Price v. Food

• Decision Date: 10 March 2011
• Docket Number: No. 20090397–CA.,20090397–CA.
• Citation: 2011 UT App 66,677 Utah Adv. Rep. 19,252 P.3d 365
• Parties: Judy M. PRICE, Plaintiff and Appellant,v.SMITH'S FOOD AND DRUG CENTERS, INC.; Pyggy, Inc., dba Market Source West; and John Does I–V, Defendants and Appellees.
• Court: Utah Court of Appeals

252 P.3d 365

677 Utah Adv. Rep. 19

2011 UT App 66

Judy M. PRICE, Plaintiff and Appellant,

v.SMITH'S FOOD AND DRUG CENTERS, INC.; Pyggy, Inc., dba Market Source West; and John Does I–V, Defendants and Appellees.

No. 20090397–CA.

Court of Appeals of Utah.

March 10, 2011.

Tyler S. Young, Provo, for Appellant.Todd C. Hilbig and Stephen F. Edwards, Salt Lake City, for Appellees.Before Judges McHUGH, THORNE, and VOROS.

OPINION

VOROS, Judge:

¶ 1 Judy M. Price slipped and fell on a puddle of water in a Smith's Food & Drug Centers, Inc. grocery store located in American Fork, Utah. Price filed suit against Smith's and Pyggy, Inc., dba Market Source West (Pyggy), alleging negligence and seeking damages for injuries to her arm, hip, and back. The trial court entered summary judgment in favor of Smith's. Price appeals that ruling.¹ We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

¶ 2 On April 2, 2005, the customers of Smith's American Fork store were treated to free samples of meat and cheese by Pyggy, a food demonstrator. Pyggy's employee Steven Tyler distributed the samples at a table he had set up in the store. Pyggy was paid by a third-party vendor of deli meats and cheeses. Smith's did not supervise or control how Pyggy operated its demonstration table, nor did it provide Pyggy with free food samples. Tyler disassembled his demonstration table at around 4:40 p.m. and left Smith's by about 5:00 p.m. Around that same time, Price arrived at Smith's with her granddaughter to buy strawberries. Upon leaving the produce section, Price slipped on a puddle of water about eight inches in diameter. She fell to the floor, suffering injuries.

¶ 3 Before Price fell, no one was aware of the puddle. In his deposition, Chuck Brown, the store manager, stated that he was “almost 100 percent sure” that the water came from Tyler's table because the puddle “was in the exact same spot where that [demonstration] table was that [Tyler] had set up.” Brown also noted that he had seen a cup of water at the table and that he was “sure that [the] water belonged to” Tyler. However, Tyler, with equal conviction, stated that he did not have water at his table that day, and that it would pose a food safety risk.

¶ 4 Precisely how long the water was on the floor is unclear. Basing his estimate on his belief that Tyler was the source of the spill, Brown estimated that “it couldn't have been [there] too long ... maybe ten minutes, maybe tops, if that.” Price had “no idea” how long the water had been there, but thought she fell at “5 something, 5:20, 5 something.” Brown thought that Price fell at “about five o'clock p.m.” or “a little bit after that, a few minutes.” Smith's has a formal policy of inspecting its floors for temporary hazards at least once every hour. The afternoon of Price's fall, Smith's employees conducted floor inspections at 4:24 p.m., 4:26 p.m., 4:29 p.m., 4:33 p.m., 4:43 p.m., 4:50 p.m., 5:12 p.m., and 5:38 p.m. None revealed the water.

¶ 5 Price filed suit against Smith's and Pyggy alleging various theories of negligence. The theories relevant to this appeal are a direct liability theory based on the store's failure to maintain the premises in a reasonably safe condition and a vicarious liability theory based on Pyggy's negligence. Smith's filed a motion for summary judgment, which the trial court granted. First, the court ruled that Price could not show that Smith's had actual or constructive notice of the water, because Price presented no evidence of the length of time the water was on the floor. Second, the court rejected Price's theory of direct liability based on the existence of the food demonstrator. Finally, the court ruled that Smith's could not be liable under a vicarious liability theory, because Pyggy and Tyler were not employees or agents of Smith's. Price appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Price contends that the trial court erred when it determined that she “presented insufficient evidence of the length of time the puddle was on the floor.” Price further contends that Smith's delegated an “absolute duty” to Pyggy and, thus, notwithstanding the fact that Pyggy and Tyler were not employees or agents of Smith's, the trial court erred when it determined that Smith's could not be vicariously liable for the acts of Pyggy.

¶ 7 Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). We “review[ ] a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness and view [ ] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Bingham v. Roosevelt City Corp., 2010 UT 37, ¶ 10, 235 P.3d 730. In addition, “because negligence cases often require the drawing of inferences from the facts, which is properly done by juries rather than judges, summary judgment is appropriate in negligence cases only in the clearest instances.” Matheson v. Marbec Invs., LLC, 2007 UT App 363, ¶ 5, 173 P.3d 199 (internal quotation marks omitted).

ANALYSIS

I. Direct Liability

¶ 8 “The mere presence of a slippery spot on a floor does not in and of itself establish negligence.” Silcox v. Skaggs Alpha Beta, Inc., 814 P.2d 623, 624 (Utah Ct.App.1991). “[P]roperty owners are not insurers of the safety of those who come upon their property, even though they are business invitees.” Martin v. Safeway Stores, Inc., 565 P.2d 1139, 1140 (Utah 1977). Instead, a business owner “ ‘is charged with the duty to use reasonable care to maintain the floor of his establishment in a reasonably safe condition for his patrons.’ ” Jex v. JRA, Inc., 2008 UT 67, ¶ 25, 196 P.3d 576 (quoting Schnuphase v. Storehouse Mkts., 918 P.2d 476, 478 (Utah 1996)).

¶ 9 Premises liability cases generally fall into two classes: those involving temporary conditions and those involving permanent conditions. See Allen v. Federated Dairy Farms, Inc., 538 P.2d 175, 176 (Utah 1975). The first class “involves some unsafe condition of a temporary nature, such as a slippery substance on the floor and usually where it is not known how it got there.” Id. “The second class of cases involves some unsafe condition of a permanent nature, such as: in the structure of a building, or of a stairway, etc...., which was created or chosen by the defendant (or his agents), or for which he is responsible.” Id. The second class also includes cases where the storeowner's method of operation creates a situation where the reasonably foreseeable acts of third parties will create a dangerous condition. See Canfield v. Albertson's, Inc., 841 P.2d 1224, 1226 (Utah Ct.App.1992).

¶ 10 Under the temporary unsafe condition theory, a plaintiff must show that “(1) the defendant ‘had knowledge of the condition, that is, either actual knowledge or constructive knowledge because the condition had existed long enough that he should have discovered it’; and (2) ‘after [obtaining] such knowledge, sufficient time elapsed that in the exercise of reasonable care he should have remedied it.’ ” Jex, 2008 UT 67, ¶ 16, 196 P.3d 576 (alteration in original) (quoting Allen, 538 P.2d at 176). However, this notice requirement does not apply “ ‘if the [unsafe] condition or defect was created by the defendant himself or his agents or employees.’ ” Id. (alteration in original) (quoting Long v. Smith Food King Store, 531 P.2d 360, 361 (Utah 1973)).

¶ 11 On appeal, Price advances two theories of direct liability. Both theories rely upon a temporary unsafe condition analysis. First, Price argues that summary judgment was improper because a genuine issue of material fact exists as to whether Smith's had constructive knowledge of the puddle. Second, she contends that she need not prove either actual or constructive knowledge. Smith's policy of not checking the demonstration area after Pyggy left, she argues, constitutes negligence because “demonstrat[ion] areas are typical areas to anticipate spillage.” Price was prepared to offer expert testimony to that effect.

A. Direct Liability Based on Constructive Knowledge

¶ 12 Price's first argument on appeal is a classic temporary unsafe condition claim. Price acknowledges that Smith's lacked actual knowledge of the puddle, but argues that Smith's had constructive knowledge of it “ ‘because the condition had existed long enough that [Smith's] should have discovered it.’ ” Jex, 2008 UT 67, ¶ 16, 196 P.3d 576 (quoting Allen, 538 P.2d at 176). “To establish that a temporary condition existed long enough to give a store owner constructive knowledge of it, a plaintiff must present evidence that ‘would show ... that [the condition] had been there for an appreciable time.’ ” Id. ¶ 19 (quoting Ohlson v. Safeway Stores, Inc., 568 P.2d 753, 754 (Utah 1977)).² Our courts have thus “imputed constructive notice to a store owner only when there is some evidence of the length of time the debris has been on the floor.” Id. Conversely, where “conjecture and speculation [are] the only way[s] to determine the length of time [a substance] was on the floor,” constructive notice should not be imputed. Id. ¶ 21.

¶ 13 For instance, in Ohlson v. Safeway Stores, Inc., 568 P.2d 753 (Utah 1977), the Utah Supreme Court held that the plaintiff presented sufficient evidence that the owner had constructive knowledge of spilled spaghetti because the spaghetti “was dirty, crushed, broken into small pieces, and ... extended from aisle ten around the end of that aisle into the main aisle for five or six feet toward the cash register at the front of the store.” Id. at 754. In contrast, the plaintiff in Jex v. JRA, Inc., 2008 UT 67, 196 P.3d 576, did not present sufficient evidence of constructive knowledge. There, the plaintiff slipped on a puddle of water in the defendant's store. See id. ¶ 1. The plaintiff was the defendant's first customer on the morning of the incident and...