Jex v. Jra, Inc.
| Decision Date | 16 September 2008 |
| Docket Number | No. 20070651.,20070651. |
| Citation | 196 P.3d 576,2008 UT 67 |
| Parties | Donna JEX, Plaintiff, Respondent, and Cross-Petitioner, v. JRA, INC., dba Hickory Kist Deli; James Filmore; and Angela Filmore, Defendants, Petitioners, and Cross-Respondents. |
| Court | Utah Supreme Court |
Denton M. Hatch, Spanish Fork, for plaintiff.
Robert L. Janicki, Michael L. Ford, Salt Lake City, for defendants.
On Certiorari to the Utah Court of Appeals
¶ 1 Donna Jex ("Jex") slipped and fell on a puddle of water in the Hickory Kist Deli ("Hickory Kist"), injuring her wrist and back. She sought damages from Hickory Kist. The district court granted summary judgment in favor of Hickory Kist, and Jex appealed. The court of appeals affirmed in part and reversed in part. Hickory Kist petitioned for certiorari, and Jex cross-petitioned. We granted Hickory Kist's petition to determine whether the court of appeals erred in holding as follows:
(1) Jex cannot recover under a permanent unsafe condition theory because Hickory Kist did not choose a mode of operation that foreseeably could result in an inherently dangerous condition;
(2) Jex cannot recover under a temporary unsafe condition theory if the unsafe condition was created by a third party because Hickory Kist did not have notice of the unsafe condition; and
(3) Jex may recover under a temporary unsafe condition theory if the unsafe condition was created by Hickory Kist because the notice requirement does not apply to owner-created temporary unsafe conditions. And because there is a genuine issue of material fact regarding who created the puddle, the case should be remanded for a jury to determine whether Hickory Kist created it.
For the reasons detailed below, we affirm the court of appeals' holding on each issue and remand to the district court for further proceedings.
¶ 2 It snowed on the morning of January 26, 2004. James Fillmore, the owner of Hickory Kist, arrived at the deli at about 5:30 a.m. and entered the store through the back door. His employee, Sharlene Barber, arrived at approximately the same time. At approximately 6:30 or 7:00 a.m., Fillmore finished removing snow from the sidewalks in front of the store and spread ice melt on the walkways. He then walked through the front door of the store and into the back of the store, where he began cooking. Around 7:00 a.m., Barber put the floor mats down in such a way that a person could walk on the mats from the front door of the store to the cash register. But to proceed to the back of the store, a person had to step off the mats and onto the hardwood floor. In addition to Fillmore and Barber, a Pepsi salesman entered and walked to the back of the store sometime before the store opened.
¶ 3 Jex was the first customer at Hickory Kist that morning. She arrived sometime before 8:30 a.m. and walked to the cash register. She then turned and began to walk to the back of the store, and, as she did, she slipped on a puddle of water that was about four inches in diameter. Jex fell to the hardwood floor, breaking her wrist and hurting her back.
¶ 4 Before Jex fell, neither Fillmore nor Barber knew of the puddle of water on the store's floor. Jex also did not notice the puddle of water until after she slipped on it. Fillmore did not inspect the floor before Jex fell, but he speculated that the water came either from his shoes or Jex's shoes. Fillmore and Barber were both wearing athletic shoes with deep tread, while Jex was wearing new boots with shallow tread. Fillmore acknowledged that keeping the floors clean of water is important but stated that his employees' daytime tasks do not include scheduled floor maintenance such as mopping. Instead, Fillmore testified, the floor is mopped at the end of the work day, after the store is closed.
¶ 5 Jex filed suit against Hickory Kist and its owners, James and Angela Fillmore. Jex alleged that Hickory Kist and its owners were liable for the unsafe condition on the store's floor and asserted two theories of premises liability. First, Jex claimed that Hickory Kist was liable under a permanent unsafe condition theory because Hickory Kist's mode of operation foreseeably could result in an inherently dangerous condition. Second, Jex claimed that Hickory Kist was liable under a temporary unsafe condition theory because (1) Hickory Kist had knowledge of the unsafe condition, and (2) after obtaining such knowledge, Hickory Kist had adequate time to remedy it.
¶ 6 On January 10, 2006, Hickory Kist filed a motion for summary judgment, and Jex filed a cross motion for summary judgment. The district court granted Hickory Kist's motion, ruling in its favor on both theories of liability. First, the district court held that Hickory Kist could not be liable under a permanent unsafe condition theory because "there [was] no evidence that Hickory Kist chose a method of operation that created an inherently dangerous condition, and that the inherently dangerous condition was foreseeable." Second, the district court held that Hickory Kist could not be liable under a temporary unsafe condition theory because Hickory Kist had no "actual knowledge of water on the floor."
¶ 7 Jex appealed, and the court of appeals affirmed in part and reversed in part. The court of appeals affirmed the district court's ruling that Hickory Kist could not be liable under a permanent unsafe condition theory because of the "lack of direct evidence indicating that [Hickory Kist] chose a method of operation that was inherently dangerous and foreseeable."1 In addressing the temporary unsafe condition theory, the court of appeals made two separate rulings. First, it affirmed the district court's ruling that Hickory Kist could not be liable under a temporary unsafe condition theory if the condition was created by a third party because the notice requirement applies, and Jex failed to establish that Hickory Kist had any notice of the puddle of water.2 Second, however, the court of appeals held that the notice requirement does not apply to temporary unsafe conditions that are "created by the defendant himself or his agents."3 Accordingly, the court of appeals reversed and remanded for the jury to determine whether Hickory Kist created the puddle and might therefore be liable for Jex's injuries.
¶ 8 We granted certiorari to review the court of appeals' decision, which we now affirm. We have jurisdiction pursuant to Utah Code Ann. 78A-3-102(3)(j) (Supp.2008).
¶ 9 On certiorari, we review the court of appeals' decision for correctness.4
¶ 10 Our analysis begins with a review of the court of appeals' decision that Jex cannot recover under a permanent unsafe condition theory. We then review the court of appeals' two rulings regarding Jex's recovery under a temporary unsafe condition theory. In this regard, the court of appeals found first that Jex cannot recover under a temporary unsafe condition theory if the temporary unsafe condition was created by a third party because Hickory Kist had no notice of the puddle of water. The court found second that Jex may recover under a temporary unsafe condition theory if the unsafe condition was created by Hickory Kist because the notice requirement does not apply to owner-created temporary unsafe conditions.
¶ 11 To recover under a permanent unsafe condition theory, a plaintiff must show that an owner chose a mode of operation that foreseeably could result in an inherently dangerous condition.5 The court of appeals affirmed the district court's grant of summary judgment in favor of Hickory Kist under this theory of liability, and we affirm.
¶ 12 Jex claims that she may recover under this theory because Hickory Kist "chose to employ a floor surfacing that was inherently dangerous when wet." Jex cites Canfield v. Albertsons, Inc.6 as support for her claim, but Canfield is clearly distinguishable.
¶ 13 In Canfield, the plaintiff slipped on a piece of lettuce that was part of a lettuce display known as a "farmer's pack," meaning that the lettuce did not have its wilted outer leaves removed.7 Instead, shoppers were invited to remove the outer leaves and discard them into empty boxes that Albertsons had placed on the floor.8 The plaintiff slipped on a piece of discarded lettuce on the floor and sued, claiming that the farmer's pack method of display was a permanent unsafe condition. We agreed and emphasized that "[i]t was reasonably foreseeable that some leaves would fall or be dropped on the floor by customers thereby creating a dangerous condition."9 The elements of foreseeability and inherent dangerousness were met.
¶ 14 Jex argues that by installing a wood floor that becomes slippery when wet, Hickory Kist likewise created a foreseeable and inherently dangerous condition for its customers. But Jex points to no evidence that supports her claim. In Canfield, we focused on the fact that the store "chose this mode of operation" from among any number of possible lettuce displays and took the affirmative steps of placing lettuce stands and boxes in the path of customers and inviting them to remove lettuce leaves and throw them away in those boxes.10 In taking these actions, Albertsons should have reasonably foreseen that lettuce leaves would be dropped on the floor. In this case, however, Jex has offered no evidence that Hickory Kist did anything more than install a standard wood floor. Jex offered no evidence, for example, that Hickory Kist installed an unusually slippery wood floor or that it installed its wood floor negligently. While Jex argues that merely installing a floor that can become slippery when wet satisfies the elements of foreseeability and inherent dangerousness, we have specifically held "that the construction and maintenance of . . . [a slippery-when-wet floor surface] . . . does not of itself constitute negligence" in premises liability cases.11
¶ 15 Because the mere installation of a...
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