Compagni v. Klemesrud

2025 UT App 71

THE UTAH COURT OF APPEALS

KIMBERLY ANN COMPAGNI,
Appellant,
v.
BRADLEY KALMAR KLEMESRUD,
Appellee.

Opinion
No. 20231051-CA
Filed May 15, 2025

Third District Court, Salt Lake Department
The Honorable Adam T. Mow
No. 220903687

Jefferson W. Gross and Seamus W. Appel,
Attorneys for Appellant
Kristin A. VanOrman, Jessica J. Johnston, and
Scarlet R. Smith, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

ORME, Judge:

¶1 After Kimberly Ann Compagni slipped and fell on snow
and ice piled on a public sidewalk bordering Bradley Kalmar
Klemesrud’s property, she sued Klemesrud for negligence.
Klemesrud moved for summary judgment, arguing he had no
duty to clear the sidewalk. The district court granted Klemesrud’s
motion and dismissed Compagni’s complaint. Because we
conclude the district court did so, in part, based on an argument
to which Compagni had no opportunity to respond, we reverse
and remand.
Compagni v. Klemesrud

BACKGROUND 1

¶2 Compagni was walking down the public sidewalk
bordering Klemesrud’s property when she slipped on snow and
ice, severely injuring her leg. She sued Klemesrud for negligence,
arguing that he had a duty to clear the sidewalk. Klemesrud
moved for summary judgment, arguing that he had no such duty
because the snow and ice posed an “open and obvious danger”—
a “duty-defining rule” under a theory of premises liability. See
Hale v. Beckstead, 2005 UT 24, ¶ 23, 116 P.3d 263.

¶3 In her opposition to Klemesrud’s motion for summary
judgment, Compagni argued that a city ordinance (the
Ordinance) imposed a duty on Klemesrud to clear the sidewalk.
The Ordinance provides,

In order to better protect the safety of pedestrians, it
is unlawful for the owner, occupant, lessor or agent
of property abutting on a paved sidewalk to fail to
remove . . . all hail, snow or sleet falling thereon,
within twelve hours after the hail, snow or sleet has
ceased falling[.]

Millcreek, Utah, Municipal Code § 14.32.100 (2025). 2 Compagni
also argued that a factual question remained as to whether the
snowy and icy sidewalk was an open and obvious danger and that
Klemesrud and his family had spoliated evidence bearing on that

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.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).

2. We cite the current version of the Millcreek Municipal Code,
which does not differ from the version cited by the parties in their
briefing.

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issue when they attempted to shovel the sidewalk shortly after
her fall. She argued this alleged spoliation should justify sanctions
and preclude summary judgment on the open and obvious
danger issue.

¶4 In his reply to Compagni’s opposition, Klemesrud argued
that the Ordinance did not impose a duty on him as an abutting
property owner. He also raised the new argument that, as the
owner of property abutting the “public” sidewalk, he “neither
controlled nor possessed” the sidewalk, relieving him of any
common law duty to keep it clear.

¶5 In its ruling on Klemesrud’s motion, the district court
concluded that while an issue of fact remained regarding whether
the snow and ice constituted an open and obvious danger, it did
not ultimately matter because Klemesrud, as the mere owner of
abutting property, was not the possessor of the sidewalk and had
no duty under the common law to clear it. The court further
concluded that the Ordinance did not impose such a duty, as it
“contains no language implying a private right of action based on
its violation.” The court also declined to address spoliation
because Compagni had “improperly embedded her request for
spoliation sanctions in her opposition memorandum” in violation
of rule 7(n) of the Utah Rules of Civil Procedure and because the
issue was moot anyway. Accordingly, the court granted summary
judgment in Klemesrud’s favor.

¶6 Compagni appeals.

ISSUE AND STANDARD OF REVIEW

¶7 On appeal, Compagni challenges the district court’s grant
of summary judgment. “We review a district court’s legal
conclusions and ultimate grant or denial of summary judgment
for correctness,” viewing “the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving

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party.” Cochegrus v. Herriman City, 2020 UT 14, ¶¶ 4 n.2, 14, 462
P.3d 357 (quotation simplified).

ANALYSIS

I. Duty Under the Ordinance

¶8 Compagni argues that under our Supreme Court’s analysis
in Colosimo v. Gateway Community Church, 2018 UT 26, 424 P.3d
866, the Ordinance imposed a duty on Klemesrud to clear the
sidewalk and that the district court erred in concluding otherwise.
We disagree. 3

¶9 In Colosimo, a teenager who was trespassing on the roof of
a church was fatally electrocuted by a faultily wired electric sign.
Id. ¶¶ 2–3. The teenager’s parents sued the church for negligence,
arguing that both the common law and a city ordinance governing
wiring of electric signs imposed a duty on the church toward
trespassers. Id. ¶¶ 1, 7. Recognizing that the ordinance “contains
no explicit statement of an intention to create a tort duty owed to
others,” the Court considered whether the ordinance could
nonetheless be adopted as a standard of care. Id. ¶ 43.

¶10 The Court looked to the Restatement (Second) of Torts for
“guidelines in determining when . . . [to] adopt an ordinance as
the standard of care and therefore impose a tort duty.” Id. ¶ 44
(quotation simplified). Specifically, the Court considered section
286 of the Restatement, which provides,

3. We note that in Colosimo v. Gateway Community Church, 2018 UT
26, 424 P.3d 866, the Supreme Court held that the defendant owed
the plaintiff no duty under either the common law or the
applicable ordinance—the same conclusions reached by the
district court in the case before us. See id. ¶ 53.

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The court may adopt as the standard of conduct of
a reasonable man the requirements of a legislative
enactment or an administrative regulation whose
purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the
one whose interest is invaded, and

(b) to protect the particular interest which is
invaded, and

(c) to protect that interest against the kind of harm
which has resulted, and

(d) to protect that interest against the particular
hazard from which the harm results.

Restatement (Second) of Torts § 286 (Am. L. Inst. 1965). See
Colosimo, 2018 UT 26, ¶ 44. But the Court also looked to section
288 of the Restatement. See Colosimo, 2018 UT 26, ¶ 44. Section 288
provides,

The court will not adopt as the standard of conduct
of a reasonable man the requirements of a legislative
enactment or an administrative regulation whose
purpose is found to be exclusively

(a) to protect the interests of the state or any
subdivision of it as such, or

(b) to secure to individuals the enjoyment of rights
or privileges to which they are entitled only as
members of the public, or

(c) to impose upon the actor the performance of a
service which the state or any subdivision of it
undertakes to give the public, or

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(d) to protect a class of persons other than the one
whose interests are invaded, or

(e) to protect another interest than the one invaded,
or

(f) to protect against other harm than that which
has resulted, or

(g) to protect against any other hazards than that
from which the harm has resulted.

Restatement (Second) of Torts § 288 (Am. L. Inst. 1965).

¶11 Ultimately, the Court stated that

a defendant may be subject to a duty of care
imposed by a statute or ordinance only when the
plaintiff shows (1) the existence of the statute or
ordinance, (2) that the statute or ordinance was
intended to protect the class of persons which
includes the party, (3) that the protection is directed
toward the type of harm which has in fact occurred
as a result of the violation, and (4) that the violation
of the ordinance or statute was the proximate cause
of the injury complained of.

Colosimo, 2018 UT 26, ¶ 45 (emphasis in original; quotation
otherwise simplified). In conducting this analysis, the Court held
that the electric sign ordinance at issue did not impose a duty on
the church as it was not intended to protect trespassers like the
teenager. Id. ¶ 52.

¶12 Compagni argues that the district court—in determining
that the Ordinance does not explicitly mention tort liability—did
not properly apply the Colosimo analysis. But the court was correct
in concluding that the plain language of the Ordinance does not

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create a private right of action for a violation thereof. This plain
language reveals that the purpose of the Ordinance is “to better
protect the safety of pedestrians” by charging property owners
“abutting on a paved sidewalk” with clearing the sidewalk.
Millcreek, Utah, Municipal Code § 14.32.100 (2025). But the
Ordinance does not contemplate enforcement via creation of a tort
duty with a private right of action. Rather, an abutting landowner
who fails to clear the sidewalk is guilty of a class B misdemeanor
offense. See id. § 14.52.070. In the parlance of the Restatement, the
Ordinance “impose[s] upon the actor the performance of a service
which the [city] undertakes to give the public.” See Restatement
(Second) of Torts § 288(c) (Am. L. Inst. 1965). But it enforces this
duty on the landowner with a criminal sanction rather than by
means of a civil action brought by a private party. Thus, the
district court correctly concluded that the Ordinance did not
impose a duty on Klemesrud that was enforceable by Compagni
in a civil lawsuit.

II. Common Law Duty

¶13 Compagni also argues the district court improperly
granted summary judgment based on its conclusion that the
common law did not impose a duty on Klemesrud to keep the
sidewalk abutting his property clear of snow and ice. We agree
with her on this point—but for procedural rather than substantive
reasons.

¶14 In Klemesrud’s motion for summary judgment, he argued
that the snow and ice on the sidewalk were an “open and obvious
danger,” relieving him of a duty under a theory of premises
liability. In her opposition, Compagni argued that the duty
Klemesrud owed her was an independent one created by the
Ordinance. In his reply, Klemesrud argued that the Ordinance did
not create such a duty and—for the first time—he argued that
there was no common law duty for him as an owner of property
abutting the sidewalk to keep the sidewalk clear. The district

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court accepted this new argument, relying on precedent from
other jurisdictions to conclude that “there is no common law duty
on an abutting landowner to remove snow and ice from abutting
sidewalks.”

¶15 While the district court may ultimately be right on this
point, 4 it should not have granted summary judgment on an issue
that was first raised in reply to Compagni’s opposition and to
which Compagni had no opportunity to respond. Under rule 7 of
the Utah Rules of Civil Procedure, a reply memorandum “must
be limited to rebuttal of new matters raised in the memorandum
opposing the motion.” Utah R. Civ. P. 7(e)(1). “The principal
reason we do not allow an issue to be first raised in a reply
memorandum is because it is unfair to the opposing party to have

4. Authority from several other jurisdictions seems to support the
district court’s determination. See, e.g., Tepeu v. Nabrizny, 11
N.Y.S.3d 251, 253 (N.Y. App. Div. 2015) (“Absent a statute or
ordinance which clearly imposes liability upon an abutting
landowner, only a municipality may be held liable for the
negligent failure to remove snow and ice from a public
sidewalk.”); Robinson v. Cianfarani, 107 A.3d 375, 379 (Conn. 2014)
(recognizing that “at common law there is no liability upon an
abutting property owner for injuries resulting from the effects of
natural causes upon streets or sidewalks such as the accumulation
of snow or ice” and, accordingly, “if the liability is or can be
shifted from the municipality to the individual it must be
accomplished by . . . ordinance”) (quotation simplified); Foster v.
Redd, 128 P.3d 316, 318 (Colo. App. 2005) (“A landowner will not
be liable to a pedestrian injured by a defect in a public sidewalk
abutting the landowner’s premises unless a statute or ordinance
placed the obligation to maintain the sidewalk upon the
landowner and expressly made the landowner liable.”) (quotation
simplified); Lemos v. Willis, 858 A.2d 955, 958 n.15 (Del. 2004)
(“There is no common law duty on an abutting landowner to
remove natural accumulations of snow and ice from sidewalks.”).

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no opportunity to respond.” Stevens v. LaVerkin City, 2008 UT App
129, ¶ 31, 183 P.3d 1059 (quotation simplified). See also U.P.C., Inc.
v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 63, 990 P.2d 945 (“To allow
a party to raise new issues in its rebuttal materials is improper
because it precludes the other party the opportunity to
respond.”). Cf. Utah R. Civ. P. 56(f)(2) (“After giving notice and a
reasonable time to respond, the court may . . . grant the motion [for
summary judgment] on grounds not raised by a party.”)
(emphasis added).

¶16 Here, Compagni had no opportunity to respond to
Klemesrud’s arguments regarding the lack of a common law duty
of abutting property owners to keep the adjacent sidewalk free of
ice and snow. 5 Thus, the district court should not have granted
summary judgment on this basis. 6

5. Klemesrud faults Compagni for choosing “not to supplement
her opposition or ask the court to defer its decision based on
[Klemesrud’s] reply.” But Compagni had no duty to retroactively
supplement her opposition to the summary judgment motion in
response to an argument Klemesrud raised for the first time in
reply. Nor should she be faulted for failing to ask the court to
defer its decision based on this reply.

6. Compagni also argues the district court incorrectly declined to
address her motion for sanctions based on spoliation. But “[a]
party may not make a motion in a memorandum opposing a
motion.” Utah R. Civ. P. 7(n). And Compagni does not challenge
the district court’s conclusion that she made a motion for
sanctions in her opposition to summary judgment. Thus, the
district court properly declined to address the spoliation motion
and supporting arguments.

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CONCLUSION

¶17 The district court correctly determined that the Ordinance
did not impose a duty on Klemesrud that is enforceable in a civil
lawsuit. But because the court improperly considered the issue of
common law duty that was raised for the first time in Klemesrud’s
reply to Compagni’s opposition to summary judgment, we
reverse the court’s grant of summary judgment on this issue
without deciding its merits, and we remand for such further
proceedings as may now be appropriate.

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