Cochegrus v. Herriman City

• Decision Date: 26 March 2020
• Docket Number: No. 20161073,20161073
• Citation: 462 P.3d 357
• Parties: Candice COCHEGRUS, Appellant, v. HERRIMAN CITY, Rosecrest Village Homeowners Association, Inc., and Future Community Services, Inc. dba FCS Community Management, Appellees.
• Court: Utah Supreme Court

462 P.3d 357

Candice COCHEGRUS, Appellant,

v.HERRIMAN CITY, Rosecrest Village Homeowners Association, Inc., and Future Community Services, Inc. dba FCS Community Management, Appellees.

No. 20161073

Supreme Court of Utah.

Heard February 14, 2018

Filed March 26, 2020

Kenneth Parkinson, Peter Lattin, Provo, for appellant

David L. Church, Salt Lake City, for appellee Herriman City

Cory D. Memmott, Salt Lake City, for appellees Rosecrest Village Homeowners Association, Inc., and Future Community Services, Inc. dba FCS Community Management

Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce concurred.

Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 Candice Cochegrus tripped and fell while walking across a park strip¹ in Herriman City. She asserts that she tripped over a metal rod protruding out of a hole in the ground. Cochegrus sued Herriman City, Rosecrest Village Homeowners Association, and its maintenance company Future Community Services (FCS) (collectively, defendants) for negligence. The district court granted summary judgment to all three defendants, ruling that Cochegrus had failed to produce enough evidence to create a dispute of fact as to when the unsafe condition arose. The court concluded that, without this, she could not meet her burden to show that the defendants had constructive notice of the protruding metal rod and an opportunity to remedy the condition. Cochegrus appeals.

¶2 We conclude that under the circumstances here, the durable, nontransitory nature of the unsafe condition itself is evidence from which a factfinder could infer longevity. This is sufficient to create a genuine dispute as to the length of time the condition existed. Based on this and the evidence regarding the noticeability of the condition, we conclude Cochegrus produced evidence in support of the disputed elements of her claim.

¶3 Accordingly, we reverse and remand.

BACKGROUND

¶4 As Cochegrus walked across a park strip located between a sidewalk and a Herriman City street, she tripped, fell, and was injured.² At the time, she did not know what she tripped over, but her husband later returned to the area to investigate what had happened.³

¶5 Cochegrus’s husband did not see the accident occur, but he testified that his wife later explained to him where she had fallen. While inspecting that area, he found a "rusted" metal rod extending approximately five inches from a hole in the ground. He testified that the metal rod was "not easy to see" initially because it was "covered by grass." But when he moved the grass aside, he noticed that it "looked like [the rod] had been hit ... with the blade of a lawn mower." Cochegrus’s husband surmised that his wife must have tripped over the metal rod because her foot was cut and the rod was the only object in the vicinity that could have inflicted that injury. Cochegrus’s mother-in-law affirmed in a declaration that she saw Cochegrus trip over something in the park strip and that she had noticed the metal rod moments after Cochegrus fell.

¶6 Cochegrus herself later returned to inspect and photograph the park strip and protruding metal rod. She testified that "it looked as if [the rod] had been there for quite sometime [sic]" and that "when [she] tugged on it, [the rod] was securely fastened in the ground." She also stated that she had seen individuals mowing the lawn after her accident and that she would observe how they reacted to the metal rod. According to her testimony, "one gentleman went around it" and "another gentleman ran right over it." Cochegrus stated that the rod was "visible" "[w]hen the grass was freshly mowed."

¶7 Herriman City was not notified of the metal rod until seven months after the accident.⁴ Upon notification, however, Herriman City immediately sent a streetlight technician to remedy the unsafe condition. The streetlight technician used a Sawzall⁵ to cut off the portion of the rod that protruded from the hole and then filled in the hole with some dirt. He testified that the rod looked like it had been "hit multiple times" and that some of the nicks looked "rusted" while others were "clean." The streetlight technician agreed that "it was clear ... somebody knew that ... something was there, because somebody was hitting [the rod] with their lawnmower."

¶8 The Director of Operations for Herriman City also testified that it looked like the metal rod had been cut by a metal blade, stating that the nicks "appear to be from [a] lawn mower." According to him, the nicks had "oxidized" and were "not really fresh."

¶9 Herriman City acknowledged that it owns the park strip and that the metal rod was the end of a copper-clad stainless steel grounding rod from a nearby streetlight that a private contractor had installed for the city in 2006. The streetlight technician was surprised that "the ground rod was sticking up out of the ground," explaining that "[w]hoever did it didn’t put [the rod] down deep enough." He theorized that the contractors may have been "going off ... grade stakes" and it was possible "[i]f the grade stakes were saying [the road] was supposed to be two feet above, ... they factored [that] they didn’t need to pound the ground rod two more feet[ ] because the road was coming up."

¶10 Although Herriman City inspected the streetlight in 2006 when the final streetlight connections were done, the inspection report does not mention whether the rod was completely buried or protruding from the ground at the time of inspection.⁶

¶11 Cochegrus sued the defendants, arguing that they each breached a duty of care owed to her. She first alleged that Herriman City breached its nondelegable duty by "having the hazardous condition on its property." She then alleged that Rosecrest had a statutory duty under Herriman City Code section 7-6-1 to maintain the area where she tripped because it owns the private property abutting the park strip. Finally, she alleged that FCS had a duty because it had contracted with Rosecrest to maintain the park strip.⁷ According to Cochegrus, Rosecrest and FCS breached their duties because they "knew or should have known about the protruding rusted rebar and should have done something to warn the public or the city or taken action to make the area safe."

¶12 All three defendants filed motions for summary judgment, which the district court granted. The court found that Cochegrus had not provided sufficient evidence to create a genuine factual dispute regarding the length of time that the unsafe condition had existed. The court ruled that this prevented her from meeting her burden to show that the hazard existed long enough that the defendants should have discovered and remedied it. Cochegrus timely appeals.

¶13 We exercise jurisdiction under Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶14 In reviewing a district court’s grant of summary judgment, we review "a [district] court’s legal conclusions and ultimate grant or denial of summary judgment for correctness." Orvis v. Johnson , 2008 UT 2, ¶ 6, 177 P.3d 600 (citation omitted) (internal quotation marks omitted). We apply an "objective standard" to determine whether a genuine factual dispute exists, which asks "whether reasonable jurors, properly instructed, would be able to come to only one conclusion, or if they might come to different conclusions, thereby making summary judgment inappropriate." Heslop v. Bear River Mut. Ins. Co. , 2017 UT 5, ¶ 20, 390 P.3d 314 (citation omitted).

ANALYSIS

¶15 The district court granted summary judgment to the defendants because it concluded Cochegrus had not presented evidence showing that the unsafe condition existed long enough to infer that the defendants had constructive knowledge of the condition and an opportunity to remedy it.⁸ Cochegrus disagrees, arguing that: (1) the district court should have treated the rod as a permanent unsafe condition rather than a temporary one, which would have eliminated the knowledge element; (2) she presented evidence showing the defendants had actual knowledge of the protruding rod, so she did not need to show constructive knowledge; (3) she did present sufficient evidence to show the condition had existed long enough that the defendants should have noticed and remedied it; and (4) the district court erred by not drawing reasonable inferences in her favor.

¶16 The defendants argue that the district court’s summary judgment order was correct. As an alternative ground for affirmance, Rosecrest and FCS also argue that Cochegrus has not shown that they had a duty to maintain Herriman City’s streetlight infrastructure. We address these issues in turn.

I. PERMANENT VERSUS TEMPORARY UNSAFE CONDITIONS

¶17 Cochegrus first argues that the rod was a permanent unsafe condition and the district court should have analyzed her claim accordingly. In tort claims involving unsafe conditions on property, the applicable law depends on whether the condition at issue is deemed to have been temporary or permanent. Temporary unsafe conditions are those "such as a slippery substance on the floor and usually where it is not known how it got there." Allen v. Federated Dairy Farms, Inc. , 538 P.2d 175, 176 (Utah 1975). In a negligence case involving a temporary unsafe condition, "fault cannot be imputed to the defendant so that liability results therefrom" unless the plaintiff shows (1) that the defendant "had knowledge of the condition, that is, either actual knowledge, or constructive knowledge because the condition had existed long enough that [the defendant] should have discovered it"; and (2) that after obtaining such knowledge, sufficient time elapsed that in the exercise of reasonable care the defendant should have remedied the dangerous condition. Id.

¶18 Unsafe conditions of a permanent nature include those, "such as: in the structure of a building, or of a stairway, ... or in equipment or machinery, or its manner of use, which was created or chosen...