Hale v. Beckstead, 20020196-CA.

Citation74 P.3d 628,2003 UT App 240
Decision Date10 July 2003
Docket NumberNo. 20020196-CA.,20020196-CA.
PartiesJohn D. HALE, Plaintiff and Appellant, v. Kurt BECKSTEAD and John Does I through V, Defendants and Appellees.
CourtCourt of Appeals of Utah

Aaron J. Prisbrey, St. George, for Appellant.

Bryan J. Pattison and Brent M. Brindley, Durham, Jones & Pinegar, St. George, for Appellees.

Before BILLINGS, Associate P.J., and ORME, and THORNE, Judges.

OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 John Hale appeals the district court's grant of summary judgment to Kurt Beckstead. We affirm.

BACKGROUND

¶ 2 "When reviewing a grant of summary judgment, we evaluate the evidence and all reasonable inferences fairly drawn from that evidence in a light most favorable to the party opposing summary judgment." Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405 (Utah 1998) (quotations and citation omitted). Accordingly, we recite the facts as presented by Hale, although there is no real dispute as to the facts.

¶ 3 In 1996, Beckstead began construction of a house on land he owned in Santa Clara, Utah. The house was to be the primary residence for Beckstead and his family. Beckstead acted as his own general contractor in the construction of the house.

¶ 4 Beckstead hired Hale to paint the interior of the house. Beckstead did not exercise control over the day-to-day performance of the painting. In fact, at the time Hale's injuries occurred, Beckstead was out of town.

¶ 5 The house was under construction when Hale performed the painting work. Accordingly, a railing had not yet been installed on the second floor balcony. While painting the interior, Hale inadvertently stepped off the second-floor balcony and fell to the first floor below, sustaining injuries.

¶ 6 Hale filed a complaint against Beckstead alleging negligence, violation of the Occupational and Safety Health Act (OSHA), and premises liability. Subsequently, Beckstead moved for summary judgment.

¶ 7 The trial court granted Beckstead's motion and entered summary judgment for Beckstead. The trial court found that "[Hale] fell while on [Beckstead's] premises as a business visitor or invitee, ... and that any danger posed to [Hale] by the condition of [Beckstead's] partially-completed home was open and obvious to [Hale]." The trial court thus held that "[Beckstead] had no duty of care toward [Hale]." Hale appeals.

ISSUE AND STANDARD OF REVIEW

¶ 8 Hale argues the district court erred in holding, as a matter of law, that Beckstead owed no duty of care to Hale. "Because the determination of whether summary judgment is appropriate presents a question of law, we accord no deference to the trial court's decision and instead review it for correctness." DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841 (Utah 1996). Also, "the issue of `whether a "duty" exists is a question of law' which we review for correctness." Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405 (Utah 1998) (quoting Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986)).

ANALYSIS

I. Restatement (Second) of Torts and Landowner Duty

¶ 9 Hale argues the district court erred in holding that Beckstead owed no duty of care to protect Hale from the danger posed by the unprotected balcony. In English v. Kienke, 848 P.2d 153, 156 (Utah 1993), the Utah Supreme Court suggested that Utah follows the Restatement (Second) of Torts (1965) (the Restatement) with regard to duty in cases of landowner liability. In that case, the supreme court employed Restatement sections 328E, 332, and 343 to define the status of the plaintiff workman as a "`business visitor'" and the landowner as a "`possessor of land.'" English, 848 P.2d at 156 (quoting the Restatement sections 328E, 332, 343). The English court then quoted section 343 of the Restatement in its entirety and provided the following analysis:

Sections 343 and 343A of the Restatement impose on a possessor of land the duty to warn an invitee about two general types of hazards: (1) those that are present on the land when the invitee enters which the possessor should expect the invitee will not discover or realize, and (2) those that the possessor creates after the invitee's entry[.]

English, 848 P.2d at 156 (emphasis added). Because the plaintiff invitee in English "created the hazard which led to his death," the supreme court did not apply sections 343 and 343A in that case. Id. However, the English court clearly indicated that a landowner's duty to an invitee in Utah is set out in sections 343 and 343A of the Restatement. See id. at 156-57.1

¶ 10 Indeed, in Laws v. Blanding City, our most recent case involving an open and obvious danger in the context of landowner liability, this court applied the open and obvious danger analysis of the Restatement sections 343 and 343A (Restatement approach). See 893 P.2d 1083, 1085 (Utah Ct.App.1995). In that case we held that "[t]he correct statement of the duty Defendant, a possessor of land, owed Plaintiff, an invitee, is contained in sections 343 and 343A of the Restatement." Id.

¶ 11 Thus, we conclude the open and obvious danger rule, as outlined in sections 343 and 343A of the Restatement, is the applicable law in this case.2

A. The Restatement Approach to the Open and Obvious Danger Rule

¶ 12 Section 343 of the Restatement provides:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against danger.

Restatement (Second) of Torts § 343. Hence, section 343 "impose[s] on a possessor of land the duty to warn an invitee about two general types of hazards: (1) those that are present on the land when the invitee enters which the possessor should expect the invitee will not discover or realize, and (2) those that the possessor creates after the invitee's entry." English v. Kienke, 848 P.2d 153, 156 (Utah 1993).

¶ 13 Section 343A of the Restatement substantially clarifies the duty outlined in section 343 when the dangerous "`condition is known to the invitee, or is obvious to him.'" Laws v. Blanding City, 893 P.2d 1083, 1085 (Utah Ct.App.1995) (citation omitted); see also Restatement (Second) of Torts § 343 cmt. a ("Section [343] should be read together with § 343A."). Section 343A(1) of the Restatement provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them[.]" Restatement (Second) of Torts § 343A(1).

¶ 14 We agree with the district court that the danger in this case—the second-floor balcony, which lacked railings because construction at Beckstead's house was not yet completed—was "known or obvious" to Hale within the meaning of section 343A of the Restatement. Hale concedes the house was only partially constructed and the second-floor balcony was unprotected, exposing a drop of over six feet. The inherent risk of such a condition in a partially-constructed house is "apparent to and would be recognized by a reasonable man ... in [Hale's position as an experienced painting subcontractor] exercising ordinary perception, intelligence, and judgment." Restatement (Second) of Torts § 343A(1) cmt. b.

B. Restatement Exceptions to the Open and Obvious Danger Rule

¶ 15 There are, however, significant exceptions to the open and obvious danger rule under the Restatement which can, in some cases, limit the protection the rule affords to landowners.3 Section 343A(1) of the Restatement reads: "A possessor of land is not liable to his invitee for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A(1). Comment f states further:

There are ... cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection....
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.

Id. § 343A(1) cmt. f.

¶ 16 Accordingly, the dispositive issue before us is whether or not Beckstead should have anticipated that Hale would suffer injury despite the known and obvious danger posed by the unprotected balcony, either because Hale's interior painting required a deliberate encounter with the danger, or because Hale was likely to become distracted.

¶ 17 With regard to the deliberate encounter exception, Laws v. Blanding City, 893 P.2d 1083 (Utah Ct.App.1995), is instructive. In Laws, the city's invitee was injured after falling from a dumping platform at the city's landfill. See id. at 1084. Following a jury trial the invitee appealed the verdict in favor of the city. See id. This court reversed the jury verdict and remanded for a new trial, holding the district court failed to properly instruct the jury regarding the duty owed by the city to its invitees notwithstanding the known and obvious nature of the hazard posed by the dumping platform. See id. at...

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  • Hale v. Beckstead
    • United States
    • Utah Supreme Court
    • April 12, 2005
    ...Regal Ins. Co. v. Bott, 2001 UT 71, ¶ 2, 31 P.3d 524). The court of appeals adhered to this principle in its opinion below. See Hale v. Beckstead, 2003 UT App 240, ¶ 2, 74 P.3d 628. We thus recite the facts as the court of appeals presented ¶ 3 Beckstead, acting as his own general contracto......

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