Davis v. Walmart Stores

2022 UT App 87

THE UTAH COURT OF APPEALS

TWILA DAVIS,
Appellant,
v.
WAL-MART STORES INC.,
Appellee.

Opinion
No. 20210346-CA
Filed July 8, 2022

Fifth District Court, Cedar City Department
The Honorable Matthew L. Bell
No. 170500175

Brian K. Harris and Heather E. Harris, Attorneys
for Appellant
Mitchel T. Rice, Andrea M. Keysar, and Marianne
Schumann, Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

TENNEY, Judge:

¶1 Twila Davis was shopping in a Wal-Mart one day when an
employee collided with her. Davis was allegedly injured, and she
later sued Wal-Mart for negligence. The district court granted
Wal-Mart’s request for summary judgment, however, and it did
so based on its conclusion that Wal-Mart owed no duty to Davis.
For the reasons set forth below, we reverse.
Davis v. Wal-Mart

BACKGROUND 1

¶2 One day in August 2017, Twila Davis was shopping at Wal-
Mart when she decided to look for a clock. When Davis got to the
clock aisle, a Wal-Mart employee was stocking merchandise there.
Davis saw something that she wanted to look at on the lower shelf
“right next to” the employee, so she moved “from [the
employee’s] right side to [her] left side” and got within “a foot
and a half” of the employee. As Davis bent over to get the item,
the employee finished her task and “turned to [her] left” to walk
away. The employee did not see Davis crouched beside her,
however, and she collided with Davis as she turned.

¶3 Davis was allegedly injured in the collision, and she later
sued Wal-Mart for negligence. In her complaint, Davis alleged
that Wal-Mart had “negligently failed to design, construct,
control, supervise, repair and maintain the premises and further
failed to warn [Davis] of the hazard created by an employee of
[Wal-Mart] when [she] fell on top of [Davis] knocking [Davis] to
the floor.”

¶4 Wal-Mart moved for summary judgment. In its motion,
Wal-Mart first argued that Davis’s claim failed as a matter of law
because Wal-Mart “did not owe a duty of care to [Davis].”
Alternatively, Wal-Mart argued that the open and obvious danger
rule barred Davis’s claim. Davis opposed the motion, but the
district court granted it.

¶5 In its decision, the court rejected Wal-Mart’s reliance on the
open and obvious danger rule. The court determined that the rule

1. “When reviewing a grant of summary judgment, we view the
facts in the light most favorable to the non-moving party.” Utah
Golf Ass’n v. City of N. Salt Lake, 2003 UT 38, ¶ 10, 79 P.3d 919.

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Davis v. Wal-Mart

was inapplicable because “the instant case is not one of a
hazardous condition on the property.”

¶6 But the court agreed with Wal-Mart on the duty question.
In the court’s view, Wal-Mart “owed no duty” to Davis based on
the five-factor test set forth in B.R. ex rel. Jeffs v. West, 2012 UT 11,
275 P.3d 228. Of note, the court concluded that it “was not
foreseeable that [Davis] would move within inches” of the
employee, “stoop below the employee’s field of vision, and do so
without alerting the employee to her presence or waiting for the
employee to finish returning merchandise to the top shelf.” The
court further opined that “serious injuries” were “unlikely” to
result from such “low speed pedestrian collision[s]” and that
“public policy” therefore “support[ed] refusal to impose upon
property owners a greater duty to anticipate or avoid such low-
probability events than the duty of invitees to do likewise.”
Because the court concluded that there was no duty, it granted
Wal-Mart’s request for summary judgment and dismissed Davis’s
complaint.

¶7 Davis timely appealed the court’s decision.

ISSUE AND STANDARD OF REVIEW

¶8 Davis argues that the district court erred when it
determined that Wal-Mart did not owe her a duty of care and, by
extension, when it granted Wal-Mart’s motion for summary
judgment. “Whether a duty exists is a question of law” that we
review for correctness. Mower v. Baird, 2018 UT 29, ¶ 14, 422 P.3d
837 (quotation simplified). “We review a [district] court’s legal
conclusions and ultimate grant or denial of summary judgment
for correctness, viewing the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party.” Heartwood Home Health & Hospice LLC v. Huber, 2020 UT
App 13, ¶ 11, 459 P.3d 1060 (quotation simplified).

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Davis v. Wal-Mart

ANALYSIS

I. Duty of Care

¶9 The district court granted Wal-Mart’s request for summary
judgment based on its determination that Wal-Mart owed no duty
of care to Davis. We disagree with this determination.

¶10 “As every first-year law student learns, duty is one of four
essential elements of a cause of action in tort.” B.R. ex rel. Jeffs v.
West, 2012 UT 11, ¶ 5, 275 P.3d 228. “A duty, in negligence cases,
may be defined as an obligation, to which the law will give
recognition and effect, to conform to a particular standard of
conduct toward another.” AMS Salt Indus., Inc. v. Magnesium Corp.
of Am., 942 P.2d 315, 320–21 (Utah 1997) (quotation simplified).
The existence of a “[d]uty must be determined as a matter of law
and on a categorical basis for a given class of tort claims.” Jeffs,
2012 UT 11, ¶ 23.

¶11 Here, it’s undisputed that Wal-Mart is a business and that
Davis was visiting Wal-Mart as its customer. As a result, Davis
“enjoyed the status of ‘business invitee’ while upon [Wal-Mart’s]
property.” Hale v. Beckstead, 2005 UT 24, ¶ 33, 116 P.3d 263. This
was so because “the status of invitee includes business visitors
who are invited to enter or remain on land for a purpose directly
or indirectly connected with business dealings with the possessor
of the land.” Id. (quotation simplified); see also Restatement
(Second) of Torts § 332(3) (Am. L. Inst. 1965).

¶12 Because Davis was Wal-Mart’s invitee, it’s settled that Wal-
Mart owed Davis a duty of care. 2 As explained by our supreme

2. We acknowledge that the employee may have also had an
independent duty of reasonable care unconnected with Davis’s
status as a business invitee and for which Wal-Mart may have
(continued…)

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Davis v. Wal-Mart

court, “[o]wners of land must . . . exercise due care and prudence
for the safety of business invitees.” Dwiggins v. Morgan Jewelers,
811 P.2d 182, 183 (Utah 1991). We have recognized this same duty
too. See, e.g., Zazzetti v. Prestige Senior Living Center LLC, 2022 UT
App 42, ¶ 32, 509 P.3d 776 (“All possessors of land . . . owe duties
of reasonable care to invitees who come onto their land.”), petition
for cert. filed, June 1, 2022 (No. 20220513); Proctor v. Costco Wholesale
Corp., 2013 UT App 226, ¶ 20, 311 P.3d 564 (recognizing that
businesses have a duty “to exercise due care and prudence for the
safety of business invitees” (quotation simplified)).

¶13 Despite such authority, the district court held that Wal-
Mart did not owe Davis any duty in this case. And it did so based
on its application of the supreme court’s decision in Jeffs. In Jeffs,
the court “identified several factors” that are “relevant to
determining whether a defendant owes a duty to a plaintiff.” 2012
UT 11, ¶ 5. These factors include:

(1) whether the defendant’s allegedly tortious
conduct consists of an affirmative act or merely an
omission, (2) the legal relationship of the parties, (3)
the foreseeability or likelihood of injury, (4) public
policy as to which party can best bear the loss
occasioned by the injury, and (5) other general
policy considerations.

Id. (quotation simplified).

¶14 Applying these factors, the district court recognized that
(1) the allegedly tortious conduct at issue consisted of an omission
by Wal-Mart and (2) Davis was a “customer and invitee.” But the
court then held that Wal-Mart owed no duty to Davis. In the
court’s view, (3) the actions that gave rise to Davis’s alleged

been potentially liable under a respondeat superior theory. But
such a theory was not pursued here.

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Davis v. Wal-Mart

injuries were “unlikely” and “not foreseeable,” and (4 & 5)
“[p]ublic policy [was] not furthered by requiring business owners
to bear the loss of unforeseeable, unlikely injuries occasioned by
circumstances such as those present in this case.”

¶15 But the district court need not have engaged in a Jeffs
analysis at all. As noted, both the supreme court and this court
have already held that a business does owe a duty of reasonable
care to its invitees, and this is the very duty that Davis invoked in
her suit. Given this, the existence of the duty in question has
already been established.

¶16 In any event, even if there was some basis for the district
court to consider the matter anew under a Jeffs analysis, the court’s
analysis was still flawed in a few key respects.

¶17 First, the district court’s conclusion was largely driven by
its assessment of the facts of this case. In its foreseeability analysis,
for example, the court focused on whether it would be foreseeable
that Davis “would move within inches of [Wal-Mart’s] employee,
stoop below the employee’s field of vision, and do so without
alerting the employee to her presence or waiting for the employee
to finish returning merchandise to the top shelf.” Then, in its
analysis of the policy factors, the court focused on whether
businesses should “bear the loss of unforeseeable, unlikely
injuries occasioned by circumstances such as those present in this
case.” (Emphasis added.)

¶18 But under Jeffs, such case-specific analyses are
unwarranted at the duty stage of the negligence inquiry. See 2012
UT 11, ¶ 25. Jeffs explained that “[d]uty must be determined as a
matter of law and on a categorical basis for a given class of tort
claims,” and it further instructed that duty “should be articulated
in relatively clear, categorical, bright-line rules of law applicable
to a general class of cases.” Id. ¶ 23 (emphasis added, quotation
otherwise simplified). Indeed, with respect to the foreseeability

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Davis v. Wal-Mart

inquiry, Jeffs explained that in a “duty analysis, foreseeability does
not question the specifics of the alleged tortious conduct such as
the specific mechanism of the harm,” but “instead relates to the
general relationship between the alleged tortfeasor and the victim
and the general foreseeability of harm.” Id. ¶ 25 (quotation
simplified).

¶19 By contrast, Jeffs instructed that it’s the next steps of the
negligence analysis—“breach and proximate cause”—that
involve “questions for the fact finder” that can be “determined on
a case-specific basis.” Id. Thus, by focusing on the particular facts
of this case, the court’s duty analysis was misdirected.

¶20 Second, “[n]ot every factor” in the Jeffs analysis “is created
equal.” Id. ¶ 5. “[S]ome factors are featured heavily in certain
types of cases, while other factors play a less important, or
different, role.” Id. Of note, the second Jeffs factor looks to the
“legal relationship of the parties.” Id. And as noted, the “legal
relationship” at issue here is that of a business and its invitee. This
matters because, again, this relationship has long been recognized
as the source of the very duty at issue in this case. 3

¶21 Indeed, the nature of this relationship also undermines the
district court’s conclusions regarding the foreseeability and policy
factors. Jeffs held that, at the duty stage, foreseeability “relates to

3. In an apparent attempt to avoid the implications of this, Wal-
Mart repeatedly describes the accident in question as a collision
between “two pedestrians.” But Davis didn’t collide with a
random passerby on the street. Rather, she collided with a Wal-
Mart employee who was stocking shelves in a Wal-Mart while
Davis was shopping inside that Wal-Mart. This is why Davis is
alleging that Wal-Mart should be held liable for not taking
additional steps to protect her while she was shopping. Thus, with
respect to the relationship component of the duty analysis, this
case fits comfortably within the rubric of a business and its invitee.

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Davis v. Wal-Mart

the general relationship between the alleged tortfeasor and the
victim and the general foreseeability of harm.” Id. ¶ 25 (quotation
simplified). So too with the policy implications (at least as far as
they relate to duty). After all, duty is “the product of policy
judgments applied to relationships.” Yazd v. Woodside Homes
Corp., 2006 UT 47, ¶ 17, 143 P.3d 283. And on that front, courts
have already accounted for the relevant policy—namely, courts
have imposed this duty based on “the age-old principle that,
because the land possessor effectively throws open his property
to the public for business, an invitee is entitled to visit and assume
that the premises have been made safe for his visit.” Oswald v.
Costco Wholesale Corp., 473 P.3d 809, 821 (Idaho 2020); cf.
Restatement (Second) of Torts § 343A cmt. g (“[T]he fact that
premises have been held open to the visitor, and that he has been
invited to use them, . . . offer[s] some assurance to the invitee that
the place has been prepared for his reception, and that reasonable
care has been used to make it safe.”). By holding otherwise, the
district court erred.

¶22 Finally, Wal-Mart claims that even with the above
authority, summary judgment was still appropriate under
Schnuphase v. Storehouse Markets, 918 P.2d 476 (Utah 1996).
Schnuphase was a slip-and-fall case. At oral argument, Wal-Mart
elaborated on its view that, under the principles set forth in
Schnuphase and other similar cases, it owed no duty to Davis.

¶23 We acknowledge that in some such cases, Utah courts have
affirmed grants of summary judgment to defendants in the face of
negligence suits. See, e.g., id. at 477–80; Long v. Smith Food King
Store, 531 P.2d 360, 361 (Utah 1973); Price v. Smith's Food & Drug
Centers, Inc., 2011 UT App 66, ¶¶ 8–30, 252 P.3d 365. But even so,
these cases don’t compel a different result here.

¶24 In Price, we explained that “premises liability cases” such
as those involving the slip-and-fall scenario “generally fall into
two classes: those involving temporary conditions and those

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Davis v. Wal-Mart

involving permanent conditions.” 2011 UT App 66, ¶ 9. Notably,
the “second class of cases involves some unsafe condition . . .
which was created or chosen by the defendant (or his agents), or
for which he is responsible,” and “it 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.” Id. (quotation simplified).

¶25 Many of the cases from this line of authority pre-dated Jeffs.
But as discussed, the supreme court in Jeffs analyzed in depth how
courts should approach the duty element in a negligence suit and,
more particularly, how courts should consider the duty question
at the summary judgment stage. Jeffs made it clear that a court
should not engage in a fact-intensive analysis regarding the
question of duty and that fact-intensive analyses are instead
generally conducted at the breach or proximate cause stages. See
2012 UT 11, ¶ 25.

¶26 We don’t read the slip-and-fall cases that are relied on by
Wal-Mart as being inconsistent with the Jeffs framework. Indeed,
in such cases, our courts consistently recognized that businesses
do owe a duty of reasonable care to their invitees. See Schnuphase,
918 P.2d at 478 (explaining that a store 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”
(quotation simplified)); Long, 531 P.2d at 362 (acknowledging “the
admittedly correct rule requiring the defendant to exercise
due care and prudence for the safety of its business invitees”);
Price, 2011 UT App 66, ¶ 8 (holding that “a business owner is
charged with the duty to use reasonable care” to maintain his
property “in a reasonably safe condition for his patrons”
(quotation simplified)). Thus, on the very point in dispute in this
appeal, these cases are inconsistent with the position now
advanced by Wal-Mart, which is that Wal-Mart owed no duty to
Davis at all.

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Davis v. Wal-Mart

¶27 And while it’s true that those cases often affirmed grants of
summary judgment, they did so for reasons that are reconcilable
with the treatment of duty from Jeffs. What those cases hold is that
summary judgment is appropriate when reasonable minds cannot
differ about whether the defendant’s actions violated the duty of
reasonable care. Schnuphase, for example, held that summary
judgment was appropriate because “reasonable minds could not
differ on the question of whether [the defendant] took reasonable
precautions to protect its customers.” 918 P.2d at 479 (quotation
simplified). And in Long, the supreme court held that summary
judgment was appropriate because the plaintiff had “not shown
any basis upon which it reasonably could be found” that the
defendant had done anything “inherently dangerous” or was
otherwise “negligent.” 531 P.2d at 362.

¶28 By discussing the particular facts of a case and then
determining that, on those facts, reasonable minds could not
disagree about whether the defendant acted negligently, those
cases turned on questions of breach, not duty. So here, Wal-Mart
could in theory rely on these cases to argue that, under these
circumstances, this accident was so unforeseeable that no
reasonable mind could conclude that Wal-Mart had breached
the duty of reasonable care that it owed to Davis. And if it makes
such an argument on remand, we express no opinion about
how the argument should turn out. But in the decision at issue,
the district court’s analysis turned on duty, not breach. And as
discussed, this duty analysis was incorrect under both Jeffs’s
general framework and under the prior cases that specifically
held that businesses do owe a duty of reasonable care to their
invitees.

¶29 In short, Wal-Mart is a business and Davis was its invitee.
Because of this, Wal-Mart had a duty to exercise reasonable care
to ensure Davis’s safety. The district court erred in determining
otherwise.

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Davis v. Wal-Mart

II. Open and Obvious Danger Rule

¶30 Wal-Mart next argues that, even if there was a generally
applicable duty, the open and obvious danger rule absolved it of
this duty under the circumstances of this case. In Wal-Mart’s
view, because Davis “knew that [the employee] was in the aisle
and [was] engaged with arranging items on an upper shelf,” and
because Davis also “had more than one reasonable alternative to
encountering any potential danger that [the employee’s]
movements might present,” Wal-Mart owed no duty “to warn or
otherwise protect [Davis] from the open and obvious danger
presented by intruding into a working person’s personal space.”
We disagree with Wal-Mart’s proposed application of this rule. 4

¶31 Under the open and obvious danger rule, “a possessor of
land is not liable to [its] invitees for physical harm caused to them
by any activity or condition on the land whose danger is known
or obvious to them.” Downham v. Arbuckle, 2021 UT App 121, ¶ 12,
502 P.3d 312 (quotation simplified). “If the open and obvious
danger rule applies, then the land possessor owes no duty to its
invitees with respect to the open and obvious danger and
therefore cannot be held liable for any injury caused thereby.” Id.
(quotation simplified). And the “open and obvious danger rule
can still be appropriately applied even when the overarching duty
owed is one of reasonable care.” Zazzetti, 2022 UT App 42, ¶ 32.

4. Wal-Mart asked the district court to grant summary judgment
under this rule as an alternative basis, but the court declined to do
so. Wal-Mart now invokes this rule as an alternative basis for
affirmance. See PC Riverview, LLC v. Xiao-Yan Cao, 2017 UT 52,
¶ 34, 424 P.3d 162 (holding that “when a party raises alternative
grounds for affirmance, an appellate court may affirm the
judgment appealed from on any legal ground or theory apparent
on the record” (quotation simplified)).

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Davis v. Wal-Mart

¶32 There are “two key steps” to an open and obvious danger
analysis—“the ‘open and obvious danger’ step and the
‘anticipated harm’ step.” Downham, 2021 UT App 121, ¶ 14. Under
the first step, courts must determine whether there was an
“activity or condition on the land whose danger [was] known or
obvious” to invitees. Id. ¶ 12 (quotation simplified); accord Lyman
v. Solomon, 2011 UT App 204, ¶ 4, 258 P.3d 647. Under the second
step, courts “inquire into whether factors existed to vest in the
land possessor a duty to warn or otherwise protect the invitee
from the obvious danger.” Downham, 2021 UT App 121, ¶ 16
(quotation simplified). The rule’s stringency accordingly ebbs and
flows in this second step “depending upon the nature of the
invitee and the nature of the possessor of land.” Hale, 2005 UT 24,
¶ 31.

¶33 “Most cases involving claims of negligence are not
susceptible to summary disposition.” Lyman, 2011 UT App 204,
¶ 3 (quotation simplified); see also Dwiggins, 811 P.2d at 183
(“[S]ummary judgment is appropriate in negligence cases only in
the clearest instances.”). This is so because negligence cases
commonly turn on factual questions. See Downham, 2021 UT App
121, ¶ 22. And this reluctance extends to cases involving the
open and obvious danger rule. See id. ¶¶ 22, 26. Indeed, in
Downham, we recently held that both steps of this rule involve
factual questions; as a result, if “reasonable jurors could disagree”
about either step, summary judgment would be “premature.” Id.
¶¶ 26–27.

¶34 Given these principles, there are two reasons why Wal-
Mart is not entitled to summary judgment based on the open and
obvious danger rule.

¶35 First, much of Wal-Mart’s argument about the potential
application of this rule is focused on Davis’s behavior. For
example, Wal-Mart claims that the rule applies, in part, because
of the “open and obvious danger presented by [Davis] intruding

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Davis v. Wal-Mart

into a working person’s personal space.” Wal-Mart also claims
that the rule applies because Davis “decided to move behind [the
employee]” and “then crouch or otherwise lower her body only
twelve to eighteen inches away.”

¶36 This focus is misplaced. As explained in the Restatement,
the open and obvious danger rule holds that a “possessor of land
is not liable to his invitees for physical harm caused to them by
any activity or condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness.” Restatement (Second)
of Torts § 343A(1). By focusing on dangers that exist “on the land,”
id., this rule is concerned with a landowner’s obligations to protect
invitees from dangers that are associated with the landowner’s
property. And while this rule covers open and obvious dangers
caused by an “activity” “on the land,” the Restatement clarifies
that this aspect of the rule implicates the “possessor’s activities”
that “may involve a risk which is known or obvious to those who
enter his land.” Id. § 343A cmt. c (emphasis added). Thus, “an
invitee who enters land is entitled to nothing more than
knowledge of the conditions and dangers he will encounter if he
comes,” meaning, “the actual conditions” and the “activities
carried [out] on” that land. Id. § 343A cmt. e (emphasis added).
And an invitee’s “knowledge” of a land possessor’s failure “to
take particular precautions for the safety of such visitors” is
“material only in determining whether the visitor is to be charged
with contributory negligence, or assumption of risk” (and, we’d
add, comparative fault) “in coming in contact with the dangerous
condition.” Id. § 343A cmt. d.

¶37 Here, the initial portion of Wal-Mart’s argument is not
focused on any condition or activity “on the land” that an invitee
might encounter and from which Wal-Mart should potentially
protect its invitees. Rather, Wal-Mart is focused on what the
invitee herself subsequently did. There are many ways that Wal-
Mart could potentially rely on that behavior in this suit—this

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behavior might support an argument about a lack of proximate
cause, for example, or perhaps an assertion of comparative
negligence. But the open and obvious danger rule is concerned
with dangers that were caused by activities or conditions on Wal-
Mart’s land. Wal-Mart points us to no authority (and we’re aware
of none) holding that the open and obvious danger component of
the open and obvious danger rule can be satisfied by the
subsequent conduct of the allegedly injured invitee herself. To the
extent that Wal-Mart’s argument turns on Davis’s behavior, the
rule is inapplicable.

¶38 Second, this leaves the question of whether the rule can
apply here based on a condition on the land or Wal-Mart’s own
activity on it. And again, Davis’s suit arguably implicated such an
activity: namely, Davis claims that Wal-Mart was negligent for
allowing its employee to stock shelves around customers without
taking steps to adequately protect those customers. But to the
extent that Wal-Mart now argues that this was the “activity on the
land” that could trigger application of the open and obvious
danger rule, thereby entitling it to summary judgment, the
argument must fail because reasonable minds could differ about
whether this was actually so.

¶39 Again, the first step requires proof that the condition or
activity on the land involved a “danger” that was “known or
obvious.” Downham, 2021 UT App 121, ¶¶ 12, 14. And because this
presents a factual question, summary judgment is warranted only
if no reasonable juror could conclude otherwise. See id. ¶ 27. But
in the open and obvious danger portion of its brief, Wal-Mart
argued to us that “[n]o danger arose from [its employee’s]
potential movement.” And in the earlier portions of its brief in
which it discussed duty, Wal-Mart likewise insisted that this
collision was “both unlikely and unforeseeable.” Reiterating this
view at oral argument, Wal-Mart asserted that “this is not a
situation where Wal-Mart . . . was engaged in a hazardous

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Davis v. Wal-Mart

activity” and that its employee “was not involved in any type of
hazardous conduct.”

¶40 Taking Wal-Mart at its word, this must mean that at least
some reasonable jurors could conclude that there was not a
“known and obvious danger” on Wal-Mart’s property. Lyman,
2011 UT App 204, ¶ 4 (quotation simplified). And if such jurors
did conclude this, there would be no basis for applying the open
and obvious danger rule. Thus, in light of its own arguments,
Wal-Mart cannot show that it was entitled to summary judgment
based on this rule.

CONCLUSION

¶41 Davis was Wal-Mart’s invitee, so Wal-Mart owed her a
duty of reasonable care. And under the circumstances of this case,
Wal-Mart is not entitled to summary judgment based on the open
and obvious danger rule. We therefore reverse the district court’s
grant of summary judgment and remand for further proceedings
consistent with this opinion.

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