Canfield v. Albertsons, Inc., 910481-CA

• Decision Date: 13 November 1992
• Docket Number: No. 910481-CA,910481-CA
• Citation: 841 P.2d 1224
• Parties: Mary E. CANFIELD, Plaintiff and Appellant, v. ALBERTSONS, INC., Defendant and Appellee.
• Court: Utah Court of Appeals

Page 1224

841 P.2d 1224

Mary E. CANFIELD, Plaintiff and Appellant, v. ALBERTSONS, INC., Defendant and Appellee.

No. 910481-CA.

Court of Appeals of Utah.

Nov. 13, 1992.

Roy G. Haslam and Valden P. Livingston, Salt Lake City, for plaintiff and appellant.

Stephen G. Morgan, Darwin C. Hansen, and Randall D. Lund, Salt Lake City, for defendant and appellee.

Before BENCH, JACKSON and ORME, JJ.

OPINION

BENCH, Presiding Judge:

Plaintiff Mary Canfield appeals from the trial court's grant of summary judgment in favor of Albertsons. We reverse and remand for further proceedings consistent with this opinion.

FACTS

Ms. Canfield alleges she slipped and fell on a lettuce leaf while walking through the produce department of an Albertsons store. Albertsons displayed some of its lettuce in what is known as a "farmer's pack display." In such a display, lettuce is left in the boxes in which it arrives from the farm without the damaged or wilted outer leaves having been removed. As a result, customers often remove and discard the outer leaves from heads of lettuce they intend to purchase. Albertsons was aware of this problem and placed empty boxes around the farmer's pack display in which customers could place the discarded leaves. Albertsons also indicated that it patrolled and cleaned the produce section, including the area around the lettuce display, on a regular basis.

Ms. Canfield sustained injuries from her fall and sued Albertsons to recover for her damages. She asserted that it was common for lettuce leaves to be on the floor around the display, despite Albertsons's efforts.

Albertsons brought a motion for summary judgment. The trial court granted the motion, holding that Ms. Canfield failed to meet her burden of showing that Albertsons had either actual or constructive notice of the particular lettuce leaf upon which she slipped and fell. ¹ The court further held, as a matter of law, that Albertsons acted reasonably in protecting its patrons against any hazard presented by the farmer's pack display.

ISSUES

Ms. Canfield argues on appeal that the trial court erred in granting summary judgment because genuine issues of fact existed which should have precluded summary judgment. In addition, Ms. Canfield argues that the trial court erroneously interpreted Utah law as requiring her to show that Albertsons had notice of the specific lettuce leaf upon which she slipped and fell. Finally, Ms. Canfield argues that the trial court erred in ruling, as a matter of law, that Albertsons acted reasonably in attempting to eliminate the hazard presented by the lettuce display. We conclude that the trial court erred in interpreting the law, and in ruling, as a matter of law, that Albertsons took reasonable precautions to protect its customers.

STANDARD OF REVIEW

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Larson v. Overland Thrift and Loan, 818 P.2d 1316, 1319 (Utah App.1991), cert. denied, 832 P.2d 476 (Utah 1992). In deciding whether the trial court correctly determined that there were no genuine issues of material fact, we do not defer to the trial court's determination of whether there are material facts in dispute, but review the facts and inferences drawn therefrom in the light most favorable to the losing party. Id. Any doubts or uncertainties concerning issues of fact are resolved in favor of the losing party. Robinson v. Intermountain Health Care, Inc., 740 P.2d 262, 263 (Utah App.1987). Ms. Canfield also challenges the trial court's legal conclusions which we review for correctness, giving no deference to the trial court. Larson, 818 P.2d at 1319.

ANALYSIS

Ms. Canfield argues that she is not required to show that Albertsons had notice of the specific lettuce leaf upon which she slipped and fell if Albertsons created the dangerous condition. We agree.

We begin our analysis with the general proposition that "property owners are not insurers of the safety of those who come upon their premises." Silcox v. Skaggs Alpha Beta, Inc., 814 P.2d 623, 624 (Utah App.1991). Summary judgment, however, should be granted with extreme caution where the negligence of the property owner is alleged. Id. Issues involved in negligence "become questions of law only when the facts are undisputed and only one conclusion can be drawn from them." Id.

In general, there are two legal theories under which a storeowner may be found negligent and held liable for a patron's injuries in a "slip and fall" case in Utah. The first theory involves situations where there is a temporary or transient hazard within the store that was not created by the storeowner, its agents, or employees. Under this theory, in order to find a storeowner negligent, it must be shown that the storeowner "knew, or in the exercise of reasonable care should have known, of any hazardous condition and had a reasonable opportunity to remedy the same." Koer v. Mayfair Markets, 19 Utah 2d 339, 343, 431 P.2d 566, 569 (1967); accord Allen v. Federated Dairy Farms, Inc., 538 P.2d 175, 176 (Utah 1975); Long v. Smith Food King Store, 531 P.2d 360, 361 (Utah 1973); Silcox, 814 P.2d at 624.

The second theory, which governs the case before us, involves situations where the storeowner, its agents, or employees create or are responsible for the dangerous condition. Under this theory, a plaintiff does not need to establish notice since a storeowner is deemed to have notice of the dangerous condition it creates. Long, 531 P.2d at 361-62 (referring to this theory as a "variant" of the first theory); accord Koer, 431 P.2d at 569; Silcox, 814 P.2d at 624. It is here that the trial court has misinterpreted the law by applying the analysis governing the first theory, rather than the analysis governing the second theory, which is the theory at issue.

This second theory usually requires that the storeowner, its agents, or employees actually create the condition or defect that results in an injury to a patron. However, there is no logical distinction between a situation in which the storeowner directly creates the condition or defect, and where the storeowner's method of operation creates a situation where it is reasonably foreseeable that the expectable acts of third parties will create a dangerous condition or defect. See De Weese v. J.C. Penney Co., 5 Utah 2d 116, 121, 297 P.2d 898, 901 (1956) ("a negligent act may be one which 'creates a situation which involves an unreasonable risk to another because of the expectable action of the other [or] a third person' ") (quoting Restatement of Torts, p 302(b)).

We therefore reiterate the rule set forth in De Weese, that where the storeowner chooses a method of operation where it is reasonably foreseeable that the expectable acts of third parties will create a dangerous condition, an injured party need not prove either actual or constructive knowledge of the specific condition. Id. at 901. In this type of case, notice is satisfied as a matter of law because the storeowner is deemed to be informed of the dangerous condition since it adopted the method of operation. See generally Thomason v. Great Atlantic and Pacific Tea Co., 413 F.2d 51, 52 (4th Cir.1969). "To relieve the plaintiff of the requirement of proving actual or constructive notice in such instances is to effect a more equitable balance in regard to the burdens of proof." Maugeri v. Great Atlantic and Pacific Tea Co., 357 F.2d 202, 203 (3d Cir.1966) (quoting Bozzo v. Vornado, 42 N.J. 355, 200 A.2d 777 (1964)).

In this case, Ms. Canfield alleges that she slipped on a lettuce leaf on the floor near a display of farmer's pack...