Johnson v. Okland Construction

2020 UT App 150
THE UTAH COURT OF APPEALS
JULIE J OHNSON AND BRENT JOHNSON ,
Appellants,
v.
O KLAND C ONSTRUCTION C OMPANY I NC .,
Appellee.
Opinion
No. 20180967-CA
Filed November 5, 2020
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 170904418
David S. Head, Attorney for Appellants
Terry M. Plant and Daniel E. Young,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES K ATE A PPLEBY and R YAN M. HARRIS concurred.
ORME, Judge:
¶1 	Julie Johnson and Brent Johnson appeal the district court’s
summary judgment dismissing their complaint against Okland
Construction Company, Inc. They argue that the district court
erred in ruling that the two-year statute of limitations under
Utah Code section 78B-2-225(3)(b)1 barred their claim on the
1. In this opinion, we consider the version of the applicable
statutory provision in effect at the time of Julie’s accident. See
generally State v. Clark, 2011 UT 23, ¶¶ 13–14, 251 P.3d 829. Due
to subsequent legislative amendment, some of the subsections of
the 	key 	provision 	have 	been 	renumbered 	and 	others
inconsequentially rephrased. Notably, the text formerly found in
(continued…)

Johnson v. Okland Construction
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rationale that Okland did not, at the time, have possession or
control of the sidewalk where Julie’s2 injury occurred. We affirm.
BACKGROUND3
¶2 	During a lunch break on July 25, 2013, Julie, an eBay
employee, was walking on a sidewalk Okland had constructed
on the northeastern portion of the new eBay campus in Draper,
Utah. Julie tripped and fell where the sidewalk dropped off to a
concrete driveway, landing on her hands and knees. On July 12,
2017, almost four years from the date of the accident, the
Johnsons filed a complaint against Okland alleging that it was
negligent 	in 	its 	construction 	of 	the 	sidewalk, 	proximately
causing Julie’s injuries and Brent’s loss of consortium with her.4
Specifically, in their third amended complaint,5 the Johnsons
(…continued)
subsection (3)(b) has been moved to subsection (4)(a). Compare
Utah Code Ann. § 78B-2-225(3)(b) (LexisNexis 2012), with id.
§ 78B-2-225(4)(a) (Supp. 2020).
2. Because both appellants share the same surname, we refer to
them by their first names, with no disrespect intended by the
apparent informality.
3. “[W]hen reviewing a grant of summary judgment, we recite
the disputed facts in a light most favorable to the nonmoving
party.” Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5, 178 P.3d 343.
4. Julie received workers’ compensation in connection with her
injuries but eventually sought additional recovery from Okland
via this lawsuit.
5. The Johnsons also brought similar claims against another
construction company, the architect, and various subcontractors
(continued…)

Johnson v. Okland Construction
20180967-CA 	3 	2020 UT App 150
alleged 	that 	because 	the 	road 	“was 	the 	same 	color 	as 	the
adjoining 	sidewalk,” 	it 	“looked 	like 	an 	extension 	of 	the
sidewalk,” which made it difficult for Julie to notice the drop-off.
This was further compounded, they claimed, by the fact that
Okland “did not mark the above sidewalks and roads or place
surrounding signs in order to notify pedestrians” of the drop-off.
The Johnsons also alleged that “[a]t the time of the . . . accident,
[Okland was] in possession and control of the road and sidewalk
where 	the 	accident 	took 	place, 	and 	[was] 	still 	performing
construction.”
¶3 	The 	key 	facts 	before 	the 	district 	court 	on 	summary
judgment were that in March 2012, eBay engaged Okland as the
construction 	manager 	and 	general 	contractor 	for 	the 	eBay
construction 	project, 	which 	included 	a 	three-story 	office
building, an amenities building, an enclosed walkway between
the buildings, surface parking, and landscaping of the thirty-five
acre campus. Okland completed the project nearly one year later.
On February 1, 2013, the project’s architect issued a certificate of
substantial completion that stated eBay could “occupy or utilize”
the campus and that on March 18, 2013, eBay “will assume full
possession” of the campus. It also stated that
eBay 	assumes 	all 	responsibilities 	for 	security,
maintenance, 	heat, 	utilities, 	damage 	to 	the
[campus], 	and 	insurance 	from 	the 	date 	of
Substantial Completion except as follows: Okland
Construction 	assumes 	all 	responsibilities 	for
(…continued)
who were involved in constructing the eBay campus. For various
reasons, these defendants were either dismissed by the district
court or voluntarily dismissed by the Johnsons, resulting in
Okland remaining as the lone defendant. The Johnsons do not
appeal the court’s dismissal of their claims against the other
defendants.

Johnson v. Okland Construction
20180967-CA 	4 	2020 UT App 150
insurance and damage to the [campus] caused by
Okland 	Construction 	or 	their 	subcontractors
during 	completion 	of 	the 	[campus] 	on 	items
attached hereto.
Draper City then issued a temporary certificate of occupancy for
the office building on March 14, 2013, and a final certificate of
occupancy for the amenities building on March 18, 2013. A final
certificate of occupancy for the office building was issued on
June 28, 2013.
¶4 	As 	part 	of 	Okland’s 	contractual 	obligations, 	it 	was
required to “correct any deficient work on the [campus]” for one
year 	after 	the 	issuance 	of 	the 	certificate 	of 	substantial
completion. To have Okland return for any such warranty work,
eBay first needed to request the work, and Okland would then
have to coordinate with eBay personnel and security to gain
access to the campus to correct the particular defect. Throughout
June and July of 2013, Okland responded to a number of eBay
warranty work requests, which is not uncommon in a large-scale
commercial construction project. On one occasion, eBay put in a
request for Okland to fix a “cracked and buckling” sidewalk, but
the sidewalk in question was on the opposite end of the campus
from the one on which Julie fell. eBay never requested that
Okland repair anything in the area where Julie fell.
¶5 	Okland moved for summary judgment, contending that it
was “entitled to judgment as a matter of law” because it “did not
have possession or control of the area where [Julie] allegedly
fell” and the Johnsons “failed to file their claims within the
two-year statute of limitations set forth in Utah Code Ann.
§ 78B-2-225(3)(b).” The Johnsons opposed the motion, arguing
that under Utah Code section 78B-2-225(8), the applicable statute
of limitations was four years from the time of Julie’s accident, as
set forth in section 78B-2-307(3), and not two years, because
subsection (8) rendered section 225 inapplicable because Okland

Johnson v. Okland Construction
20180967-CA 	5 	2020 UT App 150
was “in possession and control of the road and sidewalk whe[n]
the . . . accident took place.”
¶6 	The district court granted Okland’s motion for summary
judgment, ruling that the two-year statute of limitations applied
and that the Johnsons failed to bring their claim within that time.
It 	further 	held 	that 	“it 	is 	not 	consistent 	with 	[section
78B-2-225(1)(d)] to interpret ‘improvement’ as any ongoing work
on a large project, extending liability to absolutely all of the
project regardless of any notice to the defendant contractor.”6
And because eBay was in possession and control of the campus
at 	the 	time 	of 	the 	accident 	and 	not 	Okland, 	the 	four-year
exception did not apply, as a matter of law. The Johnsons appeal.
ISSUE AND STANDARD OF REVIEW
¶7 	The Johnsons argue that “the trial court erred when it
granted 	summary 	judgment 	in 	favor 	of 	Okland 	because 	it
erroneously interpreted the word ‘improvement’ in Utah Code
§ 78B-2-225 to mean the exact location of [the] sidewalk where
the . . . accident took place.” The Johnsons contend that the court
erroneously determined that Okland did not have possession or
control 	of 	the 	sidewalk. 	Thus, 	in 	the 	Johnsons’ 	view, 	“the
exception in Utah Code § 78B-2-225(8)” was applicable. “We
review a district court’s decision to grant summary judgment for
correctness, 	granting 	no 	deference 	to 	the 	district 	court’s
conclusions.” Gillmor v. Summit County, 2010 UT 69, ¶ 16, 246
P.3d 102 (quotation simplified).
6. Utah Code section 78B-2-225 governs statutes of limitation
regarding “actions related to improvements in real property.”
The section defines “improvement” as “any building, structure,
infrastructure, road, utility, or other similar man-made change,
addition, modification, or alteration to real property.” Utah Code
Ann. § 78B-2-225(1)(d) (LexisNexis 2012).

Johnson v. Okland Construction
20180967-CA 	6 	2020 UT App 150
ANALYSIS
¶8 	“When interpreting statutes, our primary goal is to evince
the true intent and purpose of the Legislature.” Duke v. Graham,
2007 UT 31, ¶ 16, 158 P.3d 540 (quotation simplified). “We look
first to the plain language of the statute and presume that the
legislature 	used 	each 	word 	advisedly 	and 	read 	each 	term
according to its ordinary and accepted meaning.” Turner v.
Staker & Parson Cos., 2012 UT 30, ¶ 12, 284 P.3d 600 (quotation
simplified). “The plain language of a statute is to be read as a
whole, and its provisions interpreted in harmony with other
provisions in the same statute and with other statutes under the
same and related chapters.” Duke, 2007 UT 31, ¶ 16 (quotation
simplified).
¶9 	Utah Code section 78B-2-225(3)(b) sets a two-year statute
of limitations from the date of discovery for causes of action not
“based in contract or warranty” against a “provider”7 related to
an “improvement.” Utah Code Ann. § 78B-2-225(2), (3)(a)–(b)
(LexisNexis 2012). The statute defines “improvement” as “any
building, structure, infrastructure, road, utility, or other similar
man-made change, addition, modification, or alteration to real
property.” Id. § 78B-2-225(1)(d). “Completion of improvement”
is 	defined 	as 	“the 	date 	of 	substantial 	completion 	of 	an
improvement to real property as established by the earliest of:
(i) a Certificate of Substantial Completion; (ii) a Certificate of
7. “‘Provider’ means any person contributing to, providing, or
performing 	studies, 	plans, 	specifications, 	drawings, 	designs,
value engineering, cost or quantity estimates, surveys, staking,
construction, 	and 	the 	review, 	observation, 	administration,
management, supervision, inspections, and tests of construction
for 	or 	in 	relation 	to 	an 	improvement.” 	Utah 	Code 	Ann.
§ 78B-2-225(1)(f) (LexisNexis 2012). Under this definition, it is
clear that Okland is a “provider,” which Okland does not
dispute.

Johnson v. Okland Construction
20180967-CA 	7 	2020 UT App 150
Occupancy . . . ; or (iii) the date of first use or possession of the
improvement.” Id. § 78B-2-225(1)(c).
¶10 	The two-year statute of limitations “does not apply to any
action against any person in actual possession or control of the
improvement as owner, tenant, or otherwise, at the time any
defective or unsafe condition of the improvement proximately
causes 	the 	injury 	for 	which 	the 	action 	is 	brought.” 	Id.
§ 78B-2-225(8). If a case “qualifies for this exception, . . . the
generally applicable four-year statute of limitations” governs the
claim. Turner, 2012 UT 30, ¶ 1 n.1 (citing Utah Code Ann.
§ 78B-2-307(3) (2012)). Our Supreme Court has held that the
plain 	language 	of 	subsection 	(8) 	“does 	not 	require 	a 	legal
possessory 	interest 	in 	the 	property 	underlying 	the
improvement” for the exception to apply. Turner, 2012 UT 30,
¶ 13. Instead, it requires only “some degree of possession or
control over the improvement itself.” Id. Therefore, the exception
allowing a four-year statute of limitations applies only if Julie’s
injury occurred at or on an “improvement” of which Okland had
“actual possession or control” at the time of the injury. Utah
Code Ann. § 78B-2-225(8).
¶11 	In the context of this case, we must determine whether
“improvement” means the entire eBay campus at the time of the
injury, as the Johnsons contend, or is limited to the portions of
the campus where Okland was actually doing warranty work.
Experience 	suggests 	that 	a 	general 	contractor, 	like 	Okland,
typically has actual possession or control over every part of a
major construction project until 	the project’s completion, at
which point it turns the site over to the owner. And thus, the
four-year 	statute 	of 	limitations generally 	will 	apply 	to 	any
accident that occurs during the construction period, at any part
of the construction site, because the contractor still has actual
possession or control over the entire improvement. But once
certificates of occupancy are issued and the contractor turns the
site 	back 	to 	the 	owner, 	the 	improvement 	is 	deemed
“[c]omplet[ed],” 	id. 	§ 	78B-2-225(1)(c), 	and 	the 	contractor 	no

Johnson v. Okland Construction
20180967-CA 	8 	2020 UT App 150
longer has actual possession or control of the entire site. The
contractor, therefore, can regain possession or control of any
portion of the site, to address specific warranty or punch list8
issues, only if the owner invites the contractor back to make
corrections 	and 	repairs. 	In 	that 	case, 	the 	contractor, 	as 	a
“provider” under the statute, will have control or possession
only over the portions, or specific improvements, of the area that
it is actually working on—not the entire site. This is evidenced
by the fact that the provider will need to obtain permission to
enter the site and will have “actual possession or control” only of
the discrete portions of the site that the owner requested that it
work on. See id. § 78B-2-225(8). In this scenario, the four-year
statute of limitations would apply only to the limited portion of
the site the provider is working on and not the entire property.
¶12 	Here, it is undisputed that Okland did not perform any
punch list or warranty work in the area where Julie fell after it
turned the campus over to eBay. While the entire campus would
have fallen under the category of “improvement” prior to the
issuance of the certificate of substantial completion or certificate
of occupancy when Okland was managing construction of the
campus and had possession of it, the entire campus was no
longer an “improvement” for purposes of section 78B-2-225’s
statute of limitations at the time of Julie’s injury. As discussed
above, the “improvement,” that is, the campus, was deemed
“[c]omplet[ed],” 	id. 	§ 78B-2-225(1)(c), 	before 	Julie’s 	injury
because eBay had already explicitly “assume[d] full possession”
of the campus and Draper City had issued final certificates of
occupancy. Thereafter, any “actual possession or control” of
some part of the campus that Okland regained was limited to the
8. 	A 	“punch 	list” 	is 	“a 	list 	of 	usually 	minor 	tasks 	to 	be
completed at the end of a project.” Punch List, Merriam-Webster,
https://www.merriam-webster.com/dictionary/punch%20list [htt
ps://perma.cc/6R98-W8XQ].

Johnson v. Okland Construction
20180967-CA 	9 	2020 UT App 150
areas 	eBay 	permitted 	it 	to 	return 	to 	for 	the 	purpose 	of
performing warranty or punch list work.9 See id. § 78B-2-225(8).
¶13 	Thus, because Okland did not have possession or control
of the sidewalk when Julie tripped,10 the Johnsons had two years
9. We note that if Julie had been injured at any place on the
campus that Okland was working on pursuant to the warranty,
then the Johnsons would have had four years from the time of
her accident to bring their claims, and their claims would have
survived summary judgment given that subsection (8) requires
only “some degree of possession or control of the improvement
itself,” such as doing repair work, to apply. See Turner v. Staker
& Parson Cos., 2012 UT 30, ¶ 13, 284 P.3d 600.
10. The Johnsons assert that “shortly after the . . . accident
occurred, the sidewalk and curb had been painted to distinguish
them from the drop-off to the road.” They add that “if there is
any doubt or uncertainty concerning questions of fact, the doubt
should be resolved in [their] favor,” and thus that the district
court erred in granting summary judgment to Okland because
this work created “a genuine issue of fact regarding whether or
not Okland or its subcontractors painted the sidewalk and curb.”
But whether Okland painted the sidewalk after the accident is
inconsequential. As we have discussed, eBay had possession or
control of the entire campus and Okland did not have possession
or control of the sidewalk at the time Julie was injured. Any
remedial efforts that might have taken place after the accident
had to start with eBay contacting Okland to come and repair the
sidewalk and thus, if Okland gained possession or control of the
sidewalk, it would have happened after the accident. Therefore,
there is no genuine dispute of material fact in this regard.
Furthermore, the Johnsons have produced no evidence that it
was 	Okland—rather 	than 	eBay’s 	own 	maintenance
department—that painted the curb after the accident.

Johnson v. Okland Construction
20180967-CA 	10 	2020 UT App 150
from July 25, 2013, to bring their claims against Okland, which
they did not do. Therefore, the district court did not err in
granting summary judgment to Okland on the ground that the
Johnsons did not satisfy the applicable statute of limitations, as a
matter of law.11
CONCLUSION
¶14 	Because Okland did not have possession or control of the
sidewalk at the time when Julie was injured, the statute of
limitations under Utah Code section 78B-2-225(3)(b) barred the
Johnsons’ claim against Okland.
¶15 	Affirmed.
11. The Johnsons also argue that the district court’s ruling was
erroneous because its order failed to follow the statute when it
ruled that at the time of the accident the sidewalk on which Julie
was injured “was in the possession and control of eBay and not
Okland.” They argue that the court erred in concluding that
Okland had to be in possession and control of the improvement
rather than in possession or control of it. This argument is
unpersuasive. The court was simply pointing out that eBay had
both 	possession 	and 	control 	of 	the 	sidewalk 	and 	therefore
Okland could not have had either.