MacFarlane v. Applebee's Restaurant , 378 P.3d 1286 ( 2016 )


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    2016 UT App 158
    THE UTAH COURT OF APPEALS
    ELIZABETH MACFARLANE,
    Appellant,
    v.
    APPLEBEE’S RESTAURANT, AMERICAN FORK APPLETTE LLC,
    AND JOHN D. PRINCE,
    Appellees.
    Opinion
    No. 20140991-CA
    Filed July 29, 2016
    Fourth District Court, Provo Department
    The Honorable Fred D. Howard
    No. 120400036
    James G. Clark and Dallas B. Young, Attorneys
    for Appellant
    Heinz J. Mahler, Kirk G. Gibbs, and Samuel A.
    Goble, Attorneys for Appellees
    JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
    MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.
    ROTH, Judge:
    ¶1    Elizabeth MacFarlane appeals the district court’s grant of
    summary judgment in favor of Applebee’s Restaurant, American
    Fork Applette LLC, and John D. Prince (collectively, the
    Restaurant). We affirm.
    MacFarlane v. Applebee's Restaurant
    BACKGROUND 1
    ¶2      In January 2008, MacFarlane slipped on ice and fell while
    walking in the parking lot next to an Applebee’s Restaurant in
    the American Fork Commercial Center (the Shopping Center), a
    large shopping center in which the Applebee’s Restaurant
    occupied a detached building. At the time of the incident, the
    Restaurant leased 48,545 square feet of space in the Shopping
    Center from AFCC Limited (the Landlord). The Restaurant’s
    building occupies approximately 5,100 square feet of the leased
    space, with a parking area comprising most of the remainder of
    what the ground lease (the Lease) described as the “Leased
    Premises.” In the Lease, the Landlord agreed to “provide all
    necessary parking for [the Restaurant’s] customers and
    employees” but stated that the parking “shall be non-exclusive
    and in compliance with the Shopping Center criteria” as well as
    several existing covenants and cross-easements that encumbered
    the property. The Landlord was also “responsible for the
    maintenance of all common areas,” for which the Restaurant was
    required to “pay a portion of the . . . maintenance cost based on a
    prorata percentage.” In this regard, the Lease stipulated that
    “[a]ll common areas and facilities which [the Restaurant] may be
    permitted to use and occupy are to be used and occupied under
    a revocable license, coterminous with this Lease.”
    ¶3     MacFarlane filed a premises liability complaint against
    the Restaurant in January 2012, claiming that the Restaurant
    failed to fulfill its duty to clear the parking lot of hazardous ice
    or warn her of the danger. She alleged that the Restaurant had
    negligently failed to “remove, salt, sand, or warn of ice in the
    1. “In reviewing a district court’s grant of summary judgment,
    we view the facts and all reasonable inferences drawn therefrom
    in the light most favorable to the nonmoving party and recite the
    facts accordingly.” Ockey v. Club Jam, 
    2014 UT App 126
    , ¶ 2 n.2,
    
    328 P.3d 880
     (citation and internal quotation marks omitted).
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    MacFarlane v. Applebee's Restaurant
    parking lot” when it knew, or should have known, that “the ice
    in the parking lot created a foreseeable hazard to patrons and/or
    invitees of the business” and that “the ice needed to be
    eliminated, neutralized, or [a] warning should have been given.”
    MacFarlane claimed that as a result of the Restaurant’s
    negligence she suffered injuries and special damages, including
    “medical bills, lost wages, and the loss of future earning ability.”
    ¶4      Among other defenses to MacFarlane’s claims, the
    Restaurant asserted that it was “not the owner[], or in control, of
    the parking lot in which [MacFarlane] allegedly slipped and
    fell.” Rather, it claimed that “[t]he duty to keep the parking lot
    free of snow and ice, if any, was at [the] relevant time . . . with
    [the Landlord], . . . the property owner of the parking lot.” 2 The
    Restaurant subsequently moved for summary judgment, arguing
    that it did not owe MacFarlane a duty, because although it
    leased the parking lot, it did not own or control the parking lot.
    ¶5     The district court granted the Restaurant’s summary
    judgment motion and dismissed MacFarlane’s claim. It reasoned
    that summary judgment was appropriate because, “even when
    viewing the facts in the light most favorable to [MacFarlane],
    [the Restaurant] did not have ownership or control over the
    parking lot, and thus did not have a duty of care towards
    [MacFarlane].” The court determined that the Lease made the
    Landlord “responsible for maintenance of all common areas,”
    which “included all snow removal during the winter months,”
    and that the “necessary parking . . . was ‘non-exclusive.’” Thus,
    the court concluded that the Landlord “explicitly retained
    control over the parking lot, including responsibility for snow
    removal,” and that “because the accident occurred outside an
    area controlled by [the Restaurant],” judgment in favor of the
    2. The Landlord was subsequently added as a party in an
    amended complaint but successfully moved to dismiss the
    claims against it on statute of limitations grounds.
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    Restaurant was proper as a matter of law. MacFarlane appeals
    this ruling.
    ISSUE AND STANDARD OF REVIEW
    ¶6      MacFarlane argues that the district court erred when it
    granted summary judgment in favor of the Restaurant on the
    basis that the company owed her no duty to maintain the
    parking lot in a reasonably safe condition. “We review a
    [district] court’s summary judgment [decision] for correctness,
    considering only whether the [district] court correctly applied
    the law and correctly concluded that no disputed issues of
    material fact existed.” Hermansen v. Tasulis, 
    2002 UT 52
    , ¶ 10, 
    48 P.3d 235
    .
    ANALYSIS
    ¶7     MacFarlane argues that we should reverse the district
    court’s grant of summary judgment in favor of the Restaurant
    because the Restaurant had a duty under common law principles
    of premises liability to maintain the parking lot in a reasonably
    safe condition, which it breached by failing to clear the ice in the
    parking lot or warn her of the hazard. According to MacFarlane,
    the Restaurant’s duty arose out of its possession and control of
    the parking lot as a leaseholder. She asserts that the parking lot
    was part of the leased premises that the Restaurant occupied and
    for which it paid rent and that by virtue of its leasehold, the
    Restaurant “had possessory rights in the entire portion” of the
    space it occupied, which included both the restaurant building
    and the adjacent parking area. In this regard, she contends that
    although the Lease created a contractual obligation for the
    Landlord to perform “routine maintenance such as snow
    removal and ice remediation,” the Restaurant nonetheless “had
    full authority to perform [the routine snow and ice removal]
    because nothing in [the Lease] prohibit[ed]” it from doing so.
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    She further argues that the Restaurant’s duty to her was
    nondelegable and that the Landlord’s obligation under the Lease
    to maintain the parking lot could not legally insulate the
    Restaurant from its own primary responsibility as the
    leaseholder.
    I. Only a “Possessor” of Land Has a Duty to an Invitee Under
    Principles of Premises Liability.
    A.     A “Possessor” of Land’s Duty to Invitees
    ¶8     To prevail on a negligence claim, “a plaintiff must
    establish, among other things, that the defendant owed a duty of
    care to the plaintiff.” See Williams v. Bench, 
    2008 UT App 306
    ,
    ¶ 21, 
    193 P.3d 640
    . There is, however, a distinction between
    duties that arise due to a person’s or entity’s affirmative actions
    and those that arise due to omissions. See B.R. ex rel. Jeffs v. West,
    
    2012 UT 11
    , ¶ 7, 
    275 P.3d 228
    . In general, “we all have a duty to
    act reasonably in our affirmative acts.” Hill v. Superior Prop.
    Mgmt. Servs., Inc., 
    2013 UT 60
    , ¶ 10, 
    321 P.3d 1054
    . But “passive
    inaction, a failure to take positive steps to benefit others, or to
    protect them from harm not created by any wrongful act of the
    defendant . . . generally implicates a duty only in cases of special
    legal relationships.” See Jeffs, 
    2012 UT 11
    , ¶ 7 (citation and
    internal quotation marks omitted); see also Hill, 
    2013 UT 60
    , ¶ 10
    (noting that “no such duty [to act reasonably] attaches with
    regard to omissions except in cases of a special relationship”).
    ¶9       The legal relationship between a possessor of land and his
    or her invitees to that land is one such special relationship. See
    Restatement (Second) of Torts § 314A(3) (Am. Law Inst. 1965)
    (“A possessor of land who holds it open to the public is under
    a . . . duty to members of the public who enter in response to his
    invitation.”); see also Jeffs, 
    2012 UT 11
    , ¶ 7. “[P]ossessors [of land]
    owe significant duties to invitees who come onto their
    property—including affirmative duties to remedy or warn
    against dangerous conditions.” Hill, 
    2013 UT 60
    , ¶ 21.
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    MacFarlane v. Applebee's Restaurant
    MacFarlane claims that the Restaurant owed her a duty to
    remove the ice or warn her of its presence because the
    Restaurant was a possessor of the parking lot where her injury
    occurred and she was in the parking lot as the Restaurant’s
    invitee. 3
    ¶10 “The duty of care that possessors of land in Utah owe to
    invitees upon their property is set forth in sections 343 and 343A
    of the Second Restatement of Torts.” Hale v. Beckstead, 
    2005 UT 24
    , ¶¶ 7, 17, 
    116 P.3d 263
    . Restatement (Second) of Torts section
    343, the section most pertinent to this case, states,
    A possessor of land is subject to liability for
    physical harm caused to his invitees by a
    [dangerous] condition on the land if . . . he (a)
    knows or by the exercise of reasonable care would
    discover the [dangerous] condition, and should
    realize that it involves an unreasonable risk of
    harm to such invitees, and (b) should expect that
    they will not discover or realize the danger, or will
    fail to protect themselves against it, and (c) fails to
    exercise reasonable care to protect them against the
    danger.
    Restatement (Second) of Torts § 343 (Am. Law Inst. 1965). Thus,
    the central question in this case is whether the Restaurant is “[a]
    possessor of land.” See id. If the Restaurant is not a possessor of
    the land where the injury occurred, the duty outlined in section
    343 of the Restatement attendant to the special relationship
    between possessors of land and invitees will not arise. See Hill,
    
    2013 UT 60
    , ¶¶ 21, 29 (noting that a party who “is not a
    possessor . . . has no duty as such”).
    3. The parties do not dispute that MacFarlane was the
    Restaurant’s invitee on the occasion of her fall.
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    B.     The Core Capacities of a “Possessor” of Land Under the
    Hill Decision
    ¶11 In Hill v. Superior Property Management Services, Inc., 
    2013 UT 60
    , 
    321 P.3d 1054
    , the Utah Supreme Court addressed the
    question of what constitutes a possessor of land in the context of
    a premises liability negligence case. 
    Id.
     ¶¶ 21–29. While noting
    that it had “not articulated a comprehensive list of attributes of a
    ‘possessor,’” the court stated that it had “generally invoked the
    standard for invitees in the Restatement (Second) of Torts.” Id.
    ¶ 22; see also Hale, 
    2005 UT 24
    , ¶ 17 (“Utah law does adopt the
    Restatement’s definition of a landowner’s duty to invitees upon
    his property.”). The Restatement (Second) of Torts defines
    “possessor” as
    (a) a person who is in occupation of the land with
    intent to control it or (b) a person who has been in
    occupation of land with intent to control it, if no
    other person has subsequently occupied it with
    intent to control it, or (c) a person who is entitled to
    immediate occupation of the land, if no other
    person is in possession under Clauses (a) and (b).
    Restatement (Second) of Torts § 328E (Am. Law Inst. 1965).
    Based on this definition, the supreme court stated that “control
    stemming from actual occupation . . . is the hallmark of
    possessor status” and that “the degree of control [must] be
    substantial” in order for a party to qualify as a possessor. Hill,
    
    2013 UT 60
    , ¶¶ 22–23 (internal quotation marks omitted). In this
    regard, a possessor must have “both the rights and the
    corresponding abilities to deal with the [land where the injury
    occurred] as he sees fit.” Id. ¶ 24. In other words, a possessor of
    land must have “the control necessary to undertake plenary
    care.” See id. ¶ 29; see also id. ¶ 23 (“Those who have qualified as
    possessors in our cases have been landowners and others
    exercising plenary control over . . . [the] premises.”).
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    ¶12 In Hill, the plaintiff lived in a condominium development
    and was injured when she tripped on protruding tree roots in
    the grassy common area appurtenant to her unit. Id. ¶¶ 1, 4. She
    sued for negligence both the homeowners association and the
    landscape maintenance company that the homeowners
    association had engaged to perform specified maintenance in the
    common area. Id. ¶ 5. The lower court dismissed the negligence
    suit against the landscape maintenance company because it
    found that the company “owed [the plaintiff] no duty of care”
    where, among other things, it “exercised insufficient control over
    the property to be subject to premises liability.” Id. ¶ 7. The
    supreme court affirmed the dismissal. Id. ¶¶ 2, 29.
    ¶13 In so doing, the court highlighted two “core capacities”
    that marked a possessor of land’s plenary control: “the right to
    exclude others from the property altogether” and “the right to
    take all necessary precautions and make necessary repairs.” Id.
    ¶¶ 24, 27. The court stated that “[t]he right of exclusion is
    significant” because it permits the “person with such a right . . .
    [to] effectively limit her exposure to liability” by permitting that
    person to “determine how broadly to open her property to
    others, weighing the economic benefits against the costs
    (including increased liability).” Id. ¶ 25. Regarding the right to
    take all necessary precautions, the court stated that this right “is
    also pivotal,” particularly in light of a possessor’s duty to
    “‘exercise reasonable care’ in identifying dangerous conditions
    [on the land] and in protecting invitees against them.” Id. ¶ 26
    (quoting Restatement (Second) of Torts § 343). The court
    reasoned that the right to take necessary precautions and make
    repairs enables a person “with plenary control of property . . . to
    take precautions to prevent business invitees . . . from
    encountering dangerous conditions on the land,” noting that “a
    person with less than full control over property might lack the
    ability to take measures necessary to protect an invitee against
    such conditions.” Id.
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    MacFarlane v. Applebee's Restaurant
    ¶14 The court determined that the landscape maintenance
    company lacked both of the “core capacities” it identified as
    incumbent on possessors of land. Id. ¶ 27. In particular, it
    determined that there was “no indication that [the landscape
    company had] the right to exclude others from” the common
    area property. Id. Rather, it noted, “[a]ll indications are that [the
    homeowners association had] retained that right.” Id. It also
    determined that the landscape maintenance company had “only
    limited authority to perform repairs” and that “[m]ost major
    repairs [were] beyond the scope of [the landscape company’s]
    authority.” Id. ¶ 28. The court, therefore, concluded that “despite
    [the landscape company’s] many duties under the management
    contract, it lacks plenary authority to engage in whatever
    measures it might deem necessary to prevent harm to those who
    visit the property” and that in such circumstances “possessor
    liability would extend to injuries resulting from hazards [the
    landscape company had] little or no control over.” Id. ¶ 29. As a
    result, it held that “[a] party like [the landscape company] who
    lacks the control necessary to undertake plenary care is not a
    possessor, and thus has no duty as such.” Id.
    ¶15 Applying the principles of Hill and the Restatement
    (Second) of Torts to the instant case, we conclude that the district
    court did not err when it determined that the Restaurant did not
    have sufficient control over the parking lot where MacFarlane
    was injured to make it a “possessor” for purposes of premises
    liability.
    II. The Restaurant Is Not a Possessor of the Parking Lot for
    Purposes of Premises Liability Because It Lacks
    Requisite Control.
    ¶16 MacFarlane’s argument that the Restaurant controlled the
    adjacent parking lot rests on the Lease itself. She contends that
    the Restaurant’s status as lessee necessarily includes the right to
    exclude others and the right to remediate dangerous conditions.
    As proof of the latter, she points to the fact that the parking lot
    20140991-CA                      9               
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    MacFarlane v. Applebee's Restaurant
    was part of the leased premises and that nothing in the Lease
    “prevents [the Restaurant] from performing maintenance on the
    parking lot area.” “When possible, the court should give effect to
    all words and clauses of the lease, and construe the lease as a
    whole.” Stevensen v. Bird, 
    636 P.2d 1029
    , 1031 (Utah 1981)
    (citation and internal quotation marks omitted). A review of the
    Lease as a whole indicates that although the “leased premises”
    include the parking area adjacent to its restaurant building, the
    Restaurant “exercise[s] insufficient control over the property to
    be subject to premises liability.” Hill, 
    2013 UT 60
    , ¶ 7. In
    particular, the Lease provides the Restaurant little ability to
    “limit [its] exposure to liability” or “determine how broadly to
    open [the parking lot] to others” by “weighing the economic
    benefits against the costs (including increased liability)” for
    doing so. See id. ¶ 25. It also affords the Restaurant significantly
    “less than full control over [the parking lot]” to make repairs and
    engage in necessary maintenance. See id. ¶ 26. As a result, we
    conclude that the Restaurant has neither the right to exclude
    persons from the parking lot nor the “plenary authority to
    engage in whatever measures it might deem necessary to
    prevent harm to those who visit the property.” See id. ¶ 29.
    ¶17 First, the provision of the Lease that relates directly to
    parking plainly limits the Restaurant’s rights to exclude others.
    See Holladay Towne Center, LLC v. Brown Family Holdings, LC, 
    2008 UT App 420
    , ¶ 10, 
    198 P.3d 990
     (noting that a “[l]ease is a
    contract,” which we interpret by “first look[ing] to the contract’s
    four corners to determine the parties’ intentions, which are
    controlling,” and further that “[i]n the absence of ambiguity, . . .
    we determine the parties’ intentions as a matter of law under the
    plain contractual language” (citations and internal quotation
    marks omitted)). Provision Twenty-Two of the Lease states that
    the Landlord “will provide all necessary parking for [the
    Restaurant’s] customers and employees,” and specifies that
    “[s]uch parking shall be non-exclusive.” (Emphasis added.) The
    Lease also requires the nonexclusive parking area to be shared
    20140991-CA                     10               
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    MacFarlane v. Applebee's Restaurant
    with others “in compliance with the Shopping Center criteria”
    and certain agreements establishing easements in favor of other
    shopping center tenants “which encumber the Leased
    Premises.” 4 And the Restaurant not only agreed to be bound by
    these other agreements, but it also acknowledged that the other
    agreements “shall control” “[i]n the event of conflict between
    [them and] the terms of this Lease.” Thus, the nonexclusive
    character of the parking lot and the overlay of other easement
    agreements to which it is subject plainly indicate that the
    Restaurant lacks the right to exclude others from that portion of
    the leased premises.
    ¶18 Second, the Lease does not authorize the Restaurant to
    maintain or make necessary repairs to the parking area. The
    Lease expressly states that the “Landlord shall be responsible for
    the maintenance of all common areas,” and neither party on
    appeal contests that the Landlord’s common-area maintenance
    responsibilities include “all snow removal during the winter
    months.” In other words, the entire onus of the maintenance
    responsibility of the common areas, including the parking lot,
    was placed on the Landlord. Further, when viewed as a whole,
    the Lease does not grant the Restaurant the sort of plenary
    ability to maintain, make repairs, and make changes to the
    parking lot that Hill described as “pivotal” to this aspect of the
    control analysis. 
    2013 UT 60
    , ¶ 26. Indeed, as in Hill, “[m]ost
    major repairs are beyond the scope of [the Restaurant’s]
    authority,” see id. ¶ 28, given that under the Lease, the Landlord
    is contractually obligated to provide the “parking areas,”
    including the “paving, striping, traffic signs, and drainage”—
    improvements all of a type that seem to go directly to making
    the parking lot safe. And any repair obligations the Restaurant
    4. The Lease states that use of the leased premises (including the
    parking lot portion) must comply with other easements and
    restrictions encumbering the property.
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    MacFarlane v. Applebee's Restaurant
    has in the parking lot appear to involve only “areas modified by
    [it]”; there is no claim here that the Restaurant made any such
    modifications. 5
    ¶19 In sum, the Lease defines the Restaurant’s entire
    relationship to the parking lot as subordinate to the role and
    authority of the Landlord, with the Restaurant’s rights in the
    parking lot limited to a non-exclusive right of use in common
    with others and with no attendant responsibility or
    authorization for general maintenance, including snow removal.
    Thus, MacFarlane’s reliance on the Lease as the source of the
    Restaurant’s duty to her is misplaced, because the Lease does not
    provide the Restaurant the “core capacities” of control required
    of a possessor of land. See id. ¶ 27. The Lease neither permits the
    Restaurant to exclude persons from the parking lot nor grants
    the Restaurant plenary authority to make repairs and perform
    necessary maintenance to protect its invitees from dangerous
    conditions. Therefore, like the landscape company at issue in
    Hill, the Restaurant “lacks the control necessary to undertake
    plenary care.” See id. ¶ 29. As a result, the Restaurant “is not a
    possessor, and has no duty as such.” See id.
    5. In her reply brief, MacFarlane points us to provisions in the
    Lease that she contends demonstrate that the Restaurant had
    possessory control over the parking lot. In particular, she points
    out that the Restaurant had “the right to construct a new
    building on any part of the Leased Premises”; that it had the
    “right to place signage on the Leased Premises”; and that it had
    the “unilateral right to grant a utility easement over the Leased
    Premises.” However, these are prospective, theoretical rights,
    and MacFarlane has not persuaded us that the fact that the
    Restaurant might acquire expanded rights in the future by
    exercising certain lease options modified or enhanced the
    Restaurant’s rights in the parking lot at the time of MacFarlane’s
    accident.
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    MacFarlane v. Applebee's Restaurant
    ¶20 MacFarlane’s arguments do not persuade us that a
    different conclusion is warranted. MacFarlane argues that the
    Restaurant had a duty because it could have taken precautions to
    maintain the ice in the parking lot immediately adjacent to its
    building—that nothing in the Lease affirmatively prevented it
    from doing so. But the theoretical ability of a lessee to engage in
    certain prevention measures on a leased property cannot
    establish a duty in the absence of a special relationship. And the
    lack of a prohibition against doing some action in a lease cannot
    itself create the sort of possessory interest that creates the special
    relationship necessary to require a party to take affirmative
    measures to avoid harm to another. MacFarlane’s argument
    inverts the analytical sequence by assuming that the duty to act
    to avoid harm exists before the required special relationship has
    been established.
    ¶21 MacFarlane also contends that the Lease provision
    making the Landlord responsible for the parking lot
    maintenance amounts to an attempt by the Restaurant to
    delegate to the Landlord its own duty to MacFarlane as a
    possessor of property. She correctly points out that a “possessor
    of property has ‘a nondelegable duty to keep the premises
    reasonably safe for business invitees.’” (Quoting Sullivan v. Utah
    Gas Serv. Co., 
    353 P.2d 465
    , 466 (Utah 1960).) But that is not what
    happened here. Rather, the Lease’s allocation of responsibility to
    the Landlord for parking lot maintenance is more accurately
    characterized as the Landlord’s retention of common area
    maintenance responsibility—as the landowner—than a delegation
    of responsibility from the Restaurant. See Delegation of Duties,
    Black’s Law Dictionary (10th ed. 2014) (“A transaction by which
    a party to a contract arranges to have a third party perform the
    party’s contractual duties.”). And delegation is an issue only if a
    duty has arisen in the first place. See Price v. Smith’s Food & Drug
    Ctrs., Inc., 
    2011 UT App 66
    , ¶ 26, 
    252 P.3d 365
     (“A nondelegable
    duty means that an employer of an independent contractor, by
    assigning work consequent to a duty, is not relieved from liability
    20140991-CA                      13               
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    MacFarlane v. Applebee's Restaurant
    arising from the delegated duties negligently performed.”
    (emphasis added) (citation and internal quotation marks
    omitted)). Because we have determined that the Restaurant had
    no duty to MacFarlane here, it follows that the nondelegation
    doctrine does not come into play in this case. 6
    ¶22 It is also worth noting that other jurisdictions have
    applied similar reasoning to decide that a lessee in a multitenant
    shopping center does not owe a duty to keep the common areas
    of the shopping center free of hazards for invitees. See, e.g.,
    Holmes v. Kimco Realty Corp., 
    598 F.3d 115
     (3d Cir. 2010). In
    Holmes, the invitee of a store in a multitenant shopping center
    slipped and fell on ice while returning to his car after making
    purchases at the store. 
    Id.
     at 116–17. Like the present case, the
    store’s lease provided that the tenants of the center and their
    invitees “enjoyed a non-exclusive right to use the parking lot
    and other common areas” and that the landlord was
    “required . . . to maintain the Common Areas, including snow
    6. MacFarlane also briefly contests the factual basis of the district
    court’s ruling. She first argues that the district court improperly
    relied on the affidavit of the Restaurant’s Vice President of
    Operations to interpret the contract, and, second, suggests that it
    is not clear that the parking lot is included as “common area”
    subject to the common area maintenance provision because the
    Lease did not specifically define what areas are designated as
    “common area.” As to the first, we conclude that the Lease itself
    supports the district court’s decision without consideration of
    the affidavit and we therefore do not further address this issue.
    As to the second, MacFarlane did not raise this contention in her
    opening brief and only asserted it in passing—a mere three
    sentences—in her reply brief. We “will not consider matters
    raised for the first time in the reply brief.” Davis v. Davis, 
    2011 UT App 311
    , ¶ 14, 
    263 P.3d 520
     (citation and internal quotation
    marks omitted). Therefore, we decline to reach these arguments.
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    MacFarlane v. Applebee's Restaurant
    removal,” for which each tenant “was required to pay a prorata
    share of common area maintenance costs.” Id. at 117. The Third
    Circuit Court of Appeals affirmed the grant of summary
    judgment in favor of the store tenant, concluding that the state in
    which the injury occurred “would not impose a duty on an
    individual tenant for snow removal from the common areas of a
    multi-tenant parking lot when the landlord has retained and
    exercised that responsibility.” 7 Id. at 124–25.
    7. See also, e.g., McDevitt v. Sportsman’s Warehouse, Inc., 
    255 P.3d 1166
    , 1167 (Idaho 2011) (holding that a tenant in a multitenant
    shopping center was not liable for injury that occurred on the
    sidewalk in front of the tenant’s store where the sidewalk was
    not part of the leased premises, where the tenant did not have
    control over the sidewalk, and where the tenant did not create
    the hazard); Strahs v. Tovar’s Snowplowing, Inc., 
    812 N.E.2d 441
    ,
    443–47 (Ill. App. Ct. 2004) (holding that where the landlord was
    responsible for snow and ice removal from the parking lot, the
    lessee of a store in a multitenant shopping center did not owe
    plaintiff a duty to remove ice in the parking lot or warn of the
    danger, even though the lease provided that “certain portions of
    the parking lot were for the use of [the tenant’s] customers and
    employees” and that the tenant “had the right to give notice to
    [the landlord] if [the landlord] failed to properly remove snow
    and ice” or “remedy and fix the situation after 30 days” if the
    landlord did not); Kandrac v. Marrazzo’s Market at Robbinsville, 
    57 A.3d 11
    , 12, 18 (N.J. Super. Ct. App. Div. 2012) (holding that “as
    a general rule, when a commercial tenant in a multi-tenant
    shopping center has no control or contractual obligation to
    maintain a parking lot shared with other tenants, the common
    law does not impose a duty upon the tenant to do so”); DePompo
    v. Waldbaums Supermarket, Inc., 
    737 N.Y.S.2d 646
    , 646–47 (N.Y.
    App. Div. 2002) (holding that a supermarket operating in a
    multitenant shopping center was not liable to a customer who
    fell in the parking lot where the supermarket “did not own,
    (continued…)
    20140991-CA                     15               
    2016 UT App 158
    MacFarlane v. Applebee's Restaurant
    ¶23 The Third Circuit also identified several policy
    considerations that supported the decision not to impose a duty
    on a lessee under such circumstances. The court reasoned that
    “[t]o oblige tenants [in multitenant shopping centers] to
    maintain common areas would result in substantially increased
    costs with little added benefit,” particularly where “[l]andlords
    already have great incentive to keep the parking areas of their
    shopping centers free of snow, ice, and other hazards.” 
    Id.
     at
    123–24. It also noted that the “risk of not imposing a duty on [the
    tenant] is minimal” where the landlord has a snow removal
    program in place and that if the tenant had a duty to maintain
    the parking lot, the result would be “duplicative effort and
    interference with the landlord’s maintenance program” as well
    as “uncertainty with respect to the areas of the parking lot for
    which each tenant is responsible.” Id. at 124. Finally, the court
    observed that injured customers were not left “without a
    remedy,” because the landlord itself would generally have a
    duty to the plaintiff. Id. These considerations are also relevant to
    the present case, where the parking lot serves multiple tenants in
    the Shopping Center and the Landlord has both an incentive and
    a contractual responsibility to keep the parking lot free of snow
    and ice.
    ¶24 We conclude that under the Lease, the Restaurant is not a
    possessor of land in relation to the parking lot, and because it is
    not, no special relationship existed between the Restaurant and
    MacFarlane in relation to the condition of the parking lot at the
    time of her accident. Thus, the district court correctly determined
    (…continued)
    occupy, possess, or put to a special use the parking lot where the
    plaintiff fell, and . . . it had no right or obligation to maintain this
    area” and where the “lessor retained the obligation to maintain
    the parking lot and [the tenant] had the right to use the parking
    lot with other tenants of the shopping center”).
    20140991-CA                       16                
    2016 UT App 158
    MacFarlane v. Applebee's Restaurant
    that the Restaurant did not owe a duty to MacFarlane to clear the
    ice or warn her of the dangerous condition in the parking lot,
    and we affirm the court’s decision to grant summary judgment
    in the Restaurant’s favor.
    CONCLUSION
    ¶25 For the reasons stated above, we affirm the district court’s
    grant of summary judgment in favor of the Restaurant.
    20140991-CA                   17               
    2016 UT App 158