrett's accident, not the version in effect at the time of her death, controls. This challenge presents a question of statutory interpretation. See In re T.M., 2003 UT App 191, ¶ 9, 73 P.3d 959 (“Determining which version of [a] statute applie[s] is a matter of statutory interpretation ....” (second alteration in original) (citation and internal quotation marks omitted)). We therefore review the trial court's ruling for correctness. See Berneau v. Martino, 2009 UT 87, ¶ 9, 223 P.3d 1128.

ANALYSIS

1. Genuine Issues of Material Fact Preclude Summary Judgment.

¶ 14 The trial court concluded that Albertsons was, as a matter of law, not vicariously liable for the acts of A–1 and that the evidence and the law do not support the Berretts' contention that Albertsons was directly negligent. “[W]ithout a duty, there can be no negligence as a matter of law, and summary judgment is appropriate.” Tallman v. City of Hurricane, 1999 UT 55, ¶ 5, 985 P.2d 892 (citation and internal quotation marks omitted). However, if Albertsons owed Irene Berrett “a duty under any [pleaded] legal theory, and there are disputed facts as to whether that duty was breached,” then we must reverse the trial court's grant of summary judgment for Albertsons. See id. The Berretts alleged direct liability based on premises liability and contend that the record contains evidence from which a jury could have found Albertsons liable under this theory.

¶ 15 This case involves a business owner, Albertsons, which employed an independent contractor to perform work on its premises. The trial court stated that A–1 was attending the manhole at the time of the accident and that Utah law does not impose a duty on Albertsons to do what its independent contractor was already doing. See Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d 322 (“ ‘[T]he employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.’ ” (quoting Restatement (Second) of Torts § 409 (1965))).

¶ 16 An employer is generally not vicariously liable for the acts and omissions of its independent contractors, but it remains directly liable for its own actions. See Magana v. Dave Roth Constr., 2009 UT 45, ¶¶ 22–23, 36–37, 215 P.3d 143;Gonzalez v. Russell Sorensen Constr., 2012 UT App 154, ¶ 18, 279 P.3d 422. Here, the Berretts allege direct—not vicarious—liability. They contend that the open manhole posed a temporary hazard, that Albertsons had notice of the hazard, and that Albertsons therefore had a duty to act reasonably to mitigate the harm to Irene Berrett as a business invitee. In general, “property owners are not insurers of the safety of those who come upon their property, even though they are business invitees.” Martin v. Safeway Stores, Inc., 565 P.2d 1139, 1140 (Utah 1977). But a business owner has “ ‘a nondelegable duty to keep the premises reasonably safe for business invitees.’ ” Price v. Smith's Food & Drug Cntrs., Inc., 2011 UT App 66, ¶ 26, 252 P.3d 365 (quoting ...