Hill v. Superior Prop. Mgmt. Servs., Inc.

• Citation: 745 Utah Adv. Rep. 34,321 P.3d 1054
• Decision Date: 11 October 2013
• Docket Number: No. 20120428.,20120428.
• Parties: Colleen HILL, Plaintiff and Appellant, v. SUPERIOR PROPERTY MANAGEMENT SERVICES, INC., Defendant and Appellee.
• Court: Utah Supreme Court

321 P.3d 1054

745 Utah Adv. Rep. 34

Colleen HILL, Plaintiff and Appellant,

v.SUPERIOR PROPERTY MANAGEMENT SERVICES, INC., Defendant and Appellee.

No. 20120428.

Supreme Court of Utah.

Oct. 11, 2013.

Nathan D. Alder, Sarah E. Spencer, Salt Lake City, for appellant.

Paul M. Belnap, David E. Brown, Salt Lake City, for appellee.

Justice LEE, opinion of the court:

¶ 1 A condominium resident was injured when she tripped on a group of tree root offshoots concealed within the grassy common area of her complex. She sued the complex's contract property management company, which was tasked with performing some maintenance activities in that area. She claimed that the company had been negligent in dealing with the tree offshoots, asserting that it had breached duties it owed her under its maintenance contract, arising from its status as a possessor of land, and based on its voluntary undertaking of root maintenance.

¶ 2 The district court granted the company's motion for summary judgment, concluding that the company owed the resident no duty of care. We affirm. The company lived up to its relevant obligations under the maintenance contract, exercised insufficient control to be treated as a possessor, and never voluntarily undertook the root maintenance activities alleged by the plaintiffs.

I

¶ 3 Colleen Hill has lived in the Waterbury Condominiums since 2006. ¹ Near her condo unit there is a grass-covered common area that, in April 2009, had a large tree growing in it. That tree generated a number of offshoots that protruded upward from the tree roots in various places throughout the common area.

¶ 4 Because Hill was aware of these growths, and believed them to be trip hazards, she generally tried to avoid the common area. But on April 2, 2009, her dog ventured onto the lawn to relieve itself, and she followed it to clean up—as required by condominium regulations. In doing so, she proceeded cautiously, but nonetheless tripped on some of the tree shoots. She testified that they were difficult to see that day because they were “like sticks” and “blended in with the dead lawn.” ²

¶ 5 To recover for her resulting injuries, Hill brought a negligence suit against Superior Property Management Services, Inc., and against the Waterbury Homeowners Association. Hill claimed negligence by Superior in the performance of its maintenance and landscaping responsibilities at Waterbury. She also asserted that Waterbury HOA was vicariously liable for Superior's failings and directly liable under theories of premises liability.

¶ 6 Superior performed maintenance and landscaping activities at Waterbury under a maintenance contract with the Waterbury HOA. It had done so since the mid–1990s. Under the parties' contract, Superior performed certain maintenance activities relating to the common area, including mowing “lawn grass weekly and edg[ing] bi-weekly throughout the normal growing season” and “trim[ming] all small and lower branches when necessary.” Waterbury HOA retained responsibility, however, for a number of maintenance functions, including “major sidewalk repairs,” “major trimming of all large trees,” “major fence repairs,” “major breaks” of sprinklers, “major roof repairs,” and “major painting projects.”

¶ 7 Both Superior and Waterbury HOA moved for summary judgment, claiming that they owed Hill no duty of care—and thus could not have been negligent. Hill opposed both motions, asserting that Waterbury owed her a duty as a possessor of land and that Superior owed her a duty under its maintenance contract, based on a variety of premises liability theories, and due to its voluntary undertakings. The court granted Superior's motion, determining that Superior owed Hill no duty of care because it had not violated any contractual obligation, exercised insufficient control over the property to be subject to premises liability, and had not voluntarily undertaken to remedy the hazard posed by the tree shoots. The court denied Waterbury HOA's motion, however, concluding that it was potentially liable as a possessor. Thereafter, Waterbury HOA settled with Hill and was dismissed as a party to this action.

¶ 8 Hill then filed this appeal. We review the district court's summary judgment decision for correctness. See Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d 56.

II

¶ 9 Hill asserts that Superior owed her a duty of care (a) arising under Superior's maintenance contract, (b) due to its extensive control of the condominium premises, (c) based on its voluntary undertaking of tree maintenance activities, and (d) because it affirmatively created the hazardous clumps of tree shoots that allegedly caused her accident. We find no basis for a duty in any of the first three asserted grounds, and conclude that Hill failed to preserve the fourth. We accordingly affirm.

A. Contract Duty

¶ 10 Tort law draws a critical distinction between affirmative acts and omissions. As a general rule, we all have a duty to act reasonably in our affirmative acts; but no such duty attaches with regard to omissions except in cases of a special relationship. See Jeffs ex rel. B.R. v. West, 2012 UT 11, ¶ 7, 275 P.3d 228.

¶ 11 Our cases have sometimes adverted to the possibility that a special relationship sustaining such a duty might be rooted in a contract. See id. ¶ 9 n. 7. Invoking this principle, Hill argues that Superior's maintenance contract gave rise to a tort duty, which it breached by failing to perform under two provisions of the contract. The first requires Superior to “mow ... lawn grass weekly and edg[e] bi-weekly throughout the normal growing season.” The second obligates it to “trim ... small and lower branches.” We disagree, and find that neither provision supports the imposition of tort liability.

¶ 12 In the first place, it is not at all clear that mere failure to perform would sustain liability in tort. A breach of contract, after all, typically gives rise to liability in contract, not in tort.³ Even assuming that Superior's maintenance contract could sustain a tort duty, moreover, there is still no basis for liability here, as neither of the provisions cited by Hill required Superior to perform the acts it is now charged with omitting.

¶ 13 The first-cited provision required Superior to mow the “lawn grass weekly and edg[e] bi-weekly throughout the normal growing season.” (Emphasis added). Yet it was undisputed that the normal growing season had not yet commenced at the time of Hill's injury. Hill effectively conceded as much in her assertion that the grass appeared to be dead at the time of the accident. And it was undisputed that Superior, which had performed mowing activities at Waterbury for many years prior to the accident, had never started mowing until at least the second week of April. This was further “course of conduct” evidence that April 2 fell outside of the “normal growing season” referenced in the contract. ⁴ Thus, at the time of Hill's accident, Superior was not contractually required to mow the lawn, and accordingly not in breach for failing to do so.

¶ 14 The second-cited provision required Superior to “trim all smaller and lower branches when necessary.” This provision was not implicated in any way by the tree shoots in question. Though Hill characterizes the tree growths as “branches,” the contract does not bear that construction.

¶ 15 Dictionary definitions of “branch” (in the sense of a tree branch) refer uniformly to the notion of “a stem growing from the trunk or from a limb of a tree

” or a “shoot or secondary stem growing from the main stem.” SeeWebster's Third New International Dictionary 267 (3d ed.1961) (emphasis added).⁵ Thus, the “branches” to be trimmed under Superior's maintenance contract are protrusions from the main trunk only, not separate shoots stemming from the tree's roots.⁶ Superior could not be in breach for failing to trim back those shoots.

¶ 16 Hill nonetheless contends that Superior's obligations were not comprehensively detailed in its maintenance contract, but encompassed acts that it habitually engaged in over time. We see no basis for extending a duty encompassing Superior's extracontractual acts. Even if duties spelled out expressly by contract could sustain parallel tort duties—a question we need not and do not reach, see supra ¶ 11—there is no room in our law for a tort duty arising from course-of-performance acts that are nowhere provided by contract.

¶ 17 Where a duty is rooted in the express language of a written contract, the parties are on notice of their obligations, and are in a good position to plan their activities around them. That is not at all true for the extracontractual, course-of-performance acts relied on by Hill. If we were to impose a duty in connection with those acts, we would establish a troubling perverse incentive. A party facing a tort duty in connection with any undertaking not required by contract would be discouraged from such undertaking. And a disincentive for gratuitous service benefiting another is not the sort of conduct that our tort law ought to countenance.⁷ In any event, to the extent injuries ensue from negligence in the performance of such activities, liability would properly be governed by a different branch of our tort law—by the standards governing liability for a voluntary undertaking, a theory we consider (and find unavailing) below. See discussion infra ¶¶ 39–40.

¶ 18 We accordingly reject Hill's request that we overlook the express terms of Superior's maintenance contract in assessing whether Superior had a contract-based duty in tort law. And even assuming that a breach of the maintenance contract could give rise to tort liability, we conclude that Superior did not breach any provisions of the contract.

B. Premises Liability

¶ 19 We likewise reject Hill's assertion that a duty arose under three different theories of premises liability: (1) possessor liability, (2) liability of a party who receives the “entire charge of the land” from a possessor...