2015 UT App 105

_________________________________________________________

THE UTAH COURT OF APPEALS

AVIVA GOWE,

Plaintiff and Appellant,

v.

INTERMOUNTAIN HEALTHCARE, INC.,

Defendant and Appellee.

Memorandum Decision

No. 20130884-CA

Filed April 30, 2015

Second District Court, Ogden Department

The Honorable Noel S. Hyde

No. 110902127

Steve S. Christensen, David M. Corbett, and Craig

L. Pankratz, Attorneys for Appellant

Peter H. Christensen, Kathryn T. Smith, and

Stephen J. Trayner, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum

Decision, in which JUDGES J. FREDERIC VOROS JR. and JOHN A.

PEARCE concurred.

CHRISTIANSEN, Judge:

¶1 Aviva Gowe was injured when she slipped and fell in the

entryway of an Intermountain Healthcare clinic. She filed suit

against Intermountain Healthcare, Inc. (IHC), alleging that she had

slipped on a puddle of rainwater that IHC negligently allowed to

accumulate on the tile floor. The district court granted summary

judgment in favor of IHC, concluding that Gowe had failed to

present any evidence that IHC knew that the puddle existed or had

an opportunity to discover the unsafe condition before Gowe’s fall.
Gowe v. Intermountain Healthcare, Inc.

¶2 On appeal, Gowe argues that IHC’s actual or constructive

notice of the unsafe condition could be reasonably inferred from

the evidence she presented in opposition to summary judgment.

We conclude that Gowe has failed to demonstrate error in the

district court’s summary judgment ruling, and we therefore affirm.

¶3 “Summary judgment is proper only if ‘there is no genuine

issue as to any material fact and . . . the moving party is entitled to

a judgment as a matter of law.’” Francis v. State, 2013 UT 65, ¶ 19,

321 P.3d 1089 (omission in original) (quoting Utah R. Civ. P. 56(c)).

“[W]e review a district court’s grant of summary judgment for

correctness, considering only whether the trial court correctly

applied the law and correctly concluded that no disputed issues of

material fact existed.” Id. (citation and internal quotation marks

omitted). And we view “the facts and all reasonable inferences

drawn therefrom in the light most favorable to the nonmoving

party.” Orvis v. Johnson, 2008 UT 2, ¶ 19, 177 P.3d 600 (citation and

internal quotation marks omitted). Gowe asserts that the district

court erred in granting summary judgment, because “[t]here is a

genuine issue of material fact as to whether IHC had actual or

constructive knowledge of the puddle.”

¶4 “The owner of a business is not a guarantor that his business

invitees will not slip and fall.” Preston v. Lamb, 436 P.2d 1021, 1023

(Utah 1968). Rather, a business 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.’” Jex v. JRA, Inc., 2008 UT

67, ¶ 25, 196 P.3d 576 (quoting Schnuphase v. Storehouse Mkts., 918

P.2d 476, 478 (Utah 1996)). Thus, “[t]he mere presence of a slippery

spot on a floor does not in and of itself establish negligence.” Price

v. Smith's Food & Drug Ctrs., Inc., 2011 UT App 66, ¶ 8, 252 P.3d 365

(citation and internal quotationmarks omitted). To prevail in a slipand-fall case, a plaintiff must generally show the presence of a

permanent unsafe condition for which the defendant was

responsible or a temporary unsafe conditionthat thedefendant had

notice of and an opportunity to remedy. Schnuphase, 918 P.2d at

478.

20130884-CA 2 2015 UT App 105
Gowe v. Intermountain Healthcare, Inc.

¶5 Gowe argues that the puddle in the entryway of the clinic

was a temporary unsafe condition and that she put forward

sufficient evidence from which a jury could find that IHC had

notice of the puddle. Under a temporary-unsafe-condition theory, 1

a plaintiff must show that the defendant had actual or constructive

notice of the unsafe condition and that sufficient time elapsed after

the defendant obtained such knowledge that the defendant should

have remedied the condition. Jex, 2008 UT 67, ¶ 16. Gowe argues

that the evidence she presented at summary judgment was

adequate to create an issue of fact material to either actual and

constructive notice.

¶6 Gowe first contends that the evidence she presented in

opposition to summary judgment was sufficient to create an issue

of fact as to whether IHC had actual notice of the puddle. To

establish actual notice, Gowe needed to present evidence that the

puddle presented a hazard of which IHC or its employees had

actual knowledge. See id. She asserts that IHC’s actual knowledge

of the puddle can be inferred from evidence that IHC knew the

clinic’s floor could become wet during inclement weather, that

clinic employees were responsible for keeping the waiting room in

order, that the clinic’s receptionist was in a position to see the

water, that the water was on the floor long enough to be

discovered, and that the size of the water puddle and placement of

mats near the water were such that an IHC employee must have

seen the water.

¶7 We do not reach the merits of this claim, because Gowe

failed to present this argument to the district court in her

opposition to summary judgment and thus failed to preserve it for

appeal. We generally do not address unpreserved arguments

raised for the first time on appeal. Jacob v. Bezzant, 2009 UT 37, ¶ 34,

1. Before the district court, Gowe argued primarily that IHC had

created a permanent dangerous condition through a “method of

operation” that involved negligent placement of carpet mats in the

entryway of the clinic. Gowe has abandoned this argument on

appeal.

20130884-CA 3 2015 UT App 105
Gowe v. Intermountain Healthcare, Inc.

212 P.3d 535. To preserve an argument for appellate review, the

appellant must first present the argument to the district court “in

such a way that the court has an opportunity to rule on [it].”

Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (alteration in

original) (citation and internal quotation marks omitted).

¶8 In the district court, Gowe’s principal theory of her case was

that IHC’s placement of the mats, not the puddle itself, was the

unsafe condition that resulted in her injuries. Her only argument

that IHC had actual notice of “the water accumulation itself” was

a claim that the placement of the mats in the lobby “suggest[ed]

that [IHC] may have moved the mat in order to clean up water

accumulation, but had not cleaned it up yet.” As a result, Gowe’s

opposition to summary judgment identified no other facts or

evidence in support of her actual-notice theory. She did not present

any evidence that IHC knew the floor could become slippery or

that the receptionist or any other IHC employee was in a position

to or had a responsibility to notice the puddle. While she presented

evidence below that the puddle was “eight inches across,” she did

not argue to the district court, as she does on appeal, that the size

of the puddle, the amount of time it had been on the floor, or the

placement of the mats were such that an IHC employee must have

actually seen the puddle before Gowe’s fall.

¶9 The only evidence that Gowe argued was material to actual

notice was her testimony that, on the day of the accident, one of the

lobby mats “was much farther away from the doorthan it had been

on previous occasions.” While Gowe argued below that the

placement of the mats “suggest[ed] that [IHC] may have moved

the mat in order to clean up water accumulation” and that IHC

therefore had actual knowledge of the puddle, she hasnot renewed

this argument on appeal. Thus, Gowe never raised to the district

court the actual-notice argument she now pursues on appeal. That 2

2. We recognize that Gowe raised the “issue” of actual notice

below. However, our supreme court has explained that, whether

termed issues, arguments, theories, or claims, all matters must be

(continued...)

20130884-CA 4 2015 UT App 105
Gowe v. Intermountain Healthcare, Inc.

argument was therefore never presented to the district court in

such a way that the court had an opportunity to rule on in, and we

will not reverse the district court’s summary judgment ruling on

that basis. See Patterson, 2011 UT 68, ¶ 12.

¶10 Gowe also argues that IHC had constructive notice of the

puddle. Constructive notice is generally imputed to a business

owner when “the condition had existed long enough that he should

have discovered it.” Schnuphase v. Storehouse Mkts., 918 P.2d 476,

478 (Utah 1996) (citation and internal quotation marks omitted).

“To establish that a temporary condition existed long enough to

give a store owner constructive notice of it, a plaintiff must present

evidence that would show . . . that it had been there for an

appreciable time.” Jex v. JRA, Inc., 2008 UT 67, ¶ 19, 196 P.3d 576

(omission in original) (citation and internal quotation marks

omitted). However, we will not impute constructive notice “where

there is no evidence regarding the amount of time the unsafe

condition has existed.” Id.

¶11 Gowe has not directed us to any record evidence regarding

the amount of time the puddle had existed, such as witness

testimony or floor-inspection logs that would tend to identify a

range of time that the puddle had been present. See Price v. Smith's

Food & Drug Ctrs., Inc., 2011 UT App 66, ¶¶ 14, 17, 252 P.3d 365.

Rather, Gowe relies on a New York case for the proposition that

“[a] puddle in the entry way of a building after inclement weather

2. (...continued)

first presented to the district court to preserve them for appeal, as

we will not reverse the district court for a reason not first presented

to that court. See Patterson v. Patterson, 2011 UT 68, ¶¶ 14–17, 266

P.3d 828. Presentation of one argument or theory to the district

court does not preserve for appeal any alternative arguments, even

regarding the same issue. See Salt Lake County v. Butler, Crockett &

Walsh Dev. Corp, 2013 UT App 30, ¶ 32, 297 P.3d 38. Thus, because

Gowe never presented to the district court the theory of actual

notice she has raised on appeal, her argument against the grant of

summary judgment grounded in that theory is not preserved.

20130884-CA 5 2015 UT App 105
Gowe v. Intermountain Healthcare, Inc.

creates ‘a reasonable inference . . . that the water accumulated

gradually’ and that the puddle was on the ground long enough to

be discovered.” (Quoting Padula v. Big V Supermarkets, Inc., 570

N.Y.S.2d 850, 851 (App. Div. 1991).) However, in Padula, the

plaintiff had submitted evidence not only that the area of the

accident was wet and that it had snowed before the accident, but

also that the accident occurred “in a heavy traffic area where

customers entered from the slushy parking lot with wet shopping

carts.” 570 N.Y.S.2d at 851. There, the court concluded that, given

this evidence, “[a] reasonable inference could be drawn that the

water accumulated gradually by the dripping from the wet carts

and from customers’ footwear.” Id. Thus, the Padula court had

evidence before it that water had been brought into the store in a

particular fashion and would have accumulated over time. Here,

Gowe presented no evidence to explain how water may have

entered IHC’s clinic that could provide the basis for an inference of

gradual accumulation. Indeed, the only record evidence even

tenuously related to members of the public tracking water into the

clinic that day is Gowe’s testimony that it had rained that day but

her own sandals were dry when she entered the clinic.3

¶12 Moreover, it is not clear that Padula’s approach to

constructive notice is viable under Utah law. In Jex v. JRA, Inc., our

supreme court rejected a plaintiff’s constructive-notice argument,

concluding that the plaintiff presented insufficient evidence that a

puddle had been present for an appreciable length of time. 2008 UT

67, ¶ 21, 196 P.3d 576. There, the plaintiff relied on evidence that

store employees had been shoveling snow that morning and that

the deep tread of their shoes was likely to track snow into the store.

3. Gowe asserts in her brief that the puddle had formed “in a hightraffic area where the Clinic’s patients entered.” However, she has

pointed us to no record evidence of the volume of traffic at the

clinic in general, or through this entrance on the date of the

accident in particular, that could provide some basis for “[a]

reasonable inference . . . that the water accumulated gradually by

the dripping from . . . customers’ footwear.” See Padula v. Big V

Supermarkets, Inc., 570 N.Y.S.2d 850, 851 (App. Div. 1991).

20130884-CA 6 2015 UT App 105
Gowe v. Intermountain Healthcare, Inc.

Id. However, the supreme court observed that “while these

arguments bear upon who created the puddle, they do little to

establish how long it had been there.” Id. The court concluded that

where “conjecture and speculation is the only way to determine the

length of time the puddle was on the floor,” constructive notice

could not be imputed to the defendants. Id. (citation and internal

quotation marks omitted).

¶13 Here, even if we accept Gowe’s assertion that the puddle

accumulated in the clinic’s entryway as rainwater dripped from

patrons’ shoes, we conclude that this argument “bear[s] upon who

created the puddle” but does “little to establish how long it had

been there.” See id. Gowe’s own testimony regarding the rain

establishes only that “it had been raining at some point that day”

and that she did not know when it had stopped. Gowe has simply

not put forward evidence to show the puddle had been present for

“an appreciable time” before the accident. Id. ¶ 19. Because the

evidence is insufficient for a finding of constructive notice without

resort to “conjecture and speculation,” we conclude that Gowe has

failed to establish a disputed issue of material fact that would

preclude summary judgment on her constructive-notice argument.

See id.¶ 21 (citation and internal quotation marks omitted).

¶14 We conclude that Gowe failed to present legally sufficient

evidence that IHC had constructive notice of the puddle to create

a genuine issue of material fact for trial. Gowe did not preserve her

challenge to the district court’s ruling that she failed to

demonstrate actual notice. Because Gowe has not shown that IHC

had notice of the temporary unsafe condition, she cannot

demonstrate that IHC breached a duty owed to her. IHC was

therefore entitled to judgment as a matter of law. We affirm the

district court’s grant of summary judgment to IHC.

20130884-CA 7 2015 UT App 105