MacFarlane v. Applebee's Rest.

• Decision Date: 29 July 2016
• Docket Number: No. 20140991–CA,20140991–CA
• Citation: 378 P.3d 1286,2016 UT App 158
• Parties: Elizabeth MacFarlane, Appellant, v. Applebee's Restaurant, American Fork Applette LLC, and John D. Prince, Appellees.
• Court: Utah Court of Appeals

378 P.3d 1286
2016 UT App 158

Elizabeth MacFarlane, Appellant
v.
Applebee's Restaurant, American Fork Applette LLC, and John D. Prince, Appellees.

No. 20140991–CA

Court of Appeals of Utah.

Filed July 29, 2016

James G. Clark, Provo and Dallas B. Young, Attorneys for Appellant

Heinz J. Mahler, Kirk G. Gibbs, Salt Lake City and Samuel A. Goble, Attorneys for Appellees

Judge Stephen L. Roth authored this Opinion, in which Judges Michele M. Christiansen and Kate A. Toomey concurred.

Opinion

ROTH, Judge:

¶1 Elizabeth MacFarlane appeals the district court's grant of summary judgment in favor of Applebee's Restaurant, American Fork Applette LLC, and John D. Prince (collectively, the Restaurant). We affirm.

BACKGROUND¹

¶2 In January 2008, MacFarlane slipped on ice and fell while walking in the parking lot next to an Applebee's Restaurant in the American Fork Commercial Center (the Shopping Center), a large shopping center in which the Applebee's Restaurant occupied a detached building. At the time of the incident, the Restaurant leased 48,545 square feet of space in the Shopping Center from AFCC Limited (the Landlord). The Restaurant's building occupies approximately 5,100 square feet of the leased space, with a parking area comprising most of the remainder of what the ground lease (the Lease) described as the “Leased Premises.” In the Lease, the Landlord agreed to “provide all necessary parking for [the Restaurant's] customers and employees” but stated that the parking “shall be non-exclusive and in compliance with the Shopping Center criteria” as well as several existing covenants and cross-easements that encumbered the property. The Landlord was also “responsible for the maintenance of all common areas,” for which the Restaurant was required to “pay a portion of the ... maintenance cost based on a prorata percentage.” In this regard, the Lease stipulated that “[a]ll common areas and facilities which [the Restaurant] may be permitted to use and occupy are to be used and occupied under a revocable license, coterminous with this Lease.”

¶3 MacFarlane filed a premises liability complaint against the Restaurant in January 2012, claiming that the Restaurant failed to fulfill its duty to clear the parking lot of hazardous ice or warn her of the danger. She alleged that the Restaurant had negligently failed to “remove, salt, sand, or warn of ice in the parking lot” when it knew, or should have known, that “the ice in the parking lot created a foreseeable hazard to patrons and/or invitees of the business” and that “the ice needed to be eliminated, neutralized, or [a] warning should have been given.” MacFarlane claimed that as a result of the Restaurant's negligence she suffered injuries and special damages, including “medical bills, lost wages, and the loss of future earning ability.”

¶4 Among other defenses to MacFarlane's claims, the Restaurant asserted that it was “not the owner[ ], or in control, of the parking lot in which [MacFarlane] allegedly slipped and fell.” Rather, it claimed that “[t]he duty to keep the parking lot free of snow and ice, if any, was at [the] relevant time ... with [the Landlord], ... the property owner of the parking lot.”² The Restaurant

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subsequently moved for summary judgment, arguing that it did not owe MacFarlane a duty, because although it leased the parking lot, it did not own or control the parking lot.

¶5 The district court granted the Restaurant's summary judgment motion and dismissed MacFarlane's claim. It reasoned that summary judgment was appropriate because, “even when viewing the facts in the light most favorable to [MacFarlane], [the Restaurant] did not have ownership or control over the parking lot, and thus did not have a duty of care towards [MacFarlane].” The court determined that the Lease made the Landlord “responsible for maintenance of all common areas,” which “included all snow removal during the winter months,” and that the “necessary parking ... was ‘non-exclusive.’ ” Thus, the court concluded that the Landlord “explicitly retained control over the parking lot, including responsibility for snow removal,” and that “because the accident occurred outside an area controlled by [the Restaurant],” judgment in favor of the Restaurant was proper as a matter of law. MacFarlane appeals this ruling.

ISSUE AND STANDARD OF REVIEW

¶6 MacFarlane argues that the district court erred when it granted summary judgment in favor of the Restaurant on the basis that the company owed her no duty to maintain the parking lot in a reasonably safe condition. “We review a [district] court's summary judgment [decision] for correctness, considering only whether the [district] court correctly applied the law and correctly concluded that no disputed issues of material fact existed.” Hermansen v. Tasulis , 2002 UT 52, ¶ 10, 48 P.3d 235.

ANALYSIS

¶7 MacFarlane argues that we should reverse the district court's grant of summary judgment in favor of the Restaurant because the Restaurant had a duty under common law principles of premises liability to maintain the parking lot in a reasonably safe condition, which it breached by failing to clear the ice in the parking lot or warn her of the hazard. According to MacFarlane, the Restaurant's duty arose out of its possession and control of the parking lot as a leaseholder. She asserts that the parking lot was part of the leased premises that the Restaurant occupied and for which it paid rent and that by virtue of its leasehold, the Restaurant “had possessory rights in the entire portion” of the space it occupied, which included both the restaurant building and the adjacent parking area. In this regard, she contends that although the Lease created a contractual obligation for the Landlord to perform “routine maintenance such as snow removal and ice remediation,” the Restaurant nonetheless “had full authority to perform [the routine snow and ice removal] because nothing in [the Lease] prohibit[ed]” it from doing so. She further argues that the Restaurant's duty to her was nondelegable and that the Landlord's obligation under the Lease to maintain the parking lot could not legally insulate the Restaurant from its own primary responsibility as the leaseholder.

I. Only a “Possessor” of Land Has a Duty to an Invitee Under Principles of Premises Liability.

A. A “Possessor” of Land's Duty to Invitees

¶8 To prevail on a negligence claim, “a plaintiff must establish, among other things, that the defendant owed a duty of care to the plaintiff.” See Williams v. Bench , 2008 UT App 306, ¶ 21, 193 P.3d 640. There is, however, a distinction between duties that arise due to a person's or entity's affirmative actions and those that arise due to omissions. See B.R. ex rel. Jeffs v. West , 2012 UT 11, ¶ 7, 275 P.3d 228. In general, “we all have a duty to act reasonably in our affirmative acts.” Hill v. Superior Prop. Mgmt. Servs., Inc. , 2013 UT 60, ¶ 10, 321 P.3d 1054. But “passive inaction, a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant ... generally implicates a duty only in cases of special legal relationships.” See Jeffs , 2012 UT 11, ¶ 7, 275 P.3d 228 (citation and internal quotation marks

378 P.3d 1289

omitted); see also Hill , 2013 UT 60, ¶ 10, 321 P.3d 1054 (noting that “no such duty [to act reasonably] attaches with regard to omissions except in cases of a special relationship”).

¶9 The legal relationship between a possessor of land and his or her invitees to that land is one such special relationship. See Restatement (Second) of Torts § 314A(3) (Am. Law Inst. 1965) (“A possessor of land who holds it open to the public is under a ... duty to members of the public who enter in response to his invitation.”); see also Jeffs , 2012 UT 11, ¶ 7, 275 P.3d 228. “[P]ossessors [of land] owe significant duties to invitees who come onto their property—including affirmative duties to remedy or warn against dangerous conditions.” Hill , 2013 UT 60, ¶ 21, 321 P.3d 1054. MacFarlane claims that the Restaurant owed her a duty to remove the ice or warn her of its presence because the Restaurant was a possessor of the parking lot where her injury occurred and she was in the parking lot as the Restaurant's invitee.³

¶10 “The duty of care that possessors of land in Utah owe to invitees upon their property is set forth in sections 343 and 343A of the Second Restatement of Torts.” Hale v. Beckstead , 2005 UT 24, ¶¶ 7, 17, 116 P.3d 263. Restatement (Second) of Torts section 343, the section most pertinent to this case, states,

A possessor of land is subject to liability for physical harm caused to his invitees by a [dangerous] condition on the land if ... he (a) knows or by the exercise of reasonable care would discover the [dangerous] 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 the danger.

Restatement (Second) of Torts § 343 (Am. Law Inst. 1965). Thus, the central question in this case is whether the Restaurant is “[a] possessor of land.” See id. If the Restaurant is not a possessor...