2016 UT App 112

THE UTAH COURT OF APPEALS

JEFFREY WOOD,

Appellant,

v.

SALT LAKE CITY CORPORATION,

Appellee.

Memorandum Decision

No. 20150074-CA

Filed May 26, 2016

Third District Court, West Jordan Department

The Honorable Barry G. Lawrence

No. 120412801

Leonard E. McGee and Peter R. Mifflin, Attorneys

for Appellant

Samantha J. Slark, Attorney for Appellee

JUDGE KATE A. TOOMEY authored this Memorandum Decision, in 

which JUDGE STEPHEN L. ROTH and SENIOR JUDGE PAMELA T.

GREENWOOD concurred.

1

TOOMEY, Judge:

¶1 In October 2011, Jeffrey Wood seriously injured his left 

arm when he tripped in a pothole on a city-owned street in Salt 

Lake City.2 He sued Salt Lake City Corporation (the City) for 

 

1. Senior Judge Pamela T. Greenwood sat by special assignment 

as authorized by law. See generally Utah R. Jud. Admin. 11-

201(6).

2. ‚On appeal from a bench trial, we view the evidence in a light 

most favorable to the trial court’s findings, and therefore recite 

the facts consistent with that standard.‛ Johnson v. Higley, 1999 

(continued...)
Wood v. Salt Lake City Corporation

20150074-CA 2 2016 UT App 112

negligence, claiming it failed to identify and repair the pothole.

The district court decided in favor of the City, finding that the 

City did not have the necessary notice to be liable for not 

repairing the pothole and thus concluded that the City had not 

failed to exercise reasonable care. We affirm.

¶2 The pothole at issue was on the side of a residential street, 

Blaine Avenue, near a cement curb. At the November 2014 bench 

trial, to show the City had notice or should have had notice of 

the pothole, Wood presented evidence that the pothole had been 

there for approximately four months. He also presented 

evidence that at some point there was spray paint on the asphalt

around the pothole and that Salt Lake City employees had been 

on the street during the time the pothole existed. Specifically, the 

City’s Streets Division director testified that street sweepers 

swept Blaine Avenue five times and that sanitation workers 

collected garbage approximately sixteen times in the four 

months before Wood’s accident.

¶3 But the director also testified that the City does not spray 

paint around potholes. And although sanitation workers and 

street sweepers are asked to report potholes when they happen 

to see them, the City does not require those workers to identify 

and report potholes. The director further testified that street 

sweepers and sanitation workers might not notice a pothole on 

the side of the road and cannot be expected to actively look for 

potholes because ‚they need to pay attention to what they’re 

doing‛ and ‚[t]hey have their hands full performing that job.‛ 

Street sweepers, he testified, have ‚got to be making sure that 

they don’t cause any accidents, they don’t run the kids down, 

there are no pets in the way, they’re not hitting any parked cars 

or items like that.‛ He also testified that sanitation workers 

might not notice a pothole because they ‚have to drive a heavy 

 

(...continued)

UT App 278, ¶ 2, 989 P.2d 61 (citation and internal quotation 

marks omitted).
Wood v. Salt Lake City Corporation

20150074-CA 3 2016 UT App 112

truck and make sure they park exactly where the arm can reach 

and . . . pick up a can.‛

¶4 The court also heard testimony that the City’s engineering 

department surveys and inspects the condition of city-owned 

roadways on a regular basis and its asphalt-maintenance crews 

actively look for and repair potholes every day. The director 

testified that because they can appear overnight, potholes are ‚a 

moving target‛ on the approximately 1,858 miles of city-owned 

streets and thus he said the City cannot ‚guarantee that *its 

streets are+ not going to have any potholes.‛ In an effort to 

combat the problem, the director testified that the City monitors

trouble areas and responds to citizens’ and other employees’

reports of potholes through a telephone or web-based reporting 

system. Moreover, the asphalt-maintenance crews look up and 

down streets as they perform other work to identify and then 

repair potholes they see.3 Once a pothole is reported, the City’s 

policy is to repair it within twenty-four hours.

¶5 Finding that the City exercised reasonable care to 

maintain its streets, the court stated,

The [C]ity has a . . . system in place that was able to 

identify and fix 29,000 potholes in 2011. For 

*Wood’s+ argument to prevail on this, we would 

have to conclude that that wasn’t good enough . . . . 

I cannot conclude that the *City’s+ system . . . was 

unreasonable or that [it] should have done 

something more to detect the potholes.

 

3. We note that the pothole at issue in this case was repaired 

when a citizen reported another pothole on a nearby street and 

before the City knew of Wood’s accident. When he was there to 

repair the reported pothole, an asphalt-maintenance crew 

member noticed the Blaine Avenue pothole and repaired it.
Wood v. Salt Lake City Corporation

20150074-CA 4 2016 UT App 112

Thus, as the fact-finder, the district court determined that, 

although it found that the pothole existed for approximately four 

months before Wood’s accident, the City was not negligent 

because it had reasonable practices and procedures to identify 

and repair potholes.

¶6 ‚To assert a successful negligence claim, a plaintiff must 

establish that (1) defendant owed plaintiff a duty of care, (2)

defendant breached that duty, and . . . (3) the breach was the 

proximate cause of (4) plaintiff’s injuries or damages.‛ B.R. ex rel. 

Jeffs v. West, 2012 UT 11, ¶ 5 n.2, 275 P.3d 228. Although it ‚need 

not keep its streets in a perfect or an absolutely safe condition,‛

Braithwaite v. West Valley City Corp., 860 P.2d 336, 338 (Utah 

1993), a municipality has a duty to keep its streets in a 

‚reasonably safe condition,‛ Trapp v. Salt Lake City Corp., 835 

P.2d 161, 161–62 (Utah 1992).4

 

4. ‚*D+uty is a question of law determined on a categorical 

basis . . . .‛ B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 25, 275 P.3d 228. 

Wood argues the district court inappropriately evaluated the 

City’s duty ‚based on case-specific factual determinations.‛ We 

disagree. A review of the court’s determination makes clear that 

it applied the duty that applies to all municipalities—the duty to 

keep its streets and sidewalks in a reasonably safe condition. See 

Braithwaite v. West Valley City Corp., 860 P.2d 336, 338 (Utah 1993) 

(explaining ‚that it has long been the law in Utah . . . that a 

municipality has a duty to exercise ordinary care to keep streets 

which it has opened for travel and which it has invited the 

public to use in a reasonably safe condition‛); Trapp v. Salt Lake 

City Corp., 835 P.2d 161, 161–62 (Utah 1992) (explaining that 

cities have a duty ‚to keep sidewalks and streets in a reasonably 

safe condition‛). Then, based on the specific facts of this case, the 

court reviewed whether the City had actual notice or 

constructive notice and whether it breached its duty to maintain 

the streets in a reasonably safe condition.
Wood v. Salt Lake City Corporation

20150074-CA 5 2016 UT App 112

¶7 If a plaintiff alleges that a defendant negligently failed to 

remedy a temporary unsafe condition that the defendant did not 

create, the plaintiff must present evidence to show that the 

defendant had notice of the unsafe condition.5 See Jex v. JRA, Inc., 

2008 UT 67, ¶ 16, 196 P.3d 576; Goebel v. Salt Lake City S. R.R., 

2004 UT 80, ¶ 22, 104 P.3d 1185. ‚A plaintiff . . . must show that 

the defendant had actual or constructive knowledge of the 

condition before the accident.‛ Kerr v. City of Salt Lake, 2013 UT 

75, ¶ 39, 322 P.3d 669. ‚Constructive knowledge may be proven 

by demonstrating that the unsafe condition ‘existed long enough 

that *the defendant+ should have discovered it.’‛ Id. (alteration in 

original) (quoting Jex, 2008 UT 67, ¶ 18). ‚In the case of either 

actual knowledge or constructive knowledge, the plaintiff must 

also show that the defendant had sufficient notice of the unsafe 

condition ‘that in the exercise of reasonable care *the defendant+ 

should have remedied it.’‛ Id. (alteration in original) (quoting 

Goebel, 2004 UT 80, ¶ 19). Thus, the City can be held liable only if 

it failed to exercise reasonable care to remedy the pothole after it 

obtained actual or constructive notice of it.

¶8 ‚*W+hether a duty exists is a question of law which we 

review for correctness.‛ Fishbaugh v. Utah Power & Light, 969 P.2d 

403, 405 (Utah 1998) (citation and internal quotation marks 

omitted). But ‚*i+t is a question of fact for the [fact-finder] 

whether under all these circumstances the defendant had actual 

or constructive notice.‛ Ohlson v. Safeway Stores, Inc., 568 P.2d 

753, 755 (Utah 1977). ‚*A+ challenge to the findings of fact must 

show that the evidence, viewed in a light most favorable to the 

trial court, is legally insufficient to support the contested finding. 

The challenging party must marshal all the supporting evidence 

and demonstrate its insufficiency.‛ Cowley v. Porter, 2005 UT 

App 518, ¶ 32, 127 P.3d 1224 (citation omitted). ‚*A+ party 

challenging a factual finding or sufficiency of the evidence to 

support a verdict will almost certainly fail to carry its burden of 

 

5. The parties do not dispute that this is a temporary dangerous 

condition, as opposed to a permanent dangerous condition.
Wood v. Salt Lake City Corporation

20150074-CA 6 2016 UT App 112

persuasion on appeal if it fails to marshal.‛ State v. Nielsen, 2014 

UT 10, ¶ 42, 326 P.3d 645.

¶9 Wood makes no apparent challenge to the district court’s 

factual findings. But to the extent Wood challenges the finding 

that the City had no notice of the pothole, Wood’s analysis of the 

authority and the facts is wholly lacking. Wood does not 

marshal any of the supporting evidence. Rather, without 

reference to the record, he merely states, ‚The court found that 

the pothole at issue had existed for four months‛ and 

‚[e]vidence was presented to the trial court that over 21 city 

employees pass[ed] the pothole.‛6 He then asserts, ‚A 

landowner has constructive notice of a dangerous condition 

when the condition has ‘existed long enough that *the 

landowner+ should have discovered it.’‛ (Alteration in original.) 

(Quoting Jex, 2008 UT 67, ¶ 16.) He does not apply that case to 

the facts of this case or explain how the court’s findings were

insufficient. See State v. Thomas, 961 P.2d 299, 305 (Utah 1998).

Thus, regarding the court’s factual findings, Wood has failed to 

carry his burden of persuasion on appeal. See State v. Roberts, 

2015 UT 24, ¶ 18, 345 P.3d 1226 (explaining that ‚like the 

marshaling requirement imposed by rule 24(a)(9) of the Rules of 

Appellate Procedure, our adequate briefing requirement‛ is a 

‚‘natural extension of an appellant’s burden of persuasion.’‛ 

(quoting Nielsen, 2014 UT 10, ¶ 40)). We therefore conclude the 

court did not err when it determined the City had no notice of 

the pothole’s existence and did not breach its duty to maintain 

the streets in a reasonably safe condition.

¶10 Nevertheless, Wood argues the district court’s decision

was incorrect as a matter of law. Specifically, he argues the court 

erred ‚when it declined to find a duty on Salt Lake City’s 

employees to report dangerous condition[s] they may observe 

 

6. We note that Wood has not supported this proposition; it is 

unclear from the record whether twenty-one city workers 

actually passed the pothole.
Wood v. Salt Lake City Corporation

20150074-CA 7 2016 UT App 112

within the course and scope of their employment.‛ Wood’s 

argument is far from clear, but he seems to argue that without 

holding that all city employees have a duty to report unsafe 

conditions, the court improperly failed to impute to the City the 

sanitation workers’ and street sweepers’ knowledge of the 

pothole. He asserts that a ‚corporation’s knowledge is entirely 

‘imputed to it from the knowledge possessed by its officers and 

agents.’‛ (Quoting Lowe v. April Indus., Inc., 531 P.2d 1297, 1299 

(Utah 1974).) Thus, he argues, the ‚correct duty analysis turns on 

whether employees of a municipal corporation impute notice to 

the municipal corporation of temporary dangerous conditions 

within the municipality.‛ Although we agree that an agent’s 

knowledge may be imputed to its principal, we are not 

persuaded by Wood’s argument.

¶11 Wood asks us to assume that because the court did not 

find the City had constructive notice, it did not consider what 

the street sweepers and sanitation workers knew. But, again, 

whether the City had constructive notice of the pothole is a 

question of fact, which Wood failed to sufficiently challenge. 

There was no evidence any City employee knew of the pothole. 

Although the court declined to hold that all of the City’s public 

works employees have a duty to report potholes when they see 

them, nothing in the record suggests the court failed to consider 

whether the sanitation workers and street sweepers knew of or 

should have known of the pothole. To the contrary, it found 

there was no evidence that ‚show*ed+ any City worker identified 

and reported the pothole prior to *Wood’s+ fall.‛ (Emphasis 

added.) And the court expressly considered whether the 

sanitation workers and street sweepers should have known 

about the pothole when it determined that ‚*s+anitation workers 

and street sweepers should be most concerned with doing the 

job they are supposed to be doing‛ and to ‚charge them with the 

additional task of pothole inspection is not reasonable and could 

be unsafe.‛ The court explained it had ‚difficulty concluding the 

City should have discovered and repaired the pothole‛ when 

Blaine Avenue residents ‚did not think it was important enough 

to report.‛ It further concluded that, considering the staggering 
Wood v. Salt Lake City Corporation

20150074-CA 8 2016 UT App 112

number of potholes the City repaired in 2011, the City’s 

allocation of resources for pothole repair was reasonable and the 

court would not require the City to do more. Therefore, Wood’s 

argument fails because without evidence that an employee had 

actual notice or constructive notice of the pothole, he cannot 

demonstrate the court failed to impute a worker’s notice to the 

City.

¶12 In conclusion, although it is regrettable that Wood 

suffered this injury, ‚*n+ot every accident that occurs gives rise 

to a cause of action upon which the party injured may recover 

damages from someone. Thousands of accidents occur every day 

for which no one is liable in damages, and often no one is to 

blame, not even the ones who are injured.‛ Schnuphase v. 

Storehouse Mkts., 918 P.2d 476, 479–80 (Utah 1996) (alteration in 

original) (citation and internal quotation marks omitted). For the 

aforementioned reasons, we conclude the district court did not 

err when it determined the City did not negligently fail to repair 

the pothole. We therefore affirm.