Hill v. Superior Property Management Services, Inc. , 745 Utah Adv. Rep. 34 ( 2013 )


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  •               This opinion is subject to revision before final
    publication in the Pacific Reporter.
    
    2013 UT 60
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    ———————
    COLLEEN HILL,
    Plaintiff and Appellant,
    v.
    SUPERIOR PROPERTY MANAGEMENT SERVICES, INC.,
    Defendant and Appellee.
    ———————
    No. 20120428
    Filed October 11, 2013
    ———————
    Third District, Salt Lake
    The Honorable Paul G. Maughan
    No. 100920934
    ———————
    Attorneys:
    Nathan D. Alder, Sarah E. Spencer, Salt Lake City, for appellant
    Paul M. Belnap, David E. Brown, Salt Lake City, for appellee
    ———————
    JUSTICE LEE authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT and ASSOCIATE CHIEF JUSTICE NEHRING
    joined.
    JUSTICE PARRISH filed an opinion concurring in part and dissenting
    in part, in which JUSTICE DURHAM joined.
    ———————
    JUSTICE LEE, opinion of the court:
    ¶1 A condominium resident was injured when she tripped on
    a group of tree root offshoots concealed within the grassy
    common area of her complex. She sued the complex‘s contract
    property management company, which was tasked with
    performing some maintenance activities in that area. She claimed
    that the company had been negligent in dealing with the tree
    offshoots, asserting that it had breached duties it owed her under
    its maintenance contract, arising from its status as a possessor of
    land, and based on its voluntary undertaking of root maintenance.
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    Opinion of the Court
    ¶2 The district court granted the company‘s motion for
    summary judgment, concluding that the company owed the
    resident no duty of care. We affirm. The company lived up to its
    relevant obligations under the maintenance contract, exercised
    insufficient control to be treated as a possessor, and never
    voluntarily undertook the root maintenance activities alleged by
    the plaintiffs.
    I
    ¶3 Colleen Hill has lived in the Waterbury Condominiums
    since 2006.1 Near her condo unit there is a grass-covered common
    area that, in April 2009, had a large tree growing in it. That tree
    generated a number of offshoots that protruded upward from the
    tree roots in various places throughout the common area.
    ¶4 Because Hill was aware of these growths, and believed
    them to be trip hazards, she generally tried to avoid the common
    area. But on April 2, 2009, her dog ventured onto the lawn to
    relieve itself, and she followed it to clean up—as required by
    condominium regulations. In doing so, she proceeded cautiously,
    but nonetheless tripped on some of the tree shoots. She testified
    that they were difficult to see that day because they were ―like
    sticks‖ and ―blended in with the dead lawn.‖2
    ¶5 To recover for her resulting injuries, Hill brought a
    negligence suit against Superior Property Management Services,
    Inc., and against the Waterbury Homeowners Association. Hill
    claimed negligence by Superior in the performance of its
    maintenance and landscaping responsibilities at Waterbury. She
    also asserted that Waterbury HOA was vicariously liable for
    Superior‘s failings and directly liable under theories of premises
    liability.
    1  The facts as stated here are in the light most favorable to Hill,
    as the nonmoving party on summary judgment.
    2  Several days after the accident, the common area where Ms.
    Hill had fallen was blocked off with caution tape and rebar. It is
    unclear who blocked off the area. Later on, the tree was removed
    altogether, though again it is unclear who removed it.
    2
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    Opinion of the Court
    ¶6 Superior performed maintenance and landscaping
    activities at Waterbury under a maintenance contract with the
    Waterbury HOA. It had done so since the mid-1990s. Under the
    parties‘ contract, Superior performed certain maintenance
    activities relating to the common area, including mowing ―lawn
    grass weekly and edg[ing] bi-weekly throughout the normal
    growing season‖ and ―trim[ming] all small and lower branches
    when necessary.‖ Waterbury HOA retained responsibility,
    however, for a number of maintenance functions, including
    ―major sidewalk repairs,― ―major trimming of all large trees,‖
    ―major fence repairs,‖ ―major breaks‖ of sprinklers, ―major roof
    repairs,‖ and ―major painting projects.‖
    ¶7 Both Superior and Waterbury HOA moved for summary
    judgment, claiming that they owed Hill no duty of care—and thus
    could not have been negligent. Hill opposed both motions,
    asserting that Waterbury owed her a duty as a possessor of land
    and that Superior owed her a duty under its maintenance
    contract, based on a variety of premises liability theories, and due
    to its voluntary undertakings. The court granted Superior‘s
    motion, determining that Superior owed Hill no duty of care
    because it had not violated any contractual obligation, exercised
    insufficient control over the property to be subject to premises
    liability, and had not voluntarily undertaken to remedy the
    hazard posed by the tree shoots. The court denied Waterbury
    HOA‘s motion, however, concluding that it was potentially liable
    as a possessor. Thereafter, Waterbury HOA settled with Hill and
    was dismissed as a party to this action.
    ¶8 Hill then filed this appeal. We review the district court‘s
    summary judgment decision for correctness. See Bahr v. Imus, 
    2011 UT 19
    , ¶ 15, 
    250 P.3d 56
    .
    II
    ¶9 Hill asserts that Superior owed her a duty of care (a)
    arising under Superior‘s maintenance contract, (b) due to its
    extensive control of the condominium premises, (c) based on its
    voluntary undertaking of tree maintenance activities, and (d)
    because it affirmatively created the hazardous clumps of tree
    shoots that allegedly caused her accident. We find no basis for a
    duty in any of the first three asserted grounds, and conclude that
    Hill failed to preserve the fourth. We accordingly affirm.
    3
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    Opinion of the Court
    A. Contract Duty
    ¶10 Tort law draws a critical distinction between affirmative
    acts and omissions. As a general rule, we all have a duty to act
    reasonably in our affirmative acts; but no such duty attaches with
    regard to omissions except in cases of a special relationship. See
    Jeffs ex rel. B.R. v. West, 
    2012 UT 11
    , ¶ 7, 
    275 P.3d 228
    .
    ¶11 Our cases have sometimes adverted to the possibility that a
    special relationship sustaining such a duty might be rooted in a
    contract. See 
    id.
     ¶ 9 n.7. Invoking this principle, Hill argues that
    Superior‘s maintenance contract gave rise to a tort duty, which it
    breached by failing to perform under two provisions of the
    contract. The first requires Superior to ―mow . . . lawn grass
    weekly and edg[e] bi-weekly throughout the normal growing
    season.‖ The second obligates it to ―trim . . . small and lower
    branches.‖ We disagree, and find that neither provision supports
    the imposition of tort liability.
    ¶12 In the first place, it is not at all clear that mere failure to
    perform would sustain liability in tort. A breach of contract, after
    all, typically gives rise to liability in contract, not in tort.3 Even
    3  See, e.g., Beck v. Farmers Ins. Exch., 
    701 P.2d 795
    , 800 & n.3 (Utah
    1985) (holding ―that in a first-party relationship between an
    insurer and its insured, the duties and obligations of the parties
    are contractual rather than fiduciary‖ and that ―[w]ithout more, a
    breach of those implied or express duties can give rise only to a
    cause of action in contract, not one in tort,‖ but further noting that
    some ―acts constituting a breach of contract may also result in
    breaches of duty that are independent of the contract and may
    give rise to causes of action in tort‖); DCR Inc. v. Peak Alarm Co.,
    
    663 P.2d 433
    , 435–36 (Utah 1983) (explaining that tort and
    contractual duties are distinct and that tort liability does not
    necessarily follow directly from a contractual breach, although a
    contractual relationship may give rise to a relationship on which a
    tort duty is premised); see also Esty v. Beal Bank S.S.B., 
    298 S.W.3d 280
    , 301 (Tex. App. 2009) (―Although a party‘s actions may breach
    duties in tort, contract, or both, Texas Jurisprudence has long
    recognized that mere nonfeasance under a contract creates
    liability only for breach of contract.‖ (internal quotation marks
    omitted)); Mesmer v. Md. Auto. Ins. Fund, 
    725 A.2d 1053
    , 1058 (Md.
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    Opinion of the Court
    assuming that Superior‘s maintenance contract could sustain a
    tort duty, moreover, there is still no basis for liability here, as
    neither of the provisions cited by Hill required Superior to
    perform the acts it is now charged with omitting.
    ¶13 The first-cited provision required Superior to mow the
    ―lawn grass weekly and edg[e] bi-weekly throughout the normal
    growing season.‖ (Emphasis added). Yet it was undisputed that the
    normal growing season had not yet commenced at the time of
    Hill‘s injury. Hill effectively conceded as much in her assertion
    that the grass appeared to be dead at the time of the accident. And
    it was undisputed that Superior, which had performed mowing
    activities at Waterbury for many years prior to the accident, had
    never started mowing until at least the second week of April. This
    was further ―course of conduct‖ evidence that April 2 fell outside
    of the ―normal growing season‖ referenced in the contract.4 Thus,
    at the time of Hill‘s accident, Superior was not contractually
    required to mow the lawn, and accordingly not in breach for
    failing to do so.
    1999) (―Mere failure to perform a contractual duty, without more,
    is not an actionable tort.‖ (internal quotation marks omitted));
    Chamberlaine & Flowers, Inc. v. Smith Contracting, Inc., 
    341 S.E.2d 414
    , 417 (W. Va. 1986) (―[T]here is generally no tort liability for
    failing to do what one has contracted to do, unless there is some
    duty to act apart from the contract.‖); Morgan v. S. Cent. Bell Tel.
    Co., 
    466 So. 2d 107
    , 114 (Ala. 1985) (―There is, in Alabama, no tort
    liability for nonfeasance for failing to do what one has promised
    to do in the absence of a duty to act apart from the promise made.
    On the other hand, misfeasance, or negligent affirmative conduct
    in the performance of a promise generally subjects an actor to tort
    liability as well as contract liability for physical harm to persons
    and tangible things.‖).
    4 See Peterson v. Sevier Valley Canal Co., 
    151 P.2d 477
    , 479 (Utah
    1944) (interpreting a contractual provision in light of the parties‘
    ―course of conduct‖); see also RESTATEMENT (SECOND) OF
    CONTRACTS § 202(4) (1981) (explaining that ―any course of
    performance accepted or acquiesced in without objection is given
    great weight in the interpretation‖ of a contract).
    5
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    Opinion of the Court
    ¶14 The second-cited provision required Superior to ―trim all
    smaller and lower branches when necessary.‖ This provision was
    not implicated in any way by the tree shoots in question. Though
    Hill characterizes the tree growths as ―branches,‖ the contract
    does not bear that construction.
    ¶15 Dictionary definitions of ―branch‖ (in the sense of a tree
    branch) refer uniformly to the notion of ―a stem growing from the
    trunk or from a limb of a tree‖ or a ―shoot or secondary stem growing
    from the main stem.‖ See WEBSTER‘S THIRD NEW INTERNATIONAL
    DICTIONARY 267 (3d ed. 1961) (emphasis added).5 Thus, the
    ―branches‖ to be trimmed under Superior‘s maintenance contract
    are protrusions from the main trunk only, not separate shoots
    stemming from the tree‘s roots.6 Superior could not be in breach
    for failing to trim back those shoots.
    ¶16 Hill nonetheless contends that Superior‘s obligations were
    not comprehensively detailed in its maintenance contract, but
    encompassed acts that it habitually engaged in over time. We see
    no basis for extending a duty encompassing Superior‘s extracon-
    tractual acts. Even if duties spelled out expressly by contract
    could sustain parallel tort duties—a question we need not and do
    not reach, see supra ¶ 11—there is no room in our law for a tort
    duty arising from course-of-performance acts that are nowhere
    provided by contract.
    ¶17 Where a duty is rooted in the express language of a written
    contract, the parties are on notice of their obligations, and are in a
    good position to plan their activities around them. That is not at
    5 See also RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE
    253 (2d ed. 1987) (defining ―branch‖ as a ―division or subdivision
    of the stem or axis of a tree‖); THE AMERICAN HERITAGE
    DICTIONARY OF THE ENGLISH LANGUAGE 223 (5th ed. 2011)
    (defining ―branch‖ as a ―secondary woody stem or limb growing
    from the trunk or main stem of a tree . . . or from another
    secondary limb‖).
    6 See WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 2235 (3d
    ed. 1961) (defining ―stem‖ as ―the main and usu[ally] wholly or
    predominantly aerial axis, trunk, or body of a tree or other
    plant‖).
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    all true for the extracontractual, course-of-performance acts relied
    on by Hill. If we were to impose a duty in connection with those
    acts, we would establish a troubling perverse incentive. A party
    facing a tort duty in connection with any undertaking not
    required by contract would be discouraged from such
    undertaking. And a disincentive for gratuitous service benefiting
    another is not the sort of conduct that our tort law ought to
    countenance.7 In any event, to the extent injuries ensue from
    negligence in the performance of such activities, liability would
    properly be governed by a different branch of our tort law—by
    the standards governing liability for a voluntary undertaking, a
    theory we consider (and find unavailing) below. See discussion
    infra ¶¶ 39–40.
    ¶18 We accordingly reject Hill‘s request that we overlook the
    express terms of Superior‘s maintenance contract in assessing
    whether Superior had a contract-based duty in tort law. And even
    assuming that a breach of the maintenance contract could give
    rise to tort liability, we conclude that Superior did not breach any
    provisions of the contract.
    B. Premises Liability
    ¶19 We likewise reject Hill‘s assertion that a duty arose under
    three different theories of premises liability: (1) possessor liability,
    (2) liability of a party who receives the ―entire charge of the land‖
    from a possessor under section 387 of the Restatement (Second) of
    Torts, and (3) liability of a contractor ―who does an act or carries
    on an activity upon land on behalf of the possessor‖ pursuant to
    section 383 of the Restatement.
    7  See Higgins v. Salt Lake Cnty., 
    855 P.2d 231
    , 237 (Utah 1993).
    (―Determining whether the actor has a duty to prevent another‘s
    harm requires careful consideration of the consequences of
    imposing that duty . . . for society.‖); Robinson v. Tripco Inv., Inc.,
    
    2000 UT App 200
    , ¶ 40, 
    21 P.3d 219
     (―The law of torts is based on
    the principle of compensation of individuals for injuries sustained
    as a result of the unreasonable conduct of another. Tort law also
    serves the purpose of preventing future harm.‖ (internal
    quotation marks omitted)).
    7
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    Opinion of the Court
    ¶20 None of these theories sustains a duty here. While Superior
    performed many maintenance functions, it exercised insufficient
    control of the Waterbury property to be deemed a possessor. As
    for section 387, the liability principles stated there do not extend
    to Superior for similar reasons; it did not take over the entire
    charge of the land. And section 383, which affords independent
    contractors the same immunity from liability to trespassers that
    possessors enjoy, would not require Superior to deal with the tree
    shoots differently than it did.
    1. Possessor liability
    ¶21 Under our precedent, possessors owe significant duties to
    invitees who come onto their property—including affirmative
    duties to remedy or warn against dangerous conditions. See Hale
    v. Beckstead, 
    2005 UT 24
    , ¶¶ 7–8, 
    116 P.3d 263
    . Hill‘s attempt to
    invoke this liability fails, however, because Superior exercises
    insufficient control over the land to qualify as a possessor.
    ¶22 Although we have not articulated a comprehensive list of
    attributes of a ―possessor,‖ we have generally invoked the
    standard for invitees in the Restatement (Second) of Torts. See 
    id.
    And that standard defines a ―possessor‖ as ―a person who is in
    occupation of the land with intent to control it‖; ―a person who
    has been in occupation of the land with intent to control it, if no
    other person has subsequently occupied it with intent to control
    it‖; or ―a person who is entitled to immediate occupation of the
    land, if no other person is in possession‖ under either of the other
    two tests. RESTATEMENT (SECOND) OF TORTS § 328E (1965). Thus,
    under the Restatement, ―control‖ stemming from actual
    ―occupation,‖ or from an immediate entitlement to actual
    occupation, is the hallmark of possessor status.
    ¶23 Our caselaw carries forward this same focus. We have
    emphasized that a ―possessor is one in actual physical possession‖
    of property, English v. Kienke, 
    848 P.2d 153
    , 156 (Utah 1993), or one
    who is in ―occupation of the land with intent to control it,‖ Stevens
    v. Colorado Fuel & Iron, 
    469 P.2d 3
    , 5 (Utah 1970). Those who have
    qualified as possessors in our cases have been landowners and
    others exercising plenary control over store premises. See Hale,
    
    2005 UT 25
    , ¶¶ 7–8 (involving a landowner); English 848 P.2d at
    156 (assuming, ―for the purposes of our analysis,‖ that a
    landowner was a possessor of land); Wheeler v. Jones, 
    431 P.2d 985
    ,
    8
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    986 (Utah 1967) (discussing possessor liability in the context of a
    suit against a business, where defendant operated a swimming
    pool ―in connection with‖ a store that was in the ―business of
    selling garden supplies and swimming pools and equipment‖).
    Thus, while we have not yet articulated a comprehensive
    definition of ―possessor,‖ our cases emphasize the importance of a
    key factor—control—and require that the degree of control be
    substantial.8
    ¶24 A person who has the control of a landowner in actual
    occupation of property has both the rights and the corresponding
    abilities to deal with the property as he sees fit. See Harris v. Traini,
    
    759 N.E.2d 215
    , 225 (Ind. Ct. App. 2001) (―[O]nly the party who
    controls the land can remedy the hazardous conditions which
    exist upon it and only the party who controls the land has the
    right to prevent others from coming onto it.‖(alteration in origi-
    nal, internal quotation marks omitted)). Among these are (a) the
    right to exclude others from the property altogether9 and (b) the
    8 Courts in other jurisdictions have also emphasized this factor.
    See, e.g., Downs v. A & H Constr. Ltd., 
    481 N.W.2d 520
    , 523 (Iowa
    1992) (addressing the issue of whether a general contractor
    retained ―sufficient control over‖ a building project to owe
    possessor duties to the employee of a subcontractor); see also
    McDevitt v. Sportsman’s Warehouse, Inc., 
    255 P.3d 1166
    , 1171 (Idaho
    2011) (concluding that defendant could not be liable because it
    lacked control); Rhodes v. Wright, 
    805 N.E.2d 382
    , 385 (Ind. 2004)
    (―In premises liability cases, whether a duty is owed depends
    primarily upon whether the defendant was in control of the
    premises when the accident occurred.‖).
    9   See O’Connell v. Turner Constr. Co., 
    949 N.E.2d 1105
    , 1109–10
    (Ill. App. Ct. 2011) (explaining that a prerequisite to premises
    liability is that ―defendant be a possessor of land‖ and affirming
    summary judgment in favor of a defendant because the facts did
    not show that the defendant exercised ―exclusive control‖ or
    ―dominion‖ over the property since he could not, for example,
    ―exclude anyone from the premises‖ (internal quotation marks
    omitted)); Hoffner v. Lanctoe, 
    802 N.W.2d 648
    , 651–52 (Mich. Ct.
    App. 2010) (defining a possessor as one who ―may exercise
    control over something to the exclusion of all others,‖ and reversing
    9
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    Opinion of the Court
    right to take all necessary precautions and make necessary
    repairs.10
    ¶25 The right of exclusion is significant. A person with such a
    right may effectively limit her exposure to liability, as a
    landowner owes only minimal duties to trespassers,11 but more
    significant duties to licensees and invitees.12 And a person with
    the right to exclude others from her property is free to determine
    denial of summary judgment for a defendant who lacked the
    requisite degree of control (internal quotation marks omitted)),
    rev’d in part on other grounds, 
    821 N.W.2d 88
     (Mich. 2012); Thayer v.
    James Whitcomb Riley Festival Ass’n., 
    802 N.E.2d 7
    , 11–13 (relying in
    part on the fact that defendant did not have the ability to exclude
    others from the property in concluding that it was not a
    ―possessor‖).
    10  See O’Connell, 
    949 N.E.2d at
    1109–10 (affirming summary
    judgment in favor of a defendant because the facts did not show
    that the defendant exercised ―exclusive control‖ or ―dominion‖
    over the property since he could not, for example, ―alter what was
    built where‖ and merely had ―overall responsibility for grounds
    and site conditions‖ (internal quotation marks omitted)); Gragg v.
    Witchita State Univ., 
    934 P.2d 121
    , 131 (Kan. 1997) (affirming
    summary judgment for defendants because they lacked ―authority
    to implement different security measures‖ or ―any ability to
    remedy [the] danger‖); Harris, 
    759 N.E.2d at 225
     (―[O]nly the
    party who controls the land can remedy the hazardous conditions
    which exist upon it . . . . ―) (alteration in original, internal quota-
    tion marks omitted).
    11 See Pratt v. Mitchell Hollow Irrigation Co., 
    813 P.2d 1169
    , 1172
    (Utah 1991) (―Generally, a landowner owes no duty to a
    trespasser, except to refrain from causing willful and wanton
    injury to him or her.‖ (internal quotation marks omitted)).
    12 See, e.g., English v. Kienke, 
    848 P.2d 153
    , 156 (Utah 1993) (setting
    forth the duties owed to an invitee); Schlueter v. Summit Cnty., 
    480 P.2d 140
    , 141–42 (Utah 1971) (setting forth duties owed to a
    licensee); see also, generally, Whipple v. Am. Fork Irrigation Co., 
    910 P.2d 1218
    , 1220 (Utah 1996) (―This court has often recognized that
    the duty owed by a possessor of land to another person depends
    on whether that person is an invitee, a licensee, or a trespasser.‖).
    10
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    how broadly to open her property to others, weighing the
    economic benefits against the costs (including increased liability).
    ¶26 The right to take necessary precautions and make repairs is
    also pivotal. A person with plenary control of property is entitled
    to take precautions to prevent business invitees or licensees from
    encountering dangerous conditions on the land. And where a
    repair is required, a person with plenary control is likely to be
    able to make it. Under the Restatement, possessors must ―exercise
    reasonable care‖ in identifying dangerous conditions and in
    protecting invitees against them—conditions that invitees will not
    ―discover or realize‖ on their own or ―will fail to protect
    themselves against.‖ RESTATEMENT (SECOND) OF TORTS § 343
    (1965). Yet a person with less than full control over property
    might lack the ability to take measures necessary to protect an
    invitee against such conditions.
    ¶27 Superior lacks these core capacities. In the first place, there
    is no indication that it has the right to exclude others from the
    Waterbury property. All indications are that Waterbury has
    retained that right—suggesting that Waterbury is the current
    possessor, and that Superior has not occupied the property ―with
    intent to control it.‖ Id. § 328E.
    ¶28 Further, Superior has only limited authority to perform
    repairs. Most major repairs are beyond the scope of its authority.
    Under the maintenance contract, ―major sidewalk repairs will be
    contracted out by Waterbury,‖ along with ―major trimming of all
    large trees,‖ ―major fence repairs,‖ ―major breaks‖ of sprinklers,
    ―major roof repairs,‖ and ―major painting projects.‖
    ¶29 Thus, despite Superior‘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. Yet possessor liability would extend
    to injuries resulting from hazards Superior has little or no control
    over. Possessor liability is not strict liability. It is a negligence-
    based theory, which thus depends upon a failure to exercise
    ―reasonable care.‖ See id. § 343 (imposing possessor liability for
    failure to ―exercise reasonable care‖). A party like Superior who
    lacks the control necessary to undertake plenary care is not a
    possessor, and thus has no duty as such.
    11
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    Opinion of the Court
    2. Restatement section 387
    ¶30 Possessor liability, however, is not the only type of
    premises liability recognized by the law. Where an ―owner or
    possessor of land turns over the entire charge of the land‖ to ―[a]n
    independent contractor or servant,” that person ―is subject to the
    same liability for harm . . . as though he were the possessor of the
    land.‖ See RESTATEMENT (SECOND) OF TORTS § 387 (1965). Hill
    invokes this principle in arguing that Superior received the ―entire
    charge‖ of the Waterbury premises and thus acquired the duties
    of a possessor.
    ¶31 We see the matter differently. Even Superior‘s substantial
    maintenance responsibilities do not rise to the level of taking
    ―entire charge‖ of property.13 As the comments to section 387
    clarify, this theory of liability does not extend to a contractor who
    has merely ―undertaken to make specific repairs, or even to
    inspect the land or building and from time to time make such
    repairs as he should discover to be necessary.‖ Id. cmt. a. To
    impose such liability ―the contractor must have taken over the
    entire charge of the land or building.‖ Id. Thus, the rule in section
    387 is ―usually applicable‖ in circumstances where a contractor
    ―takes over the entire charge of a building or parcel of land,
    including the renting or collection of rent as well as its
    maintenance in safe repair.‖ Id. cmt. b (emphasis added).
    13  See Kay v. Danbar, Inc., 
    132 P.3d 262
    , 272 (Alaska 2006)
    (declining to impose liability pursuant to section 387 because of
    ―doubt that the evidence could reasonably support a finding that
    RE/MAX undertook complete control and responsibility for the
    Tanner brothers‘ duplex, so as to make it responsible for curing
    major structural defects‖); Virgin v. McDonald’s Rest., No. Civ. A.
    5:04 CV208R, 
    2005 WL 2123535
    , at *2 (W.D. Ky. Sept. 2, 2005)
    (granting a defendant‘s motion for summary judgment because
    the plaintiff, whose action was premised on section 387 of the
    Restatement, had failed to show that the ―entire charge‖ of the
    property had been turned over to the defendant); Cont’l Paper &
    Supply Co. v. City of Detroit, 
    545 N.W.2d 657
    , 659 (Mich. 1996)
    (explaining that the level of control required by section 387 is
    ―absolute control‖).
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    ¶32 Here, Waterbury retained responsibility for a variety of
    maintenance duties and also continued to be responsible for
    collecting fees from tenants. These retained responsibilities
    foreclose the imposition of section 387 premises liability on
    Superior.
    3. Restatement section 383
    ¶33 Even if Superior had less than the ―entire charge‖ of the
    property, Hill still seeks to impose a possessor-like duty on
    Superior under section 383 of the restatement. That provision,
    which we have never formally adopted, articulates a limitation of
    liability for ―[o]ne who does an act or carries on an activity upon
    land on behalf of the possessor‖ for physical harm caused thereby
    to others upon and outside of the land.‖ RESTATEMENT (SECOND)
    OF TORTS § 383 (1965). The liability limitation is this: Section 383
    clarifies that ―one acting on behalf of the possessor‖ is treated as a
    possessor, in that such person ―is given the same immunity from
    liability to trespassers as is conferred upon the possessor.‖14 Id.
    cmt. b.
    ¶34 Hill reads section 383 as articulating a broad principle of
    possessor-like premises liability that attaches whenever an
    independent contractor undertakes activities on behalf of a
    possessor. And because Superior engaged in some activities
    related to the maintenance of the Waterbury common area (e.g.,
    mowing), Hill maintains that it was also required to engage in
    others related to tree shoots as well (e.g., removal)—given that
    Waterbury, as a possessor, was allegedly required to do more.
    ¶35 Hill‘s expansive reading of section 383 is untenable. This
    provision reaches only ―physical harm caused‖ by affirmative
    ―act[s]‖ or ―activit[ies]‖ actually carried out by the independent
    contractor. Id. It does not impose liability for mere conditions on
    14 See, e.g., Taylor v. Duke, 
    713 N.E.2d 877
    , 881 (Ind. Ct. App.
    1999) (affirming summary judgment for a trucking company that
    had run over a homeless teenage boy because the trucking
    company had been acting on behalf of the possessor of the
    premises and owed the boy, a trespasser, only a minimal duty—
    ―to refrain from wantonly or willfully injuring him after
    discovering his presence‖).
    13
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    Opinion of the Court
    the land. 
    Id.
     According to the Restatement comments, this section
    ―applies only to harm done by some act done or activity carried
    on upon the land‖; ―[t]he rules which determine liability for
    bodily harm caused by a dangerous condition created upon the
    land by persons acting on behalf of the possessor‖ are stated in
    other sections. 
    Id.
     cmt. c.
    ¶36 These limitations are important. Section 383 articulates a
    liability limitation, not an expansive theory of premises liability
    for conditions on the land. An independent contractor engaged in
    a limited activity—such as painting—cannot properly be subject
    to possessor-like premises liability. For reasons explained above,
    such broad liability is appropriately reserved for those who
    exercise a level of control over property similar to that exercised
    by an owner in actual occupation.
    ¶37 Thus, Hill‘s reliance on section 383 is misplaced. We
    decline her invitation to employ the liability-limiting principles in
    that provision to impose broad possessor-like premises liability.
    C. Voluntary Undertaking
    ¶38 In addition to her premises liability theories, Hill advances
    a voluntary undertaking theory. She invokes section 323 of the
    Restatement, which provides that a person who ―undertakes . . .
    to render services to another which he should recognize as
    necessary for the protection of the other‘s person‖ is liable ―for
    physical harm resulting from‖ a ―failure to exercise reasonable
    care to perform [the] undertaking‖ if either (a) that ―failure . . .
    increases the risk of such harm,‖ or (b) that ―harm is suffered
    because‖ the other person relies ―upon the undertaking.‖
    RESTATEMENT (SECOND) OF TORTS § 323 (1965). Because Superior
    voluntarily engaged in mowing activities, Hill contends that it
    also undertook responsibility for maintaining the tree growths
    and that it performed those activities deficiently—in a manner
    that she relied upon and that also increased her risk of harm.
    ¶39 This theory falters in its failure to connect up any activity
    that Superior voluntarily undertook with an allegation of
    negligence in the performance of that activity. Hill makes broad
    assertions relating to Superior‘s many maintenance activities, and
    its allegedly pervasive control over the Waterbury grounds. But
    14
    Cite as: 
    2013 UT 60
    Opinion of the Court
    the only specific voluntary undertaking she points to is its mowing
    of the lawn (and of the tree shoots in the process).15
    ¶40 That limited activity is insufficient to establish a broad duty
    to perform comprehensive maintenance activities related to the
    tree shoots. As Hill has acknowledged, the tree shoot hazard
    could not be remedied by mere mowing; additional activities
    were required to achieve that objective. So Superior did not
    undertake any voluntary action meaningfully aimed at remedying
    the tree shoots. And because it didn‘t, Hill cannot demonstrate
    that the harm she suffered ―result[ed] from‖ a ―failure to exercise
    reasonable care [in] perform[ing] [the] [voluntary] undertaking‖
    of mowing. 
    Id.
    ¶41 Hill‘s claim is that her injury could have been prevented if
    Superior had chosen to undertake additional activities. Superior‘s
    more limited undertaking (mowing) did not establish a duty to
    take additional steps of a similar nature. Its duty, rather, was
    limited to the extent of its undertaking16—a duty that is narrowly
    15  Hill also points to the activity Superior allegedly undertook
    following her accident (in allegedly cordoning off the common area
    with caution tape and in ultimately removing the tree). But these
    postaccident activities have no bearing on the question whether
    Superior voluntarily undertook a duty, as Ms. Hill obviously does
    not argue that she was injured as a result of Superior‘s deficient
    performance of these activities, or that she was somehow harmed
    by relying on its undertaking of these acts.
    16  See Taylor v. Bi–Cnty. Health Dep’t, 
    956 N.E.2d 985
    , 996–97 (Ill.
    App. Ct. 2011) (rejecting a plaintiff‘s invocation of the voluntary
    undertaking theory because ―the duty of care to be imposed upon
    a defendant is limited to the extent of its undertaking‖ and even
    though the defendant ―undertook to provide [the plaintiff] with
    childhood vaccinations, the extent of its undertaking was only to
    do so in accordance with its discretionary policies,‖ which were
    appropriately followed in declining to provide the vaccine
    (internal quotation marks omitted)).
    15
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    Opinion of the Court
    construed,17 and not a basis for a general obligation to undertake
    affirmative acts in aid of third parties.
    D. Affirmative Conduct
    ¶42 Hill‘s final theory, of a duty arising out of Superior‘s
    affirmative conduct, is arguably her strongest. See Jeffs ex rel. B.R.,
    
    2012 UT 11
    , ¶ 7 (noting that acts of ―misfeasance . . . typically
    carry a duty of care,‖ while those of ―nonfeasance‖ do not). Under
    this theory, Hill claims a duty based on Superior‘s repeated
    mowing of the tree growths. Specifically, she contends that
    Superior‘s repeated mowing created the hardened clumps of tree
    growths that caused her to trip and fall.18
    ¶43 The problem with this theory is that it was not preserved
    below. In the district court, Hill made a vague reference to the
    notion of a duty arising out of ―affirmative creation of the harm,‖
    but she never articulated any specific basis for imposing such a
    duty on Superior. Hill‘s summary judgment briefing alluded
    generally to the notion that one ―who create[s] dangerous
    conditions on property … owe[s] a duty of reasonable care to
    third persons.‖ But the brief never connected that theory with any
    actual act that Superior performed to create a dangerous condition.
    Instead, in the body of the argument following her invocation of
    the theory of a duty arising from affirmative creation of harm, Hill
    reverted to her allegations regarding Superior‘s omissions.
    17
    Weber ex rel. Weber v. Springville City, 
    725 P.2d 1360
    , 1364 (Utah
    1986) (explaining that while Utah ―has recognized that one who
    undertakes to render services has a duty to exercise reasonable
    care,‖ the ―nature of this rule requires the Court to narrowly
    construe the scope of any assumed duty‖).
    18  The argument in her brief is as follows: ―The evidence shows
    that Ms. Hill was tripped by a cluster of rigid tree growths that
    were hidden underneath lengthy grass. The stiff groupings of
    roots were not a natural condition that Superior merely passively
    failed to remove. To the contrary, they were the byproduct of
    years of Superior‘s improper maintenance, which included cutting
    down the growths such that they became hard, shaven, and
    nubby.‖
    16
    Cite as: 
    2013 UT 60
    Opinion of the Court
    ¶44 Specifically, after generally invoking this theory, Hill
    referred only to Superior‘s knowledge and its failures to act. The
    operative paragraph of Hill‘s summary judgment brief—the one
    immediately following the assertion of the general principle of a
    duty arising from affirmative creation of harm—is the following:
    Superior was responsible for maintaining the grass
    common areas, including the common area in front
    of Plaintiff‘s unit. Superior was aware that residents
    of Waterbury were permitted to walk upon common
    areas, and were required to do so to pick up after
    their pets. Superior was aware of the existence of the
    ―tree root problem‖ at Plaintiff‘s unit. Superior was
    aware that nothing had been done to address the
    ―tree root problem.‖ Despite this knowledge,
    Superior failed to remove the roots, and failed to
    trim the grass such that it grew so long that it fully
    obscured the rigid tree roots below. Superior knew
    that, if the roots were hidden, it was impossible for
    someone walking on the common area to ascertain
    the location of the roots, creating an even more
    dangerous condition.
    Nowhere does Hill identify any affirmative act by Superior that
    created any harm. Instead she only repeats the charge that
    Superior knew about the risks and ―failed to remove the roots,
    and failed to trim the grass such that it grew so long that it fully
    obscured the rigid tree roots below.‖
    ¶45 Any doubt about the matter was resolved in the hearing on
    the motion for summary judgment. When questioned, Hill‘s
    counsel clarified that ―our position is that it comes down to the
    fact that the grass had grown over the particular roots that tripped
    Hill,‖ and emphasized that ―if the grass was not covering the
    roots, there wouldn‘t be a duty.‖ Nowhere did counsel ever assert
    the (contrary) point pressed on appeal—that a duty arose from the
    affirmative creation of harm by Superior‘s negligent mowing of
    the tree shoots over the years.
    ¶46 Hill accordingly failed to preserve the ―affirmative creation
    of harm‖ theory she advances on appeal. The general invocation
    of a theory is insufficient. See 438 Main St. v. Easy Heat, Inc., 
    2004 UT 72
    , ¶ 51, 
    99 P.3d 801
     (to be preserved, an issue must be
    17
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    Opinion of the Court
    (1) ―raised in a timely fashion,‖ (2) be ―specifically raised,‖ and (3)
    the ―challenging party must introduce supporting evidence or
    relevant legal authority‖ (internal quotation marks omitted)).
    Preservation requires affording the district court a meaningful
    opportunity to rule on the ground that is advanced on appeal, and
    that implies, at a minimum, not just the invocation of a legal
    principle but also its application to the facts of the case. See Allen
    v. Friel, 
    2008 UT 56
     ¶ 9, 
    194 P.3d 903
     (explaining, in the analogous
    context of our rules regarding adequate briefing on appeal, that
    we have ―repeatedly noted that a brief is inadequate if it merely
    contains bald citations to authority [without] development of that
    authority and reasoned analysis based on that authority‖ (altera-
    tion in original, internal quotation marks omitted)); Tolman v.
    Winchester Hills Water Co., 
    912 P.2d 457
    , 461 (Utah Ct. App. 1996)
    (holding that ―[t]he mere mention of an issue without introducing
    supporting evidence or relevant legal authority does not preserve
    that issue for appeal‖ (internal quotation marks omitted)).
    ¶47 Our adversary system demands at least that much. Our
    judges cannot be expected to accept the parties‘ theories as an
    invitation to root around in the record to see if they might apply.
    Like an appellate court, a district court ―is not a depository in
    which [a party] may dump the burden of argument and research.‖
    Allen, 
    2008 UT 56
    , ¶ 9 (alteration in original, internal quotation
    marks omitted). And we cannot accordingly reverse them for
    failing to undertake that task.
    ¶48 Hill‘s theory fails on that basis. She did make general
    reference to a duty arising from affirmative creation of harm, but
    she never identified a basis for applying that theory to the facts of
    this case. Her argument instead had only to do with Superior‘s
    knowledge and omissions, which of course have nothing to do
    with affirmative creation of harm.
    ¶49 The record citations relied on by the dissent are not to the
    contrary. It is true that Hill‘s declaration asserts that she
    ―observed that there were rigid ‗stumps‘ or clumps of sticks that
    appeared to have resulted from [Superior] repeatedly mowing
    down new shoots.‖ And that assertion was also repeated in Hill‘s
    summary judgment brief. But the brief makes this point only in
    the background statement of facts. It nowhere repeats it in the
    argument section—and certainly not as the basis for imposing a
    duty arising from the affirmative creation of harm.
    18
    Cite as: 
    2013 UT 60
    Opinion of the Court
    ¶50 The dissent‘s contrary conclusion is based on the portion of
    Hill‘s summary judgment brief that asserts that ―[b]y virtue of its
    deficient . . . maintenance . . . Superior created a more dangerous
    situation than what existed previously.‖ Infra ¶ 61. But the quoted
    sentence itself makes no mention of any affirmative act creating
    any harm. This is accordingly just a repetition of the general
    theory. And this invocation of the theory follows immediately
    after the full paragraph quoted above (which is the only part of the
    brief that makes any effort to extend this theory to the facts of the
    case). Again, however, that paragraph makes no mention of any
    affirmative acts; it focuses only on Superior‘s knowledge and
    omissions. So in context, the assertion of a duty arising out of
    Superior‘s affirmative ―maintenance‖ is insufficient, as the only
    deficient maintenance cited in the brief was that it ―failed to
    remove the roots, and failed to trim the grass such that it grew so
    long that it fully obscured the rigid tree roots below.‖
    ¶51 The dissent also cites Hill‘s supplemental brief on
    summary judgment, asserting that there ―Hill argued that she
    ‗believed the sticks to be the remnants of tree growths or ‗suckers‘
    that resulted from repeated mowing and other attempted
    maintenance by [Superior].‖ Infra ¶ 61. But the quoted statement
    is not argument; it is from the fact section of the brief. And in any
    event the supplement brief had nothing to do with the question of
    duty; it dealt only with whether tree shoots were an
    ―unreasonably dangerous condition‖ and whether that question
    was one for the jury.
    ¶52 The problem with Hill‘s assertion of a duty arising from
    ―affirmative creation of harm‖ is not that it was not
    ―emphasized.‖ Infra ¶ 62. It is that it was not presented—or at
    least not presented in a way that gave the district court a
    meaningful opportunity to rule on it. Perhaps the court could
    have gone out of its way to connect the dots from Hill‘s
    declaration to her later assertion of a theory of a duty arising from
    the affirmative creation of harm. But we cannot fault the court for
    not performing that responsibility, which in our adversary system
    fell ultimately on Hill.
    ¶53 Thus, in the district court Hill focused on Superior‘s
    omissions, not its affirmative conduct. So the theory of affirmative
    creation of harm due to repeated mowing over fourteen years is
    not properly before us, as Hill never afforded the district court an
    19
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    JUSTICE PARRISH, dissenting
    ―opportunity to rule on the issue.‖ Kell v. State, 
    2012 UT 25
    , ¶ 11,
    
    285 P.3d 1133
    .
    ¶54 We accordingly decline to reach this issue. And, having
    rejected all of Hill‘s grounds for imposing a duty on Superior, we
    affirm the entry of summary judgment in its favor.
    ——————
    JUSTICE PARRISH, dissenting;
    ¶55 While in agreement with the majority‘s conclusions that
    Superior did not owe Ms. Hill a duty of care based on theories of
    contract liability, premises liability, or voluntary undertaking, I
    respectfully dissent from the majority‘s holding that Ms. Hill
    failed to preserve in the district court her argument that Superi-
    or‘s affirmative conduct gave rise to a duty. Ms. Hill argued be-
    low that Superior affirmatively created the hazardous condition
    that caused her accident and she reiterated that argument on ap-
    peal. I find the argument persuasive. I would therefore hold that
    Superior owed a duty to Ms. Hill by virtue of its affirmative acts
    and would therefore reverse the district court‘s entry of summary
    judgment in favor of Superior.
    I. MS. HILL ADEQUATELY PRESERVED HER ARGUMENT
    THAT SUPERIOR‘S AFFIRMATIVE ACTS CREATED A DUTY
    ¶56 Generally, an issue must be preserved below before we
    will consider it on appeal. H.U.F. v. W.P.W., 
    2009 UT 10
    , ¶ 25, 
    203 P.3d 943
     (―We will not address an issue if it is not preserved or if
    the appellant has not established other grounds for seeking re-
    view.‖). But preservation is not meant to be a trap for the un-
    wary, preventing decisions on the merits of otherwise legitimate
    claims. Rather, preservation is designed to ensure that issues on
    appeal have been presented to a lower court such that the lower
    court has had the ―opportunity to address the claimed error.‖ Kell
    v. State, 
    2012 UT 25
    , ¶ 11, 
    285 P.3d 1133
     (internal quotations marks
    omitted).     Further, ―[o]ur preservation requirement is self-
    imposed and is therefore one of prudence rather than jurisdic-
    tion.‖ Patterson v. Patterson, 
    2011 UT 68
    , ¶ 13, 
    266 P.3d 828
    .
    ¶57 An issue is sufficiently raised below, and therefore pre-
    served for appeal, when it has been ―presented to the district
    court in such a way that the court has an opportunity to rule on
    [it].‖ Id. ¶ 12 (alteration in original) (internal quotation marks
    20
    Cite as: 
    2013 UT 60
    JUSTICE PARRISH, dissenting
    omitted). An issue may be raised directly or indirectly, so long as
    it is ―raised to a level of consciousness such that the trial judge can
    consider it.‖ James v. Preston, 
    746 P.2d 799
    , 802 (Utah Ct. App.
    1987). Once an issue has been raised before the district court, the
    Utah Rules of Appellate Procedure require that, on appeal, an ap-
    pellant‘s brief contain a ―citation to the record showing that the
    issue was preserved in the [district] court.‖ UTAH R. APP. P.
    24(a)(5)(A).
    ¶58 While Ms. Hill emphasized at the district court her argu-
    ment that Superior failed to properly cut the grass and make the
    roots visible, she also presented the alternative argument that it
    was Superior‘s own affirmative conduct that had created the
    stumps that caused her fall. And this alternative argument was
    also briefed to this court with appropriate citations to the record
    below.1
    ¶59 Ms. Hill‘s initial complaint was sufficiently broad to en-
    compass her theory that Superior owed a duty because its affirma-
    tive conduct was responsible for the creation of the hazard. Rule
    8(a)(1) of the Utah Rules of Civil Procedure requires only that a
    plaintiff set forth ―a short and plain . . . statement of the claim
    showing that the party is entitled to relief‖ in her complaint. Un-
    der rule 8, a plaintiff‘s complaint must only provide ―fair notice of
    the nature and basis or grounds of the claim and a general indica-
    tion of the type of litigation involved.‖ Zoumadakis v. Uintah Basin
    Med. Ctr., Inc., 
    2005 UT App 325
    , ¶ 2, 
    122 P.3d 891
     (internal quota-
    tion marks omitted). Ms. Hill‘s complaint stated that Superior
    ―failed to . . . properly mow . . . the Common Area so as to prevent
    the roots, stumps, and shoots from causing [Ms. Hill] to trip and
    fall.‖ Though general, this statement is broad enough encompass
    Ms. Hill‘s argument that Superior‘s affirmative practice of repeat-
    edly mowing the tree shoots over a period of years was negligent
    and actually created the growths over which she tripped. In the
    1 The issue was contained in the Ms. Hill‘s brief on pages 1, 2,
    and 10 with citations to record pages 223–541 (memorandum in
    opposition to Superior‘s motion for summary judgment); 1009–35
    (supplemental brief in support of motion for summary judgment);
    387, ¶ 13 (declaration by Hill); and in 644a (video deposition of
    Ms. Hill).
    21
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    JUSTICE PARRISH, dissenting
    context of rule 8‘s liberalized pleading rules, this statement there-
    fore provided Superior fair notice that its affirmative acts were at
    issue and led to Ms. Hill‘s injuries. 
    Id.
    ¶60 Ms. Hill next asserted the affirmative conduct theory in
    her testimony. In her Declaration, filed in opposition to Superi-
    or‘s motion for summary judgment, Ms. Hill testified that she
    ―observed that there were rigid ‗stumps‘ or clumps of sticks that
    appeared to have resulted from [Superior] repeatedly mowing
    down new shoots.‖2
    ¶61 Ms. Hill raised the argument again in her memorandum
    opposing Superior‘s motion for summary judgment. There, she
    argued that ―there were rigid ‗stumps‘ or clumps of sticks that
    appeared to have resulted from repeatedly mowing down new shoots.‖
    (Emphasis added.) Ms. Hill also argued that because Superior
    had created the dangerous condition, it owed her a duty of care.
    She stated that ―[b]y virtue of its deficient . . . maintenance . . .
    Superior created a more dangerous situation than what existed
    previously.‖ Finally, in her supplemental brief filed in support of
    her own motion for summary judgment, Ms. Hill argued that she
    ―believed the sticks to be the remnants of trees growths or ‗suck-
    ers‘ that resulted from repeated mowing and other attempted
    maintenance by [Superior].‖
    ¶62 In short, Ms. Hill clearly raised below her theory that Su-
    perior owed her a duty of care as a result of its affirmative acts of
    negligently mowing the tree growths over a period of years. And
    the fact that Ms. Hill may have emphasized her theories arising
    from Superior‘s omissions, rather than her alternative theory of
    Superior‘s affirmative conduct, does not preclude our review of
    the issue. Our preservation jurisprudence does not dictate that
    only ―emphasized‖ arguments made below are preserved. Ra-
    ther, it requires only that an issue be ―presented‖ to the district
    court. See Kell, 
    2012 UT 25
    , ¶ 11; Patterson, 
    2011 UT 68
    ,
    ¶ 12; James, 
    746 P.2d at 802
    . I conclude that the issue of Superior‘s
    affirmative negligence was sufficiently presented to the district
    2  This testimony was consistent with her deposition testimony
    that ―[w]hen [Superior] mowed [the roots] down even with the
    lawn, they were even with the lawn. Sometimes they would grow
    faster than the lawn and they would be higher than the lawn.‖
    22
    Cite as: 
    2013 UT 60
    JUSTICE PARRISH, dissenting
    court. For that reason, I would hold that Ms. Hill adequately pre-
    served her argument that Superior‘s affirmative acts gave rise to a
    duty.
    II. SUPERIOR WAS REQUIRED TO ACT REASONABLY
    ¶63 Believing that the affirmative conduct issue was adequately
    preserved, I next turn to the merits. The distinction between an
    act and an omission is central to the assessment of any duty owed
    to one party by another. Outside of certain special relationships
    (including those of parent and child, spouses, common carriers
    and passengers, innkeepers and guests, and possessors of land
    and invitees), no duty is owed by one party to another for omis-
    sions. Webb v. Univ. of Utah, 
    2005 UT 80
    , ¶ 10, 
    125 P.3d 906
    . On
    the other hand, an affirmative act ―carries with it a potential duty
    and resulting legal accountability for that act.‖ Id.; see also Jeffs ex
    rel. B.R. v. West, 
    2012 UT 11
    , ¶ 21, 
    275 P.3d 228
     (―[W]e all have a
    duty to exercise care when engaging in affirmative conduct that
    creates a risk of physical harm to others.‖).
    ¶64 Here, Superior tended and cared for the common areas of
    Waterbury. Superior‘s actions in repeatedly mowing down the
    tree growths, which led the growths to convert from flexible sin-
    gle, vertical growths into unyielding, horizontal, clustered stumps
    is the type of affirmative conduct that has the potential to create a
    risk of physical harm. Superior‘s affirmative acts in repeatedly
    mowing down the growths and shoots established a legal duty to
    account for the consequences of any injuries suffered as a result of
    any failure to perform those acts in a reasonable and safe manner.
    ¶65 Although Superior‘s affirmative acts established a duty of
    reasonable care, I do not necessarily conclude that its actions were
    objectively unreasonable. It may have been perfectly reasonable
    to simply mow over these kinds of tree growths in the course of
    lawn maintenance. But that is a question for the finder of fact.
    ¶66 Ms. Hill‘s claims were dismissed by the district court on
    summary judgment. On summary judgment, ―the standard is not
    whether these parties’ minds differ—which they obviously do—but
    whether reasonable jurors, having been properly instructed by the
    [district] court, would be unable to come to any other conclusion.‖
    USA Power, LLC v. PacifiCorp, 
    2010 UT 31
    ,¶ 32, 
    235 P.3d 749
     (in-
    ternal quotation marks omitted). The facts here do not suggest
    that a reasonable juror could come to only one conclusion regard-
    23
    HILL v. SUPERIOR PROP. MGMT. SERVS.
    JUSTICE PARRISH, dissenting
    ing the reasonableness of Superior‘s affirmative actions in repeat-
    edly mowing down the shoots. I believe that summary judgment
    was therefore inappropriate. I would reverse the summary judg-
    ment on Ms. Hill‘s theory that Superior negligently undertook its
    mowing responsibilities and remand the case for a determination
    on the merits of that theory.
    24
    

Document Info

Docket Number: 20120428

Citation Numbers: 2013 UT 60, 321 P.3d 1054, 745 Utah Adv. Rep. 34, 2013 Utah LEXIS 156, 2013 WL 5587843

Judges: Lee, Durrant, Nehring, Parrish, Durham

Filed Date: 10/11/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (25)

Esty v. Beal Bank S.S.B. , 2009 Tex. App. LEXIS 6400 ( 2009 )

Harris v. Traini , 2001 Ind. App. LEXIS 1985 ( 2001 )

James v. Preston , 71 Utah Adv. Rep. 49 ( 1987 )

Patterson v. Patterson , 694 Utah Adv. Rep. 25 ( 2011 )

H.U.F. v. W.P.W. , 623 Utah Adv. Rep. 14 ( 2009 )

Wayment v. Clear Channel Broadcasting, Inc. , 523 Utah Adv. Rep. 39 ( 2005 )

Zoumadakis v. Uintah Basin Medical Center, Inc. , 530 Utah Adv. Rep. 28 ( 2005 )

438 Main Street v. Easy Heat, Inc. , 507 Utah Adv. Rep. 3 ( 2004 )

Downs v. a & H Construction, Ltd. , 1992 Iowa Sup. LEXIS 37 ( 1992 )

Morgan v. SOUTH CENT. BELL TELEPHONE CO. , 466 So. 2d 107 ( 1985 )

Bahr v. Imus , 679 Utah Adv. Rep. 4 ( 2011 )

USA POWER, LLC v. PacifiCorp , 2010 Utah LEXIS 75 ( 2010 )

O'Connell v. Turner Construction Co. , 409 Ill. App. 3d 819 ( 2011 )

Taylor v. Duke , 1999 Ind. App. LEXIS 1076 ( 1999 )

Webb v. University of Utah , 539 Utah Adv. Rep. 27 ( 2005 )

Chamberlaine & Flowers, Inc. v. Smith Contracting, Inc. , 176 W. Va. 39 ( 1986 )

Allen v. Friel , 611 Utah Adv. Rep. 3 ( 2008 )

McDevitt v. Sportsman's Warehouse, Inc. , 151 Idaho 280 ( 2011 )

B.R. v. West , 703 Utah Adv. Rep. 4 ( 2012 )

Kell v. State , 707 Utah Adv. Rep. 29 ( 2012 )

View All Authorities »

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MacFarlane v. Applebee's Restaurant , 818 Utah Adv. Rep. 47 ( 2016 )

Slatter v. Pans Out Inc. , 373 P.3d 217 ( 2016 )

Wood v. UPS , 2019 UT App 168 ( 2019 )

Bloom Master Inc. v. Bloom Master LLC , 442 P.3d 1178 ( 2019 )

State v. Rettig , 2017 UT 83 ( 2017 )

Dahl v. Dahl , 345 P.3d 566 ( 2015 )

State v. Fuller , 2014 Utah LEXIS 93 ( 2014 )

B.R. Ex Rel. v. Rodier , 2015 Utah LEXIS 3 ( 2015 )

Burdick v. Horner Townsend & Kent, Inc. , 778 Utah Adv. Rep. 15 ( 2015 )

State v. Earl , 2015 Utah LEXIS 27 ( 2015 )

Graves v. North Eastern Services, Inc. , 779 Utah Adv. Rep. 82 ( 2015 )

Graves v. No. E. Services Inc. , 2015 UT 28 ( 2015 )

Meza v. State , 793 Utah Adv. Rep. 84 ( 2015 )

Gables & Villas at River Oaks Homeowners Ass'n v. ... , 422 P.3d 826 ( 2018 )

Judd v. Bowen , 835 Utah Adv. Rep. 50 ( 2017 )

Salt Lake City v. Kidd , 435 P.3d 248 ( 2019 )

Office of Professional Conduct v. Bernacchi , 2022 UT 25 ( 2022 )

State v. Rettig , 416 P.3d 520 ( 2017 )

Cochegrus v. Herriman City , 2020 UT 14 ( 2020 )

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