Peragallo v. W T Holdings

2025 UT App 77

THE UTAH COURT OF APPEALS

BONNIE PERAGALLO,
Appellant,
v.
W&T HOLDINGS LLC,
Appellee.

Opinion
No. 20240443-CA
Filed May 22, 2025

First District Court, Logan Department
The Honorable Spencer Walsh
No. 190100430

Peter R. Mifflin, Attorney for Appellant
Robert L. Janicki and Matthew A. Jones,
Attorneys for Appellee

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

MORTENSEN, Judge:

¶1 Bonnie Peragallo slipped and fell while walking along an
icy sidewalk. W&T Holdings LLC (W&T) was the owner and
landlord of the premises, which were leased to a third party.
Peragallo brought a tort action against W&T alone. W&T in turn
filed a motion for summary judgment, asserting that it owed no
duty to Peragallo as it was not the possessor of the property at the
time of the incident. The district court agreed and granted
summary judgment. We affirm that grant.
Peragallo v. W&T Holdings

BACKGROUND

¶2 W&T owns a building located at 1000 South and 100 West
in Smithfield, Utah. In 2009, W&T began leasing the building and
its parking lot to a tenant—Paragon Medical Inc. (Paragon)—
under a lease agreement (the Lease Agreement). Under the Lease
Agreement, W&T agreed to lease to Paragon “certain real
property situated in Cache County, State of Utah, and which is
more fully described as the property located at 1000S 100W,
Smithfield, Utah consisting of a 55,015 square foot building,
together with any and all improvements, fixtures, and other
property presently located on said real estate,” including the
parking lot to the building (the Premises).

¶3 Paragraph 10 of the Lease Agreement provides,

Tenant upon the full and faithful performance of all
conditions, covenants, and agreements herein
contained, shall at all times during the term hereof
peaceably and quietly enjoy the use of the Premises
without any disturbance from Landlord or anyone
else claiming by or through Landlord, subject,
however to any rights which may be reserved to
Landlord herein and to all encumbrances to which
[the Lease] Agreement may be subordinate, if any.

¶4 Paragraph 7 of the Lease Agreement provides,

Tenant agrees that Landlord or its agents shall have
the right to enter the Premises at any reasonable
time, but with at least one day’s prior notice,
including therein the identity of the persons
intending to enter the Premises, in order to examine
the Premises, show the Premises to prospective
purchasers or tenants, or make such repairs,
alterations or improvements as Landlord may deem
necessary or desirable.

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¶5 Paragraph 11 of the Lease Agreement provides,

Tenant agrees to maintain and keep all portions of
the Premises in good order and repair and in a
reasonably clean and maintained condition. Such
ordinary maintenance and repairs shall be made at
Tenant’s sole expense and shall include, without
limitation, all ordinary maintenance. Such
maintenance shall be made by Tenant promptly as
and when necessary. Upon the termination or
expiration of the [Lease] Agreement in any manner,
Tenant agrees to surrender and yield the Premises
to Landlord in the same condition of repair,
cleanliness and sightliness as at the date of
execution of [the Lease] Agreement, loss by fire or
other casualty and reasonable wear and tear
excepted. If Tenant shall fail to maintain the
Premises as herein provided, Landlord may cause
such maintenance to be made, and the cost thereof
shall be paid from the deposit. If the costs exceed the
deposit, Tenant agrees to pay the excess. All
extraordinary maintenance and repair, as well as
structural repairs and other defects of the Premises
not caused by the use of the Premises by Tenant,
shall be the responsibility of Landlord.

¶6 A representative of W&T submitted a declaration
explaining that the “responsibility to maintain” the Premises
assigned to Paragon in paragraph 11 “includes snow removal and
keeping the parking lots and sidewalk areas free from ice and
other potentially slippery substances.” Furthermore, he declared
that “Paragon has been maintaining the parking lot and sidewalk
areas around the Premises since it retained possession of the
[Premises], including removing snow and ice from the parking
lot.”

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¶7 In January 2018, Peragallo was walking outside the
building because her employer had assigned her to work in the
building for Paragon. As she walked along the north end of the
Premises, she slipped and fell on some ice that had formed on the
sidewalk.

¶8 Peragallo brought a negligence claim against W&T for
personal injuries. At the close of fact discovery, W&T filed a
motion for summary judgment. The motion sought dismissal of
Peragallo’s claim of negligence on the grounds that she could not
establish a duty on the part of W&T. The district court granted
W&T’s motion and dismissed Peragallo’s claim.

ISSUE AND STANDARD OF REVIEW

¶9 Peragallo appeals, arguing that the district court erred
when it granted W&T’s motion for summary judgment because
W&T owed Peragallo a “non-delegable duty of care.” “The grant
or denial of summary judgment presents a question of law and is
reviewed for correctness.” Liley v. Cedar Springs Ranch Inc., 2017
UT App 166, ¶ 11, 405 P.3d 817; see also Wood v. Salt Lake City Corp.,
2016 UT App 112, ¶ 8, 374 P.3d 1080 (“Whether a duty exists is a
question of law which we review for correctness.” (cleaned up)).

ANALYSIS

¶10 Peragallo’s argument assumes the question at issue is
whether W&T could delegate its “non-delegable duty” via the
Lease Agreement. But the crux of the district court’s grant of
summary judgment and the issue before this court is whether,
under the circumstances presented here, W&T owed Peragallo
any duty at all.

¶11 “The duty of care that possessors of land in Utah owe to
invitees upon their property is set forth in sections 343 and 343A

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Peragallo v. W&T Holdings

of the Second Restatement of Torts.” Hale v. Beckstead, 2005 UT 24,
¶ 7, 116 P.3d 263. Section 343 states,

A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the
land if, but only if, he (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.

Restatement (Second) of Torts § 343 (Am. L. Inst. 1965) (emphasis
added).

¶12 Importantly, the Restatement establishes a duty on the part
of possessors, not landowners. The Restatement further defines a
possessor of land as someone who “is in occupation of the land
with intent to control it,” someone who “has been in occupation
of land with intent to control it, if no other person has
subsequently occupied it with intent to control it,” or someone
“who is entitled to immediate occupation of the land, if no other
person” qualifies under the first two definitions. Id. § 328E. “Thus,
under the Restatement, control stemming from actual occupation,
or from an immediate entitlement to actual occupation, is the
hallmark of possessor status.” Hill v. Superior Prop. Mgmt. Services,
Inc., 2013 UT 60, ¶ 22, 321 P.3d 1054 (cleaned up); see also English
v. Kienke, 848 P.2d 153, 156 (Utah 1993) (identifying a possessor as
one who is “in actual physical possession” of property); Stevens v.
Colorado Fuel & Iron, 469 P.2d 3, 5 (Utah 1970) (identifying a
possessor as one who is in “occupation of the land with intent to
control it”). What’s important in establishing who owes a duty as
a possessor of land is identifying who occupies and controls that
property.

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¶13 Here, Peragallo does not dispute that Paragon occupied the
Premises at the time of the incident. The district court was correct
in reasoning that “W&T did not have . . . actual occupation of” the
Premises, and this was important to its conclusion that W&T “did
not have the requisite possession of the Premises to create a duty
of care which is necessary for a claim of negligence.”

¶14 When it comes to who controls the property, this court
demonstrated the proper analysis in MacFarlane v. Applebee’s
Restaurant, 2016 UT App 158, 378 P.3d 1286. There, a restaurant
was renting a building and parking lot from a landowner. Id. ¶ 2.
While the parking lot was included as a part of the leased
premises, the restaurant’s control of the parking lot was
significantly hampered by the lease agreement. Id. For example,
the lease made clear that the restaurant’s use of the parking lot
was nonexclusive and subject to “several existing covenants and
cross-easements that encumbered the property.” Id. The
restaurant also had no “responsibility or authorization for general
maintenance, including snow removal.” Id. ¶ 19. We concluded
that “the lease defines the restaurant’s entire relationship to the
parking lot as subordinate to the role and authority of the
landlord.” Id. (cleaned up).

¶15 Given the terms of the lease agreement there, we
concluded that, with regard to the parking lot, the restaurant
lacked the “core capacities of control required of a possessor of
land.” Id. (cleaned up). In particular, we highlighted two core
capacities that mark a possessor of land’s plenary control over a
property and that the restaurant did not have: “the right to
exclude others from the property altogether” and “the right to
take all necessary precautions and make necessary repairs.” Id.
¶ 13 (cleaned up).

¶16 Unlike in MacFarlane, Paragon’s relationship to the
Premises was not “subordinate to the role and authority of” a
landlord. See id. ¶ 19. Here, the district court correctly determined

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that W&T was not a possessor of the leased premises, in part
because “W&T did not have substantial control of the Premises.”
The fact that Paragon, rather than W&T, had plenary control of
the Premises is demonstrated by the two core capacities described
in MacFarlane.

¶17 First, Paragon had the exclusive right to occupy the
Premises, including the parking lot and sidewalks:

Tenant upon the full and faithful performance of all
conditions, covenants, and agreements herein
contained, shall at all times during the term hereof
peaceably and quietly enjoy the use of the Premises
without any disturbance from Landlord or anyone
else claiming by or through Landlord, subject,
however to any rights which may be reserved to
Landlord herein and to all encumbrances to which
[the Lease] Agreement may be subordinate, if any.

Unlike in MacFarlane, there were no reservations or encumbrances
in the Lease Agreement that subordinated Paragon’s control to
that of W&T. Importantly, Paragon had the power to limit its
liability by excluding people from the Premises, and nothing in
the Lease Agreement took that power away from Paragon the way
the lease did with regard to the parking lot in MacFarlane. And
nothing in the Lease Agreement makes any distinction between
different parts of the Premises. The sidewalk here is not
distinguished from the rest of the Premises in the way that the
parking lot was in MacFarlane.

¶18 Second, Paragon had the right and responsibility to
maintain the Premises:

Tenant agrees to maintain and keep all portions of
the Premises in good order and repair and in a
reasonably clean and maintained condition. Such
ordinary maintenance and repairs shall be made at

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Tenant’s sole expense and shall include, without
limitation, all ordinary maintenance. Such
maintenance shall be made by Tenant promptly as
and when necessary.

Thus, unlike in MacFarlane, Paragon had the responsibility and,
more importantly, the authorization for general maintenance,
including snow removal.

¶19 The restaurant in MacFarlane owed no duty to the plaintiff
because it did not have the “plenary authority to engage in
whatever measures it might deem necessary to prevent harm to
those who visit” the parking lot. Id. ¶ 16 (cleaned up). Here,
Paragon had that authority with respect to the Premises, and the
Lease Agreement didn’t limit that authority. Indeed, Paragon
expressly agreed it would take on maintenance responsibility.
Further, while Paragon possesses the express authority absent in
MacFarlane, W&T’s authority to control the Premises was limited,
in at least one sense. Paragraph 7 of the Lease Agreement states,
“Landlord or its agents shall have the right to enter the Premises
at any reasonable time, but with at least one day’s prior notice . . . .”
(Emphasis added.) Thus, W&T’s ability to enter the Premises and
make repairs was limited by this one-day-notice requirement.
Were we to pronounce W&T the possessor under the Lease
Agreement, we can easily envision situations where W&T would
be unable to engage in measures “necessary to prevent harm” by
conditions that emerge and present a risk in less than one day (like
ice). See id. (cleaned up). Thus, not only does the second core
capacity of maintaining the property establish that Paragon is the
possessor here, it also establishes that W&T cannot be the
possessor.

¶20 Under Utah case law, to qualify as a possessor, a person
must exercise control over a property and “the degree of control
[must] be substantial.” Hill v. Superior Prop. Mgmt. Services, Inc.,
2013 UT 60, ¶ 23, 321 P.3d 1054. Substantial control is established

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by demonstrating, among other rights, the right to exclude others
from the property and the right to take necessary precautions and
make necessary repairs. Id. ¶ 24 (“A person who has the control
of a landowner in actual occupation of property has both the
rights and the corresponding abilities to deal with the property as
he sees fit. Among these are (a) the right to exclude others from
the property altogether and (b) the right to take all necessary
precautions and make necessary repairs.” (cleaned up)). Though
this list is non-exclusive and Utah courts “have not yet articulated
a comprehensive definition of ‘possessor,’” it’s clear that a
possessor must have substantial control. Id. ¶ 23. Peragallo has not
argued that W&T possessed either of the core capacities discussed
in our case law, and she has not made any other persuasive claims
about how W&T exercised substantial control of the Premises.

¶21 Peragallo suggests that because W&T retained some
minimal ability to control the Premises, it qualified as a possessor.
This argument is premised on paragraph 11 of the Lease
Agreement, which states, “If Tenant shall fail to maintain the
Premises as herein provided, Landlord may cause such
maintenance to be made, and the cost thereof shall be paid
from the deposit.” In addition to the one-day-notice issue
identified above, this argument otherwise fails to appreciate that
in Utah a possessor must exercise substantial control over a
property. See id.

¶22 Substantial control is not established under the
circumstances presented here, where Paragon was given the right
to peaceably and quietly enjoy the use of the Premises without
disturbance from W&T; where Paragon agreed to assume
ongoing maintenance responsibilities, including snow removal;
and where W&T retained only a boilerplate ability to enter the
Premises—after giving at least one day’s notice—for the purposes
of inspection or repair. In this situation, W&T simply did not have
the rights or abilities necessary to protect invitees and limit its
liability. See id. ¶¶ 25–26.

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¶23 This conclusion is consistent with jurisdictions across the
country, which have held that landlords do not take on a duty to
invitees when their lease contains merely a typical reservation of
the right to enter and make repairs. See, e.g., Boles v. White, 2021
ME 49, ¶ 11, 260 A.3d 697 (“[A] landlord’s mere reservation of the
right to enter and repair the premises [is] insufficient evidence of
that landlord’s control for purposes of liability.”); Lucier v. Impact
Recreation, Ltd., 864 A.2d 635, 640 (R.I. 2005) (per curiam) (stating
that “[t]he lease provisions,” including the landlord’s right to
enter the premises to determine whether it was in good condition,
“did not give [the landlord] control over the property, but rather
were merely to protect [the landlord’s] investment and
reversionary interest in the property”); Settles v. Redstone Dev.
Corp., 797 A.2d 692, 696 (D.C. 2002) (stating that “a landlord has
retained sufficient control to create a duty to repair if he has the
power or authority to manage, superintend, direct or oversee,”
but that “the landlord’s explicit reservation of the authority to
enter the premises and to make repairs is insufficient to constitute
retention of control” (cleaned up)); Dubay v. Cambridge Housing
Auth., 225 N.E.2d 374, 375 (Mass. 1967) (“The reservation of the
right to enter the tenant’s premises to make repairs . . . did not put
the lessor in control of the premises . . . .” (cleaned up)); Webb v.
Danforth, 505 S.E.2d 860, 861 (Ga. Ct. App. 1998) (“A landlord’s
retention of the right to enter, inspect and repair is not
inconsistent with a full surrender of possession to the tenant.”).

¶24 W&T did not occupy the Premises and did not have
substantial control of the Premises. Thus, W&T was not the
possessor of the land when Peragallo slipped and fell.

¶25 In an attempt to avoid this conclusion, Peragallo argues
that “[a]ll owners” are “possessors.” In saying this, Peragallo
sacrifices legal accuracy for simplicity. In fact, not all landowners
are possessors, and not all possessors are landowners. Here,
Peragallo confuses mere factual correlation for a legal standard.
To support her argument that “owners of real property

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categorically qualify as possessors of land,” Peragallo directs our
attention to “cases that treat landowners and possessors
synonymously.” Because landowners are often in control of
property they own, there will of course be cases where a
landowner also happens to be the possessor of the land, but that
does not support the conclusion that all landowners are
possessors. Being a landowner is neither necessary nor sufficient
for being a possessor of land.

¶26 To further support her argument, Peragallo cites Rodriguez
v. Kroger Co., 2018 UT 25, 422 P.3d 815, which states that “the
owner of a premises has a nondelegable duty to keep her premises
reasonably safe for business invitees.” Id. ¶ 14. On its face, the
language used in Rodriguez and cases like it may appear to
support Peragallo’s argument. But here again, this support is
based on the frequent correlation between land ownership and
possessorship, and nothing more. As the United States District
Court for the District of Utah aptly explained, “Rodriguez v. Kroger
Co. is materially distinguishable from this case because Kroger
was not only the owner but also the possessor of the grocery store
where the plaintiff slipped and hurt herself, and the plaintiff was
the grocery store’s invitee. In contrast, [the plaintiff here] was not
an invitee of [the landowner], and [the landowner] was not in
possession of the land when [the plaintiff’s injury] occurred.” See
Goodridge v. Diamond Ranch Academy, Inc., No. 22-CV-000102, 2025
WL 50242, at *3 (D. Utah Jan. 8, 2025) (cleaned up).

¶27 There are some instances in which the law imposes a duty
on a landlord. See Liley v. Cedar Springs Ranch Inc., 2017 UT App
166, ¶ 26, 405 P.3d 817. For example, the “law generally imposes
a duty on a landlord to tenants and third parties for portions of
property over which it maintains possession or control, such as
common areas, that pose a danger.” Id. But outside a few narrow
exceptions, a landlord who is not also a possessor “is under no
obligation to make repairs, even where the property becomes
hazardous.” Id.

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¶28 Our supreme court has explicitly stated that a landlord is
“not responsible for the tenant’s torts, nor for the tenant’s failure
to keep the premises reasonably safe and in good repair.”
Stephenson v. Warner, 581 P.2d 567, 568 (Utah 1978). “On the
contrary, . . . it is the tenant who is liable for any dangerous
condition on the premises which he creates or permits to come
into existence after he has taken possession.” Id. at 568–69.

¶29 In a premises liability case, the critical inquiry is not
identifying who owns the land but determining who qualifies as
the possessor of the property. Who the possessor of land is turns
on who occupies and controls that land. To have sufficient control
over the property to qualify as a possessor, a person or entity must
have certain rights, like the right to exclude others from the
property and the right to make necessary repairs. In this case,
W&T neither occupied nor controlled the Premises, and thus, it
doesn’t matter whether it was the landowner because it was not
the possessor.

CONCLUSION

¶30 Because W&T was not the possessor of the Premises when
Peragallo slipped and fell, it owed her no duty of care under the
facts of this case. Accordingly, the district court correctly entered
summary judgment.

¶31 Affirmed.

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