Edwards v. Utahs Johnny Appleseed

2018 UT App 43
THE UTAH COURT OF APPEALS
K IMBERLY GAY EDWARDS,
Appellant,
v.
U TAH ’ S JOHNNY A PPLESEED I NC .,
Appellee.
Opinion
No. 20160700-CA
Filed March 22, 2018
Fourth District Court, Provo Department
The Honorable Fred D. Howard
No. 150400421
Karra J. Porter, Kristen C. Kiburtz, and Patricia
Kuendig, Attorneys for Appellant
Andrew D. Wright and James C. Thompson,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which JUDGES
M ICHELE M. C HRISTIANSEN and K ATE A. TOOMEY concurred.
ORME, Judge:
¶1 	Kimberly Gay Edwards slipped and fell while dining at
an Applebee’s restaurant (the Restaurant). Edwards sued the
operator 	of 	the 	Restaurant, 	Utah’s 	Johnny 	Appleseed 	Inc.
(Appleseed), to recover damages for injuries she sustained from
the fall. She appeals the district court’s order granting summary
judgment 	in 	favor 	of 	Appleseed, 	arguing 	that 	summary
judgment 	was 	inappropriate 	because 	a 	genuine 	dispute 	of
material fact exists. We agree and therefore reverse.
¶2 	Edwards and her family were dining at the Restaurant
when Edwards’s husband suddenly became ill. Although they
had not finished their food, Edwards asked the server for the bill

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and some to-go boxes, as she was in a hurry to take her husband
home. The server brought the bill but forgot the to-go boxes.
After growing impatient while waiting for the boxes, Edwards
went to find someone to help her. Because no one was at the
hostess station, she walked down two steps, next to the hostess
station, which led to the Restaurant’s bar area and kitchen. She
found a staff member there who gave her some boxes.
¶3 	Making her way back to her table, Edwards began to walk
up the steps but slipped and fell, injuring her hands, wrists, and
shoulders. By this point, the hostess had returned to her station.
The hostess witnessed Edwards fall, saw that Edwards was hurt,
and began assisting her. Worried, the hostess told Edwards, “Let
me go get the manager.” Upon investigating what caused her to
fall, Edwards found a “blackish,” “yellowish,” “oily substance”
on the bottom of her shoe, which she believed may have been
butter. Before the hostess went to get the manager, Edwards
said, “You need to clean that up before someone else gets hurt.”
Still in a rush and without looking at the floor where she fell,
Edwards hurried back to her husband, and they left.
¶4 	Edwards sued Appleseed, alleging that Appleseed had
negligently created the hazardous condition that caused her
injuries. As part of its discovery, Appleseed deposed Edwards.
During her deposition, Edwards explained that she believed
Appleseed created the hazardous condition because (1) she did
not observe any other patrons at the Restaurant during her time
there; (2) she did not slip any other time that day before falling
in the Restaurant, including when she made her way down to
the kitchen; and (3) the server appeared to have walked up the
steps to deliver their food shortly before Edwards fell.
¶5 	After 	the 	close 	of 	discovery, 	Appleseed 	moved 	for
summary judgment. It attached, as an exhibit to its motion, a
declaration from the hostess who witnessed Edwards fall. In her
declaration, the hostess stated, “I thoroughly wiped the area
[where Edwards fell] . . . . However, after wiping the entire area,
nothing came off the floor besides a little dust. I found no butter

Edwards v. Utah's Johnny Appleseed
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or any substance that could have caused or contributed to the
fall.” She further stated that she had inspected the area where
Edwards fell “one to four minutes before the incident occurred”
and “did not see anything on the floor when walking through
and inspecting the area.”
¶6 	In its motion for summary judgment, Appleseed argued
that it
did not have constructive notice of a temporary,
dangerous condition. The evidence demonstrates
that there was no substance on the floor. However,
even if there were a substance on the floor, the
undisputed evidence establishes that the substance
had not been on the floor for more than four
minutes. As such, [Appleseed] did not have an
appreciable 	amount 	of 	time 	to 	identify 	the
condition prior [to the] incident.
Appleseed also argued that Edwards could not show causation
because her claims were speculative.
¶7 	In arguing that it did not have notice of the hazardous
condition, Appleseed relied on Allen v. Federated Dairy Farms,
Inc., 538 P.2d 175 (Utah 1975). In Allen, our Supreme Court
explained that in slip-and-fall cases where it is unknown how a
temporary hazardous condition was created, “fault cannot be
imputed to the defendant . . . unless two conditions are met:
(A) that he had knowledge of the condition, that is, either actual
knowledge, or constructive knowledge . . . and (B) that after such
knowledge, 	sufficient 	time 	elapsed 	that 	in 	the 	exercise 	of
reasonable 	care 	he 	should 	have 	remedied 	it.” 	Id. 	at 	176.
Appleseed 	asserted 	that 	Edwards 	could 	not 	make 	either
showing and that, as such, it was entitled to judgment as a
matter of law.
¶8 	In response, Edwards argued that Appleseed could not
prevail on its motion because notice of a hazardous condition is

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imputed to the defendant when one of its own agents creates the
condition, 	and 	there 	was a 	genuine 	dispute 	as to 	whether
Appleseed, as opposed to some unknown person, created the
condition 	that 	caused 	Edwards 	to 	fall. 	Similarly, 	Edwards
argued that her theory of causation was not “‘mere speculation’
but rather rationally based on her perceptions of the premises at
the time of her injury and her level of pain after her fall” and
that the “credibility and weight of these observations should be
left to a jury.”
¶9 	In its reply memorandum, Appleseed pointed out that
Edwards did not strictly comply with rule 56(a)(2) of the Utah
Rules of Civil Procedure when she failed to restate verbatim
Appleseed’s statement of material facts and failed to specifically
dispute 	any 	of 	them 	but 	instead 	included 	a 	“Statement 	of
Contested 	Facts.” 	Consequently, 	Appleseed 	argued, 	its
statement 	of 	material 	facts 	should 	control 	and 	be 	deemed
admitted. Appleseed then argued that Edwards had failed to
provide “any support” for her claim that Appleseed “caused or
created the alleged unsafe condition.”
¶10 	Although the district court determined that a genuine
dispute 	of 	material 	fact 	existed 	regarding 	the 	element 	of
causation—because the court could not “foreclose the possibility
that 	[Appleseed 	was] 	responsible 	for 	the 	substance 	on 	the
floor”—it granted Appleseed’s motion for summary judgment
upon 	concluding 	that 	Edwards 	could 	not 	demonstrate 	that
Appleseed had notice of the hazardous condition. The court did
not address, and therefore seems not to have been persuaded by,
Appleseed’s argument that its statement of material facts should
be deemed admitted due to Edwards’s failure to strictly comply
with rule 56. Edwards appeals.
¶11 	Edwards argues that once the district court determined
that a genuine dispute of fact existed as to whether Appleseed
created the hazardous condition that caused Edwards to fall, it
erred in granting summary judgment. Summary judgment is
proper where there is no genuine dispute of material fact and the

Edwards v. Utah's Johnny Appleseed
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moving party is entitled to judgment as a matter of law. Utah R.
Civ. P. 56(a). We review a district court’s grant of summary
judgment for correctness and view “all facts and fair inferences
drawn 	from 	the 	record 	in 	the 	light 	most 	favorable 	to 	the
nonmoving party.” Poteet v. White, 2006 UT 63, ¶ 7, 147 P.3d 439.
¶12 	Our Supreme Court has made clear that in premises
liability 	cases 	where 	the 	defendant 	creates 	a 	temporary
hazardous 	condition 	that 	leads 	to 	a 	plaintiff’s 	injury—as
opposed to cases where a third party creates the hazardous
condition and it is not immediately known to the defendant—the
plaintiff is not required to show that the defendant had notice of
the condition. See Jex v. JRA, Inc., 2008 UT 67, ¶ 26, 196 P.3d 576.
Rather, in such cases, the plaintiff must prove that the defendant
“acted negligently either in creating or failing to remedy the
temporary unsafe condition.” Id. (emphasis added).
¶13 	Here, Edwards alleged in her complaint that Appleseed
negligently created the hazardous condition that led to her
injuries. And although Edwards would have the burden at trial
to 	show 	that 	Appleseed 	negligently 	created 	the 	hazardous
condition, upon moving for summary judgment, Appleseed had
“the burden of establishing the lack of a genuine 	issue of
material fact.” Salo v. Tyler, 2018 UT 7, ¶ 2. See Utah R. Civ. P.
56(a). Therefore, to prevail on its motion for summary judgment,
Appleseed had the burden to show that Edwards had “no
evidence to support” the contention that it created the hazardous
condition.1 See Salo, 2018 UT 7, ¶ 2 (emphasis added). Any
1. We note that in Salo v. Tyler, 2018 UT 7, our Supreme Court
clarified “some confusing dicta” found in Orvis v. Johnson, 2008
UT 2, 177 P.3d 600, and “disavow[ed] any suggestion in Orvis
that [Utah’s summary judgment] standard is distinct from the
federal standard” articulated in Celotex Corp. v. Catrett, 477 U.S.
317 (1986). Salo, 2018 UT 7, ¶ 2. The Salo court held that “the
moving party always bears the burden of establishing the lack of
a genuine issue of material fact, but the burden of production of
(continued…)

Edwards v. Utah's Johnny Appleseed
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genuine 	dispute 	as 	to 	that 	fact 	would 	preclude 	summary
judgment.
¶14 	In 	her 	memorandum 	opposing 	summary 	judgment,
Edwards 	cited 	her 	deposition 	testimony 	to 	support 	her
argument 	that 	there 	was 	a 	genuine 	dispute 	as 	to 	whether
Appleseed 	negligently 	created 	the 	hazardous 	condition.
Summarizing the key testimony from her deposition, Edwards
emphasized that
she observed no one except her waitress and the
hostess moving about in the area where she fell.
No customers were consuming food in the area
around where she fell, and in fact she did not
observe other customers in the building at all.
Thus, Ms. Edwards was able to infer, through
observation[,] 	that 	no 	one 	besides her 	waitress
could have spilled the greasy substance in the area
where she fell.
Although Appleseed relied on the declaration of the hostess to
support 	its 	argument 	that 	it 	did 	not 	create 	the 	hazardous
condition, 	each 	side 	presented 	evidence 	upon 	which 	a
reasonable jury could conclude that its version of events was
(…continued)
evidence may fall on the nonmoving party (if that party will bear
the burden of production at trial).” Id. The Court further stated
that “where the burden of production falls on the nonmoving
party, we clarify that the moving party may carry its burden of
persuasion without putting on any evidence of its own—by
showing that the nonmoving party has no evidence to support
an essential element of a claim.” Id. As we explain in paragraph
14, Appleseed did not carry this burden because Edwards cited
competent evidence—her deposition testimony—from which an
inference could reasonably be drawn that Appleseed negligently
created the hazardous condition.

Edwards v. Utah's Johnny Appleseed
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true. And as previously noted, the district court, albeit in the
context of deciding that summary judgment was not warranted
as to causation, concluded on the record before it that Appleseed
may have negligently created the hazardous condition.
¶15 	It is the province of the jury to decide the amount of
weight a particular piece of evidence receives, not the court on a
motion for summary judgment. See Child v. Gonda, 972 P.2d 425,
434 (Utah 1998). We conclude that Edwards carried her burden
of production, see Salo, 2018 UT 7, ¶ 2, by demonstrating that a
genuine 	factual 	dispute 	existed 	as 	to 	whether 	Appleseed
negligently 	created 	the 	hazardous 	condition 	that 	caused
Edwards to fall.2 Accordingly, the district court erred in granting
summary judgment.
¶16 	The summary judgment is reversed. The case is remanded
for trial or such other proceedings as may now be in order.
2. 	On 	appeal, 	Appleseed 	reiterates 	its 	argument 	that 	the
statement of facts in its motion for summary judgment, which
included the assertion that Appleseed did not spill any food on
the floor, should have been deemed admitted due to Edwards’s
failure to strictly comply with rule 56(a)(2) of the Utah Rules of
Civil Procedure. Appleseed further states, “When viewed as
admissions, 	[Appleseed’s] 	statements 	of 	fact 	defeat 	all 	of
[Edwards’s] arguments on appeal.” But the district court never
deemed Appleseed’s statement of facts admitted. While the
court did not expressly address this argument in its decision, the
court implicitly rejected the argument when it concluded that
there was a genuine dispute of fact as to whether Appleseed
created the hazardous condition. Cf. Fish v. Fish, 2016 UT App
125, ¶ 24, 379 P.3d 882 (stating that the district court implicitly
rejected a party’s argument where the court made a finding
contrary to that argument). Accordingly, Appleseed’s argument
is unavailing.