Senkosky v. Bistro ( 2022 )

2022 UT App 58THE UTAH COURT OF APPEALS
EMILY SENKOSKY,
Appellant,
v.
BISTRO 412 LLC,
Appellee.
Opinion
No. 20190854-CA
Filed May 12, 2022
Third District Court, Silver Summit Department
The Honorable Kent R. Holmberg
No. 170500211
Emily Adams and Freyja Johnson,
Attorneys for Appellant
Matthew L. Lalli and Sarah A. Hafen,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
ORME, Judge:
¶1 Emily Senkosky was badly burned when her dress caught
fire as she stood next to an open fire pit on Bistro 412 LLC’s
property. Senkosky sued Bistro 412, and the case proceeded to
trial. The jury was instructed on two theories of negligence:
ordinary negligence and premises liability. The trial court also
adopted, over Senkosky’s objections, a special verdict form
proffered by Bistro 412. The jury returned a verdict in favor of
Bistro 412, and Senkosky moved for a new trial on the ground that
the special verdict form misled the jury by preventing it from
considering her ordinary negligence claim. The court denied her
motion.
Senkosky v. Bistro 412 LLC
¶2 On appeal, Senkosky argues that the court abused its
discretion when it adopted Bistro 412’s special verdict form and
when it denied her motion for a new trial. Because both theories
of liability were closely linked due to the manner in which they
were presented to the jury, any alleged error in the jury
instructions was harmless, and we affirm on that basis.
BACKGROUND 1
¶3 Bistro 412 was a restaurant in Park City. In early 2012,
Bistro 412 installed an open fire pit on its outdoor deck. The owner
of Bistro 412 explained that he installed the fire pit because similar
fire pits had served as “a gathering point for people” throughout
the city during the 2002 Olympics, and he hoped that a fire pit on
Bistro 412’s deck would draw people to the restaurant. Although
the owner could not locate the exact model of fire pit installed
throughout the city during the Olympics, he was able to find one
that “was very similar, although smaller in diameter.” Like the
city’s other fire pits, Bistro 412’s fire pit was a bowl that held a
natural gas generated fire and sat on a stone slab at knee level.
Also like the city’s other fire pits, it was made of iron or steel and
did not have a barrier around it. And like the other fire pits
around the city, Bistro 412’s fire pit was unattended.
¶4 Prior to purchasing the fire pit, the owner brought pictures
of the fire pit and its instructions to the Park City fire marshal. The
fire marshal advised the owner to place two signs near the fire pit
stating, “caution—hot open flame,” but the fire marshal otherwise
gave the “go ahead.” The fire marshal did not require that a
barrier be placed around the fire pit. The owner then had a
licensed plumber install the fire pit and placed two warning signs
on the front doors of the restaurant. Placement of the signs meant
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict.” Smith v. Fairfax Realty, Inc., 2003
UT 41, ¶ 3, 82 P.3d 1064 (quotation simplified).
20190854-CA 2 2022 UT App 58Senkosky v. Bistro 412 LLC
that only patrons with their backs to the fire pit could read them.
Following the installation, the fire marshal inspected the fire pit
and approved it, including the placement of the signs. Thereafter,
the fire marshal inspected and approved the fire pit at least once
a year.
¶5 One night in mid-March 2016, Senkosky, wearing a
knee-length dress, visited Bistro 412 with friends. After Bistro
412’s bar stopped serving drinks, Senkosky moved to the deck
with several others. As she stood about one-to-two feet from the
lit fire pit, which she considered to be “a safe distance,” she looked
down to see the hem of her dress on fire. She began patting at the
flame and started to panic when she realized “it wasn’t doing
anything.” As she quickly became “engulfed in flames,” two
nearby individuals put out the flames by tackling and laying on
top of her.
¶6 Senkosky sustained burns to thirteen percent of her body,
including third-degree burns, 2 primarily to her torso but also to
her upper extremities. The burns caused significant scarring. She
was hospitalized for over two weeks and endured approximately
nine surgeries and twenty laser treatments between the time of
her injury and trial.
¶7 Senkosky sued Bistro 412, bringing two causes of action:
negligence and what she titled “Reckless—Punitive damages.” As
part of her negligence claim, she alleged that Bistro 412
“constructed, maintained and operated an open burning fire pit
in violation of local permitting requirements and the Fire code”
and that the fire pit was “in an unsafe location, without adequate
2. An expert witness testified at trial that third-degree burns are
“the most serious type of burn” and occur when the skin “has
completely been destroyed.” He further explained that “[a]lmost
all third-degree burns require a skin graft” to replace the missing
skin.
20190854-CA 3 2022 UT App 58Senkosky v. Bistro 412 LLC
warning and/or supervision.” She claimed that Bistro 412 “knew
or should have known that the open fire pit upon its premises
presented an unreasonable risk of harm.” The complaint further
alleged that Bistro 412 “breached its duty of care including
without limitation by such other acts of negligence as discovery
may reveal.”
¶8 The case proceeded to trial. In relevant part, Senkosky, the
fire marshal, a fire expert, and two patrons of Bistro 412 testified
as part of Senkosky’s case-in-chief. While describing the incident,
Senkosky testified, “I believed I was a safe distance away from the
fire,” at the time her dress caught fire. She later reiterated, “I don’t
believe I was standing too close to the fire,” and she stated that
she did not recall feeling heat radiate on her leg or any other part
of her body as she stood next to the fire pit. She testified that, to
her knowledge, the fire pit did not “malfunction in any way.”
Senkosky further testified that at the time of the incident, she
worked at another establishment that also had a fire pit and that
she had been trained to operate it. Her employer’s fire pit was
similar to that of Bistro 412’s in that it was metal, round, and lower
than waist height, but unlike the fire in Bistro 412’s fire pit, the fire
was “down within the pit.”
¶9 The fire marshal testified that he issued a permit for the fire
pit and later inspected it to confirm that the fire pit satisfied the
applicable requirements. On cross-examination, the fire marshal
stated that because the fire pit was “stationary,” and not
“portable,” the permit did not require Bistro 412 to place a barrier
around it or a screen on top of it. Instead, the permit instructed
that “caution—hot flame” signs be placed near the fire pit, which
the fire marshal confirmed had been done. He also confirmed that
there was sufficient clearance for the fire pit on the deck and “[i]f
the location had been improper in any way, [he] would not have
permitted” its location. The fire marshal next explained that the
manufacturer’s instructions, under the heading “Selecting the
Location,” provided that combustible material cannot be kept
20190854-CA 4 2022 UT App 58Senkosky v. Bistro 412 LLC
within 14 inches of the fire pit’s burner, but that it did not
necessarily mean that people’s clothing had to be kept 14 inches
away from the burner. The fire marshal also stated that there was
nothing “different or unusual” about Bistro 412’s fire pit as
compared to the “thousands” of other fire pits throughout Park
City. The fire marshal was also unaware of any fire pits in the city
that kept an attendant nearby.
¶10 Senkosky’s fire expert testified that it was unsafe for any
person to be on the deck with the fire pit without a barrier. He
also testified, based on his classification of the fire pit as a
“portable fueled open flame device,” that the city’s fire code
required the fire pit to “be enclosed or installed in such a manner
as to prevent the flame from contacting combustible material.”
The expert interpreted the 14-inch clearance provision in the
manufacturer’s instructions to mean that there must be “a clear
space between the edge of the fire pit to where something possibly
combustible would be,” including clothing. The fire expert further
pointed to the instructions’ directive: “Never leave an operating
fire pit unattended or by someone not familiar with its operation
or emergency shutoff locations.” He concluded that the fire pit
would have been safe if it had been placed in a location that
allowed for enjoyment of the fire pit at a safe distance, had been
attended, and had a 14-inch clearance around the fire pit.
¶11 The first of Bistro 412’s patrons Senkosky called to testify
noted that, on the night of the incident, no employee was near or
watching the fire pit. He also stated that “in the 50 to 100 times”
he visited Bistro 412, he never saw any warning signs near the fire
pit. He testified that on the night in question, there were 25 to 30
people “shoulder to shoulder” on the deck, with Senkosky
“standing just within arm’s reach of me.” He continued, “The next
thing I knew, I could see flames coming up from about my knee
level” and within seconds, Senkosky “was like the human torch.”
The patron then recounted that he pulled Senkosky to the ground
and that he and another individual laid on top of her to extinguish
20190854-CA 5 2022 UT App 58Senkosky v. Bistro 412 LLC
the flames. He also stated that he did not believe that the flame
radiated much heat because, on dozens of occasions, he had “seen
kids run across the top of the fire pit with their shoes on after the
bar’s closed” without their shoes melting.
¶12 A second patron testified about an incident that occurred a
few months prior to Senkosky’s injury. He stated that he had
“gotten too close” to Bistro 412’s fire pit and the arm of his
“sweater was singed and smoking a little bit,” leaving a 3-inch
hole.
¶13 The owner testified on Bistro 412’s behalf. He testified that
he would place the fire pit on the deck in the fall and remove it in
the spring. When the fire pit was in operation, Bistro 412’s
employees would turn it on and off. The owner stated that he
never considered the fire pit to be unsafe and had no reason to
believe otherwise because “it was a decorative flame.” He had
never heard of any prior incident of a patron being burned or
nearly burned by the fire pit, and he had never received a
complaint about it being unsafe. He stated that he believed that
patrons would take reasonable precautions to protect themselves
from the flame and that he was unaware of any prior incident that
would have caused him to question that belief. The owner further
testified that, to his knowledge, the fire pit had never
malfunctioned.
¶14 At the close of evidence, the jury received four instructions
on Senkosky’s negligence claim: two on a premises liability theory
and two on ordinary negligence. Instruction 28 asked the jury to
decide “whether Bistro 412 used reasonable care to operate and
maintain the open flame device” and listed the elements of
premises liability. Instruction 28.5 provided that “Bistro 412 is not
liable to . . . Senkosky for physical harm caused to her by any . . .
activity or condition on the land if the danger was known or
obvious to her, unless Bistro 412 should anticipate the harm
despite such knowledge or obviousness.” Instruction 29, among
20190854-CA 6 2022 UT App 58Senkosky v. Bistro 412 LLC
other things, informed the jury that Senkosky was claiming that
Bistro 412 was negligent for “fail[ing] to exercise reasonable care
in the installation, operation and maintenance of the open flame
devise on the outdoor patio.” The instruction further provided
that “[r]easonable care is simply what a reasonably careful person
would do in a similar situation” and that, although “[o]rdinary
circumstances do not require extraordinary caution,” “some
situations require more care because a reasonably careful person
would understand that more danger is involved.” Finally,
Instruction 30, among other things, instructed that “[v]iolation of
a safety law is evidence of negligence unless the violation is
excused”; recited the relevant Park City fire code provisions; and
stated that if the jury found that Bistro 412 had not violated the
relevant safety laws, it must “decide whether Bistro 412 acted
with reasonable care under the circumstances.”
¶15 Both parties also proposed special verdict forms. The trial
court rejected Senkosky’s and adopted Bistro 412’s proposed
special verdict form, with a few minor adjustments. The first
question of the adopted special verdict form asked, “Did Bistro
412’s open flame device present an unreasonable risk of harm to
its patrons?” If the jury answered “no” to this first question, it was
instructed to simply sign the form and notify the court without
proceeding to answer the remaining questions. Senkosky objected
to the special verdict form, arguing that she had two separate
causes of action—premises liability and ordinary negligence—
and that the first question eliminated her ordinary negligence
claim. Under Senkosky’s proposed special verdict form, the first
question asked, “Was Defendant Bistro 412 negligent?”
¶16 The jury answered “no” on the first question of the special
verdict form submitted to it and, as instructed, notified the court
it had reached a verdict without answering the remaining
questions. Senkosky moved for a new trial, arguing, among other
things, that the first question on the special verdict form was
incorrect and misleading because it “did not allow [her]
20190854-CA 7 2022 UT App 58Senkosky v. Bistro 412 LLC
negligence claim to be considered by the jury.” Specifically, she
argued that the question misleadingly focused “on whether or not
a fire pit was allowed or reasonable to have at all” and ignored
the actual “issue of whether a reasonable person, displaying a fire
pit in its business to attract customers and create ambiance, would
follow the manufacture safety warnings and instructions as well
as the permitting instructions and local safety laws.”
¶17 The trial court denied Senkosky’s motion. It first noted that
the claim titled “Negligence” in Senkosky’s complaint “conflates
two potential claims, one for premises liability and one for
negligence, under a singular cause of action for negligence” and
that the complaint “specifically alleges the ‘unreasonable risk of
harm’ which is the subject of Question 1 in the Special Verdict
Form.” The court further stated that “[t]he evidence which
[Senkosky] adduced at the trial focused strictly on the fire pit and
her legal theory of premises liability stemming from the manner
in which the fire pit was constructed and maintained by” Bistro
412 and that she “maintained throughout the trial that the liability
for injuries in this case was caused by defective premises.” The
court also noted that Senkosky did not present evidence of
“actions separate and distinct from the defective premises in
order to maintain an independent negligence claim” in
contemplation of the complaint’s reference to “other acts of
negligence as discovery may reveal.” And even if Senkosky had
alleged a separate claim for negligence in her complaint, the court
stated that she still “would have had to address the duty element
of” the ordinary negligence claim and “[t]he only duty presented
to the jury arose in premises liability.”
¶18 Lastly, the court held that, in any event, “[r]easonableness
is the crux of both premises liability and negligence” and that
here, the first question of the special verdict form “was a question
of reasonableness, thus covering both premises liability and
negligence.”
20190854-CA 8 2022 UT App 58Senkosky v. Bistro 412 LLC
¶19 Senkosky appeals.
ISSUES AND STANDARDS OF REVIEW
¶20 Senkosky first argues that the trial court erred in using the
special verdict form proposed by Bistro 412. We review a trial
court’s decision to accept a proposed special verdict form for an
abuse of discretion. See Collins v. Wilson, 1999 UT 56, ¶ 22, 984 P.2d
960 (“[A] court has considerable discretion in accepting proposed
special verdict forms.”). Additionally, “we will not reverse a
judgment merely because there may have been error; reversal
occurs only if the error is such that there is a reasonable likelihood
that, in its absence, there would have been a result more favorable
to the complaining party.” Trapnell & Assocs. v. Legacy Resorts,
LLC, 2020 UT 44, ¶ 62 n.8, 469 P.3d 989 (quotation simplified). See
Utah R. Civ. P. 61.
¶21 Relatedly, Senkosky argues that the trial court erred in
denying her motion for a new trial, which was premised on
the alleged error in the special verdict form. Our review of a
trial court’s decision to grant or deny a motion for a new trial
is two-fold. See Peterson v. Hyundai Motor Co., 2021 UT App 128,
¶ 30, 502 P.3d 320. First, we evaluate the trial court’s
determination of whether an error occurred that may require
retrial. Id. ¶ 31. See Utah R. Civ. P. 59(a) (listing the seven grounds
for which a new trial may be granted). If the asserted error
“cannot be found to exist without some sort of factual
determination on the part of the trial court,” we afford deference
to that court’s determination. Peterson, 2021 UT App 128, ¶ 31. But
if the asserted error does not require the trial court to make a
factual determination, we review the court’s ruling on whether an
error occurred for correctness. Id. Second, we review the court’s
determination of whether the alleged error was harmful for an
abuse of discretion. Id. ¶ 32. See Utah R. Civ. P. 61 (discussing
harmless error).
20190854-CA 9 2022 UT App 58Senkosky v. Bistro 412 LLC
ANALYSIS
¶22 A trial court may use a special verdict form so long as the
form does not “mislead the jury to the prejudice of the
complaining party or insufficiently or erroneously advises the
jury on the law.” Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah
Ct. App. 1995) (quotation simplified). Senkosky asserts that she
raised two theories of negligence at trial, ordinary negligence and
premises liability, 3 but that the special verdict form the trial court
adopted effectively foreclosed the jury’s consideration of her
ordinary negligence theory.
¶23 A negligence claim requires the plaintiff to establish the
following essential elements: “(1) that the defendant owed the
plaintiff a duty, (2) that the defendant breached that duty, (3) that
the breach of duty was the proximate cause of the plaintiff’s
injury, and (4) that the plaintiff in fact suffered injuries or
damages.” Torrie v. Weber County, 2013 UT 48, ¶ 9, 309 P.3d 216(quotation simplified). As relevant to our case, the distinguishing
feature between Senkosky’s claim of ordinary negligence and her
claim of premises liability is duty. But to prevail under either
theory, Senkosky had to prove the specific duty and
breach-of-duty elements corresponding to each claim.
¶24 “In negligence cases, a duty is an obligation, to which the
law will give recognition and effect, to conform to a particular
standard of conduct toward another.” Jeffs ex rel. B.R. v. West, 2012
UT 11, ¶ 5, 275 P.3d 228 (quotation simplified). Under Senkosky’s
ordinary negligence theory, she had to prove at trial that Bistro
412 violated its “duty to exercise [reasonable] care when engaging
in affirmative conduct that creates a risk of physical harm to
3. Bistro 412 contends that “Senkosky did not properly plead an
ordinary negligence cause of action in her Complaint.” Because
we affirm on other grounds, we need not reach the merits of this
argument.
20190854-CA 10 2022 UT App 58Senkosky v. Bistro 412 LLC
others.” See id. ¶ 21. Specifically, under Senkosky’s theory of the
case, and as the jury was instructed, she had to prove that Bistro
412 “failed to exercise reasonable care in its ‘installation,
operation, and maintenance’ of the fire pit.”
¶25 To prevail on her premises liability theory, Senkosky had
to prove that Bistro 412 violated the duty landowners owe to
invitees on their property. In Utah, this duty is defined in sections
343 and 343A of the Second Restatement of Torts. See Hale v.
Beckstead, 2005 UT 24, ¶¶ 7, 23, 116 P.3d 263. Only section 343,
titled “Dangerous Conditions Known to or Discoverable by
Possessor,” is relevant to the case before us. See Restatement
(Second) of Torts § 343 (Am. L. Inst. 1965). It provides that “[a]
possessor of land is subject to liability for physical harm caused to
his invitees by a condition on the land if, but only if,” the
possessor
(a) knows or by the exercise of reasonable care
would discover the 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.
Id. In other words, “the law simply requires owners to take
reasonable steps to protect invitees” by adequately warning the
invitees of any conditions on their property that pose an
unreasonable risk of harm. 4 Hale, 2005 UT 24, ¶ 30. It follows that
4. But “[w]here the danger is so obvious such that no warning is
necessary to alert an invitee, the possessor of land is not required
to give the warning anyway unless other circumstances . . .
warrant.” Hale v. Beckstead, 2005 UT 24, ¶ 30, 116 P.3d 263. See
generally Restatement (Second) of Torts § 343A (Am. L. Inst. 1965)
(discussing the “open and obvious danger” rule).
20190854-CA 11 2022 UT App 58Senkosky v. Bistro 412 LLC
no such duty arises if a condition does not pose an unreasonable
risk of harm, which was reflected in the first question of the
special verdict form presented to the jury.
¶26 Senkosky argues that “under the instructions given to the
jury, whether there was an ‘unreasonable risk of harm’ was
relevant only to the jury’s determination of whether Bistro 412
had a duty” under her theory of premises liability. She contends
that the question was not relevant to her claim of ordinary
negligence, i.e., “whether Bistro 412 had a duty as the operator of
the fire pit to exercise reasonable care ‘in the installation,
operation, and maintenance’ of the fire pit.” Accordingly, she
asserts that the trial court abused its discretion in adopting Bistro
412’s proposed special verdict form (with minor adjustment) and
in denying her motion for a new trial. She contends that the first
question on the “special verdict form misled the jury by ending
its deliberations after determining that Bistro 412 did not have a
duty as a premises owner because the fire pit did not pose an
‘unreasonable risk of harm.’”
¶27 But even assuming, without deciding, that the trial court
exceeded its discretion in largely adopting Bistro 412’s special
verdict form, the error was harmless and the trial court therefore
did not err in denying Senkosky’s motion for a new trial. 5 See
Trapnell & Assocs. v. Legacy Resorts, LLC, 2020 UT 44, ¶ 62 n.8, 469
P.3d 989 (“We will not reverse a judgment merely because there
5. Ordinarily, a trial court will conduct a harmless error analysis
when ruling on a motion for a new trial, which analysis we then
review for an abuse of discretion. See supra ¶ 21; Peterson v.
Hyundai Motor Co., 2021 UT App 128, ¶ 32, 502 P.3d 320. But
because the trial court denied Senkosky’s motion for a new trial
on the ground that there was no error in the special verdict form,
we have no harmless error analysis to review on appeal. In any
event, we conclude that any assumed error in the special verdict
form was harmless.
20190854-CA 12 2022 UT App 58Senkosky v. Bistro 412 LLC
may have been error; reversal occurs only if the error is such that
there is a reasonable likelihood that, in its absence, there would
have been a result more favorable to the complaining party.”)
(quotation simplified). See Utah R. Civ. P. 61. We are not
convinced that there is a reasonable likelihood that Senkosky
would have obtained a more favorable verdict at trial if the court
had rejected Bistro 412’s special verdict form. As discussed in
more detail below, the theory of ordinary negligence that
Senkosky presented to the jury also depended on the degree of
danger the fire pit posed to others. Thus, because the jury
determined that the fire pit and its surrounding conditions did not
pose an unreasonable risk of harm to Bistro 412’s patrons, it is not
reasonably likely that the jury would have accepted her theory of
ordinary negligence either.
¶28 As previously discussed, the duties owed under a premises
liability theory and under an ordinary negligence theory are
distinct. See supra ¶¶ 24–25. Senkosky correctly asserts that Bistro
412 had an independent duty to operate the fire pit in a reasonable
manner, totally aside from the implications of the fire pit being
located on its premises. But under the facts of this case, these
duties were necessarily linked. For Senkosky to prevail on a
theory of premises liability, the jury had to first conclude that the
fire pit and the conditions surrounding it presented an
unreasonable risk of harm to Bistro 412’s patrons. And under her
ordinary negligence claim, the jury would have had to find that
Bistro 412 failed “to exercise [reasonable] care when engaging in
affirmative conduct that creates a risk of physical harm to others.”
Jeffs, 2012 UT 11, ¶ 21.
¶29 In defining reasonable care as part of the ordinary
negligence claim, Instruction 29, which Senkosky does not
challenge on appeal, provided that “[r]easonable care is simply
what a reasonably careful person would do in a similar situation,”
and the instruction noted that “some situations require more care
because a reasonably careful person would understand that more
20190854-CA 13 2022 UT App 58Senkosky v. Bistro 412 LLC
danger is involved.” See Meese v. Brigham Young Univ., 639 P.2d
720, 723 (Utah 1981) (stating that “[n]egligence is the failure to do
what a reasonable and prudent person would have done under
the circumstances” and that “in the exercise of ordinary care, the
amount of caution required will vary in accordance with the
nature of the act and the surrounding circumstances”); Godesky v.
Provo City Corp., 690 P.2d 541, 548 (Utah 1984) (stating that “the
degree of care must be equal to the degree of danger involved”).
Based on the manner in which this case was presented to the jury,
then, whether Bistro 412 exercised reasonable care is dependent
on the conditions of the fire pit and its placement on Bistro 412’s
deck.
¶30 Both at trial and on appeal, in support of her assertion that
Bistro 412 breached its duty to exercise reasonable care as the
operator of the fire pit, Senkosky points to the manufacturer’s
instructions that provided, “Never leave an operating fire pit
unattended or by someone not familiar with its operation or
emergency shutoff locations” and to testimony that the fire pit
was unattended at the time of her injury. She asserts that this
“gave the jury a basis for concluding that a reasonable operator of
a fire would have an attendant present while actively operating a
fire.” And to counter the owner’s and the fire marshal’s testimony
that the other fire pits throughout Park City likewise did not have
attendants, Senkosky argues that “there was ample evidence for
the jury to conclude that a reasonable careful person would have
had an attendant present while actively operating the fire pit
under the particular circumstances present here.” Specifically, the
jury heard evidence that Bistro 412 failed to display warning signs
(although the jury heard evidence to the contrary from the fire
marshal and the owner); that the knee-level fire pit was located on
a relatively small deck on which crowds of people would gather
to socialize; that the fire pit was unattended and did not have a
barrier around it; and that the fire pit did not emit sufficient heat
to encourage patrons to keep their distance.
20190854-CA 14 2022 UT App 58Senkosky v. Bistro 412 LLC
¶31 This argument demonstrates how closely linked the
premises liability and ordinary negligence claims were in this
case. Senkosky did not present evidence that even one of the
“thousands” of other fire pits operated by others throughout Park
City had attendants on hand or other evidence that a reasonably
prudent person would have followed the specific manufacturer’s
instruction regarding attendants. Instead, Senkosky relies on the
circumstances surrounding the fire pit—i.e., the placement of a
knee-high fire pit on a small deck without an attendant or
barrier—in arguing that a reasonably prudent owner would have
recognized that Bistro 412’s fire pit posed a greater danger to
invitees than the other similar fire pits and, based on this higher
degree of danger, would have placed an attendant or installed a
barrier around the fire pit. But this argument is effectively rejected
by the jury’s determination that the fire pit and its surroundings
did not pose an unreasonable risk of harm to Bistro 412’s patrons.
¶32 By answering “no” to the question, “Did Bistro 412’s open
flame device present an unreasonable risk of harm to its
patrons?,” the jury necessarily rejected Senkosky’s argument that
the level of reasonable care Bistro 412 owed to its patrons was
greater than that of other operators of similar fire pits throughout
the city. And because Senkosky did not present evidence that
reasonably prudent operators of fire pits similar to the one at issue
here would have placed attendants at or barriers around their fire
pits, we are not convinced that there is a reasonable likelihood
that Senkosky would have obtained a more favorable outcome if
the trial court had rejected Bistro 412’s special verdict form or
granted a new trial on the ground that the special verdict form
was flawed.
CONCLUSION
¶33 Senkosky’s claims for premises liability and ordinary
negligence were closely intertwined based on the facts of this case
and the manner in which the case was tried. For this reason, even
20190854-CA 15 2022 UT App 58Senkosky v. Bistro 412 LLC
assuming the trial court erred in adopting Bistro 412’s proposed
special verdict form, such error was harmless and did not warrant
a new trial.
¶34 Affirmed.
20190854-CA 16 2022 UT App 58