2022 UT App 87

THE UTAH COURT OF APPEALS

TWILA DAVIS,

Appellant,

v.

WAL-MART STORES INC.,

Appellee.

Opinion

No. 20210346-CA

Filed July 8, 2022

Fifth District Court, Cedar City Department

The Honorable Matthew L. Bell

No. 170500175

Brian K. Harris and Heather E. Harris, Attorneys

for Appellant

Mitchel T. Rice, Andrea M. Keysar, and Marianne 

Schumann, Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

TENNEY, Judge:

¶1 Twila Davis was shopping in a Wal-Mart one day when an 

employee collided with her. Davis was allegedly injured, and she 

later sued Wal-Mart for negligence. The district court granted 

Wal-Mart’s request for summary judgment, however, and it did 

so based on its conclusion that Wal-Mart owed no duty to Davis. 

For the reasons set forth below, we reverse.
Davis v. Wal-Mart

20210346-CA 2 2022 UT App 87

BACKGROUND1

¶2 One day in August 2017, Twila Davis was shopping at WalMart when she decided to look for a clock. When Davis got to the 

clock aisle, a Wal-Mart employee was stocking merchandise there.

Davis saw something that she wanted to look at on the lower shelf 

“right next to” the employee, so she moved “from [the 

employee’s] right side to [her] left side” and got within “a foot 

and a half” of the employee. As Davis bent over to get the item, 

the employee finished her task and “turned to [her] left” to walk 

away. The employee did not see Davis crouched beside her, 

however, and she collided with Davis as she turned.

¶3 Davis was allegedly injured in the collision, and she later 

sued Wal-Mart for negligence. In her complaint, Davis alleged 

that Wal-Mart had “negligently failed to design, construct, 

control, supervise, repair and maintain the premises and further 

failed to warn [Davis] of the hazard created by an employee of 

[Wal-Mart] when [she] fell on top of [Davis] knocking [Davis] to 

the floor.”

¶4 Wal-Mart moved for summary judgment. In its motion, 

Wal-Mart first argued that Davis’s claim failed as a matter of law 

because Wal-Mart “did not owe a duty of care to [Davis].”

Alternatively, Wal-Mart argued that the open and obvious danger 

rule barred Davis’s claim. Davis opposed the motion, but the 

district court granted it.

¶5 In its decision, the court rejected Wal-Mart’s reliance on the 

open and obvious danger rule. The court determined that the rule 

1. “When reviewing a grant of summary judgment, we view the 

facts in the light most favorable to the non-moving party.” Utah 

Golf Ass’n v. City of N. Salt Lake, 2003 UT 38, ¶ 10, 79 P.3d 919.
Davis v. Wal-Mart

20210346-CA 3 2022 UT App 87

was inapplicable because “the instant case is not one of a 

hazardous condition on the property.”

¶6 But the court agreed with Wal-Mart on the duty question. 

In the court’s view, Wal-Mart “owed no duty” to Davis based on 

the five-factor test set forth in B.R. ex rel. Jeffs v. West, 2012 UT 11, 

275 P.3d 228. Of note, the court concluded that it “was not 

foreseeable that [Davis] would move within inches” of the 

employee, “stoop below the employee’s field of vision, and do so 

without alerting the employee to her presence or waiting for the 

employee to finish returning merchandise to the top shelf.” The 

court further opined that “serious injuries” were “unlikely” to 

result from such “low speed pedestrian collision[s]” and that 

“public policy” therefore “support[ed] refusal to impose upon 

property owners a greater duty to anticipate or avoid such lowprobability events than the duty of invitees to do likewise.”

Because the court concluded that there was no duty, it granted 

Wal-Mart’s request for summary judgment and dismissed Davis’s 

complaint.

¶7 Davis timely appealed the court’s decision.

ISSUE AND STANDARD OF REVIEW 

¶8 Davis argues that the district court erred when it

determined that Wal-Mart did not owe her a duty of care and, by 

extension, when it granted Wal-Mart’s motion for summary 

judgment. “Whether a duty exists is a question of law” that we 

review for correctness. Mower v. Baird, 2018 UT 29, ¶ 14, 422 P.3d 

837 (quotation simplified). “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 

party.” Heartwood Home Health & Hospice LLC v. Huber, 2020 UT 

App 13, ¶ 11, 459 P.3d 1060 (quotation simplified).
Davis v. Wal-Mart

20210346-CA 4 2022 UT App 87

ANALYSIS 

I. Duty of Care

¶9 The district court granted Wal-Mart’s request for summary 

judgment based on its determination that Wal-Mart owed no duty 

of care to Davis. We disagree with this determination.

¶10 “As every first-year law student learns, duty is one of four 

essential elements of a cause of action in tort.” B.R. ex rel. Jeffs v. 

West, 2012 UT 11, ¶ 5, 275 P.3d 228. “A duty, in negligence cases, 

may be defined as an obligation, to which the law will give 

recognition and effect, to conform to a particular standard of 

conduct toward another.” AMS Salt Indus., Inc. v. Magnesium Corp. 

of Am., 942 P.2d 315, 320–21 (Utah 1997) (quotation simplified).

The existence of a “[d]uty must be determined as a matter of law 

and on a categorical basis for a given class of tort claims.” Jeffs, 

2012 UT 11, ¶ 23.

¶11 Here, it’s undisputed that Wal-Mart is a business and that 

Davis was visiting Wal-Mart as its customer. As a result, Davis 

“enjoyed the status of ‘business invitee’ while upon [Wal-Mart’s] 

property.” Hale v. Beckstead, 2005 UT 24, ¶ 33, 116 P.3d 263. This 

was so because “the status of invitee includes business visitors 

who are invited to enter or remain on land for a purpose directly 

or indirectly connected with business dealings with the possessor 

of the land.” Id. (quotation simplified); see also Restatement 

(Second) of Torts § 332(3) (Am. L. Inst. 1965).

¶12 Because Davis was Wal-Mart’s invitee, it’s settled that WalMart owed Davis a duty of care.2 As explained by our supreme 

2. We acknowledge that the employee may have also had an 

independent duty of reasonable care unconnected with Davis’s 

status as a business invitee and for which Wal-Mart may have 

(continued...)
Davis v. Wal-Mart

20210346-CA 5 2022 UT App 87

court, “[o]wners of land must . . . exercise due care and prudence 

for the safety of business invitees.” Dwiggins v. Morgan Jewelers, 

811 P.2d 182, 183 (Utah 1991). We have recognized this same duty 

too. See, e.g., Zazzetti v. Prestige Senior Living Center LLC, 2022 UT 

App 42, ¶ 32, 509 P.3d 776 (“All possessors of land . . . owe duties 

of reasonable care to invitees who come onto their land.”), petition 

for cert. filed, June 1, 2022 (No. 20220513); Proctor v. Costco Wholesale 

Corp., 2013 UT App 226, ¶ 20, 311 P.3d 564 (recognizing that 

businesses have a duty “to exercise due care and prudence for the 

safety of business invitees” (quotation simplified)).

¶13 Despite such authority, the district court held that WalMart did not owe Davis any duty in this case. And it did so based 

on its application of the supreme court’s decision in Jeffs. In Jeffs, 

the court “identified several factors” that are “relevant to 

determining whether a defendant owes a duty to a plaintiff.” 2012 

UT 11, ¶ 5. These factors include:

(1) whether the defendant’s allegedly tortious 

conduct consists of an affirmative act or merely an 

omission, (2) the legal relationship of the parties, (3)

the foreseeability or likelihood of injury, (4) public 

policy as to which party can best bear the loss 

occasioned by the injury, and (5) other general 

policy considerations.

Id. (quotation simplified).

¶14 Applying these factors, the district court recognized that 

(1) the allegedly tortious conduct at issue consisted of an omission 

by Wal-Mart and (2) Davis was a “customer and invitee.” But the 

court then held that Wal-Mart owed no duty to Davis. In the 

court’s view, (3) the actions that gave rise to Davis’s alleged 

been potentially liable under a respondeat superior theory. But 

such a theory was not pursued here.
Davis v. Wal-Mart

20210346-CA 6 2022 UT App 87

injuries were “unlikely” and “not foreseeable,” and (4 & 5) 

“[p]ublic policy [was] not furthered by requiring business owners 

to bear the loss of unforeseeable, unlikely injuries occasioned by 

circumstances such as those present in this case.”

¶15 But the district court need not have engaged in a Jeffs

analysis at all. As noted, both the supreme court and this court 

have already held that a business does owe a duty of reasonable 

care to its invitees, and this is the very duty that Davis invoked in 

her suit. Given this, the existence of the duty in question has 

already been established.

¶16 In any event, even if there was some basis for the district 

court to consider the matter anew under a Jeffs analysis, the court’s 

analysis was still flawed in a few key respects.

¶17 First, the district court’s conclusion was largely driven by 

its assessment of the facts of this case. In its foreseeability analysis, 

for example, the court focused on whether it would be foreseeable 

that Davis “would move within inches of [Wal-Mart’s] employee, 

stoop below the employee’s field of vision, and do so without 

alerting the employee to her presence or waiting for the employee 

to finish returning merchandise to the top shelf.” Then, in its 

analysis of the policy factors, the court focused on whether 

businesses should “bear the loss of unforeseeable, unlikely 

injuries occasioned by circumstances such as those present in this 

case.” (Emphasis added.)

¶18 But under Jeffs, such case-specific analyses are 

unwarranted at the duty stage of the negligence inquiry. See 2012 

UT 11, ¶ 25. Jeffs explained that “[d]uty must be determined as a 

matter of law and on a categorical basis for a given class of tort 

claims,” and it further instructed that duty “should be articulated 

in relatively clear, categorical, bright-line rules of law applicable 

to a general class of cases.” Id. ¶ 23 (emphasis added, quotation 

otherwise simplified). Indeed, with respect to the foreseeability 
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20210346-CA 7 2022 UT App 87

inquiry, Jeffs explained that in a “duty analysis, foreseeability does 

not question the specifics of the alleged tortious conduct such as 

the specific mechanism of the harm,” but “instead relates to the 

general relationship between the alleged tortfeasor and the victim 

and the general foreseeability of harm.” Id. ¶ 25 (quotation 

simplified).

¶19 By contrast, Jeffs instructed that it’s the next steps of the 

negligence analysis—“breach and proximate cause”—that 

involve “questions for the fact finder” that can be “determined on 

a case-specific basis.” Id. Thus, by focusing on the particular facts 

of this case, the court’s duty analysis was misdirected.

¶20 Second, “[n]ot every factor” in the Jeffs analysis “is created 

equal.” Id. ¶ 5. “[S]ome factors are featured heavily in certain 

types of cases, while other factors play a less important, or 

different, role.” Id. Of note, the second Jeffs factor looks to the 

“legal relationship of the parties.” Id. And as noted, the “legal 

relationship” at issue here is that of a business and its invitee. This 

matters because, again, this relationship has long been recognized 

as the source of the very duty at issue in this case.3

¶21 Indeed, the nature of this relationship also undermines the 

district court’s conclusions regarding the foreseeability and policy

factors. Jeffs held that, at the duty stage, foreseeability “relates to 

3. In an apparent attempt to avoid the implications of this, WalMart repeatedly describes the accident in question as a collision 

between “two pedestrians.” But Davis didn’t collide with a 

random passerby on the street. Rather, she collided with a WalMart employee who was stocking shelves in a Wal-Mart while 

Davis was shopping inside that Wal-Mart. This is why Davis is 

alleging that Wal-Mart should be held liable for not taking 

additional steps to protect her while she was shopping. Thus, with 

respect to the relationship component of the duty analysis, this 

case fits comfortably within the rubric of a business and its invitee.
Davis v. Wal-Mart

20210346-CA 8 2022 UT App 87

the general relationship between the alleged tortfeasor and the 

victim and the general foreseeability of harm.” Id. ¶ 25 (quotation 

simplified). So too with the policy implications (at least as far as 

they relate to duty). After all, duty is “the product of policy 

judgments applied to relationships.” Yazd v. Woodside Homes 

Corp., 2006 UT 47, ¶ 17, 143 P.3d 283. And on that front, courts 

have already accounted for the relevant policy—namely, courts 

have imposed this duty based on “the age-old principle that, 

because the land possessor effectively throws open his property 

to the public for business, an invitee is entitled to visit and assume 

that the premises have been made safe for his visit.” Oswald v. 

Costco Wholesale Corp., 473 P.3d 809, 821 (Idaho 2020); cf. 

Restatement (Second) of Torts § 343A cmt. g (“[T]he fact that 

premises have been held open to the visitor, and that he has been 

invited to use them, . . . offer[s] some assurance to the invitee that 

the place has been prepared for his reception, and that reasonable 

care has been used to make it safe.”). By holding otherwise, the 

district court erred.

¶22 Finally, Wal-Mart claims that even with the above 

authority, summary judgment was still appropriate under 

Schnuphase v. Storehouse Markets, 918 P.2d 476 (Utah 1996).

Schnuphase was a slip-and-fall case. At oral argument, Wal-Mart 

elaborated on its view that, under the principles set forth in 

Schnuphase and other similar cases, it owed no duty to Davis.

¶23 We acknowledge that in some such cases, Utah courts have 

affirmed grants of summary judgment to defendants in the face of 

negligence suits. See, e.g., id. at 477–80; Long v. Smith Food King 

Store, 531 P.2d 360, 361 (Utah 1973); Price v. Smith's Food & Drug 

Centers, Inc., 2011 UT App 66, ¶¶ 8–30, 252 P.3d 365. But even so, 

these cases don’t compel a different result here.

¶24 In Price, we explained that “premises liability cases” such 

as those involving the slip-and-fall scenario “generally fall into 

two classes: those involving temporary conditions and those 
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20210346-CA 9 2022 UT App 87

involving permanent conditions.” 2011 UT App 66, ¶ 9. Notably, 

the “second class of cases involves some unsafe condition . . . 

which was created or chosen by the defendant (or his agents), or 

for which he is responsible,” and “it also includes cases where the 

storeowner’s method of operation creates a situation where the 

reasonably foreseeable acts of third parties will create a dangerous 

condition.” Id. (quotation simplified).

¶25 Many of the cases from this line of authority pre-dated Jeffs. 

But as discussed, the supreme court in Jeffs analyzed in depth how 

courts should approach the duty element in a negligence suit and, 

more particularly, how courts should consider the duty question 

at the summary judgment stage. Jeffs made it clear that a court 

should not engage in a fact-intensive analysis regarding the 

question of duty and that fact-intensive analyses are instead 

generally conducted at the breach or proximate cause stages. See 

2012 UT 11, ¶ 25.

¶26 We don’t read the slip-and-fall cases that are relied on by 

Wal-Mart as being inconsistent with the Jeffs framework. Indeed, 

in such cases, our courts consistently recognized that businesses 

do owe a duty of reasonable care to their invitees. See Schnuphase, 

918 P.2d at 478 (explaining that a store owner “is charged with the 

duty to use reasonable care to maintain the floor of his 

establishment in a reasonably safe condition for his patrons” 

(quotation simplified)); Long, 531 P.2d at 362 (acknowledging “the 

admittedly correct rule requiring the defendant to exercise 

due care and prudence for the safety of its business invitees”); 

Price, 2011 UT App 66, ¶ 8 (holding that “a business owner is 

charged with the duty to use reasonable care” to maintain his 

property “in a reasonably safe condition for his patrons” 

(quotation simplified)). Thus, on the very point in dispute in this 

appeal, these cases are inconsistent with the position now 

advanced by Wal-Mart, which is that Wal-Mart owed no duty to 

Davis at all.
Davis v. Wal-Mart

20210346-CA 10 2022 UT App 87

¶27 And while it’s true that those cases often affirmed grants of 

summary judgment, they did so for reasons that are reconcilable 

with the treatment of duty from Jeffs. What those cases hold is that 

summary judgment is appropriate when reasonable minds cannot 

differ about whether the defendant’s actions violated the duty of 

reasonable care. Schnuphase, for example, held that summary 

judgment was appropriate because “reasonable minds could not 

differ on the question of whether [the defendant] took reasonable 

precautions to protect its customers.” 918 P.2d at 479 (quotation 

simplified). And in Long, the supreme court held that summary 

judgment was appropriate because the plaintiff had “not shown 

any basis upon which it reasonably could be found” that the 

defendant had done anything “inherently dangerous” or was 

otherwise “negligent.” 531 P.2d at 362.

¶28 By discussing the particular facts of a case and then 

determining that, on those facts, reasonable minds could not 

disagree about whether the defendant acted negligently, those 

cases turned on questions of breach, not duty. So here, Wal-Mart 

could in theory rely on these cases to argue that, under these 

circumstances, this accident was so unforeseeable that no 

reasonable mind could conclude that Wal-Mart had breached 

the duty of reasonable care that it owed to Davis. And if it makes 

such an argument on remand, we express no opinion about 

how the argument should turn out. But in the decision at issue, 

the district court’s analysis turned on duty, not breach. And as 

discussed, this duty analysis was incorrect under both Jeffs’s

general framework and under the prior cases that specifically 

held that businesses do owe a duty of reasonable care to their 

invitees.

¶29 In short, Wal-Mart is a business and Davis was its invitee. 

Because of this, Wal-Mart had a duty to exercise reasonable care 

to ensure Davis’s safety. The district court erred in determining 

otherwise.
Davis v. Wal-Mart

20210346-CA 11 2022 UT App 87

II. Open and Obvious Danger Rule

¶30 Wal-Mart next argues that, even if there was a generally 

applicable duty, the open and obvious danger rule absolved it of 

this duty under the circumstances of this case. In Wal-Mart’s 

view, because Davis “knew that [the employee] was in the aisle 

and [was] engaged with arranging items on an upper shelf,” and

because Davis also “had more than one reasonable alternative to 

encountering any potential danger that [the employee’s] 

movements might present,” Wal-Mart owed no duty “to warn or 

otherwise protect [Davis] from the open and obvious danger 

presented by intruding into a working person’s personal space.”

We disagree with Wal-Mart’s proposed application of this rule.4

¶31 Under the open and obvious danger rule, “a possessor of 

land is not liable to [its] invitees for physical harm caused to them 

by any activity or condition on the land whose danger is known 

or obvious to them.” Downham v. Arbuckle, 2021 UT App 121, ¶ 12, 

502 P.3d 312 (quotation simplified). “If the open and obvious 

danger rule applies, then the land possessor owes no duty to its 

invitees with respect to the open and obvious danger and 

therefore cannot be held liable for any injury caused thereby.” Id.

(quotation simplified). And the “open and obvious danger rule 

can still be appropriately applied even when the overarching duty 

owed is one of reasonable care.” Zazzetti, 2022 UT App 42, ¶ 32.

4. Wal-Mart asked the district court to grant summary judgment 

under this rule as an alternative basis, but the court declined to do 

so. Wal-Mart now invokes this rule as an alternative basis for 

affirmance. See PC Riverview, LLC v. Xiao-Yan Cao, 2017 UT 52, 

¶ 34, 424 P.3d 162 (holding that “when a party raises alternative 

grounds for affirmance, an appellate court may affirm the 

judgment appealed from on any legal ground or theory apparent 

on the record” (quotation simplified)).
Davis v. Wal-Mart

20210346-CA 12 2022 UT App 87

¶32 There are “two key steps” to an open and obvious danger 

analysis—“the ‘open and obvious danger’ step and the 

‘anticipated harm’ step.” Downham, 2021 UT App 121, ¶ 14. Under 

the first step, courts must determine whether there was an 

“activity or condition on the land whose danger [was] known or 

obvious” to invitees. Id. ¶ 12 (quotation simplified); accord Lyman 

v. Solomon, 2011 UT App 204, ¶ 4, 258 P.3d 647. Under the second 

step, courts “inquire into whether factors existed to vest in the 

land possessor a duty to warn or otherwise protect the invitee 

from the obvious danger.” Downham, 2021 UT App 121, ¶ 16 

(quotation simplified). The rule’s stringency accordingly ebbs and 

flows in this second step “depending upon the nature of the 

invitee and the nature of the possessor of land.” Hale, 2005 UT 24, 

¶ 31.

¶33 “Most cases involving claims of negligence are not 

susceptible to summary disposition.” Lyman, 2011 UT App 204, 

¶ 3 (quotation simplified); see also Dwiggins, 811 P.2d at 183 

(“[S]ummary judgment is appropriate in negligence cases only in 

the clearest instances.”). This is so because negligence cases 

commonly turn on factual questions. See Downham, 2021 UT App 

121, ¶ 22. And this reluctance extends to cases involving the 

open and obvious danger rule. See id. ¶¶ 22, 26. Indeed, in

Downham, we recently held that both steps of this rule involve 

factual questions; as a result, if “reasonable jurors could disagree” 

about either step, summary judgment would be “premature.” Id.

¶¶ 26–27.

¶34 Given these principles, there are two reasons why WalMart is not entitled to summary judgment based on the open and 

obvious danger rule.

¶35 First, much of Wal-Mart’s argument about the potential 

application of this rule is focused on Davis’s behavior. For 

example, Wal-Mart claims that the rule applies, in part, because 

of the “open and obvious danger presented by [Davis] intruding 
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20210346-CA 13 2022 UT App 87

into a working person’s personal space.” Wal-Mart also claims 

that the rule applies because Davis “decided to move behind [the 

employee]” and “then crouch or otherwise lower her body only 

twelve to eighteen inches away.”

¶36 This focus is misplaced. As explained in the Restatement, 

the open and obvious danger rule holds that a “possessor of land 

is not liable to his invitees for physical harm caused to them by 

any activity or condition on the land whose danger is known or 

obvious to them, unless the possessor should anticipate the harm 

despite such knowledge or obviousness.” Restatement (Second) 

of Torts § 343A(1). By focusing on dangers that exist “on the land,” 

id., this rule is concerned with a landowner’s obligations to protect 

invitees from dangers that are associated with the landowner’s 

property. And while this rule covers open and obvious dangers 

caused by an “activity” “on the land,” the Restatement clarifies 

that this aspect of the rule implicates the “possessor’s activities” 

that “may involve a risk which is known or obvious to those who 

enter his land.” Id. § 343A cmt. c (emphasis added). Thus, “an 

invitee who enters land is entitled to nothing more than 

knowledge of the conditions and dangers he will encounter if he 

comes,” meaning, “the actual conditions” and the “activities 

carried [out] on” that land. Id. § 343A cmt. e (emphasis added).

And an invitee’s “knowledge” of a land possessor’s failure “to 

take particular precautions for the safety of such visitors” is 

“material only in determining whether the visitor is to be charged 

with contributory negligence, or assumption of risk” (and, we’d 

add, comparative fault) “in coming in contact with the dangerous 

condition.” Id. § 343A cmt. d.

¶37 Here, the initial portion of Wal-Mart’s argument is not 

focused on any condition or activity “on the land” that an invitee 

might encounter and from which Wal-Mart should potentially 

protect its invitees. Rather, Wal-Mart is focused on what the 

invitee herself subsequently did. There are many ways that WalMart could potentially rely on that behavior in this suit—this 
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20210346-CA 14 2022 UT App 87

behavior might support an argument about a lack of proximate 

cause, for example, or perhaps an assertion of comparative 

negligence. But the open and obvious danger rule is concerned 

with dangers that were caused by activities or conditions on WalMart’s land. Wal-Mart points us to no authority (and we’re aware 

of none) holding that the open and obvious danger component of 

the open and obvious danger rule can be satisfied by the 

subsequent conduct of the allegedly injured invitee herself. To the

extent that Wal-Mart’s argument turns on Davis’s behavior, the 

rule is inapplicable.

¶38 Second, this leaves the question of whether the rule can 

apply here based on a condition on the land or Wal-Mart’s own 

activity on it. And again, Davis’s suit arguably implicated such an 

activity: namely, Davis claims that Wal-Mart was negligent for 

allowing its employee to stock shelves around customers without 

taking steps to adequately protect those customers. But to the 

extent that Wal-Mart now argues that this was the “activity on the 

land” that could trigger application of the open and obvious 

danger rule, thereby entitling it to summary judgment, the 

argument must fail because reasonable minds could differ about 

whether this was actually so.

¶39 Again, the first step requires proof that the condition or 

activity on the land involved a “danger” that was “known or 

obvious.” Downham, 2021 UT App 121, ¶¶ 12, 14. And because this 

presents a factual question, summary judgment is warranted only 

if no reasonable juror could conclude otherwise. See id. ¶ 27. But 

in the open and obvious danger portion of its brief, Wal-Mart 

argued to us that “[n]o danger arose from [its employee’s] 

potential movement.” And in the earlier portions of its brief in 

which it discussed duty, Wal-Mart likewise insisted that this 

collision was “both unlikely and unforeseeable.” Reiterating this 

view at oral argument, Wal-Mart asserted that “this is not a 

situation where Wal-Mart . . . was engaged in a hazardous 
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20210346-CA 15 2022 UT App 87

activity” and that its employee “was not involved in any type of 

hazardous conduct.”

¶40 Taking Wal-Mart at its word, this must mean that at least 

some reasonable jurors could conclude that there was not a 

“known and obvious danger” on Wal-Mart’s property. Lyman, 

2011 UT App 204, ¶ 4 (quotation simplified). And if such jurors 

did conclude this, there would be no basis for applying the open 

and obvious danger rule. Thus, in light of its own arguments, 

Wal-Mart cannot show that it was entitled to summary judgment 

based on this rule.

CONCLUSION

¶41 Davis was Wal-Mart’s invitee, so Wal-Mart owed her a 

duty of reasonable care. And under the circumstances of this case, 

Wal-Mart is not entitled to summary judgment based on the open 

and obvious danger rule. We therefore reverse the district court’s 

grant of summary judgment and remand for further proceedings 

consistent with this opinion.