Rose v. Provo City

• Decision Date: 20 March 2003
• Docket Number: No. 20010168-CA.,20010168-CA.
• Citation: 2003 UT App 77,67 P.3d 1017
• Parties: Claude Theadore ROSE, Plaintiff and Appellant, v. PROVO CITY, a political subdivision of the State of Utah; Elmer and Georgina Barrientos; Edward S. Hunt; Araceli V. Hunt; John and Jane Does I through X; and XYZ entities, Defendants and Appellees.
• Court: Utah Court of Appeals

67 P.3d 1017

2003 UT App 77

Claude Theadore ROSE, Plaintiff and Appellant, v. PROVO CITY, a political subdivision of the State of Utah; Elmer and Georgina Barrientos; Edward S. Hunt; Araceli V. Hunt; John and Jane Does I through X; and XYZ entities, Defendants and Appellees.

No. 20010168-CA.

Court of Appeals of Utah.

March 20, 2003.

Mark T. Flickinger, Kathleen S. Phinney and Kevin J. Sutterfield, Flickinger & Sutterfield, PC, Provo, for Appellant.

David C. Dixon, Provo City Attorney's Office, and Edward W. McBride Jr. and Donald J. Purser, Salt Lake City, for Appellees.

Before Judges DAVIS, GREENWOOD, and THORNE.

OPINION

DAVIS, Judge:

¶ 1 Claude Theodore Rose (Rose) appeals from directed verdicts in favor of Elmer and Georgina Barrientos (collectively the Barrientoses) and Provo City (the City). We reverse and remand.

BACKGROUND¹

¶ 2 The Barrientoses own a restaurant in Provo City, including the parking lot next to the restaurant. The City owns a sidewalk that borders the parking lot and owns the area between the sidewalk and the street (the planter strip).

¶ 3 Before the Barrientoses purchased the restaurant, the planter strip was asphalted to the street. At trial, Elmer Barrientos testified that "everyone" uses the planter strip as a driveway to the street although the City has not issued a driveway permit and the planter strip does not comply with Provo City driveway specifications. The Barrientoses indicated that they sweep and remove snow from the area. A second driveway, recognized by the City as a proper driveway, also provides access to the restaurant parking lot.

¶ 4 A City-owned ditch runs almost the entire width of the end of the asphalted planter strip. When the Barrientoses purchased the restaurant, a pipe covered the ditch. At trial, Elmer Barrientos testified that between 1989 and the date of Rose's injuries in 1995, the City removed the pipe twice. The first time the City removed the pipe, Elmer Barrientos replaced it. The second time, Elmer Barrientos called the City. Thereafter, the Barrientoses continued to use the asphalted planter strip as a driveway although the ditch remained uncovered.

¶ 5 In August 1995, Rose and his wife rode their bikes through the restaurant parking lot. At trial, Rose testified that although he had previously patronized the Barrientoses' restaurant, he had not ridden through the "back" part of the parking lot. Rose further testified that he proceeded slightly ahead of his wife through the lot at about ten miles per hour. Rose and his wife testified that as they egressed from the parking lot, the asphalted planter strip appeared to be a driveway that ran straight into the road. At trial, the parties offered photo exhibits that, depending on the camera angle, either contradicted or supported Rose's position. Rose testified that when he approached the sidewalk between the parking lot and the asphalted planter strip, he looked left around a "blind" corner for traffic. Rose's wife testified that as Rose was crossing the sidewalk, she yelled, "Watch out!" Rose testified that he believed a car was coming and continued to look left for cars. He testified that he did not recall seeing the ditch and he did not apply his brakes. Although Rose's wife testified that she was able to turn her bike and stop without riding into the ditch, Rose rode into the ditch and was injured.

¶ 6 Rose filed a negligence action against the Barrientoses and the City. After Rose presented his case, the trial court granted directed verdicts for the Barrientoses and the City. The trial court ruled the evidence did not establish that either the Barrientoses or the City breached "any duty" to Rose. Rose appeals the directed verdicts.

ANALYSIS

¶ 7 Rose maintains the trial court erred by concluding that the evidence was not sufficient to establish that either the Barrientoses or the City breached "any duty" to Rose and erred by granting directed verdicts for the Barrientoses and the City. Whether the evidence at trial was sufficient to preclude directed verdicts for the Barrientoses and the City is a question of law that we review for correctness. See, e.g., Mahmood v. Ross, 1999 UT 104, ¶ 16, 990 P.2d 933

. "A plaintiff must present sufficient evidence to establish a prima facie case [of negligence] ... to have his cause submitted for consideration by the jury. If [the] plaintiff fails to do so, [the] defendant is entitled to have the verdict directed in his favor." Lindsay v. Gibbons & Reed, 27 Utah 2d 419, 497 P.2d 28, 30 (1972). "If reasonable persons could reach differing conclusions on [an] issue in controversy," or the evidence raises a question of material fact, "a jury question exists and the motion [for a directed verdict] should be denied." Kilpack v. Wignall, 604 P.2d 462, 463 (Utah 1979) (quotations and citation omitted). To establish negligence, a plaintiff must show: "the defendant owed the plaintiff a duty, [the] defendant breached the duty (negligence), the breach of the duty was the proximate cause of [the] plaintiff's injury, and there was in fact injury." Lamarr v. Utah State Dep't of Transp., 828 P.2d 535, 537 (Utah Ct.App.1992).

¶ 8 The first issue in the present case is whether Rose established that he was owed a duty. See AMS Salt Indus., Inc. v. Magnesium Corp. of Am., 942 P.2d 315, 320 (Utah 1997)

("Absent a showing of duty, [the plaintiff] cannot recover." (alteration in original)). A duty is "`an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.'" Id. at 320-21 (citation omitted). Generally, whether a duty of care is owed is "`entirely a question of law to be determined by the court.'" Lamarr, 828 P.2d at 538 (quoting Ferree v. State, 784 P.2d 149, 151 (Utah 1989)); see AMS Salt Indus., Inc.,

942 P.2d at 320 ("[I]f ... reasonable minds could not differ as to the conclusion to draw from the evidence or that the evidence adduced was simply insufficient to sustain the legal claim, then the trial court should rule on the issue as a matter of law.").

¶ 9 If Rose was owed a duty, the second issue is whether Rose presented sufficient evidence upon which a jury could find that the required standard of care was breached. "Whether a defendant has breached the required standard of care is generally a question for the jury, to be determined by whether the injury which occurred was of the type that fell within the zone of risk created by the defendant's negligent conduct." Williams v. Melby, 699 P.2d 723, 727 (Utah 1985) (citation omitted). "The care to be exercised in any particular case depends upon the circumstances of that case and on the extent of foreseeable danger involved...." Id. (quotations and citation omitted).

¶ 10 Finally, given ambiguity in the trial court's ruling, we consider whether Rose presented sufficient evidence that any negligence by the Barrientoses or the City was the proximate cause of his injuries. Proximate cause is ordinarily a question of fact for the jury. See Steffensen v. Smith's Mgmt. Corp., 820 P.2d 482, 487 (Utah Ct. App.1991),

aff'd,

862 P.2d 1342 (Utah 1993).

I. Duty and Breach of Duty by the Barrientoses

¶ 11 Rose argues the evidence presented at trial was sufficient to establish that the Barrientoses had a duty and to raise material issues of fact as to whether the Barrientoses negligently maintained the asphalted planter strip as a business driveway, after the City removed a pipe, leaving an uncovered ditch that extended almost the entire width of the planter strip.²

¶ 12 When an abutting landowner makes "special use" of a public sidewalk, or as in the present case, a planter strip, he has a duty that runs with the land to use "due care" to keep it in a "suitable and safe" condition for the public to travel over. Salt Lake City v. Schubach, 108 Utah 266, 159 P.2d 149, 153 (1945); see Conrad v. Walker Bank & Trust Co., 542 P.2d 1090, 1090 (Utah 1975)

("By utilizing [and maintaining] the area between the street and sidewalk" an owner of land abutting a public way becomes "charged with a duty to do so in a nonnegligent manner the same as if [he] ... owned the land."); Tripp v. Granite Holding Co., 22 Utah 2d 175, 450 P.2d 99, 100 (1969) (noting an abutting landowner's obligation to keep sidewalk adjoining premises in repair "`can only arise where he creates through use or otherwise some unsafe or dangerous condition' " (citation omitted)). An abutting landowner makes "special use" of a public sidewalk or a planter strip, when he uses it "`for some other purpose than merely using [it] as a public sidewalk [or a planter strip], such as a driveway.'" Dorlon v. City of Springfield, 843 S.W.2d 934, 945 (Mo.Ct.App.1992) (quoting Rauh v. Interco, Inc., 702 S.W.2d 497, 501 (Mo.Ct.App.1985)); accord Wylie v. New York, 286 A.D. 720, 146 N.Y.S.2d 207, 209 (N.Y.App.Div.1955).

¶ 13 At trial, Elmer Barrientos testified that when he began working at the restaurant, the planter strip was already asphalted. Although it is unclear who asphalted the planter strip, no driveway permit had been issued and the planter strip did not comply with Provo City driveway specifications. Elmer Barrientos further testified that "everyone" used the planter strip as a driveway to the restaurant. The Barrientoses indicated that they maintained the planter strip by sweeping it and removing snow. We conclude this evidence was sufficient to establish that the Barrientoses specially used the asphalted planter strip and therefore had a duty to maintain it in a suitable and safe condition for ingress and egress by foreseeable travelers.

¶ 14 The Barrientoses argue they had no duty to Rose because the unsafe condition was not the planter strip, but was the uncovered ditch in the gutter and Provo, Utah, City Ordinances § 15.10.090 (1995) provided the City with the "sole prerogative" "to determine the necessity and the extent of the construction, extraordinary repairs, or replacements" of...