2015 UT App 105

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### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

A VI VA G OWE, Plainti ff and Appellant,

v. I NT E R MOUNTAI N H E AL T H C ARE, I N C ., Defendan t and Appellee.

Memor andumDeci si on No. 20130884-CA Filed Apri l 30, 2015

Second Di stric t Co urt, O gden Department The Honorable Noel S . Hyde No. 110902127

St eve S . Chris tensen, Davi d M. Cor bett, and Cr ai g L. Pankratz, At tor neys for Appellant
Peter H. Chr i stensen, Kathry n T. Smi th, and St ephen J. T ray ner, At tor neys for Appellee

J UD G E M I C H E L E M. C H RI S T I AN S E N authore d thi s Memorandum Deci si on, i n whi ch J UD G E S J. F RE D E RI C V OR O S J R . and J OH N A. P E ARC Econcu rr ed.

CHRIS TIANSEN, Judge:

¶1 A v i va Gowe was injured when she sli pped and fell in t he entry way of an Inter mountain Healthcare clini c. She fil ed sui t again st Inter mountain Healthcare, Inc. (IHC), allegin g that she had sli pped on a puddle of rainwater that IHC n egligently allowed to

a ccumulate on the tile floor

. The di stric t court gr anted su mm a r y judgment in favor of IHC, conclu ding that Gowe had fa i led to present any evidenc e that IHC knew that the puddle exis ted or had

an oppor tuni ty to di scover the uns afe condi tion before Gowe’s fall.Gowe v. Intermoun tain Healthcare, Inc.

¶2 On appeal, Gowe arg ue s that IHC’s actual or constructi ve notic e of the uns afe condi tion could be reasonably infer r e d fr om the evidenc e she presented in opposi tion t o su mmary judgment. We conclu de that Gowe has faile d t o demonstrate err or in the di stric t court’s sum mary judgment ruling, and we there fore affi rm.
¶3 “Summary judgment i s p r o p e r only i f ‘ there i s no genuine i ssu e as to any material fact and

. . . the moving party i s entitled to a judgment as a matter of law.’” Franci s v. State, 2013 UT 65, ¶ 19, 321 P.3d 1089 (omi ssi on in or i gin al) (quoti ng Utah R. Ci v. P. 56(c) ). “[W]e rev i ew a di stric t court’s gr ant of sum mary judgm e nt for

corr ectness, co nsi dering only whether the tr i al court corr ectly appli ed the law and corr ectly conclu ded that no di sputed i ssu es of material fact exis ted.” Id. (ci tation and internal quotat i on marks omi tte d). And we view “the facts and all reasonable inferences drawn there from in the li ght most favor able t o t he no nmovin g party .” Orvis v. Johnson , 2008 UT 2, ¶ 19, 177 P.3d 600 (ci tation and internal quotat i on marks omi tte d). Gowe asser t s t hat the di stric t court err ed in gr anti ng sum mary judgment, becau se “[t ]h e r e i s a genuine issue of material fact as to whether IHC had actual or constructi ve k nowledge of the puddle.”

¶4 “The owner of a bus iness i s not a guaranto r that hi s bus iness invitees wi ll not sli p and fall.” Preston v. Lamb , 436 P.2d 1021, 1023 (Utah 1968). Rather , a bus iness owner “‘i s charged wi th the duty to use reasonable c are t o maintai n the floor of hi s establi shm ent ina reasonably safe condi tion for hi s patro ns.’” Jex v. JRA, Inc. , 2008 UT 67, ¶ 25, 196 P.3d 576 (quot ing Schn uphase v. Storehouse Mkts. , 918 P.2d 476, 478 (Utah 1996)). Thus, “[t]he mere presence of a sli ppery spot on a floor does not in and of i tself establi sh negli gence.” Price

v. Smith's Food & Drug Ctrs., Inc. , 2011 UT App 66, ¶ 8, 252 P.3d 365 (ci tation and internal qu ot a ti on marks omi tte d). To prev ai l in a sli pand-f all case, a plainti ff mus t gene r a l l y show the presence of a per ma ne nt uns afe condi tion for whi ch the defendant was responsible or a tempor ary uns afe cond i ti on th a t the d e fe n dant had notic e of and an oppor tu nity to remedy. Schn uphase, 918 P.2d at 478.

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¶5 Gowe arg ues that the puddle in the entry wa y of the clini c
was a tempor ary uns afe condi tion and that she put forward suffi ci ent evidenc e from whi ch a jury coul d find that IHC had notic e of the puddle. Under a tempor ary -uns afe-c ondi tion theor y, 1

a plainti ff mus t show that the defendant had actual or constructi ve notic e of the uns afe condi tion and that suffi ci ent tim e elapsed after the defendant obtained such knowledge that the defendant should hav e remedied the condi tion. Jex, 2008 UT 67, ¶ 16. Gowe a r g ue s that t he e v idence she presented at sum mary judgment was adequate to create an i ssu e of fa ct ma ter i al to ei ther actual and constructi ve not i ce.
¶6 Gowe fi rst contends that the evidenc e she pres e nt e d in opposi tion to sum mary judgment was suffi ci ent to create an i ssu e of fact as to whether IHC had a ct ual notic e of the puddle. To establi sh actual notic e, Gowe needed to pr esent evidenc e that the puddl e p r esented a hazard of whi ch IHC or i ts employees had actual knowledge. See id. She asserts that IHC’s actual knowledge of the p ud d le can be inferred from evidenc e that IHC knew the clini c’s floor could become wet during inclem ent weather, that clini c employees were responsible for keeping the wai tin g ro om in
or der, that the clini c’s receptioni st wa s in a posi tion to see the water, that the water was on the floor long enough to be di scovered, and that the si ze of the water puddle and placemen t of mats near the water were su ch t hat an IHC employee mus t have seen the water.

¶7 We do not reach the merits of thi s clai m, becau se Gowe fai led to present thi s arg ument to the di stric t court in her opposi tion to sum mary judgment and thus fai led to preserv e i t for appeal. We gener ally do not address unprese r ved arg uments rais ed for the fi rst tim e on appeal. Jacob v. Bezza nt, 2009 UT 37, ¶ 34,

1. Before the di stric t court, Gowe arg ued prim arily that I HC had created a permanent dangero us condi tion thro ugh a “method of oper ation” that involv ed negli gent placemen t of carpet mats in the entry wa y o f the clini c. Gowe has abandoned thi s arg ument on appeal.

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212 P.3d 535. To pre se r v e an arg ument for appellate rev i ew, the appellant mus t fi rst present the arg ument to the di stric t court “in
such a way that the court has an oppor tuni ty to rule on [i t].” Patterson v. Patterson , 2011 UT 68, ¶ 12, 266 P.3d 828 (alterat i on in
or i gin al) (c i tation and internal quot ation marks omi tte d).

¶8 In the di stric t court, Gowe’s prin ci pal theor y of her case was that IHC’s p l a ce ment of the mats, not the puddle i tself, was the

uns afe condi tion that resulted in her injuries. Her only arg ument that I HC had actual n otice of “the water accumu lation i tself” was

a clai m that the plac ement of the mats in the lobby “suggest[ed] t ha t [I HC ] may have moved the mat in or der to clean up wate r
accu mulati on, but had no t cleaned it up yet .” As a r esult, Gowe’s opposi tion to sum mary ju d g ment i denti fi ed no other facts or evidenc e in supp or t of her actual-n otice theor y. She di d not present any evidenc e that IHC knew the floor co uld become sli ppery or that the receptioni st or any other IHC employ ee was in a posi tion to or had a responsibi li ty to notic e the puddle. Whi le she presented evidenc e below that the puddle was “ei ght inches across,” she di d not ar gue to the di stric t court, as sh e does on appeal, that t he si ze of the puddle, the amount of tim e i t had been on the floor , or the placemen t of the mats were such that an IHC employee mus t have actually seen the puddl e before Gowe’s fall.

¶9 The only evidenc e that Gowe arg ued was material to actual notic e was her testim ony that, on the day of the acci dent, one of the lobby mats “was much farther away from the door than i t had been

on prev i ous occasi ons.” Whi le Go we arg ued below that the placeme nt o f the mats “suggest[ed] that [IHC] may have moved the mat in or der to clean up water accu mula t io n” and that IHC there fore had actual knowledge of the puddle, she has n ot renewed thi s arg ument on ap p e a l

. Thus, Gowe never rais ed to the di stric t court the actual-n otice arg ument she now pursues on appeal. That 2

2

. We recog ni ze that Gowe rais ed the “i ssu e” of actual no t ice below. Ho wever, our supreme court has explain ed that, whether ter med i ssu es, arguments, theor i es, or clai ms, all matter s must be (continued...)

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

arg ument was there fo r e never presented to the di stric t court in
such a way that the court had an oppor tuni ty to rule on in, and we wi ll not rev erse the di stric t court’s sum mary judgment rul ing on that basi s. See Patterson , 2011 UT 68, ¶ 12.

¶10 Gowe also arg ues that IHC had constructi ve notic e of the puddle. Constructive notic e i s gen e r a l l y i mputed to a bus iness
owner when “ the c on d i tion had exis ted long enough that he should have di scovered i t.” Schn uphase v. Storehouse Mkts. , 918 P.2d 476, 478 (Utah 1996) (cita t io n and internal quotat i on marks omi tte d). “To establish that a tempor ary condi tion exis ted long enough to give a stor e owner constructi ve notic e of i t, a plainti ff mus t present evidenc e that would show

. . . that i t had been there for an
a p p reci able tim e.” Jex v. JRA, Inc. , 2008 UT 67, ¶ 19, 196 P. 3 d 5 7 6 (omi ssi on in or i gin al) (ci tation a nd internal quotat i on marks omi tte d). However , we wi ll not i mpute constructi ve notic e “where t here i s no evidenc e reg ardin g the amount of tim e the uns a fe condi tion has exis ted.” Id.

¶11 Gowe has not di rected us to any recor d evidenc e reg ardin g the amount of tim e the p ud d l e had exis ted, such as wi tness testim ony or floor -inspec tion logs that would tend to i dent ify a range of tim e that the puddle had been present. See Price v. Smith's F oo d & Drug Ctrs., Inc. , 2011 UT App 66, ¶¶ 14, 17, 252 P. 3 d 3 6 5

. Rather , Gowe relies on a N e w Y o r k case for the propo si tion that “[a] puddle in the entry way of a bui lding after inclem ent weather

2. (...continued) fi rst presented to the di stric t c ourt to preserv e them for appeal, as
we wi ll not rev erse the di stric t court for a reason not fi rst presented to that co ur t

. S e e Patterson v. Patterson , 2011 UT 68, ¶¶ 14–17, 266 P.3d 828. Presentation of one arg ument or theo r y to the di stric t court does not preserv e for appeal any alter nati ve arg uments, even reg ardin g the same i ssu e. See Salt Lake County v. Butler, Crocket t & Walsh Dev. Corp , 2013 UT App 30, ¶ 32, 297 P.3d 38. Thus, becau se Gowe never presented to the di stric t cour t t he theor y of actual notic e she has rais ed on appeal, her arg ument again st the gr ant of

sum mary j udgment gr ounded in that theo ry i s not preser ved.

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creates ‘a reasonable inference

. . . that the water a cc um ulat ed gr adually’ and that the puddle was on the gr ound long enough to be di scovered.” (Quoting Padula v. Big V Supe rmarkets, Inc. , 570 N.Y.S.2d 850, 851 (App. Di v. 1991 ).) However , in Padula , the plainti ff had sub mi tte d e v ide nce not only that the area of the acci dent was wet and that i t had snowed before the acci dent, but also that the acci dent occurred “in a heavy tr affi c area where

cus tomer s enter ed from the slus hy parking lot wi th wet shopping carts.” 570 N.Y.S.2d at 851. There, the court conclu ded that, gi ven thi s evidenc e, “[a] reasonable inference could be drawn that the wat e r a ccumulated gr adually by the dripp ing from the wet carts and fr o m cu stomers’ foot wear.” Id. Thus, the Padula court had evidenc e before i t that water had been brought int o t he stor e in a particu lar fashi on and wo ul d have accu mulated ov er tim e. Here, Gowe presented no evidenc e to explain how water may have enter ed IHC’s clini c that could prov i de the basi s for an inference of gr adual a cc umu lation. Indeed, the only recor d evidenc e even tenuously relat ed to members of the publi c tr acking water into the clini c that day i s Gowe’s testim ony that i t had rained that day but her own sandals were dry when s he entere d the clini c. 3

¶12 M o r e o ver , i t i s not clear that Padula ’s approach to constructi ve notic e i s viab le under Utah law. In Jex v. JRA, Inc. , our supreme court reje cted a plainti ff’s constructi ve-not i ce argument, conclu ding that the plainti ff presented insu ffi ci ent evidenc e that a puddle had been present for an appreci able length of tim e. 2008 UT 67, ¶ 21, 19 6 P. 3 d 576. There, the plainti ff relied on evidenc e that stor e employees had been shovelin g sn o w that mornin g and t hat the deep tr ead of their shoes was li kely to tr ack snow into the stor e.

3. Gowe asserts in her bri ef that the puddle had formed “in a hi ghtr affi c area where the Clini c’s patien ts enter ed.” However , she has poin ted us to no recor d evidenc e of the vo lume of t r a ff ic at the clinic in gener al, or thro ugh thi s entrance on the date of the acci dent in particu lar, that could prov i de some basi s for “[a] reasonable inference . .

. that t he water accum ulated gr adually by the dripp ing from

. . . cus tomer s’ foot wear.” See Padula v. Big V Supe rmarkets, Inc. , 570 N.Y.S.2d 850, 851 (App. Di v. 1991).

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Id. However, the supreme court observe d tha t “ wh ile these arg uments bear upon who created th e p ud d le, they do li ttle to establi sh how long i t had been there .” Id. The court conclu ded that where “conjecture and specu lation i s the only way to deter mine the leng t h of tim e the puddle was on the floor ,” constructi ve notic e could not be i mputed to the defendants. Id. (ci tation and int e r nal quotat i on marks omitted).

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

accu mulated in the clini c’s entry way as rainw ater dripp ed fr o m patro ns’ shoes, we conclu de that thi s arg ument “bear[s] upon who created the puddle” but does “li ttle t o e st abli sh how long i t had been there .” See i d

. Gowe’s own testim ony reg ardin g the rain establi shes only that “i t had been r aining at some po int that day” and that she di d not know when i t had stopped. Gowe has si mply not put forward evidenc e to show the puddle had been present for “an appreci able tim e” before the acci dent. Id. ¶ 1 9

. Becaus e the evidenc e i s insu ffi ci ent for a finding of constructi ve notic e wi thout

resor t to “conjecture and specu lation,” we conclu de that Gowe has fai led to establi sh a di sputed i ssu e of material fact t ha t wo ul d preclude sum mary ju d gm e n t on her constructi ve-not i ce arg ument. See id. ¶ 21 (ci tation and internal quot ation marks omi tte d).

¶14 We conclu de tha t Gowe fai led to present legally suffi ci ent evidenc e that IHC had cons tr ucti ve not i ce of the puddle to creat e
a genuine i ssu e of material fact for tr i al. Gowe di d not preserv e her challen ge to the di stric t co ur t ’ s ruling that she fai led to demonstrate actual notic e. Becaus e Gowe has not shown that IHC had no t ice of the tempor ary uns afe condi tion, she cannot demonstrate that IHC breached a d ut y o we d to her. IHC was there fore entitled to judg me nt as a matter of law. We affi rm the di stric t court ’s grantof sum mary j udgment to I HC.

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