Andrews v. Stoney Brook

2025 UT App 126

THE UTAH COURT OF APPEALS

KATHIE ANDREWS,
Appellant,
v.
STONEY BROOK CONDOMINIUM ASSOCIATION
AND WILLIAM B. THOMASON,
Appellees.

Opinion
No. 20240581-CA
Filed August 21, 2025

Third District Court, Salt Lake Department
The Honorable Dianna Gibson
No. 220902154

Ryan J. Schriever and Heather J. Schriever,
Attorneys for Appellant
Ryan D. Poole and Burt R. Willie, Attorneys for
Appellee Stoney Brook Condominium Association
Kristin A. VanOrman, Jessica J. Johnston,
and Scarlet R. Smith, Attorneys for
Appellee William B. Thomason

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 Kathie Andrews drove to a condominium complex at the
invitation of a friend who lived there. As she was making her way
into the building from the parking lot, Andrews slipped and fell
on a pile of snow that another resident—William B. Thomason—
had brushed off his car and onto the sidewalk hours earlier.
Andrews was injured as a result of that fall, and she sued both
Thomason and the Stoney Brook Condominium Association
Andrews v. Stoney Brook

(Stoney Brook), alleging claims against each defendant for both
premises liability and negligence.

¶2 Later, the district court granted summary judgment in
favor of both Stoney Brook and Thomason on all of Andrews’s
claims, concluding (among other things) that the danger posed by
the snow pile was open and obvious and that there was
insufficient evidence that the snow pile proximately caused
Andrews’s injuries. On appeal, Andrews challenges the court’s
summary judgment order. We affirm that order, because we
conclude that the open and obvious danger rule applies here as a
matter of law and that, therefore, neither Stoney Brook nor
Thomason breached any duty to Andrews.

BACKGROUND 1

¶3 One February evening, a friend who lived at the Stoney
Brook condominium complex invited Andrews to visit. It had
been “snowing off and on” that day. When Andrews arrived at
the complex, she parked her car, got out, and began walking
toward the friend’s unit. As she was walking on the sidewalk next
to the parking lot, she encountered a snow pile and she fell,
breaking her wrist.

¶4 Earlier that day, at around 11:35 a.m., Thomason had
walked to his car, which had been parked in a stall abutting the
sidewalk. He found snow on the hood of his car, and he brushed
that snow off the car and onto the sidewalk. Just a few minutes
earlier, at around 11:10 a.m., the sidewalk had been cleared of
snow by another resident of Stoney Brook who was apparently
contracted to clear the walkways. Thus, some of the snow that

1. In reviewing a grant of summary judgment, “we recite the facts
in the light most favorable to the non-moving party,” see Burton v.
Chen, 2023 UT 14, ¶ 5 n.2, 532 P.3d 1005 (cleaned up), here
Andrews.

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Thomason brushed off his car fell onto the previously cleared
sidewalk. Screenshots taken from surveillance camera footage
(one of which we include in this opinion) show that the brushed
snow obscured part—but not all—of the sidewalk and that a
corridor on the sidewalk remained clear of snow. A safety expert
retained by Stoney Brook later determined that this clear corridor
was at least one foot wide at the time Thomason brushed the snow
onto the sidewalk and that, despite Thomason’s actions, “there
was an area of clear sidewalk available . . . to walk on.” Those
specific conclusions are not contested by Andrews.

¶5 Some eight hours later, at 8:15 p.m., Andrews arrived at the
complex. Although it was evening, Andrews “could see the
sidewalk.” Andrews then began to walk from her car along the
sidewalk toward the building, eventually encountering the pile of
snow that Thomason had brushed off his car. Screenshots taken
from surveillance footage from that evening (one of which we
include in this opinion) show that a corridor of the sidewalk
remained free from snow. Andrews claims that, as she was
walking, she was distracted because she was looking toward the

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building rather than looking at her feet and that she “wasn’t . . .
paying attention” to the ground in front of her. She acknowledges
that nothing “prevented [her] from” using the part of the sidewalk
that was clear of snow. And before this incident, she had slipped
and fallen in icy conditions on at least one occasion. Nevertheless,
Andrews stepped onto the snow pile, at which point she fell and
broke her wrist.

¶6 Andrews later filed suit against both Stoney Brook and
Thomason, asserting causes of action against each of them for
premises liability and negligence. Andrews claimed that both
Stoney Brook and Thomason were liable under premises liability
because they “failed to use reasonable care to keep the property
safe” since the “snow had been in existence for over 8 hours” and
because Stoney Brook and Thomason both “had actual or
constructive notice” of the snow pile but did not remove it.
Andrews further asserted that Stoney Brook was negligent in “not
discovering . . . or cleaning up the ice in the walkway,” causing
Andrews’s eventual fall. Similarly, she claimed that Thomason
“negligently created a dangerous and hazardous condition” on
the property “by removing snow off his car and onto the walkway

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and not cleaning up the ice in the walkway.” Andrews requested
relief in the form of economic and noneconomic damages.

¶7 In their answers, both Stoney Brook and Thomason
invoked the open and obvious danger rule as a defense, and both
asserted (among other things) that any damages Andrews
sustained were the result of her own negligence.

¶8 Later, both Stoney Brook and Thomason moved for
summary judgment, asking the district court to dismiss
Andrews’s complaint in its entirety. Stoney Brook claimed
entitlement to summary judgment on several different grounds,
including that Stoney Brook owed Andrews no duty—asserting
that it did not create any dangerous condition, that it had no
notice of any dangerous condition, and that the open and obvious
danger rule applied—and that Andrews could not demonstrate
that her injuries were proximately caused by Stoney Brook.
Thomason also claimed entitlement to summary judgment on
several grounds, asserting (among other things) that he could not
be liable on a premises liability claim because he did not possess
the premises in question and that, in any event, the open and
obvious danger rule applied.

¶9 In response, Andrews argued that Thomason had not
sought summary judgment on Andrews’s negligence claim
against him (just on the premises liability claim). In addition,
Andrews asserted that genuine issues of material fact existed
regarding whether Stoney Brook had notice of the snow pile,
whether Thomason was a possessor of the premises, whether the
open and obvious danger rule applied, and whether Andrews’s
injuries had been caused by the defendants’ actions.

¶10 After full briefing and oral argument, the district court
issued a written ruling granting both defendants’ motions for
summary judgment and dismissing all of Andrews’s causes of
action with prejudice. The court determined that Stoney Brook
was not liable under premises liability because “there [was] no

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evidence that Stoney Brook had actual or constructive knowledge
of the snow on the sidewalk,” and that Thomason was not liable
under premises liability because he was not a possessor of the
property in question. In the alternative, the court determined that
the danger posed by the snow pile was open and obvious and
that, therefore, neither Stoney Brook nor Thomason had breached
any actionable duty toward Andrews. Finally, the court
determined that Andrews’s negligence claims failed because she
had “fail[ed] to present evidence that either Stoney Brook or
Thomason proximately caused the fall.”

ISSUE AND STANDARD OF REVIEW

¶11 Andrews now appeals, and she challenges the district
court’s summary judgment order. “We review a grant of
summary judgment for correctness.” Heslop v. Bear River Mutual
Ins. Co., 2017 UT 5, ¶ 15, 390 P.3d 314.

ANALYSIS

¶12 We first address Andrews’s challenge to the district court’s
dismissal of her premises liability claims. Next, we address
Andrews’s challenge to the court’s dismissal of her general
negligence claims. For the reasons discussed, we conclude that the
court correctly entered summary judgment in the defendants’
favor on all of Andrews’s claims.

I. Premises Liability

¶13 We begin our analysis with a discussion of the legal
principles that govern premises liability claims. After that, we
address, in turn, Andrews’s challenges to the district court’s
dismissal of her premises liability claims against each defendant.

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A. Legal Background

¶14 “In Utah, a possessor of land may be subject to liability for
injuries to invitees caused by a condition on the land if the
possessor (a) knows or by the exercise of reasonable care would
discover the 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.” Downham v. Arbuckle,
2021 UT App 121, ¶ 11, 502 P.3d 312 (cleaned up). 2 The term
“possessor” generally encompasses those who have “control
stemming from actual occupation, or from an immediate
entitlement to actual occupation.” Hill v. Superior Prop. Mgmt.

2. Utah law continues to distinguish between invitees and
licensees. See Colosimo v. Gateway Cmty. Church, 2018 UT 26, ¶ 14,
424 P.3d 866 (“When deciding whether a possessor of land owes
a duty to another person, we must first determine whether that
person is an invitee, a licensee, or a trespasser.” (cleaned up)).
“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.”
Hale v. Beckstead, 2005 UT 24, ¶ 33, 116 P.3d 263 (cleaned up); see
also Restatement (Second) of Torts § 332 cmt. a (A.L.I. 1965)
(defining invitees as “those who enter for a purpose connected
with the business of the possessor”). “Under Utah law, possessors
of land owe a common-law duty of reasonable care to invitees that
come onto their land.” Zazzetti v. Prestige Senior Living Center LLC,
2022 UT App 42, ¶ 21, 509 P.3d 776. Given the procedural posture
of this case, and based largely on the fact that Andrews was
invited to the condominium complex by a friend who lived there,
we assume, for purposes of our analysis, that Andrews was an
invitee. See Burton, 2023 UT 14, ¶ 5 n.2 (noting that, in reviewing
a grant of summary judgment, “we recite the facts in the light
most favorable to the non-moving party” (cleaned up)).

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Services, Inc., 2013 UT 60, ¶ 22, 321 P.3d 1054 (cleaned up). The
control characteristics of a possessor include “the right of
exclusion” and “the right to take necessary precautions and make
repairs.” Id. ¶¶ 25–26 (cleaned up).

¶15 A possessor can be liable even in situations where a
dangerous condition on the land is merely temporary. See Jex v.
JRA, Inc., 2007 UT App 249, ¶ 11, 166 P.3d 655, aff’d, 2008 UT 67,
196 P.3d 576. But in those situations, “a plaintiff can only recover
if the defendant has notice of the dangerous condition.” Id. In
particular, “the following two conditions must be satisfied:
(1) that the defendant had knowledge of the condition, that is,
either actual knowledge or constructive knowledge because the
condition had existed long enough that [the defendant] should
have discovered it; and (2) that after such knowledge, sufficient
time elapsed that in the exercise of reasonable care [the defendant]
should have remedied it.” Id. (cleaned up).

¶16 However, even when a dangerous condition exists on the
land for which a possessor would ordinarily be liable, “[a]
possessor of land is not liable to [the possessor’s] 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.” Hale v. Beckstead, 2005 UT 24, ¶ 9, 116 P.3d 263
(quoting Restatement (Second) of Torts § 343A(1) (A.L.I. 1965)).
This rule is referred to as the “open and obvious danger rule.” Id.
¶ 14 (cleaned up). Despite the fact that the elements of the open
and obvious danger rule are case-specific, our caselaw still
categorizes the open and obvious danger rule as a duty-based
inquiry. 3 See Downham, 2021 UT App 121, ¶ 12 (“The open and

3. The open and obvious danger “rule’s steps present factual
questions.” Downham v. Arbuckle, 2021 UT App 121, ¶ 25, 502 P.3d
312; see also Hale, 2005 UT 24, ¶¶ 32, 37–38 (determining that a
(continued…)

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obvious danger rule provides an exception to the possessor’s duty
of care.”). Indeed, our supreme court has clarified that, “[i]f 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.” Coburn v. Whitaker Constr. Co., 2019 UT 24, ¶ 12, 445 P.3d
446. And we have stated that, under the open and obvious danger
rule, “a possessor of land is not liable to . . . invitees for physical
harm caused to them by any activity or condition on the land
whose danger is known or obvious to them.” Downham, 2021 UT
App 121, ¶ 12 (cleaned up).

¶17 To be absolved of liability by the open and obvious danger
rule, a defendant must satisfy “two key steps,” both of which

grant of summary judgment was premature because the
evaluation of whether the condition was open and obvious
“depend[ed] upon the particular facts, which [the court did] not
have in full”). Andrews posits that, because an open and obvious
danger rule analysis often necessitates a factual investigation, the
doctrine would be better analyzed under breach and causation,
and not under duty. Given the recent trend in our caselaw toward
categorizing duty inquiries as “categorical” questions and breach
inquiries as “case-specific” questions, see, e.g., B.R. ex rel. Jeffs v.
West, 2012 UT 11, ¶ 25, 275 P.3d 228; Estate of Schofield v. Starbucks
Corp., 2025 UT App 29, ¶ 15, 566 P.3d 777, Andrews has a point:
perhaps our caselaw would be cleaner if we were to clarify that
the open and obvious danger rule is better thought of as a breach
inquiry rather than a duty inquiry. But be all of that as it may, our
supreme court has consistently (and recently) analyzed the rule
under the “duty” category, see, e.g., Coburn v. Whitaker Constr. Co.,
2019 UT 24, ¶ 12, 445 P.3d 446, and we are not in a position to
overrule that precedent. We therefore proceed to analyze the rule
under the duty umbrella, but we continue to recognize the fact-
bound and case-specific nature of this unique inquiry, as we did
in Downham. See 2021 UT App 121, ¶¶ 21–27.

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present factual questions that will usually require a factfinder’s
attention. Id. ¶¶ 14, 26. The first step—the “open and obvious
danger step”—asks whether the danger actually is open and
obvious. Id. (cleaned up). This means that the danger must be
“known or obvious to the plaintiff.” Zazzetti v. Prestige Senior
Living Center LLC, 2022 UT App 42, ¶ 23, 509 P.3d 776; see generally
Coburn, 2019 UT 24, ¶¶ 23–26 (affirming a court’s determination
that orange netting which was lying across a paved trail
constituted an open and obvious danger). If the danger would not
be apparent to a reasonable person, then the open and obvious
danger rule cannot operate to shield the defendant from liability.

¶18 The second step—known as the “anticipated harm step”—
asks whether the defendant “should have anticipated harm
despite the invitee’s knowledge of the danger or the danger’s
obviousness.” Downham, 2021 UT App 121, ¶¶ 13–14 (cleaned up).
A possessor “is not relieved of the duty of reasonable care . . . if
the possessor had reason to expect that the invitee would
nevertheless suffer physical harm from the open and obvious
danger.” Id. ¶ 13 (cleaned up). “Such reason may arise, for
example, where the possessor has reason to expect that the invitee
will proceed to encounter the known or obvious danger because
to a reasonable [person] in [the invitee’s] position the advantages
of doing so would outweigh the apparent risk.” Id. (cleaned up).
Alternatively, such reason may arise “where there is reason to
expect that the invitee would forget the danger, would become
distracted from it, or would reasonably encounter the danger
despite the risk.” Id. (cleaned up).

¶19 Several cases illustrate the application of these steps. In
some of these cases, Utah appellate courts have determined that—
despite the fact-bound nature of the open and obvious rule’s
application—summary judgment is nevertheless appropriate. For
example, in Coburn, our supreme court considered whether the
open and obvious danger rule relieved a construction company of
liability when the plaintiff encountered a fallen orange netting

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fence on the ground, chose to step over it, tripped, and injured
herself. 2019 UT 24, ¶¶ 3–6. The district court entered summary
judgment in favor of the construction company, determining that
the open and obvious danger rule—despite its fact-bound
nature—applied as a matter of law and undisputed fact. Id. ¶ 4.
Our supreme court affirmed, noting that, despite the fact that the
incident occurred in a public area subject to a “heightened level of
anticipation of harm,” the netting did not present an extreme
hazard, it was easily visible, and there was a path leading around
the netting altogether. Id. ¶¶ 22–24. Crucial to the court’s decision
was the fact that the construction company could not have
reasonably been expected to anticipate that the plaintiff would
choose to encounter the obvious harm because she “could have
avoided the netting by simply raising her foot” and stepping over
it or by “walk[ing] around the netting.” Id.

¶20 Similarly, in Jensen v. Gardner, this court affirmed a grant of
summary judgment in favor of a possessor of land, holding that a
balcony on which the plaintiff hit her head as she was running
toward her car in the rain was an open and obvious danger. 2012
UT App 146, ¶¶ 2, 8–9, 279 P.3d 844. In that case, we determined
that the danger was open and obvious and that the possessor
could not have reasonably anticipated that anyone would choose
to encounter the danger: “Even though [the possessor] certainly
could have anticipated the rain, as a matter of law, [the possessor]
could not reasonably have anticipated that [the plaintiff] would
have been running by that balcony with her head down and
looking at her feet rather than at the balcony.” Id. ¶ 8.

¶21 In other cases, however, we have concluded that factual
questions precluded entry of summary judgment regarding
application of the open and obvious danger rule. In Downham, for
instance, the plaintiff sustained injuries after a makeshift step
outside her residence collapsed; the step was made out of a
wooden pallet and was placed between the back door to her
rented home and the backyard. 2021 UT App 121, ¶¶ 4–6. We

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determined that the step was an open and obvious danger, as a
matter of law and undisputed fact, because it was “wobbly” and
the plaintiff was aware of its “unsafe” nature. Id. ¶¶ 28–32
(cleaned up). But we held that factual questions existed at the
“anticipated harm step,” which precluded the entry of summary
judgment, because “a jury could reasonably find that [the
landlord] either should have anticipated, or in fact did anticipate,
that his tenants would use the back door and whatever back step
had been provided as a means of accessing that backyard.” Id.
¶ 34. Important to our conclusion was the determination that a
jury might reasonably find that, “to a reasonable person in [the
tenant’s] position the advantages of [encountering the open and
obvious danger] would outweigh the apparent risk.” Id. ¶ 35
(cleaned up).

¶22 And in Zazzetti, we discussed the open and obvious danger
rule in a factual situation similar to the one presented here: a slip-
and-fall on snow occurring on a sidewalk outside of a housing
complex. 2022 UT App 42, ¶¶ 2–3, 39. In that case, the plaintiff
was walking from the parking lot of her apartment complex to her
unit when “she slipped and fell on the snowy and icy sidewalk
leading from the parking lot to the building.” Id. ¶ 3. We noted
that the district court in that case had denied the defendant’s
“motion for a directed verdict on the duty question, specifically
crediting [the plaintiff’s] argument that, even if the danger posed
by the snowy sidewalk was open and obvious, [the defendant]
would nevertheless retain a duty of reasonable care toward [the
plaintiff] if [the defendant] should have anticipated that a tenant
might slip and fall on a snowy sidewalk.” Id. ¶ 36. The record in
Zazzetti—unlike the record in this case—contained no indication
that only part of the sidewalk contained snow. See id. ¶ 9
(contrasting the plaintiff’s position—that the sidewalk was “icy”
and that she “had not seen anyone shoveling or spreading ice
melt” in the days leading up to her fall—with the defendant’s
position—that it had “plowed and shoveled several times in the
days leading up to the incident, including twice on the day of the

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accident itself”). Given those facts, where the plaintiff presented
evidence that the entire sidewalk was icy and that it was the only
way into her building, we noted that the plaintiff had a “rather
strong argument that—even assuming the danger was open and
obvious—[the defendant] should have anticipated that a tenant
would reasonably choose to encounter snow and ice on the
sidewalk, there being no other reasonable way to walk back to the
apartment from the parking lot.” Id. ¶ 36.

B. Merits of the Individual Claims

¶23 With these principles in mind, we now consider whether
the open and obvious danger doctrine applies here, as a matter of
law and undisputed fact, to absolve Stoney Brook and Thomason
of liability on Andrews’s premises liability claims.

1. Stoney Brook

¶24 We begin with the first step: whether the snow pile was
open and obvious to Andrews. See Zazzetti, 2022 UT App 42, ¶ 23;
Downham, 2021 UT App 121, ¶ 26. Even drawing all factual
inferences in Andrews’s favor, we conclude that the snow pile
was open and obvious as a matter of law. The photographic
evidence is quite compelling, indicating that the snow pile was (or
should have been) obvious to any reasonable observer. See supra
¶ 5. And Andrews herself acknowledges that she is “sure” that
she “could see the sidewalk” and that she “saw the snow.”
Additionally, Andrews had previously slipped and fallen in icy
conditions and was therefore aware of the dangers that snowy
weather poses. See Downham, 2021 UT App 121, ¶ 28 (determining
that a wooden pallet presented a known and obvious danger
because the plaintiff was aware that the pallet was “wobbly and
unsafe”). Given these facts, the snow pile was indeed open and
obvious as a matter of law.

¶25 We move, therefore, to the “anticipated harm step,” and
consider whether Stoney Brook should have nonetheless

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anticipated that Andrews would be harmed despite the snow
pile’s open and obvious nature. See id. ¶¶ 14, 26. We determine
that, as a matter of law and undisputed fact, Stoney Brook could
not have reasonably anticipated that Andrews would choose to
encounter, and perhaps become injured by, this particular snow
pile. Key to our analysis are the following facts: the snow pile
covered only a portion of the sidewalk, and there existed an
obvious corridor of cleared and snow-free concrete that Andrews
could have used to simply walk around the snow pile. Indeed,
Andrews acknowledges that nothing “prevented [her] from going
down the” cleared side of the sidewalk. And while she implies
that she might have been distracted, the only thing she identifies
that might have distracted her was looking toward the building
instead of the sidewalk; she identifies nothing specific that might
have distracted her from identifying this particular hazard. Under
these circumstances, Stoney Brook had no reason to anticipate
that Andrews—or anyone else similarly situated—might suffer an
injury from the snow pile despite its obvious danger.

¶26 This conclusion is consistent with the caselaw described
earlier. The facts of this case are far more similar to the facts of
Coburn and Jensen than they are to the facts of Downham and
Zazzetti. In Coburn, our supreme court affirmed the entry of
summary judgment because the plaintiff had an easy way to
avoid the obviously dangerous condition: she could have simply
picked up her feet and stepped over the netting, or she could have
walked around it on a clear footpath. 2019 UT 24, ¶¶ 22–24. And
in Jensen, we affirmed the entry of summary judgment because the
balcony on which the plaintiff struck her head was obvious and
could have easily been avoided, despite the fact that the plaintiff
might have been distracted by rain. 2012 UT App 146, ¶ 8. Thus,
in cases where the undisputed facts show that the danger is
obvious but that there is also a clear and easily accessible way
around the danger, the possessor of land has no reason to
anticipate that anyone would encounter, and become injured by,

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the dangerous condition, and the open and obvious danger rule
can be applied as a matter of law.

¶27 For similar reasons, this case is readily distinguishable
from Downham and Zazzetti, two cases in which factual questions
prevented the entry of summary judgment (or directed verdict)
regarding the anticipated harm step. In those cases, while the
hazards were obvious, they were located in places where
individuals were essentially required to be (the only walkway
into a building, and the only entrance into the back of a residence)
and where it was not clear that there was a reasonable alternative
path. See Zazzetti, 2022 UT App 42, ¶ 36; Downham, 2021 UT App
121, ¶ 35. In those cases, we determined that a factfinder needed
to grapple with the question of whether the possessor should have
reasonably anticipated that individuals would choose to
encounter (and might be injured by) the hazard, despite its
obvious danger.

¶28 On this record, the open and obvious danger rule applies
as a matter of law and undisputed fact. This particular snow pile
was open and obvious to anyone, including to Andrews, and
there was an easy way around the snow pile. Thus, in this case,
Stoney Brook could not have reasonably anticipated that
individuals would be injured by the snow pile. As our supreme
court stated in Coburn, possessors of land “may reasonably
assume that members of the public will not be harmed by known
or obvious dangers which are not extreme, and which any
reasonable person exercising ordinary attention, perception, and
intelligence could be expected to avoid.” 2019 UT 24, ¶ 18 (cleaned
up). “And this is true particularly where a reasonable alternative
way is open to the visitor, known or obvious to him [or her], and
safe.” Id. (cleaned up).

¶29 We therefore discern no error in the district court’s
conclusion that the open and obvious danger rule applies in this
case, or in the court’s concomitant conclusion that summary

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judgment in favor of Stoney Brook on Andrews’s premises
liability claim was therefore proper.

2. Thomason

¶30 We similarly discern no error in the district court’s
dismissal, on summary judgment, of Andrews’s premises liability
claim against Thomason. Our analysis regarding applicability of
the open and obvious danger rule applies to Andrews’s premises
liability claim against Thomason in the same way it applies to her
claim against Stoney Brook. In addition, Andrews has not
demonstrated that Thomason—a mere resident of the complex
and member of the condominium association—is a “possessor” of
the common areas of the complex and therefore a person against
whom a premises liability claim may be stated. For these reasons,
we likewise affirm the district court’s order dismissing Andrews’s
premises liability claim against Thomason.

II. Negligence

¶31 Next, we consider Andrews’s challenge to the district
court’s order dismissing her negligence claims against the
defendants. As in the previous section, we begin with a discussion
of the applicable law, and we then transition into a specific
analysis of Andrews’s negligence claims against each defendant.

A. Legal Background

¶32 To succeed on a negligence claim, a plaintiff must show
“(1) that the defendant owed the plaintiff a duty, (2) that the
defendant breached that duty, (3) that the breach of duty was the
proximate cause of the plaintiff’s injury, and (4) that the plaintiff
in fact suffered injuries or damages.” Estate of Schofield v. Starbucks
Corp., 2025 UT App 29, ¶ 14, 566 P.3d 777 (cleaned up). Andrews
asserts that both Stoney Brook and Thomason owed her a duty of
reasonable care and that they breached that duty, which caused
her to sustain damages.

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¶33 Both Stoney Brook and Thomason assert that the open and
obvious danger rule operates to relieve them of liability, not only
with regard to Andrews’s premises liability claims but also with
regard to her general negligence claims. As discussed above, we
have already determined that the open and obvious danger rule
applies in this case as a matter of law; Stoney Brook and
Thomason assert that this conclusion should lead to the dismissal
of not only the premises liability claims against them but also the
general negligence claims against them.

¶34 Andrews takes a different position. She asserts that the
open and obvious danger rule applies only to premises liability
claims and that it cannot operate to shield defendants from
liability for general negligence.

¶35 With this dispute, the parties raise an issue of law that, as
far as we are aware, has not yet been squarely decided in Utah.
We invited the parties to submit supplemental briefs on this issue;
Andrews and Thomason did so, and we appreciate their efforts.
After reviewing those briefs and analyzing the approaches taken
by some of our sister states, we conclude that the open and
obvious danger rule can apply to general negligence claims, but
only if the negligence complained of concerns a dangerous
condition on land.

¶36 In particular, we find persuasive the approach taken by the
courts of Illinois. See, e.g., Hutson v. Pate, 2022 IL App (4th) 210696,
¶ 60, 216 N.E.3d 1085; Winters v. MIMG LII Arbors at Eastland, LLC,
2018 IL App (4th) 170669, ¶ 66, 115 N.E.3d 282; Park v. Northeast
Ill. Reg'l Commuter R.R. Corp., 2011 IL App (1st) 101283, ¶¶ 6–12,
18–19, 27, 960 N.E.2d 764; see also Serrano v. Menard, Inc., 671 F.
Supp. 3d 877, 884 (N.D. Ill. 2023) (applying Illinois law). In Park,
the court applied the open and obvious danger rule in dismissing
claims against both the possessor of the land in question—the
owner of a train station—and a separate defendant—a company
“responsible for rail traffic control” at that station. 2011 IL App

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(1st) 101283, ¶¶ 1, 4, 18, 27. In that case, the plaintiff sued both the
station owner and the traffic control company for negligence,
among other things, after her son was killed by an oncoming train.
Id. ¶¶ 1–6. The court determined that “the danger of stepping in
front of a moving train is open and obvious.” Id. ¶ 18. And the
court applied this reasoning to dismiss negligence claims filed
against not only the train station owner, but also against the traffic
control company, stating that its “findings concerning [the
owner’s] duty, or lack thereof, apply with equal force to [the
traffic control company].” Id. ¶ 27.

¶37 Later, in Winters, another Illinois appellate court applied
the open and obvious danger doctrine to negligence claims, and
it did so on facts similar to those at issue here. 2018 IL App (4th)
170669, ¶¶ 54–57, 63–66. In that case, the plaintiff was walking
from his apartment to the laundry facility of his apartment
complex when he encountered a “large mound of snow” on the
sidewalk. Id. ¶ 1. The pile had apparently been created by a snow
removal company with whom the apartment complex contracted
to clear the parking lots, but not necessarily the sidewalks. Id. The
snow removal company, in the process of clearing the parking
lots, had pushed snow onto the sidewalk. Id. The plaintiff began
to “navigate around the snow pile,” slipped, and fell. Id. The
plaintiff sued both the apartment complex and the snow removal
company, asserting that the snow removal company “owed
plaintiff a duty that it breached when it negligently placed the pile
of snow on the sidewalk.” Id. The plaintiff appealed the lower
court’s grant of both defendants’ motions for summary judgment;
in granting the motions, the court concluded that the snow pile
was an open and obvious danger. Id. ¶¶ 39–40. The appeals court
affirmed. Id. ¶¶ 82–83. In making its decision, the court noted that
the plaintiff conceded that he could clearly see the snow pile and
chose to walk on it anyway, despite the known availability of an
alternative route to the laundry facility. Id. ¶¶ 64–66.

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¶38 And in Hutson, the court continued to apply the open and
obvious danger rule to at least some negligence claims, and this
time it offered additional reasoning. 2022 IL App (4th) 210696,
¶¶ 42–60. The court first noted—citing Winters and other cases—
that Illinois courts had long held that “defendants are entitled to
raise the open-and-obvious rule” as a defense “to either an
ordinary negligence claim or a premises liability claim.” Id. ¶ 53
(cleaned up). However, the court explained that the use of the
open and obvious danger rule in ordinary negligence cases had
been generally limited to a “fact pattern sounding in traditional
premises liability—in other words, a fact pattern where a
condition on the land is both the cause and instrument of a
plaintiff’s injury.” Id. ¶ 56. Accordingly, the court clarified that
“the open and obvious doctrine applies in ordinary negligence
cases but only when the alleged cause of injury is a condition on
the land instead of a defendant’s active negligence.” Id. ¶ 42. It
then proceeded to consider whether the action that caused the
injury—pulling on a garden hose and causing a minor to fall and
break her ankle—was sufficiently related to a condition on the
land to warrant application of the open and obvious danger
doctrine. Id. ¶ 62. In the end, the court concluded that the open
and obvious danger rule did not apply to the facts presented
because the injured party “did not simply trip over a hose . . . but
was tripped by the direct action of [the tortfeasor] pulling the
hose.” Id. The court also offered a helpful way to frame the
application and limitation of the open and obvious danger
doctrine: “[T]he proper question to ask is not whether the doctrine
applies to ordinary negligence or premises liability claims, but
whether the cause of injury is a condition on the land or the active
negligence of the defendant.” Id. ¶ 60.

¶39 This approach is sensible and appropriately balances the
competing interests involved. We consider it the best of the

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available options of which we are aware. 4 Andrews’s position—
limiting application of the open and obvious danger rule to only
premises liability claims—would render the rule an effective
nullity, because plaintiffs could easily plead around it simply by
pleading a negligence claim rather than a premises liability claim.
And a competing position taken by at least one other state—
refusing to allow any general negligence claims “if the plaintiff’s
injury arose from an allegedly dangerous condition on the land,”
see Bowman v. Walker, 986 N.W.2d 419, 423 (Mich. Ct. App. 2022)
(cleaned up)—goes too far in the other direction, because it fails
to properly distinguish between the two distinct tort theories, see
Senkosky v. Bistro 412 LLC, 2022 UT App 58, ¶¶ 24–25, 512 P.3d 477
(treating premises liability and ordinary negligence as distinct tort
theories), and because it doesn’t allow non-possessors to be held
liable for their role in creating dangerous conditions on other
people’s land, even if those conditions aren’t open and obvious.

¶40 Thus, we opt to follow the approach taken by the appellate
courts of Illinois, and we endorse the Hutson court’s statement
that “the open and obvious [danger rule] applies in ordinary
negligence cases but only when the alleged cause of injury is a

4. While we are aware of no Utah caselaw directly on point, we
draw at least some guidance from Coburn, a case in which the
plaintiff filed “a negligence action” (as opposed to a premises
liability action) against a construction company hired “to install a
water pipeline” in “a recreational area.” 2019 UT 24, ¶¶ 2, 4. Our
supreme court did not discuss whether the company was an
owner or possessor of the land in question, nor did it grapple with
the issue we concern ourselves with here, namely, whether and to
what extent the open and obvious danger rule can be applied to
defend against general negligence claims. See id. ¶¶ 17–27. But the
court did apply the rule in a case in which the claim asserted was
apparently a general negligence claim, and it allowed the rule to
be utilized by a construction company that may or may not have
been a possessor of the land in question. See id.

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condition on the land instead of a defendant’s active negligence,”
2022 IL App (4th) 210696, ¶ 42.

B. Merits of the Individual Claims

¶41 With these principles in mind, we now turn to an analysis
of Andrews’s challenge to the district court’s order dismissing her
negligence claims against Stoney Brook and Thomason.

1. Stoney Brook

¶42 In her negligence claim against Stoney Brook, Andrews
asserts that Stoney Brook owed her “a duty to act in a reasonable
and prudent manner” and that it “breached that duty by not
discovering and or cleaning up the ice in the walkway.” This is
essentially the same thing Andrews asserts in stating her premises
liability claim against Stoney Brook: that Stoney Brook “failed to
use reasonable care to keep the property safe and suitable for its
intended use or free of defects or dangerous conditions.” Indeed,
we recently stated that the duty owed by a possessor of land to its
invitees is simply “a duty to exercise reasonable care—whatever
that might entail in a particular case—to keep its premises safe for
invitees.” Estate of Schofield v. Starbucks Corp., 2025 UT App 29,
¶ 18, 566 P.3d 777.

¶43 Clearly, here, the asserted cause of injury Andrews refers
to in her negligence claim against Stoney Brook involves “a
condition on the land” and not the “active negligence of the
defendant.” See Hutson, 2022 IL App (4th) 210696, ¶ 42. She does
not allege that Stoney Brook was actively doing anything at the
time of her injury to cause her fall; rather, she asserts that Stoney
Brook breached its duty of reasonable care “by not discovering . . .
or cleaning up the ice in the walkway.” We note that, in Illinois,
“conditions on the land” for purposes of this analysis include
“piles of snow,” as well as things like “fire, height, . . . bodies of
water,” “sidewalk defects,” “store posts,” “moving trains,”
“electrified third rails,” “power wires,” and “ladders.” Id. ¶ 57. By

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contrast, Illinois courts have concluded that “conditions on the
land do not include carrying bundles of shingles, partying by
social guests, operating a pulley device, or mixing grout,” id. ¶ 58
(cleaned up), nor do they include “pulling [a] hose,” id. ¶ 62.

¶44 Viewed in this light, we are quite comfortable concluding
that the allegations Andrews makes against Stoney Brook related
to her general negligence claim concern a condition on the land.
Accordingly, Stoney Brook may use the open and obvious danger
rule as a defense to Andrews’s general negligence claim, and—for
the reasons already stated, see supra Part I—that rule applies here
as a matter of law and undisputed fact. For these reasons, the
district court did not err in dismissing Andrews’s general
negligence claim against Stoney Brook.

2. Thomason

¶45 The question is somewhat closer regarding Andrews’s
general negligence claim against Thomason, but in the end we
reach the same result: Andrews’s general negligence claim against
Thomason also asserts injury arising from a condition on the land
(rather than from Thomason’s active negligence), and therefore
Thomason may also use the open and obvious danger rule as a
defense to Andrews’s general negligence claim against him. 5

5. Andrews asserts that Thomason failed to preserve any
argument that her general negligence claim against him was
subject to dismissal on summary judgment. But this assertion fails
because the district court reached the question and did indeed
dismiss Andrews’s general negligence claim against Thomason
on summary judgment. See Fort Pierce Indus. Park Phases II, III & IV
Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218
(stating that “the district court’s decision to take up the question
conclusively overcame any objection that the issue was not
preserved for appeal” (cleaned up)). We may therefore review the
(continued…)

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¶46 Andrews points out that Thomason created the hazard
through an affirmative act, namely, brushing snow off his car and
onto the sidewalk. But this affirmative act—even assuming it can
be categorized as “active negligence,” see Hutson, 2022 IL App
(4th) 210696, ¶ 42—did not directly cause the injury. Stated
another way, the snow Thomason brushed off his car did not
strike Andrews as she walked by, causing her to fall. Indeed,
Andrews wasn’t even present when Thomason brushed the snow
onto the sidewalk, and Thomason made no action in the moment
that caused Andrews to fall. In fact, the pile had been there for
eight hours before Andrews encountered it. Thus, the cause of the
injury was a then-stagnant condition on the land, regardless of
how that condition came to exist. Indeed, Andrews does not
allege that she was injured by the affirmative act of brushing snow
off a car; instead, in her negligence claim, she alleges that
“Thomason negligently created a hazardous and dangerous
condition” on the land “by removing snow off his car and onto
the walkway and not cleaning up the ice in the walkway.”

¶47 The facts here are most analogous to those in Winters; in
that case, as here, the alleged tortfeasor pushed snow onto the
sidewalk, which was later encountered by the plaintiff, causing
the plaintiff to slip and fall. See 2018 IL App (4th) 170669, ¶ 1. The
court determined that the open and obvious danger rule applied
to a negligence claim against the non-possessor defendant who
was alleged to have created the snow pile. Id. ¶¶ 63–66.

¶48 Accordingly, we conclude that Andrews’s general
negligence claim against Thomason asserts that her injuries were
the result of a “condition on the land,” as opposed to the “active

court’s dismissal order, and we retain the discretion to affirm that
order on any ground apparent in the record. See In re A.B., 2022
UT 39, ¶ 45, 523 P.3d 168 (“An appellate court has discretion to
affirm a judgment on an alternative ground if it is apparent in the
record.” (cleaned up)).

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negligence of” Thomason. See Hutson, 2022 IL App (4th) 210696,
¶ 42. In this situation, Thomason may utilize the open and
obvious danger rule as a defense to Andrews’s general negligence
claim against him, and—as already noted, see supra Part I—that
rule applies here as a matter of law.

CONCLUSION

¶49 For the reasons discussed, we conclude—in harmony with
the appellate courts of Illinois—that the open and obvious danger
rule can be utilized as a defense not only to premises liability
claims, but also to general negligence claims so long as the alleged
cause of injury is a condition on the land and not a defendant’s
active negligence. And we conclude that, as a matter of law and
undisputed fact, the open and obvious danger rule applies in this
case, because the snow pile that caused Andrews’s injuries was an
open and obvious danger, and because neither Stoney Brook nor
Thomason could have reasonably anticipated that Andrews (or
others) would choose to encounter it under the circumstances.
The district court therefore committed no error in dismissing all
of Andrews’s causes of action against each defendant.

¶50 Affirmed.

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