Jex v. JRA

2008 UT 67
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Donna Jex, No. 20070651
Plaintiff, Respondent,
and Cross-Petitioner,
v.
JRA, Inc., dba Hickory Kist Deli;
James Filmore; and Angela Filmore, F I L E D
Defendants, Petitioners,
and Cross-Respondents. September 16, 2008
---
Fourth District, American Fork
The Honorable Derek P. Pullan
No. 050100121
Attorneys: Denton M. Hatch, Spanish Fork, for plaintiff
Robert L. Janicki, Michael L. Ford, Salt Lake City,
for defendants
---
On Certiorari to the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 Donna Jex (“Jex”) slipped and fell on a puddle of water
in the Hickory Kist Deli (“Hickory Kist”), injuring her wrist and
back. She sought damages from Hickory Kist. The district court
granted summary judgment in favor of Hickory Kist, and Jex
appealed. The court of appeals affirmed in part and reversed in
part. Hickory Kist petitioned for certiorari, and Jex cross-
petitioned. We granted Hickory Kist’s petition to determine
whether the court of appeals erred in holding as follows:
(1) Jex cannot recover under a permanent unsafe condition
theory because Hickory Kist did not choose a mode of

No. 20070651 2
operation that foreseeably could result in an
inherently dangerous condition;
(2) Jex cannot recover under a temporary unsafe condition
theory if the unsafe condition was created by a third
party because Hickory Kist did not have notice of the
unsafe condition; and
(3) Jex may recover under a temporary unsafe condition
theory if the unsafe condition was created by Hickory
Kist because the notice requirement does not apply to
owner-created temporary unsafe conditions. And because
there is a genuine issue of material fact regarding who
created the puddle, the case should be remanded for a
jury to determine whether Hickory Kist created it.
For the reasons detailed below, we affirm the court of appeals’
holding on each issue and remand to the district court for
further proceedings.
BACKGROUND
¶2 It snowed on the morning of January 26, 2004. James
Fillmore, the owner of Hickory Kist, arrived at the deli at about
5:30 a.m. and entered the store through the back door. His
employee, Sharlene Barber, arrived at approximately the same
time. At approximately 6:30 or 7:00 a.m., Fillmore finished
removing snow from the sidewalks in front of the store and spread
ice melt on the walkways. He then walked through the front door
of the store and into the back of the store, where he began
cooking. Around 7:00 a.m., Barber put the floor mats down in
such a way that a person could walk on the mats from the front
door of the store to the cash register. But to proceed to the
back of the store, a person had to step off the mats and onto the
hardwood floor. In addition to Fillmore and Barber, a Pepsi
salesman entered and walked to the back of the store sometime
before the store opened.
¶3 Jex was the first customer at Hickory Kist that
morning. She arrived sometime before 8:30 a.m. and walked to the
cash register. She then turned and began to walk to the back of
the store, and, as she did, she slipped on a puddle of water that
was about four inches in diameter. Jex fell to the hardwood
floor, breaking her wrist and hurting her back.
¶4 Before Jex fell, neither Fillmore nor Barber knew of
the puddle of water on the store’s floor. Jex also did not
notice the puddle of water until after she slipped on it.
Fillmore did not inspect the floor before Jex fell, but he

1 Jex v. JRA, Inc., 2007 UT App 249, ¶ 23, 166 P.3d 655.
3 No. 20070651
speculated that the water came either from his shoes or Jex’s
shoes. Fillmore and Barber were both wearing athletic shoes with
deep tread, while Jex was wearing new boots with shallow tread.
Fillmore acknowledged that keeping the floors clean of water is
important but stated that his employees’ daytime tasks do not
include scheduled floor maintenance such as mopping. Instead,
Fillmore testified, the floor is mopped at the end of the work
day, after the store is closed.
¶5 Jex filed suit against Hickory Kist and its owners,
James and Angela Fillmore. Jex alleged that Hickory Kist and its
owners were liable for the unsafe condition on the store’s floor
and asserted two theories of premises liability. First, Jex
claimed that Hickory Kist was liable under a permanent unsafe
condition theory because Hickory Kist’s mode of operation
foreseeably could result in an inherently dangerous condition.
Second, Jex claimed that Hickory Kist was liable under a
temporary unsafe condition theory because (1) Hickory Kist had
knowledge of the unsafe condition, and (2) after obtaining such
knowledge, Hickory Kist had adequate time to remedy it.
¶6 On January 10, 2006, Hickory Kist filed a motion for
summary judgment, and Jex filed a cross motion for summary
judgment. The district court granted Hickory Kist’s motion,
ruling in its favor on both theories of liability. First, the
district court held that Hickory Kist could not be liable under a
permanent unsafe condition theory because “there [was] no
evidence that Hickory Kist chose a method of operation that
created an inherently dangerous condition, and that the
inherently dangerous condition was foreseeable.” Second, the
district court held that Hickory Kist could not be liable under a
temporary unsafe condition theory because Hickory Kist had no
“actual knowledge of water on the floor.”
¶7 Jex appealed, and the court of appeals affirmed in part
and reversed in part. The court of appeals affirmed the district
court’s ruling that Hickory Kist could not be liable under a
permanent unsafe condition theory because of the “lack of direct
evidence indicating that [Hickory Kist] chose a method of
operation that was inherently dangerous and foreseeable.”1 In
addressing the temporary unsafe condition theory, the court of
appeals made two separate rulings. First, it affirmed the
district court’s ruling that Hickory Kist could not be liable
under a temporary unsafe condition theory if the condition was
created by a third party because the notice requirement applies,
and Jex failed to establish that Hickory Kist had any notice of

2 Id. ¶ 16.
3 Id. ¶ 17 (citations omitted).
4 Pratt v. Nelson, 2007 UT 41, ¶ 12, 164 P.3d 366.
5 See Schnuphase v. Storehouse Mkts., 918 P.2d 476, 479
(Utah 1996) (“In a series of cases, this court has stated that
foreseeability and inherent danger are key elements of a
negligence action under the [permanent unsafe condition] theory
(continued...)
No. 20070651 4
the puddle of water.2 Second, however, the court of appeals
held that the notice requirement does not apply to temporary
unsafe conditions that are “created by the defendant himself or
his agents.”3 Accordingly, the court of appeals reversed and
remanded for the jury to determine whether Hickory Kist created
the puddle and might therefore be liable for Jex’s injuries.
¶8 We granted certiorari to review the court of appeals’
decision, which we now affirm. We have jurisdiction pursuant to
Utah Code Ann. 78A-3-102(3)(j) (Supp. 2008).
STANDARD OF REVIEW
¶9 On certiorari, we review the court of appeals’ decision
for correctness.4
ANALYSIS
¶10 Our analysis begins with a review of the court of
appeals’ decision that Jex cannot recover under a permanent
unsafe condition theory. We then review the court of appeals’
two rulings regarding Jex’s recovery under a temporary unsafe
condition theory. In this regard, the court of appeals found
first that Jex cannot recover under a temporary unsafe condition
theory if the temporary unsafe condition was created by a third
party because Hickory Kist had no notice of the puddle of water.
The court found second that Jex may recover under a temporary
unsafe condition theory if the unsafe condition was created by
Hickory Kist because the notice requirement does not apply to
owner-created temporary unsafe conditions.
I. PERMANENT UNSAFE CONDITION THEORY
¶11 To recover under a permanent unsafe condition theory, a
plaintiff must show that an owner chose a mode of operation that
foreseeably could result in an inherently dangerous condition.5

5 (...continued)
of liability.”).
6 841 P.2d 1224 (Utah Ct. App. 1992).
7 Id. at 1225.
8 Id.
9 Id. at 1227 (emphases added).
10 Id. We have emphasized the importance of establishing the
element of foreseeability in permanent unsafe condition cases.
See Schnuphase, 918 P.2d at 479.
5 No. 20070651
The court of appeals affirmed the district court’s grant of
summary judgment in favor of Hickory Kist under this theory of
liability, and we affirm.
¶12 Jex claims that she may recover under this theory
because Hickory Kist “chose to employ a floor surfacing that was
inherently dangerous when wet.” Jex cites Canfield v.
Albertsons, Inc.6 as support for her claim, but Canfield is
clearly distinguishable.
¶13 In Canfield, the plaintiff slipped on a piece of
lettuce that was part of a lettuce display known as a “farmer’s
pack,” meaning that the lettuce did not have its wilted outer
leaves removed.7 Instead, shoppers were invited to remove the
outer leaves and discard them into empty boxes that Albertsons
had placed on the floor.8 The plaintiff slipped on a piece of
discarded lettuce on the floor and sued, claiming that the
farmer’s pack method of display was a permanent unsafe condition.
We agreed and emphasized that “[i]t was reasonably foreseeable
that some leaves would fall or be dropped on the floor by
customers thereby creating a dangerous condition.”9 The elements
of foreseeability and inherent dangerousness were met.
¶14 Jex argues that by installing a wood floor that becomes
slippery when wet, Hickory Kist likewise created a foreseeable
and inherently dangerous condition for its customers. But Jex
points to no evidence that supports her claim. In Canfield, we
focused on the fact that the store “chose this mode of operation”
from among any number of possible lettuce displays and took the
affirmative steps of placing lettuce stands and boxes in the path
of customers and inviting them to remove lettuce leaves and throw
them away in those boxes.10 In taking these actions, Albertsons
should have reasonably foreseen that lettuce leaves would be
dropped on the floor. In this case, however, Jex has offered no

11 De Weese v. J.C. Penney, Co., 297 P.2d 898, 901 (Utah
1956) (emphasis added). In De Weese, a store owner installed
terrazzo flooring in its entryway; terrazzo is a surface that
becomes slippery when wet. The plaintiff slipped on the entryway
on a day when it had been snowing for 25 to 30 minutes before she
slipped. During that time, the store owner failed to put down
any mats in the entryway. It was this failure to protect its
customers once it knew of the dangerous condition, not its
decision to install a slippery floor surface, that subjected the
owner to liability for the plaintiff’s injuries.
12 Allen v. Federated Dairy Farms, 538 P.2d 175, 176 (Utah
1975).
13 Long v. Smith Food King Store, 531 P.2d 360, 361 (Utah
1973).
No. 20070651 6
evidence that Hickory Kist did anything more than install a
standard wood floor. Jex offered no evidence, for example, that
Hickory Kist installed an unusually slippery wood floor or that
it installed its wood floor negligently. While Jex argues that
merely installing a floor that can become slippery when wet
satisfies the elements of foreseeability and inherent
dangerousness, we have specifically held “that the construction
and maintenance of . . . [a slippery-when-wet floor
surface] . . . does not of itself constitute negligence” in
premises liability cases.11
¶15 Because the mere installation of a standard wood floor
does not constitute a mode of operation that foreseeably could
result in an inherently dangerous condition, the court of appeals
was correct in affirming the district court’s grant of summary
judgment for Hickory Kist under a permanent unsafe condition
theory.
II. TEMPORARY UNSAFE CONDITION THEORY
¶16 To recover under a temporary unsafe condition theory, a
plaintiff must show that (1) the defendant “had knowledge of the
condition, that is, either actual knowledge or constructive
knowledge because the condition had existed long enough that he
should have discovered it;” and (2) “after [obtaining] such
knowledge, sufficient time elapsed that in the exercise of
reasonable care he should have remedied it.”12 We have also held
that “the variant [of this rule is] . . . that if the [unsafe]
condition or defect was created by the defendant himself or his
agents or employees, the notice requirement does not apply.”13
Therefore, “it is important to distinguish between the situation

14 Koer v. Mayfair Mkts., 431 P.2d 566, 569 (Utah 1967).
15 Schnuphase v. Storehouse Mkts., 918 P.2d 476, 479 (Utah
1996).
16 R.D. Hursh, Annotation, Liability of Proprietor of Store,
Office, or Similar Business Premises for Injury from Fall on
Floor Made Slippery by Tracked-in or Spilled Water, Oil, Mud,
Snow, and the Like, 62 A.L.R. 2d 6, 7b (1958).
7 No. 20070651
where the [condition] causing the injury was [created] . . . by
the employer-store or its employee, or [was created] by some
third person.”14
¶17 In this case, the court of appeals correctly applied
the rule that distinguishes between third party-created
conditions and owner-created conditions. It held that the notice
requirement applies to temporary unsafe conditions that are
created by third parties, and because Hickory Kist had no actual
or constructive notice of the puddle, Jex could not recover under
this theory. The court of appeals also correctly held that the
notice requirement does not apply to temporary unsafe conditions
that are created by owners. Applying this holding, the court
concluded that there is a genuine question as to who created the
puddle, and it remanded the case for a jury to determine whether
Hickory Kist created it and might therefore be liable for Jex’s
injuries. Hickory Kist petitioned for certiorari, and Jex cross-
petitioned. For the reasons detailed below, we affirm the court
of appeals’ rulings.
A. An Owner Must Have Notice to Be Liable for Temporary Unsafe
Conditions Created by a Third Party
¶18 It is undisputed that neither Hickory Kist’s owner,
Fillmore, nor his employee, Barber, had actual knowledge that
there was a puddle of water on Hickory Kist’s floor. Jex
nevertheless asserts that Hickory Kist had constructive notice
because the water had been on the floor long enough that the
owner or employees should have discovered it. Jex argues that
“Utah cases have not set forth clear criteria for determining
when constructive notice should be imputed.” However, this court
has clarified that constructive notice is imputed when “the
condition had existed long enough that [the store owner] should
have discovered it.”15 “Thus, the importance of the time factor
to the issue of constructive notice is clear.”16
¶19 To establish that a temporary condition existed long
enough to give a store owner constructive notice of it, a

17 Ohlson v. Safeway Stores, Inc., 568 P.2d 753, 754 (Utah
1977).
18 Id. at 754-55.
19 284 P.2d 477 (Utah 1955).
20 Id. at 478.
21 431 P.2d 566, 569 (Utah 1967).
22 538 P.2d 175, 177 (Utah 1975) (“[T]here is no evidence,
nor any basis from which a fair inference could be drawn, that
the defendant had knowledge of the cottage cheese on the floor,
nor any opportunity to remove it.”).
No. 20070651 8
plaintiff must present evidence that “would show . . . that it
had been there for an appreciable time.”17 We have therefore
imputed constructive notice to a store owner only when there is
some evidence of the length of time the debris has been on the
floor. For example, we imputed constructive notice when dry,
spilled spaghetti on a store’s floor had been there long enough
that it had been spread “from aisle ten around the end of that
aisle into the main aisle for five or six feet” and was visible
from the cash register.18 We have not, however, imputed
constructive notice in cases such as Jex’s, where there is no
evidence regarding the amount of time the unsafe condition has
existed.
¶20 In Lindsay v. Eccles Hotel Co.,19 for example, the
plaintiff slipped and fell on a small quantity of water on the
floor in the defendant’s coffee shop. We held that the plaintiff
could not recover under a temporary unsafe condition theory
because “there was no evidence as to how the water got onto the
floor, by whom it was deposited, exactly when it arrived there or
that the defendant had knowledge of its presence.”20 In Koer v.
Mayfair Markets, we again determined that a plaintiff could not
recover under this theory after she slipped and fell on a grape
because we were unable “to find any support for the further and
necessary inference that th[e] [dangerous] condition was caused
by an act of the defendant, or that the defendant had actual or
constructive knowledge” of it.21 And in Allen v. Federated Dairy
Farms, Inc., we again focused on the issue of notice and held
that the plaintiff failed to establish that the store owner had
any constructive notice of spilled cottage cheese on which a
customer slipped; therefore, the owner could not be liable under
a temporary unsafe condition theory.22

23 Jex v. JRA, Inc., 2007 UT App 249, ¶ 16, 166 P.3d 655.
9 No. 20070651
¶21 Similarly, Jex presented inadequate evidence that the
puddle of water was on Hickory Kist’s floor for an appreciable
length of time. Still, she argues that Hickory Kist had
knowledge of the puddle based on the fact that the shoes of
Fillmore and Barber had deep tread and were therefore more likely
than her shallowly treaded shoes to have tracked snow into the
store. She also argues that because Fillmore shoveled snow that
morning, he was more likely to have tracked snow into the store
because he would have been required to step in “large amounts of
snow numerous times.” Jex relies on these arguments for her
claim that Hickory Kist had notice of the puddle; but while these
arguments bear upon who created the puddle, they do little to
establish how long it had been there. Because the time element
is a key factor in imputing constructive notice, we affirm the
court of appeals’ holding that “conjecture and speculation is the
only way to determine the length of time the puddle was on the
floor, and thus, it would be improper to impute constructive
notice to Defendants.”23
B. The Notice Requirement Does Not Apply to Temporary Unsafe
Conditions Created By an Owner
¶22 Though Jex did not make the argument, the court of
appeals held that even if Hickory Kist did not have notice of the
puddle, Jex may still recover under the temporary unsafe
condition theory because the notice requirement does not apply to
temporary unsafe conditions that are created by owners. That is,
a plaintiff need not prove that an owner had actual or
constructive notice of a temporary unsafe condition if the owner
created the condition. Thus the court of appeals remanded for a
jury to determine whether Hickory Kist created the puddle and
might therefore be liable for Jex’s injuries.
¶23 In its petition for certiorari, Hickory Kist argues
that an owner must have notice of any temporary unsafe
condition--regardless of who creates it--in order to be liable
for injuries that result. Because no case has clearly addressed
this issue, we take this opportunity to clarify that the notice
requirement does not apply to temporary unsafe conditions created
by owners.
¶24 It is clear that an owner must have notice of a
temporary unsafe condition that is created by a third party

24 Long, 531 P.2d at 361.
25 Id.
26 Schnuphase, 918 P.2d at 478 (quoting Preston v. Lamb, 436
P.2d 1021, 1023 (Utah 1968)) (internal quotation marks omitted).
27 Id.
No. 20070651 10
before the owner will be found liable for injuries that result.24
In Long v. Smith Food King Store, however, we held that “the
variant [of this rule is] . . . that if the [unsafe] condition or
defect was created by the defendant himself or his agents or
employees, the notice requirement does not apply.”25 Hickory
Kist argues that this suspension of the notice requirement
applies only to permanent unsafe conditions, and that in order to
be liable, an owner must always have notice of a temporary unsafe
condition, regardless of who creates it. As support for its
interpretation, Hickory Kist points to the fact that
Long specifically addressed a permanent unsafe condition theory
of recovery. Hickory Kist also argues that Utah’s premises
liability law has consistently categorized unsafe conditions as
either permanent or temporary and has never before distinguished
between temporary unsafe conditions created by third parties and
those created by owners. Thus, Hickory Kist claims that “the
Utah Court of Appeals misapplied Utah law when it [held] that no
notice is required when an owner or employee may have created a
temporary unsafe condition.” We disagree and affirm the court of
appeals’ holding that the notice requirement does not apply to
temporary unsafe conditions created by owners.
¶25 We have made clear that while “[t]he owner of a
business is not a guarantor that his business invitees will not
slip and fall . . . [h]e is charged with the duty to use
reasonable care to maintain the floor of his establishment in a
reasonably safe condition for his patrons.”26 When store owners
breach that duty, they may be liable for resulting injuries.
¶26 In permanent unsafe condition cases, the notice
requirement does not apply because owners are “deemed to know of
the condition[s]” they create.27 We see no reason to apply a
different notice requirement to temporary conditions that are
created by owners. Thus, in cases where temporary unsafe
conditions are created by owners, the notice requirement also
does not apply. We emphasize, however, that “negligence will not
be presumed” in either permanent or temporary unsafe condition

28 Glenn v. Gibbons & Reed Co., 265 P.2d 1013, 1015 (Utah
1954) (“As a general rule, negligence will not be presumed from
the mere fact of an injury occurring at a time when plaintiff was
on defendant’s premises, nor is the owner to be deemed liable in
absence of any evidence that such injury was the result of his
negligence.”).
29 Schnuphase, 918 P.2d at 477.
11 No. 20070651
cases.28 Rather, in permanent unsafe condition cases, a
plaintiff must prove an owner’s negligence by showing that the
mode of operation chosen foreseeably could result in an
inherently dangerous condition.29 And in temporary unsafe
condition cases, a plaintiff also must prove that the owner acted
negligently either in creating or failing to remedy the temporary
unsafe condition. Thus, Jex must prove by a preponderance of the
evidence that (1) Hickory Kist created the puddle, and (2) that
it was negligent either in creating the puddle or in failing to
clean it up before she slipped.
¶27 Regarding Jex’s first burden, the court of appeals
correctly remanded for a jury to determine who created the puddle
because Jex presented sufficient evidence from which a jury could
conclude that Hickory Kist did so. First, Jex’s shoes had
lighter tread than both Fillmore’s and Barber’s, suggesting that
her shoes were less likely to carry the snow. Second, Jex walked
over twenty-five feet of mats to reach the counter, suggesting
that any snow on her shoes likely would have been removed.
Third, Jex was the first customer of the day, limiting the number
of people who could have created the puddle to herself, the Pepsi
salesman, and the two Hickory Kist employees.
¶28 If Jex succeeds in proving that Hickory Kist created
the puddle, she then must establish that Hickory Kist was
negligent either in creating the puddle or in failing to clean it
up before she slipped.
CONCLUSION
¶29 We affirm the court of appeals’ holdings on all issues.
First, Jex cannot recover under a permanent unsafe condition
theory because she failed to prove that Hickory Kist’s mode of
operation foreseeably could result in an inherently dangerous
condition. Second, Jex cannot recover under a temporary unsafe
condition theory if the condition was created by a third party
because Hickory Kist did not have notice of the puddle. Finally,
Jex may recover under a temporary unsafe condition theory if the
puddle was created by Hickory Kist because the notice requirement

No. 20070651 12
does not apply to owner-created temporary unsafe conditions. And
because there is a genuine issue of material fact regarding who
created the puddle, we remand the case to the district court for
a jury to determine whether Hickory Kist created it and might
therefore be liable for Jex’s injuries.
---
¶30 Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Judge Hadfield concur in Associate Chief Justice Durrant’s
opinion.
¶31 Justice Nehring does not participate herein; District
Judge Ben H. Hadfield sat.