Brown v. City of Fruit Heights

2023 UT App 39
THE UTAH C OURT OF APPEALS
S HELLY BROWN ,
Appellant,
v.
C ITY OF F RUIT HEIGHTS ,
Appellee.
Opinion
No. 20210100-CA
Filed April 13, 2023
Second District Court, Farmington Department
The Honorable David J. Williams
No. 190700975
Leonard E. McGee and Peter R. Mifflin,
Attorneys for Appellant
Matthew D. Church, Jeremy M. Seeley, and David L.
Church, Attorneys for Appellee
JUDGE JOHN D. L UTHY authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN M. HARRIS concurred.
LUTHY, Judge:
¶1 	Shelly Brown appeals the district court’s grant of summary
judgment in favor of the City of Fruit Heights in her slip-and-fall
case. She alleges that she was seriously injured when she slipped
and fell on black ice in a City-owned park-and-ride lot and that
the 	City 	negligently 	created 	the 	dangerous 	condition 	and
negligently failed to prevent, remedy, or warn her about it.
¶2 	The City moved for summary judgment, asserting that
Brown had failed to present evidence that the City created the
black ice or had actual or constructive knowledge of the black ice.
The district court agreed and granted the motion.

Brown v. Fruit Heights
20210100-CA 	2 	2023 UT App 39
¶3 	On appeal, Brown contends that she presented evidence to
support her claims that the City created the dangerous condition
and had both actual and constructive knowledge of it, and that
the district court impermissibly weighed evidence and made
factual findings in ruling on the City’s motion. We disagree and
affirm.
BACKGROUND1
¶4 	At about 7 a.m. on December 27, 2017, just as she had done
nearly every workday for more than four years, Brown parked in
a City-owned park-and-ride lot, planning to catch a Utah Transit
Authority bus at a stop along the sidewalk next to the lot. No
snow was falling that morning, but there had been a snowstorm
on Christmas Day, two days earlier.
¶5 	Portions of the lot had been plowed since the storm. “[T]he
areas where [cars] drove[,] . . . in between . . . the sections where
cars parked[,] [were] generally cleared.” But “there was [still]
snow under all the vehicles.” This was not new. An “ongoing
problem [was] that the plows were out after cars had already
parked,” and “[n]obody ever went back and cleared [the] snow
that was left under the vehicles.” As a result, “[c]ars pulling out
of the stalls would carry snow with them in their tires and
redeposit it on those areas that had already been plowed.” “So
they just basically were redepositing snow back in those middle
areas where [cars] drive and where [people] walk.”
1. “In reviewing a district court’s grant of summary judgment, we
view the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party and recite the
facts accordingly.” MacFarlane v. Applebee’s Rest., 2016 UT App
158, n.1, 378 P.3d 1286 (cleaned up). Our quotations of the
evidentiary record are from Brown’s deposition testimony.

Brown v. Fruit Heights
20210100-CA 	3 	2023 UT App 39
¶6 	When Brown exited her car that morning, she “slipped a
little bit as [she] put [her] foot out.” She then saw “the remnants
[of snow] that [were] left over after the snowstorm on [Christmas
Day]” as well as “what looked like . . . a lot of ice or black ice in
the parking lot.”
¶7 	As 	had 	happened 	at 	other 	times, 	Brown 	became
“concerned about [the] ice.” When that happened, Brown would
“typically try to follow [a] snow path, hoping that there[] [was]
not ice hidden underneath.” That morning, “[t]here was only one
[such] path for [her] to follow,” and she began “walking along the
snow.” Eventually, “when [she] stepped off of the snow onto
what [she] thought was safe pavement,” she slipped on some
black ice and “went down,” sustaining serious injuries.
¶8 	Brown 	sued 	the 	City, 	alleging 	multiple 	theories 	of
negligence: 	that 	the 	City 	negligently 	created 	the 	dangerous
condition, 	that 	the 	City 	negligently 	failed 	to 	prevent 	the
dangerous condition, and that the City negligently failed to
remedy or warn against the dangerous condition.
¶9 	During 	fact 	discovery, 	Brown 	was 	the 	only 	person
deposed, and neither party produced documentary evidence
regarding the City’s alleged breach of its duty of care.2
¶10 	In her deposition, Brown testified that nearly two years
before this incident, she had on one occasion emailed the City to
express concern about “the [icy] condition of the sidewalk”
adjacent to the park-and-ride lot. But she acknowledged that she
had never contacted the City “about the condition of the parking
lot itself,” including “after the snow event on the 25th.”
2. Brown produced “[p]hotos of [the] scene,” but neither party
relied on those photos below, and those photos are not part of the
record on appeal.

Brown v. Fruit Heights
20210100-CA 	4 	2023 UT App 39
¶11 	Regarding the City plowing the lot after the storm on
Christmas Day, Brown testified that she “assum[ed] it was
not plowed until the 26th . . . because there was snow under all of
the vehicles” when she arrived on the 27th and, she reasoned,
“had someone plowed it on the 25th, then there would have been
no 	cars 	there 	and 	they 	would 	have 	been 	able 	to 	plow 	it
completely.”
¶12 	Brown also testified that she did not see any salt in the
parking lot on December 27th or on any other day. Finally, she
gave this opinion testimony: “The problem that created the icy
conditions was [that] during the day the snow that was left under
the vehicles would melt and then freeze overnight. And then not
having any salt applied additionally added risk to someone
slipping and falling.”
¶13 	Brown produced no evidence of the temperatures during
the morning of her fall or during the days and nights preceding
her fall. Nor did she produce evidence of the temperature or time
required to create the ice on which she fell. She also presented no
evidence 	as 	to 	how 	salt 	would 	have 	affected 	the 	time 	or
temperature required to create that ice.
¶14 	After the close of fact discovery, the City moved for
summary 	judgment, 	arguing 	that 	Brown’s 	negligence 	claim
failed because she had not presented evidence that the City
breached its duty of care—specifically, that she had presented no
evidence that the City created the dangerous condition, no
evidence that the City had actual knowledge of the dangerous
condition, 	and 	no 	evidence 	that 	the 	City 	had 	constructive
knowledge of the dangerous condition. Brown opposed the
motion, arguing that she had presented evidence to support each
of these allegations.
¶15 	The district court agreed with the City and granted the
motion. Brown now appeals.

Brown v. Fruit Heights
20210100-CA 	5 	2023 UT App 39
ISSUE AND STANDARD OF REVIEW
¶16 	Brown contends that in granting summary judgment the
district court impermissibly weighed evidence and made factual
findings. She also argues that she presented evidence to support
her claim that the City created the black ice that caused her fall
and 	her 	claim 	that 	the 	City 	had 	actual 	and 	constructive
knowledge of the black ice.3 “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.” Edwards v. Utah’s Johnny Appleseed Inc.,
2018 UT App 43, ¶ 11, 420 P.3d 68 (cleaned up).
ANALYSIS
I. The District Court Did Not Impermissibly Weigh Evidence or
Make Factual Findings.
¶17 	Brown 	asserts 	that 	the 	district 	court 	impermissibly
weighed evidence and made factual findings when it ruled on
the City’s motion for summary judgment. She is correct that “[a]
trial 	court 	is 	not 	authorized 	to 	weigh 	facts 	in 	deciding 	a
summary judgment motion, [and] is only to determine whether a
dispute of material fact exists.” Pigs Gun Club, Inc. v. Sanpete
County, 2002 UT 17, ¶ 24, 42 P.3d 379. But she is mistaken in her
assertion that the district court weighed evidence and made
factual findings.
3. 	Brown 	also 	contends 	that 	the 	district 	court 	improperly
considered affidavit testimony from, she asserts, an undisclosed
City witness whose testimony lacked foundation. Because the
district court did not rely on the affidavit, and because we do not
rely on the affidavit or treat it as part of the evidentiary record for
purposes of our analysis, we need not reach Brown’s arguments
concerning it.

Brown v. Fruit Heights
20210100-CA 	6 	2023 UT App 39
¶18 	For her argument, Brown relies on three statements from
the district court’s oral ruling on the City’s motion.4 These are the
first two of those statements: “[I]n this particular case . . . , the
Court does not find that this was a condition that was created by
the City” and “In summary there’s just not enough evidence to
conclude that this temporary icy condition was created by the City
as opposed to natural occurrences.” (Emphases added.) Brown
highlights, as have we, that in these statements the court uses the
word “find” and the phrase “not enough evidence.”
¶19 	However, a court’s use of the word “find” (rather than
“conclude”) or the phrase “not enough evidence” (instead of “no
evidence”) is not alone determinative of whether the court’s
ruling is a finding of fact or a conclusion of law. See, e.g., Zions
First Nat’l Bank, NA v. National Am. Title Ins. Co., 749 P.2d 651, 656
(Utah 1988) (“The labels attached to findings of fact or conclusions
of law are not determinative.”). An ostensible “finding of fact that
is actually a conclusion of law will be treated as a conclusion of
law.” Id. And this is as true for oral rulings as it is for written
rulings.
¶20 	Here, the district court’s complete ruling on whether
Brown presented evidence establishing a genuine dispute of
material fact on the 	issue of 	whether the City created the
dangerous condition was as follows:
[I]n this particular case . . . , the Court does not find
that this was a condition that was created by the
City . . . .
[Brown] claims that the ice was created by
snow melting under the cars through the day and
4. The district court did not issue a separate written ruling, saying
in 	its 	brief 	written 	order 	that 	it 	was 	“[relying] 	upon 	and
incorporat[ing]” the “ruling [it made] in open court.”

Brown v. Fruit Heights
20210100-CA 	7 	2023 UT App 39
freezing at night, but of course the City did not
create the snow, the City did not deposit the snow
on the area or there’s no evidence the City deposited
snow on the area where [Brown] fell. Indeed, the
testimony is that other cars could have placed snow
or drug snow over already plowed areas.
The City didn’t melt the snow or cause the
water to refreeze even if that is what happened.
There’s no evidence of the actual plowing schedule
here. There’s no evidence that the black ice she
slipped and fell on was actually created by the
process she describes. There’s no evidence that
salting would have helped or harmed.
In summary there’s just not enough evidence
to conclude that this temporary icy condition was
created 	by 	the 	City 	as 	opposed 	to 	natural
occurrences.
¶21 	In this ruling, the district court identified the evidence that
Brown did not produce, it mentioned no evidence produced to
contradict 	Brown’s 	claim, 	and 	it 	did 	not 	weigh 	evidence.
Accordingly, despite the court’s use of the word “find” and the
phrase “not enough evidence,” its ruling did not constitute a
factual finding based on a weighing of conflicting evidence.
Rather, it was a legal conclusion that Brown did not produce
evidence that the City created the dangerous condition.
¶22 	The third statement Brown points to is this one containing
the district court’s ruling on her argument that the City had actual
and constructive knowledge of the dangerous condition based on
the email she sent to the City about two years before her fall:
Additionally, with regard to . . . the alleged notice
that occurred . . . one or two years prior to the date
in question of the fall, I do not find that that notice

Brown v. Fruit Heights
20210100-CA 	8 	2023 UT App 39
was clear or specific enough to put the City on
notice of how this person fell in this particular case.
(Emphasis added.)
¶23 	Here again, although the court used the word “find”
instead of “conclude,” it was not weighing evidence or making a
factual 	finding. 	In 	the 	sentence 	immediately 	preceding 	the
identified sentence, the court demonstrated its cognizance of the
summary judgment standard when it said of another of Brown’s
arguments that it was “holding that the plaintiff’s claim here fails
as a matter of law.” And in the sentence immediately following
the identified sentence, the court concluded that other evidence
required “too much speculation on the part of the jury,” again
demonstrating its cognizance of the summary judgment standard.
See Hansen v. Harper Excavating, Inc., 2014 UT App 180, ¶ 9, 332
P.3d 969 (holding that on summary judgment a “trial court may
rule as a matter of law” if there is no evidence to establish an
element of the plaintiff’s claim, “thus leaving [the issue] to jury
speculation” (cleaned up)), cert. denied, 343 P.3d 708 (Utah 2015).
¶24 	We do not believe that the district court momentarily
lapsed into factfinding and a weighing of evidence in this
last 	sentence 	Brown 	identifies. 	Instead, 	this 	sentence 	also
plainly contains a legal conclusion—that Brown’s email to the
City about the condition of a sidewalk nearly two years before
her fall was legally insufficient to create a genuine dispute of
material fact on the issue of whether the City had actual or
constructive knowledge of black ice in the parking lot almost two
years later.
¶25 	In sum, Brown invites us to elevate oral form over legal
substance when characterizing a district court’s rulings as factual
findings or legal conclusions. We decline the invitation. The
district court’s use of “find” rather than “conclude” and “not
enough evidence” rather than “no evidence” did not transform

Brown v. Fruit Heights
20210100-CA 	9 	2023 UT App 39
the district court’s plain legal conclusions into impermissible
factual findings.5
II. The District Court Correctly Concluded that Brown Did Not
Present Evidence that the City Breached Its Duty of Care.
¶26 	Having 	determined 	that 	the 	district 	court’s summary
judgment ruling was based on legal conclusions and not on
impermissible 	factual 	findings, 	we 	now 	review 	those 	legal
conclusions for correctness. See Warrick v. Property Reserve Inc.,
2018 UT App 197, ¶ 6, 437 P.3d 439.
¶27 	A district court is required to grant summary judgment
when a “moving party shows that there is no genuine dispute as
to any material fact and the moving party is entitled to judgment
as a matter of law.” Utah R. Civ. P. 56(a). Of course, “the moving
party always bears the burden of establishing the lack of a
genuine issue of material fact.” Salo v. Tyler, 2018 UT 7, ¶ 2, 417
P.3d 581. But “if [the nonmoving] party will bear the burden of
production [of evidence] at trial,” then “the burden of production
of evidence . . . fall[s] on the nonmoving party” at the summary
judgment stage as well. Id. “And where the burden of production
falls on the nonmoving party, . . . 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.
5. It is nevertheless good practice, even in oral rulings, for district
courts to be cognizant of word choice when making rulings, in
order 	to 	head 	off 	unnecessary 	appellate 	wrangling. 	In 	the
summary judgment context, for instance, “courts do not make
factual findings,” Jones Waldo Holbrook & McDonough PC v. 3293
Harrison Blvd. LLC, 2023 UT App 8, ¶ 16 n.6, 524 P.3d 1022, and
should therefore generally avoid using the word “find” when
announcing a summary judgment ruling.

Brown v. Fruit Heights
20210100-CA 	10 	2023 UT App 39
¶28 	In a premises liability case based on a temporary unsafe
condition, such as this case, the plaintiff must prove at trial and,
therefore, produce evidence on summary judgment “that the
owner acted negligently either in creating or failing to remedy the
temporary unsafe condition.” Jex v. JRA, Inc., 2008 UT 67, ¶ 26, 196
P.3d 576. When arguing that the owner negligently created a
temporary dangerous condition, the plaintiff need not show that
the owner had notice of the dangerous condition since “it is
reasonable to presume that a party has notice of conditions that
the party itself creates.” Goebel v. Salt Lake City S. R.R. Co., 2004 UT
80, ¶ 22, 104 P.3d 1185. But when arguing that the owner
negligently failed to remedy a temporary unsafe condition, the
plaintiff must produce evidence “that the [owner] had knowledge
of the condition, that is, either actual knowledge, or constructive
knowledge because the condition had existed long enough that
the [owner] should have discovered it.”6 Cochegrus v. Herriman
City, 2020 UT 14, ¶ 17, 462 P.3d 357 (cleaned up).
¶29 	Like 	the 	district 	court, 	we 	conclude 	that 	Brown’s
negligence claim fails as a matter of law because she presented no
evidence that (a) the City created the black ice on which she fell,
(b) the City had actual knowledge of the black ice on which she
fell, or (c) the City had constructive knowledge of the black ice on
which she fell.
6. The plaintiff must also show that after the owner’s receipt of
actual or constructive knowledge of the dangerous condition,
“sufficient time elapsed that in the exercise of reasonable care the
[owner] 	should 	have 	remedied 	the 	dangerous 	condition.”
Cochegrus v. Herriman City, 2020 UT 14, ¶ 17, 462 P.3d 357. On
appeal, Brown does not address this element of her negligent
failure to remedy claim. Given our conclusions regarding the
other elements of her claim, we need not address it either.

Brown v. Fruit Heights
20210100-CA 	11 	2023 UT App 39
A. 	Brown did not produce evidence that the City created the
dangerous condition.
¶30 	Brown 	asserts 	that 	she 	produced 	evidence 	that 	the
City created the ice that caused her fall. She rightfully does not
contend 	that 	the 	City 	brought 	about 	the 	winter 	weather
conditions at play in the formation of the ice. Instead, she argues
that the City created the ice by “plowing without salting”—thus
creating, she contends, “a more dangerous condition than [if it
had] simply . . . [not] plow[ed] at all.” Accordingly, for her theory
to be viable, Brown would have needed to produce evidence that
under the then-prevailing conditions, plowing without salting
would have yielded ice that likely would not have appeared if the
City had refrained from plowing at all. She did not produce such
evidence.
¶31 	Brown 	testified 	that 	she 	had 	never 	seen 	salt 	in 	the
parking lot and that “not having any salt applied . . . added risk
to someone slipping and falling.” But she did not testify that
under the then-prevailing conditions (of which she also did not
produce evidence), plowing without salting would have yielded
ice that likely would not have appeared if the City had refrained
from 	plowing. 	Neither 	did 	anyone 	else.7 	In 	fact, 	Brown’s
testimony was that “[t]he problem that created the icy conditions
was [that] during the day the [unplowed] snow that was left under
the vehicles would melt and then freeze overnight.” (Emphasis
added.) Thus, according to the only relevant evidence on record,
it was a failure to plow that resulted in the ice, not plowing
without salting.
7. Brown’s counsel argued below that plowing without salting is
more dangerous than not plowing at all, including by explaining
how 	a 	Zamboni 	works. 	“[B]ut 	argument 	of 	counsel 	is 	not
evidence.” State ex rel. Division of Forestry, Fire & State Lands v. Six
Mile Ranch Co., 2006 UT App 104, ¶ 31 n.10, 132 P.3d 687.

Brown v. Fruit Heights
20210100-CA 	12 	2023 UT App 39
B. 	Brown did not produce evidence that the City had actual
knowledge of the dangerous condition.
¶32 	Brown 	asserts 	that 	she 	produced 	evidence 	that 	the
City “had actual knowledge of the dangerous conditions in
the parking lot.” The only evidence she points to in support of
this assertion is her testimony about the email she sent to the
City 	nearly 	two 	years 	before 	her 	fall. 	Due 	to 	its 	timing,
however, 	that 	email 	could 	not 	have 	addressed 	the 	icy
conditions 	that 	existed 	on 	December 	27, 	2017. 	And 	Brown
testified that the email addressed only her concerns regarding the
condition of the sidewalk adjacent to the parking lot, not her
concerns regarding the lot itself. Because that email did not notify
the City of ice in the parking lot, let alone of ice in the parking lot
on or near December 27, 2017, and because her testimony about
the email is the only evidence Brown points to in support of her
argument that the City had actual knowledge of the dangerous
condition in the lot on the day she fell, she has failed to produce
evidence that the City had actual knowledge of the dangerous
condition.
C. 	Brown 	did 	not 	produce 	evidence 	that 	the 	City 	had
constructive knowledge of the dangerous condition.
¶33 	Finally, Brown asserts that she produced evidence that the
City had constructive knowledge of the ice on which she fell. To
show that she produced evidence that the City had constructive
knowledge of that temporary unsafe condition, Brown “must
have shown that the unsafe condition existed long enough that
[the City] should have discovered it.” See Cochegrus v. Herriman
City, 2020 UT 14, ¶ 24, 462 P.3d 357 (cleaned up). This “require[d]
evidence regarding the length of time the condition existed.” Id.
¶ 25. “[A] mere hypothesis that the condition may have existed
for some unknown length of time does not suffice.” Id. (cleaned
up). Although “a plaintiff is not required to prove the precise
length of time that an unsafe condition existed,” she must produce

Brown v. Fruit Heights
20210100-CA 	13 	2023 UT App 39
evidence that “the condition had been there for an appreciable
time.”8 Id. ¶ 26 (cleaned up).
¶34 	In some cases, “the nature of [the] unsafe condition may
itself be evidence of its age.” Id. ¶ 28. In this regard, “the nature of
a durable, nontransitory unsafe condition . . . inherently suggests
longevity.” 	Id. 	On 	the 	other 	hand, 	“a 	transitory 	unsafe
condition—such as a puddle of water or spilled food—will by
nature do little to indicate the length of its existence.” Id.
¶35 	In Cochegrus v. Herriman City, 2020 UT 14, 462 P.3d 357, the
plaintiff was injured when she tripped over a metal grounding
rod that protruded a few inches from a city-owned parking strip.
Id. ¶¶ 4–5. The plaintiff produced evidence that the rod extended
ten feet into the ground and that it had been put there years before
as part of the city’s “streetlight infrastructure.”9 Id. ¶ 29. The court
8. “Whether the unsafe condition existed for an ‘appreciable’
amount of time implicates both the length of time it has endured
and its noticeability.” Cochegrus v. Herriman City, 2020 UT 14, ¶ 27,
462 	P.3d 	357. 	That 	is 	because 	a 	landowner 	may 	not 	have
constructive knowledge of an unsafe condition that persists for an
extended time but is not visible. See id. ¶ 31 (“A trip hazard in a
field 	of 	naturally 	tall 	grass 	with 	few 	passersby 	must 	be
distinguished from a rod that protrudes from regularly mowed
grass in a residential area.”). Because we conclude that Brown did
not produce evidence of the length of time the black ice that
caused her fall endured before she fell on it, we need not address
whether she produced evidence of its noticeability.
9. Given the nature of the rod, the plaintiff argued on appeal that
it was a permanent condition and that her claim should have been
analyzed 	under 	the 	law 	applicable 	to 	permanent 	unsafe
conditions. Cochegrus v. Herriman City, 2020 UT 14, ¶ 17, 462 P.3d
357. However, the plaintiff had not made that argument in the
(continued…)

Brown v. Fruit Heights
20210100-CA 	14 	2023 UT App 39
held that “the durable, nontransitory nature of the grounding rod
itself [was] enough to give rise to an inference that it existed for a
substantial amount of time” and that this was “sufficient to create
a dispute of fact regarding how long the unsafe condition
existed.” Id. ¶ 30.
¶36 	The case Warrick v. Property Reserve Inc., 2018 UT App 197,
437 P.3d 439, presents a contrast. There, a man was crossing a
parking lot on a winter morning on his way to work when he
“slipped and fell on a patch of ice.” Id. ¶ 1. He and his wife sued
the owner of the parking lot, asserting that the ice was caused by
nearby piles of snow melting during the day and then freezing
overnight. Id. ¶¶ 1, 20, 23. The plaintiffs produced no evidence of
the temperatures on the days and nights preceding the man’s fall
and no evidence of how long it would have taken for the ice to
form. Id. ¶ 23. The court held that the plaintiffs had provided
no 	evidence 	demonstrating 	“approximately 	when 	the 	ice
formed.” Id. “For all the evidence show[ed], the ice could have
been there for several days or it could have been there for several
minutes.” Id.
¶37 	The 	plaintiffs 	argued 	that 	the 	evidence 	they 	had
presented—of 	piles of 	previously 	plowed snow around 	the
perimeter of the parking lot, of a skiff of snow in the parking lot,
and of cleared and salted sidewalks near the parking lot, id. ¶ 3—
“implie[d] [that] it took at least a day of melting and a night of
freezing” for the ice on which the man fell to form and that “a long
trial court and, instead, had “conceded that ‘the hazard . . . was,
admittedly, a temporary condition.’” Id. ¶ 20. For that reason, the
court held that the plaintiff had failed to preserve the argument
that the rod was a permanent unsafe condition, and it analyzed
her claim “under the framework applicable to a temporary unsafe
condition.” Id. ¶ 22.

Brown v. Fruit Heights
20210100-CA 	15 	2023 UT App 39
winter’s 	night 	is 	plenty 	of 	time 	for 	constructive 	notice 	to
reasonably be found,” id. ¶ 20 (cleaned up).
¶38 	In response, the Warrick court acknowledged: “In slip-and-
fall cases such as this, a factfinder will often be required to make
reasonable inferences based on the evidence to decide whether a
dangerous condition existed for an appreciable amount of time.”
Id. ¶ 21. But it emphasized that “a reasonable inference is a
conclusion reached by considering other facts and deducing a
logical consequence from them,” id. (cleaned up), and “where
conjecture and speculation are the only ways to determine the
length of time [a dangerous condition was present], constructive
notice should not be imputed,” id. ¶ 22 (cleaned up). The court
then held that without relevant evidence, “inferring that the ice
existed for an appreciable time [would] require[] theorizing about
matters over which there is no certain knowledge.” Id. ¶ 25
(cleaned up). It then held that the Warrick plaintiffs’ claim of
constructive notice failed as a matter of law. Id.
¶39 	Brown’s 	case 	is 	distinguishable 	from 	Cochegrus 	and
controlled by Warrick. The black ice on which Brown slipped and
fell was not a durable, nontransitory condition like the protruding
grounding rod in Cochegrus. Although Brown testified of a
“constant issue” in the parking lot, that issue was a melt-and-
freeze cycle that produced recurring but transitory ice, like the ice
in Warrick.
¶40 	And like the plaintiffs in Warrick, Brown has produced
no 	evidence 	of 	the 	temperatures 	on 	the 	days 	and 	nights
preceding her fall and no evidence of how long it would have
taken for the ice that caused her fall to form. We explained in
Warrick that without such evidence in a case like this, “inferring
that the ice existed for an appreciable time [would] require[]
theorizing 	about 	matters 	over 	which 	there 	is 	no 	certain
knowledge.” Id. (cleaned up). We then concluded “that the
[Warrick plaintiffs had] presented no evidence going to the

Brown v. Fruit Heights
20210100-CA 	16 	2023 UT App 39
amount of time the ice existed,” and we held that their claim failed
as a matter of law. Id.
¶41 	Brown argues that reliance on Warrick here would be error
because, she says, Warrick is at odds with the Utah Supreme
Court’s decision in Cochegrus. She points to the Cochegrus court’s
holding that “a plaintiff is not required to prove the precise length
of time that an unsafe condition existed” and instead “must show
only that the condition had been there for an appreciable time.”
2020 UT 14, ¶ 26 (cleaned up). She then contends that Warrick
“impl[ies] that certain knowledge of longevity is required to
impute constructive notice,” thus requiring a plaintiff to prove
more than what is required under Cochegrus.
¶42 	We disagree with Brown’s characterization of Warrick. As
noted 	above, 	the 	Warrick court 	recognized 	that 	“reasonable
inferences” may be used to determine that a dangerous condition
had “existed for an appreciable amount of time.” 2018 UT App
197, ¶ 21. The Warrick plaintiffs’ failure was not that they could
not pin-point exactly or with certainty when the ice formed, but that
they provided no evidence to indicate even “approximately when
the ice formed.” Id. ¶ 23 (emphasis added). It was the complete
speculation that the lack of evidence in Warrick required that was
problematic—a concept with which the Cochegrus court agreed,
see 2020 UT 14, ¶ 25 (“In all cases, a mere hypothesis that the
condition may have existed for some unknown length of time
does not suffice. A plaintiff must offer some evidence of the length
of time the condition had existed prior to the injury. It is not
enough to rely on conjecture and speculation.” (cleaned up)). We
therefore see no conflict between Cochegrus and Warrick.
¶43 	Nor do we agree with Brown that the district court
mistakenly applied a higher standard than that set forth in
Cochegrus and Warrick and granted summary judgment based on
Brown’s “inability to identify the precise moment when moisture
in the parking lot turned into ice or to prove with certainty that

Brown v. Fruit Heights
20210100-CA 	17 	2023 UT App 39
the Christmas Day snowstorm was the source of that moisture.”
To the contrary, the court explained, “I do agree that [Brown] is
not required to prove the exact amount of time, for example, in
this case that the ice formed, but there does have to be some
evidence to give the jury a way to infer that there had been a
length of time.”
¶44 	In 	the 	end, 	Warrick 	is 	controlling 	here. 	Brown 	has
presented no evidence regarding the amount of time the ice she
fell on existed before her fall. On the record before us, it might
have preceded the storm on Christmas Day, or it might have
formed moments before her arrival. Because Brown failed to
provide evidence from which a jury could draw a reasonable
inference 	that 	the 	ice 	had 	been 	in 	the 	parking 	lot 	for 	an
appreciable amount of time, her claim fails as a matter of law.
CONCLUSION
¶45 	We see no error in the district court’s determination that
Brown 	did 	not 	present 	evidence 	that 	the 	City 	created 	the
dangerous condition that caused her fall, had actual knowledge
of 	the 	dangerous 	condition 	that 	caused 	her 	fall, 	or 	had
constructive knowledge of the dangerous condition that caused
her fall. We therefore affirm the district court’s grant of summary
judgment in favor of the City.