Coburn v. Whitaker Construction , 445 P.3d 446 ( 2019 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 24
IN THE
SUPREME COURT OF THE STATE OF UTAH
JULIE COBURN,
Petitioner,
v.
WHITAKER CONSTRUCTION CO.,
Respondent.
No. 20180668
Filed June 18, 2019
On Certiorari to the Utah Court of Appeals
Second District, Farmington
The Honorable Glen R. Dawson
No. 150700668
Attorneys:
James R. Hasenyager, Ogden, Stony V. Olsen, Moroni, for petitioner
Paul P. Burghardt, Ryan J. Schriever, North Salt Lake, for respondent
JUSTICE HIMONAS authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Sometimes the path we take makes all the difference. In this
case, Julie Coburn chose to step over orange construction netting that
was strung across a public walking trail. In doing so, her foot got
caught in the netting and she fell to the ground, suffering injuries to
her arm and shoulder. The district court ruled that the orange
netting was an open and obvious danger and therefore Whitaker
Construction—the company that strung the orange netting across
the trail—owed Ms. Coburn no duty of care with respect to the
netting. The court of appeals issued an order without an opinion
upholding the district court’s ruling. We now affirm.
COBURN v. WHITAKER CONSTRUCTION CO.
Opinion of the Court
BACKGROUND
¶2 Whitaker was hired to install a water pipeline in the Kays
Creek Parkway, a recreational area in Layton, Utah. The Kays Creek
Parkway contains a number of walking trails that are designated for
public use, one of which led to the pipeline construction site.
Whitaker placed a “Trail Closed Ahead” sign at the trailhead
indicating that portions of the trail were closed for construction and
strung orange netting across the trail to deter people from accessing
the construction site. Despite the warning sign and the orange
netting, people consistently ignored the sign and would take down
the orange netting, which Whitaker acknowledges it had to replace
on a consistent basis.
¶3 On July 8, 2018, Ms. Coburn and her husband went for a
walk in the Kays Creek Parkway. Despite seeing the “Trail Closed
Ahead” sign at the trailhead, the Coburns assumed the trail was
open and continued on. 1 A short distance into the trail, Ms. Coburn
encountered two barrels on either side of the trail with orange
netting strung between them, but the netting had fallen down and
was lying across the paved trail. Ms. Coburn testified that the netting
was “maybe a couple of inches” off the ground and that the width of
the netting to be stepped over was about “nine inches to a foot,”
which was “a little bit larger” than Ms. Coburn’s walking stride. She
also testified that she recognized that the orange netting was a
hazard but chose to step over it anyway. She tripped on the netting
and fell, sustaining injuries to her arm and shoulder.
¶4 Ms. Coburn filed a negligence action against Whitaker
seeking damages for her injuries. Whitaker filed a motion for
summary judgment, arguing that it did not owe Ms. Coburn a duty
of care under the open and obvious danger rule found in the
Restatement (Second) of Torts—which we adopted in Hale v.
Beckstead, 2005 UT 24, 116 P.3d 263—and therefore could not be held
liable for her injuries. The district court agreed with Whitaker and
granted its motion for summary judgment.
¶5 Ms. Coburn filed an appeal with the court of appeals,
arguing that a genuine issue of material fact existed as to whether
Whitaker owed her a duty under the Restatement (Second) of Torts
and our opinion in Hale. She also argued that the court should
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1 There is some conflicting evidence as to whether the trail was
officially open or closed at the time. Because it is irrelevant to our
analysis, we need not make this determination.
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Opinion of the Court
abandon the open and obvious danger rule from the
Restatement (Second) of Torts and replace it with a different rule
from the Restatement (Third) of Torts. The court of appeals, on its
own motion and pursuant to Utah Rule of Appellate Procedure 31,
issued an order affirming the district court without a written
opinion. 2
¶6 Ms. Coburn filed a writ of certiorari in this court, and we
granted the writ as to the following issues:
1. Whether the Court of Appeals erred in deciding the
appeal in this case under Rule 31 of the Rules of
Appellate Procedure without providing any
explanation of the grounds for its decision. The Court
requests that the parties address both the merits of
that issue and the question of whether [Petitioner’s]
petition for certiorari adequately raised an argument
with respect to that issue.
2. Whether the Court should reconsider its adoption
of the open-and-obvious-danger rule of Sections 343
and 343A of the Restatement (Second) of Torts. The
Court requests that the parties address both the
merits of that issue and the question of whether
Petitioner adequately preserved her arguments with
respect to that issue.
3. What is the proper disposition of the case if the
Court adopts a different rule?
4. If the Court declines to adopt a different rule or to
reach the merits of Petitioner’s request for the
adoption of a different rule, whether, under relevant
case law and Sections 343 and 343A of the
Restatement (Second) of Torts, the Court of Appeals
erred in affirming the district court’s grant of
summary judgment to Respondent.
_____________________________________________________________
2 Utah Rule of Appellate Procedure 31(a) states: “After the filing
of all briefs in an appeal, a party may move for an expedited decision
without a written opinion. . . . The court may dispose of any
qualified case under this rule upon its own motion before or after
oral argument.”
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COBURN v. WHITAKER CONSTRUCTION CO.
Opinion of the Court
¶7 We exercise jurisdiction pursuant to Utah Code
section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶8 “Because a summary judgment presents questions of law,
we accord no particular deference to the court of appeals’ ruling and
review it for correctness.” Marziale v. Spanish Fork City, 2017 UT 51,
¶ 8, 423 P.3d 1145 (citation omitted) (internal quotation marks
omitted). “Summary judgment is appropriate when ‘there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.’” Id. (quoting UTAH R. CIV. P.
56(a)).
ANALYSIS
I. MS. COBURN’S PETITION FOR WRIT OF CERTIORIARI DID
NOT ADEQUATELY PRESERVE THE ISSUE OF WHETHER THE
COURT OF APPEALS ERRED IN ISSUING AN ORDER WITHOUT
OPINION PURSUANT TO RULE 31
¶9 The first issue on which we granted certiorari is “[w]hether
the Court of Appeals erred in deciding the appeal in this case under
Rule 31 of the Rules of Appellate Procedure without providing any
explanation of the grounds for its decision.” We also asked the
parties to address “the question of whether [Ms. Coburn’s] petition
for certiorari adequately raised an argument with respect to that
issue.”
¶10 We conclude that Ms. Coburn’s petition for writ of certiorari
did not adequately raise an argument with respect to the rule 31
issue. Ms. Coburn’s petition contains only two references to rule 31,
neither of which demonstrates an intent to challenge the court of
appeals’ decision to issue its order pursuant to rule 31. Instead, the
references to rule 31 in Ms. Coburn’s petition simply recount the fact
that the court of appeals issued an order in this case pursuant to
rule 31. Nothing in her petition suggests that she takes issue with the
court of appeals’ invocation of rule 31. Because Ms. Coburn’s
petition makes no argument with respect to the propriety of the
court of appeals’ decision to issue an order without written opinion
pursuant to rule 31, we decline to address this issue on certiorari. 3
_____________________________________________________________
3 We also decline to address two related issues. First, because we
decline to address the rule 31 issue, we need not decide whether a
party seeking to challenge the court of appeals’ sua sponte invocation
of rule 31 may have a duty to preserve that objection by first filing a
(continued . . .)
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Opinion of the Court
II. MS. COBURN HAS NOT MET HER BURDEN IN PERSUADING
THIS COURT TO ABANDON THE OPEN AND OBVIOUS
DANGER RULE SET FORTH IN THE RESTATEMENT (SECOND)
OF TORTS
¶11 The second issue on which we granted certiorari is
“[w]hether the Court should reconsider its adoption of the
open-and-obvious-danger rule of Sections 343 and 343A of the
Restatement (Second) of Torts.” Relatedly, we also asked what “the
proper disposition of the case [is] if the Court adopts a different
rule.” We conclude that Ms. Coburn has not carried her burden in
persuading us to reconsider our decision in Hale v. Beckstead, 2005
UT 24, 116 P.3d 263, adopting the open and obvious danger rule.
Accordingly, we need not determine what the proper disposition of
this case would be under a different rule.
¶12 In Hale, this court adopted the open and obvious danger rule
as embodied in sections 343 and 343A of the Restatement (Second) of
Torts. 2005 UT 24, ¶ 17. As we explained in Hale, the open and
obvious danger rule “defines the duty of care a possessor of land
owes to invitees.” Id. ¶ 23. Specifically, the open and obvious danger
rule provides 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.” Id. ¶ 9 (quoting Restatement (Second) of Torts
§ 343A(1)). 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.
¶13 On certiorari, Ms. Coburn argues that this court should
abandon the open and obvious danger rule that we adopted in Hale
rule 35 petition for rehearing in the court of appeals before filing a
petition for writ of certiorari with this court. Second, we decline to
address Ms. Coburn’s argument that, even though she did not make
a rule 31 argument in her petition for writ of certiorari, we should
reverse the court of appeals because its invocation of rule 31
constituted plain error. We have never extended the plain error
doctrine to cover issues not raised in petitions for writ of certiorari.
And Ms. Coburn does not present us with any briefing to suggest
that such an extension would be appropriate. Accordingly, we will
not so extend the plain error doctrine here.
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Opinion of the Court
and replace it with a different rule embodied in section 51 of the
Restatement (Third) of Torts.
¶14 Overruling precedents is something that we must not do
lightly. See Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 57, 416
P.3d 663. As we observed in Eldridge v. Johndrow, there are two
factors that help us determine the weight we should give our past
precedents:
(1) the persuasiveness of the authority and reasoning
on which the precedent was originally based, and
(2) how firmly the precedent has become established
in the law since it was handed down. The second
factor encompasses a variety of considerations,
including the age of the precedent, how well it has
worked in practice, its consistency with other legal
principles, and the extent to which people’s reliance
on the precedent would create injustice or hardship if
it were overturned.
2015 UT 21, ¶ 22, 345 P.3d 553. “We thus don’t overrule our
precedents unless they’ve proven to be unpersuasive and
unworkable, create more harm than good, and haven’t created
reliance interests.” Neese, 2017 UT 89, ¶ 57.
¶15 In her briefing on certiorari, Ms. Coburn makes little effort to
explain how Hale and the open and obvious danger rule are
unpersuasive and unworkable, create more harm than good, and
have not created reliance interests. She argues that the open and
obvious danger rule is inconsistent with Utah’s comparative fault
scheme because, in practice, it can bar some plaintiffs from
recovering for their injuries—an argument that was rejected in Hale.
2005 UT 24, ¶¶ 11–31. But Ms. Coburn does not engage Hale’s
reasoning on its merits. Nor does she explain how Hale is
unworkable or creates more harm than good. Instead, she simply
laments the fact that the open and obvious danger rule can
sometimes act as an absolute bar to recovery. Ms. Coburn also
argues that the open and obvious danger rule is a “highly fact
dependent” inquiry and therefore it is inappropriate for judges to
determine whether a danger is open and obvious. But Ms. Coburn’s
argument sounds more in why summary judgment may be
inappropriate in some cases than why Hale should be overturned.
Finally, Ms. Coburn argues that we should abandon the rule from
the Restatement (Second) because the rule in the Restatement (Third)
is different. But she does not explain how or why any change in the
Restatement (Third) would affect the continuing viability of Hale.
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Opinion of the Court
The fact that the Restatement may have changed over time does not
necessarily mean that an opinion adopting an earlier-in-time rule
needs to be overturned. It is still incumbent upon Ms. Coburn to
explain why that change necessitates the overturning of our
precedent—an explanation she omits here.
¶16 Because Ms. Coburn has not carried her burden in
persuading us that Hale should be overturned, we do not abandon
the open and obvious danger rule here. 4 Concomitantly, we need not
decide what the outcome of this case would be under a different
rule.
III. THE DISTRICT COURT CORRECTLY GRANTED SUMMARY
JUDGMENT IN WHITAKER’S FAVOR UNDER THE OPEN AND
OBVIOUS DANGER RULE
¶17 Having declined to overturn Hale and its adoption of the
open and obvious danger rule, the final question on which we
granted certiorari is “whether, under relevant case law and
Sections 343 and 343A of the Restatement (Second) of Torts, the
Court of Appeals erred in affirming the district court’s grant of
summary judgment to [Whitaker].” We conclude that the court of
appeals did not err in affirming the district court’s grant of summary
judgment and now affirm.
¶18 As detailed above, see supra ¶¶ 11–16, the operative law in
this case is the open and obvious danger rule from the
Restatement (Second) of Torts that we adopted in Hale. The
Restatement provides 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) (AM. LAW. INST. 1965). Additionally, “[i]n determining
whether the possessor should anticipate harm from a known or
obvious danger, the fact that the invitee is entitled to make use of
public land, or of the facilities of a public utility, is a factor of
importance indicating that the harm should be anticipated.” Id.
§ 343A(2). The Restatement clarifies that there is “special reason for
the possessor to anticipate harm” when the possessor “maintains
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4 To be clear, this is not to say that this court can never revisit
Hale or consider adopting the approach of the Restatement (Third).
Instead, we simply point out that Ms. Coburn has not carried her
burden in asking us to overturn our past precedent.
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COBURN v. WHITAKER CONSTRUCTION CO.
Opinion of the Court
land upon which the public are invited and entitled to enter as a
matter of public right,” as Whitaker did in this case. Id. § 343A cmt.
g. This is so because defendants like Whitaker “may reasonably
expect the public, in the course of the entry and use to which they
are entitled, to proceed to encounter some known or obvious
dangers which are not unduly extreme, rather than to forego the
right.” Id. However, even these defendants “may reasonably assume
that members of the public will not be harmed by known or obvious
dangers which are not extreme, and which any reasonable person
exercising ordinary attention, perception, and intelligence could be
expected to avoid.” Id. And “[t]his is true particularly where a
reasonable alternative way is open to the visitor, known or obvious
to him, and safe.” Id.
¶19 The district court held that Whitaker was entitled to
summary judgment because it owed no duty of care to Ms. Coburn
under the open and obvious danger rule. In the district court’s view,
“Whitaker had no reason to expect (or anticipate) that . . . individuals
that chose to ignore the signs and the fencing . . . would be unable to
protect themselves against the possibility of harming themselves
when going over or around the fencing.” Indeed, the district court
found that there was “absolutely no evidence that Whitaker should
have expected (or anticipated) that Ms. Coburn, or any other
member of the public choosing to cross or go around the fencing[,]
would not do so safely.”
¶20 The court of appeals affirmed the district court’s ruling
without issuing any written opinion.
¶21 On certiorari, Ms. Coburn argues that the court of appeals
erred in affirming the district court’s order because the district court
did not properly consider the public nature and governmental
ownership of the land on which Ms. Coburn was injured in
determining whether the harm Ms. Coburn suffered was foreseeable.
In her estimation, the fact that the Kays Creek Parkway is a public
trail is enough to satisfy the exception to the open and obvious
danger rule when the land possessor “should anticipate the harm
despite such knowledge or obviousness” of the danger. We disagree.
¶22 Although Ms. Coburn is correct that the Restatement
provides that public land owned by the government creates a
heightened level of anticipation of harm for the land possessor, this
alone is not enough to satisfy the exception to the open and obvious
danger rule. Instead, such land possessors “may reasonably assume
that members of the public will not be harmed by known or obvious
dangers which are not extreme, and which any reasonable person
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Opinion of the Court
exercising ordinary attention, perception, and intelligence could be
expected to avoid,” especially when “a reasonable alternative way is
open to the visitor, known or obvious to him, and safe.” Id. In this
case, the district court properly considered whether Whitaker could
reasonably assume that members of the public like Ms. Coburn
could avoid the danger of the orange netting.
¶23 As the district court noted, Ms. Coburn testified in her
deposition that she saw the orange netting on the ground and
recognized it as a hazard. But the netting did not present an extreme
danger. Ms. Coburn stated that the netting was “maybe a couple of
inches” off the ground and that the width of the netting to be
stepped over was about “nine inches to a foot.” In other words,
Ms. Coburn could have avoided the netting by simply raising her
foot “a couple of inches” over a distance of about “nine inches to a
foot.” Tellingly, Ms. Coburn and her husband were able to safely
traverse the netting on the way back to their car after Ms. Coburn’s
fall. The netting, then, seems the archetype of a danger that is not
extreme and that a “reasonable person exercising ordinary attention,
perception, and intelligence could be expected to avoid.” Id.
¶24 Furthermore, Ms. Coburn testified that she could have
walked around the netting but chose instead to walk over the
netting. 5 In another part of her deposition, she stated that she had
seen a footpath or some sort of worn-down trail going around the
netting, indicating that other people had been walking around the
netting. 6 This is consistent with the deposition testimony of a
foreman for Whitaker who was responsible for maintaining the
orange netting. The foreman testified that the orange netting was not
put in place for the purpose of physically keeping people out.
Rather, the orange netting was there to advise people not to continue
_____________________________________________________________
5 Ms. Coburn testified that she probably would have gone around
the netting if it had been higher, but chose to go over it because it
was not too high and her puppy had just crossed over the netting
without issue.
6 It is unclear which path was less traveled by because “the
passing there had worn them really about the same.” ROBERT FROST,
The Road Not Taken, in MOUNTAIN INTERVAL 9, 9 (1916).
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Opinion of the Court
on the trail, despite the fact that they could walk around the netting
if they wanted to. 7
¶25 In response to the testimony below that there was a safe
alternative to crossing over the netting, Ms. Coburn cited the
testimony of her husband, who testified that the orange netting
extended some twenty to thirty feet beyond the sides of the trail. She
also cited to the foreman’s testimony, which indicated that the
netting was attached to trees that were on either side of the trail. But
the fact that the netting may have stretched beyond the width of the
trail does not create a genuine issue of material fact as to whether an
alternative path existed. To the contrary, the foreman’s testimony
demonstrates that people could still bypass the netting, even if the
netting was tied to trees on the side of the path. And Ms. Coburn
herself testified that the footpath or worn-down trail she saw went
around the trees. The unrebutted testimony, then, indicates that a
path around the trees—and by extension, the netting—existed at the
time Ms. Coburn tripped and fell over the netting.
¶26 The testimony presented to the district court leads to two
inescapable conclusions. First, the netting was not an extreme
danger. Instead, it was a danger that any reasonable person could
have avoided by carefully stepping over it. And second, a safe,
obvious, and reasonable alternative existed to Ms. Coburn: she could
have walked around the trees and avoided crossing over the netting
altogether. Accordingly, Whitaker could reasonably rely on the
public to avoid the danger presented by the netting through the
exercise of ordinary attention, perception, and intelligence—either
by going over or around it. Therefore, the district court did not err
when it held that “Whitaker had no reason to expect (or anticipate)
that those individuals that chose to ignore the signs and the fencing
. . . would be unable to protect themselves against the possibility of
harming themselves when going over or around the fencing.” As
such, Whitaker did not owe Ms. Coburn a duty to warn or otherwise
protect her from the orange netting and the court of appeals’ order
upholding the district court’s ruling is affirmed.
CONCLUSION
¶27 We conclude that Ms. Coburn’s petition for writ of certiorari
did not adequately present an argument regarding the court of
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7 This is also echoed in the district court’s opinion, which states
that the orange netting was strung across the trail “as a visual aid” to
keep people out.
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Opinion of the Court
appeals’ rule 31 order and therefore decline to address that issue. We
also conclude that Ms. Coburn has not met her burden in persuading
this court to overturn Hale and abandon the open and obvious
danger rule. Finally, we hold that, under the open and obvious
danger rule, Whitaker owed Ms. Coburn no duty of care. Affirmed.
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