Hill v. Superior Property Management Services, Inc.

This opinion is subject to revision before final
publication in the Pacific Reporter.
2013 UT 60IN 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.
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¶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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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).
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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‖).
6
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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)).
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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,
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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
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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.‖).
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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.
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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‖).
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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
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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 60Opinion 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
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¶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 60JUSTICE 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 60JUSTICE 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