Gonzalez v. Russell Sorensen Construction

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Jose M. Gonzalez, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20100671‐CA
)
v. ) FILED
) (May 24, 2012)
Russell Sorensen Construction, )
) 2012 UT App 154Defendant and Appellant. )
‐‐‐‐‐
Third District, Salt Lake Department, 080921130
The Honorable Joseph C. Fratto Jr.
Attorneys: Barbara K. Berrett and Mark D. Taylor, Salt Lake City, for Appellant
William J. Hansen, Karra J. Porter, and Tyler V. Snow, Salt Lake City,
for Appellee
‐‐‐‐‐
Before Judges McHugh, Voros, and Christiansen.
VOROS, Associate Presiding Judge:
¶1 This is an appeal from the denial of a summary judgment motion. The case
involves a workplace injury claim brought by a subcontractor’s employee against the
general contractor. The appeal focuses on a general contractor’s potential liability for
injuries allegedly resulting from a hazardous condition on the job site.
¶2 The general contractor is Appellant Russell Sorensen Construction (Sorensen);
the subcontractor is John Clayton Construction (Clayton); the injured employee is
Appellee Jose M. Gonzalez (Gonzalez). After falling from some scaffolding, Gonzalez
sued Sorensen and others. Sorensen moved for summary judgment and the trial court
denied the motion. We granted leave to appeal this interlocutory order and now affirm.
BACKGROUND1
¶3 Sorensen was the general contractor for a Planned Unit Development (PUD)
known as Orchard Vista (the Project) in Midvale, Utah. Sorensen hired Clayton to
install siding, soffit, and fascia.2 Clayton employed Gonzalez. While Gonzalez was
standing on some scaffolding, a piece of aluminum J‐molding he was holding came into
contact with high‐voltage power lines. The power lines hung within ten feet of the roof
of the building, and thirty‐seven inches from the scaffolding. Gonzalez fell eighteen
feet, sustaining injuries.
¶4 Gonzalez sued several parties, including Sorensen. In his amended complaint,
he alleged generally that the defendants breached their duty of care by failing to “give
[Gonzalez] any warning of the dangerous power lines and their close proximity to the
site where [Gonzalez’s] work was to be performed”; failing to “affirmatively or
constructively notify him that it was unsafe to work on the scaffolding”; failing to “have
the power turned off or protective barriers installed around the power lines prior to
allowing persons to work in close proximity to the power lines”; “[f]ailing to properly
exercise and maintain a place of employment which was free from recognized hazards
that were likely to cause death or serious physical harm to individuals working at the
[p]roperty”; “[f]ailing to enforce safety regulations on the Project”; and “[f]ailing to
ensure that the development of the [Project] did not encroach upon the electrical lines
1
In reviewing a trial court’s grant or denial of summary judgment, we “view[] the
facts and all reasonable inferences drawn therefrom in the light most favorable to the
nonmoving party.” Bingham v. Roosevelt City Corp., 2010 UT 37, ¶ 10, 235 P.3d 730(citation and internal quotation marks omitted).
2
Soffit is the underside of a part or member of a building (as of an overhang or
staircase); especially the intrados of an arch. Merriam‐Webster.com, http://merriam‐
webster.com/dictionary/soffit (last visited May 17, 2011). Fascia is “a horizontal piece
(as a board) covering the joint between the top of a wall and the projecting
eaves—called also fascia board.” Merriam‐Webster.com, http://merriam‐
webster.com/dictionary/fascia (last visited May 17, 2011).
20100671‐CA 2
lining the [p]roperty, or that proper safety measures regarding power lines were
followed.”
¶5 After the close of discovery, Sorensen moved for summary judgment. Sorensen
contended that, as a general contractor, it could not be liable for a workplace injury
suffered by Clayton’s employee unless Sorensen had exercised direct control over the
injury‐causing aspect of the work. Furthermore, Sorensen contended, the amended
complaint failed to give notice of a premises liability claim or allege that Sorensen
owned or possessed the property where the injury occurred.
¶6 The trial court denied Sorensen’s motion. The court concluded that “when an
owner relinquishes control of property to a general contractor, that contractor must be
responsible for any conditions it creates on the property, specifically, in this matter, the
constructing of a building and its resulting conditions.” The court expressly approved
and applied section 384 of the Restatement (Second) of Torts. The court ruled that
“disputed issues of material fact with respect to whether [Sorensen] created a
dangerous condition on the premises and further, whether [Sorensen] took reasonable
steps to protect invitees, preclude[] summary judgment.”
ISSUES AND STANDARD OF REVIEW
¶7 Sorensen asserts two challenges to the trial court’s order denying summary
judgment. First, Sorensen contends that Gonzalez’s amended complaint failed to
sufficiently plead the theory of premises liability, barring him from raising that theory
in his memorandum in opposition to summary judgment. Second, Sorensen contends
that the trial court erroneously relied on section 384 of the Restatement (Second) of
Torts to conclude that Sorensen owed a duty of care to Gonzalez as an employee of an
independent contractor.
¶8 “Summary judgment is appropriate only upon a showing that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5, 178 P.3d 343 (citation
and internal quotation marks omitted); see also Utah R. Civ. P. 56(c). “An appellate
court reviews a trial court’s legal conclusions and ultimate grant or denial of summary
judgment for correctness.” Bingham v. Roosevelt City Corp., 2010 UT 37 ¶ 10, 235 P.3d
730 (citation and internal quotation marks omitted).
20100671‐CA 3
ANALYSIS
I. Gonzalez’s Amended Complaint Gave Adequate Notice of His Claim.
¶9 Sorensen challenges the trial court’s denial of summary judgment on the ground
that Gonzalez’s amended complaint failed to give notice of his premises liability claim.
A claim of relief must include “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Utah R. Civ. P. 8(a).3 The Utah Supreme Court has
“consistently noted that Utah’s notice pleading requirements are liberal.” Gudmundson
v. Del Ozone, 2010 UT 33, ¶ 40, 232 P.3d 1059. “[A]ll that is required is that the
pleadings be sufficient to give fair notice of the nature and basis of the claim asserted
and a general indication of the type of litigation involved.” Id. (internal quotation
marks omitted). The issue, then, is whether Gonzalez’s amended complaint gave “fair
notice of the nature and basis of the claim” and “a general indication of the type of
litigation involved.” See id. ¶ 40 (citation and internal quotation marks omitted).
¶10 Sorensen contends that Gonzalez’s amended complaint was deficient under
rule 8 for two reasons.4 First, it argues that Gonzalez’s premises liability claim was not
3
Rule 8 of the Utah Rules of Civil Procedure has since been amended, but the
amendment is effective only as to cases filed on or after November 1, 2011, and thus
does not apply to the present case.
4
In its reply brief, Sorensen also argues a third reason that the amended
complaint was deficient: it utilized a “‘shotgun’ pleading format that lump[ed] all of
the defendants together in each cause of action and provide[d] no factual basis to
distinguish their conduct.” This, according to Sorensen, made it “nearly impossible . . .
to accurately discern the factual underpinning of each claim.” Because Sorensen did not
raise this argument in its opening brief, we do not address it. See Allen v. Friel, 2008 UT
56, ¶ 8, 194 P.3d 903 (“It is well settled that issues raised by an appellant in the reply
brief that were not preserved in the opening brief are considered waived and will not be
considered by the appellate court.” (citation and internal quotation marks omitted)).
We note, however, that “when a complaint states a claim in general language but the
factual allegations are so vague and ambiguous that the defendant cannot draft an
answer, the proper course of action is to move for a more definite statement under rule
12(e).” Whipple v. American Fork Irrigation Co., 910 P.2d 1218, 1222 n.3 (Utah 1996); see
(continued...)
20100671‐CA 4
pleaded in the amended complaint, but raised for the first time in his memorandum
opposing summary judgment. Because the premises liability argument was not
pleaded, Sorensen argues, the trial court should not have considered it. Second,
Gonzalez “fail[ed] to allege that [Sorensen] owned or possessed the property at issue,”
an allegation that, according to Sorensen, was required to state a premises liability
claim.
¶11 First, we do not agree that Gonzalez’s amended complaint does not plead a
premises liability claim. Sorensen relies on Gudmundson v. Del Ozone, 2010 UT 33, 232
P.3d 1059. Gudmundson involved a products liability claim in which the plaintiff, a state
prison employee who supervised a laundry facility, alleged that a defective ozone
generator caused her injuries from ozone overexposure. See id. ¶¶ 3‐5. The complaint
asserted several claims based on the theory that ozone overexposure had caused the
plaintiff’s injuries. See id. ¶¶ 6, 41. As the court explained, “[n]ot until her
memorandum in opposition to summary judgment did she argue that ozone combined
with other chemicals present in the laundry facility caused . . . her to develop symptoms
indicative of chemical toxicity.” Id. ¶ 41 (emphasis added). This argument amounted to
a new theory of causation that “depend[ed] on different factual theories and present[ed]
different types of legal liability.” Id. The plaintiff’s original claim—that ozone
overexposure had caused her injuries—would be a strict liability claim if the ozone
generator was found to be defective, while her subsequent theory of causation—that
“the presence of ozone combined with other chemicals ordinarily present in a laundry
facility” caused her injuries—“sounds in negligence.” Id.
¶12 Here, Gonzalez’s memorandum in opposition to summary judgment did not
assert a different type of legal liability than that asserted in his amended complaint. In
his amended complaint, Gonzalez asserted that the defendants (including Sorensen)
breached their duty of care by failing to maintain a workplace free from hazards, failing
4
(...continued)
also Utah R. Civ. P. 12(e) (“If a pleading to which a responsive pleading is permitted is
so vague or ambiguous that a party cannot reasonably be required to frame a
responsive pleading, the party may move for a more definite statement before
interposing a responsive pleading.”).
20100671‐CA 5
to ensure that the building did not encroach upon the electrical power lines, failing to
enforce safety measures such as insulating or cutting off power to the electrical lines,
failing to warn Gonzalez of the power lines and their proximity to his work site, and
allowing workers to work less than ten feet from the power lines. In his memorandum
in opposition to summary judgment, Gonzalez asserted that Sorensen committed
“direct, independent acts of negligence.” These included constructing the building too
close to the power lines and then failing to take reasonable steps to rectify the
hazardous condition, such as relocating the power lines, insulating or “de‐energizing”
them while workers were present, or warning subcontractors of the danger they posed.
While these two descriptions of the alleged negligent acts are not identical, we do not
agree that the allegations in the memorandum so depart from the pleaded claim as to
deny Sorensen “fair notice of the nature and basis of the claim” and “a general
indication of the type of litigation involved.” See Gudmundson, 2010 UT 33, ¶ 40
(citation and internal quotation marks omitted).
¶13 Second, Sorensen argues that the amended complaint “fails to allege that
[Sorensen] owned or possessed the property at issue.” That failure, argues Sorensen,
was fatal to a premises liability claim. Gonzalez acknowledges that the complaint did
not allege that Sorensen owned the property. Indeed, Gonzalez states, “such an
allegation would have been incorrect.” Rather, Gonzalez’s argument is that Sorensen’s
duty as general contractor was analogous to the duty owed by an owner or possessor as
described in section 384 of the Restatement of Torts. See Restatement (Second) of Torts
§ 384 & cmt. h (1965).
¶14 Sorensen responds that Gonzalez’s “novel premises liability claim [based on
section 384] is predicated upon the adoption of Restatement [section] 384, which has
never been adopted by a Utah appellate court” and conflicts with established Utah law
governing a general contractor’s liability. Therefore, Sorensen claims, to have notice
that Gonzalez’s claims were based in premises liability, Sorensen “would have had to
assume that its role as general contractor placed it in the same position as a property
owner even though Utah law has never recognized that a general contractor ipso facto
assumed the same liabilities as a landowner.” The success of this argument thus
depends on whether section 384 describes Utah law. Because we hold that section 384
accurately describes Utah law, Gonzalez need not have alleged ownership or possession
of the property.
20100671‐CA 6
II. Restatement Section 384 States Utah Law.
¶15 Sorensen contends that the trial court erred when it ruled that Sorensen could be
liable for Gonzalez’s injuries based on principles summarized in section 384 of the
Restatement (Second) of Torts. Sorensen asserts that section 384 has not been adopted
by any Utah appellate court and conflicts with established Utah law. According to
Sorensen, the trial court should have read the amended complaint as a claim for
vicarious liability under the retained control doctrine and concluded that Gonzalez
failed to allege facts to support such a claim. Therefore, Sorensen argues, the trial court
should have found no disputed issues of material fact relevant to Sorensen’s liability.
On the other hand, Gonzalez disavows any vicarious liability claim and maintains that
the retained control doctrine has no application to this case. He claims that he has
adequately framed a direct liability claim against Sorensen as a general contractor. We
agree with Gonzalez.
¶16 The general rule in Utah for vicarious liability is that “the employer of an
independent contractor is not liable for physical harm caused to another by an act or
omission of the contractor or his servants.” Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d
322 (quoting Restatement (Second) of Torts § 409).5 The retained control doctrine
represents an exception to this general rule of non‐liability. “Despite the general non‐
liability rule, the employer of a contractor remains liable for the contractor’s actions
when the employer participate[s] in or control[s] the manner in which the contractor’s
work is performed, and therefore owes [a] duty of care concerning the safety of the
manner or method of performance implemented.” Magana v. Dave Roth Constr., 2009
UT 45, ¶ 23, 215 P.3d 143 (alterations in original) (internal quotation marks omitted).
The doctrine of retained control is “applied narrowly in unique circumstance[s] where an
employer of an independent contractor exercises enough control over the contracted
work to give rise to a limited duty of care.” Id. (alterations in original) (internal
quotation marks omitted).
5
“For the purposes of the general non‐liability rule, the terms ‘employer’ and
‘independent contractor’ are used generally. For example, the term ‘employer’ . . .
could . . . mean a contractor who hires a subcontractor to complete a specific part of the
construction, in which case the subcontractor would be the ‘independent contractor.’”
Magana v. Dave Roth Constr., 2009 UT 45, ¶ 21 n.4, 215 P.3d 143. In the instant case, the
“employer” is Sorensen (the general) and the “contractor” is Clayton (the sub).
20100671‐CA 7
¶17 Sufficient control exists when the employer of the independent contractor
“‘exert[s] such control over the means utilized that the contractor cannot carry out the
injury‐causing aspect of the work in his or her own way.’” Id. ¶ 31 (quoting Thompson,
1999 UT 22, ¶ 21). “[A] general obligation to oversee safety on a project does not equate
to exerting control over the method and manner of the injury‐causing aspect of [the
subcontractor’s] work . . . even where the general contractor has closely monitored on‐
site safety.” Id. ¶ 29 (second alteration in original) (citation and internal quotation
marks omitted). This principle is consistent with the general rule of non‐liability in
common law. See id. ¶ 22–23.
¶18 The Utah Supreme Court made clear in Magana v. Dave Roth Constr., 2009 UT 45,
215 P.3d 143, that the general rule of non‐liability applies to claims of vicarious
liability—not to claims of direct negligence on the part of the employer. See id. ¶ 22.
According to the supreme court, “the common law general non‐liability rule only
recognizes that employers are not liable for the actions of their contractors. The rule
does not speak to an employer’s liability for its own actions.” Id. ¶ 37. Thus, the
retained control doctrine does not immunize a contractor from its own negligent acts.
See id. ¶¶ 36–38.
¶19 Here, Gonzalez disavows any vicarious liability claim, asserting rather that
Sorensen is directly liable for its own negligence. Gonzalez alleges that Sorensen
created conditions that caused Gonzalez’s injuries by, for example, “failing to ensure
that the development of the [p]roperty did not encroach upon the electrical lines lining
the [p]roperty,” by failing to warn Gonzalez of the close proximity of dangerous power
lines to the place where Gonzalez would perform his work, and by failing to “have the
power turned off or protective barriers installed around the power lines.” These claims
are distinct from a vicarious liability claim, and should be “separately consider[ed] . . .
under the direct negligence theory” that Gonzalez has advanced. See id. ¶¶ 36–37.
¶20 “To establish a claim of negligence, the plaintiff must establish four 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.” Webb v. University
of Utah, 2005 UT 80, ¶ 9, 125 P.3d 906 (citation and internal quotation marks omitted).
Sorensen’s argument centers on the element of duty; Sorensen essentially argues that it
owed no duty of care to Gonzalez under the circumstances of this case. “[W]ithout a
20100671‐CA 8
duty, there can be no negligence as a matter of law and summary judgment is
appropriate.” Tallman v. City of Hurricane, 1999 UT 55, ¶ 5, 985 P.2d 892. However, if
Sorensen owed Gonzalez “a duty under any [pleaded] legal theory, and there are
disputed facts as to whether that duty was breached,” then we must affirm the trial
court’s denial of Sorensen’s summary judgment. See id.
¶21 Gonzalez contends that Sorensen’s duty is described in section 384 of the
Restatement. Section 384 is one of a pair of restatement sections addressing the liability
of “persons creating artificial conditions on land on behalf of possessor[s].” See
Restatement (Second) of Torts § 384 (1965) (capitalization omitted). Section 384
addresses the liability of these persons for physical harm “caused while work remains
in their charge”:
One who on behalf of the possessor of land erects a structure
or creates any other condition on the land is subject to the
same liability, and enjoys the same freedom from liability, as
though he were the possessor of the land, for physical harm
caused to others upon and outside of the land by the
dangerous character of the structure or other condition while
the work is in his charge.
Id. “[A] landowner has a duty to protect his invitees from obviously harmful conditions
or activities on the property if the landowner should anticipate the harm despite the
obvious nature of the danger.” Hale v. Beckstead, 2005 UT 24, ¶ 25, 116 P.3d 263 (quoting
Restatement (Second) of Torts § 343A(1) (1965)).
¶22 Like section 384, section 385 addresses the liability of “persons creating artificial
conditions on land on behalf of possessor[s].” See Restatement (Second) of Torts § 385
(citation omitted). However, section 385 addresses the liability of these persons for
physical harm caused “after [their] work has been accepted”:
One who on behalf of the possessor of land erects a structure
or creates any other condition thereon is subject to liability to
others upon or outside of the land for physical harm caused
to them by the dangerous character of the structure or
condition after his work has been accepted by the possessor,
20100671‐CA 9
under the same rules as those determining the liability of
one who as manufacturer or independent contractor makes a
chattel for the use of others.
Id.
¶23 Thus, the principal difference between section 384 and section 385 is temporal:
section 384 applies while the work is still in the general contractor’s charge, see id. § 384;
while section 385 applies “after his work has been accepted,” see id. § 385. The nature of
the contractor’s liability differs accordingly: while the work is still in his charge, he is
subject to liability “as though he were the possessor of the land,” Id. § 384; after his
work has been accepted, he is subject to liability as one who “makes a chattel for the use
of others,” id. § 385. This difference is based in part on the fact that “[w]hen the work is
completed and accepted by the possessor, the . . . contractor’s connection with the land
ceases.” Id. § 385, cmt. d. But in either case, the contractor is directly liable for physical
harm caused by conditions that he created on the land.
¶24 Sorensen correctly asserts that no Utah court has adopted section 384. However,
the Utah Supreme Court did adopt section 385 in Tallman v. City of Hurricane, 1999 UT
55, 985 P.2d 892. In Tallman, a city hired a general contractor to install water lines. Id.
¶ 2. The general contractor hired a subcontractor to dig the necessary trenches, but the
general contractor agreed to provide “all trench protection and shoring.” Id. ¶ 2. The
subcontractor dug the trench at a depth exceeding both contract specifications and
government standards for unshored trenches. The subcontractor knew that the general
contractor had not shored the trench, and that the general contractor’s employees
would be working in it. Id. Tallman, an employee of the general contractor, was
working in the trench when a rock fell from the unshored trench, killing him. Id. ¶¶ 2‐3.
Tallman’s heirs sued several defendants, including the subcontractor. Id. ¶ 4. The trial
court granted summary judgment in favor of the subcontractor; the supreme court
reversed. Id. ¶ 24.
¶25 Citing section 385, the supreme court “announce[d] unambiguously that Utah
follows the foreseeability rule set forth in the Restatement (Second) of Torts and
followed by a majority of states.” Id. ¶ 8. Then, citing and quoting section 385, the
court declared, “The creator of an artificial condition on land may be liable to
others—both upon or outside of the land—for physical harm caused by its dangerous
20100671‐CA 10
nature.” Id. ¶ 9. The court continued, “The subsequent acceptance by the possessor of
the completed condition does not abrogate this duty.” Id. In other words, the court
held that the creator of an artificial condition on land is subject to liability as articulated
in the Restatement (Second) of Torts. See id.
¶26 The court in Tallman did not cite section 384 or state that it accurately
summarizes Utah law. However, the court’s reasoning makes that conclusion
inescapable. If, as Tallman holds, a contractor is liable “‘after his work has been
accepted by the possessor,’” for harm caused by a condition he created on the land, see
Tallman, 1999 UT 55, ¶ 9 (quoting Restatement (Second) of Torts § 385), it logically
follows that such a contractor would also be liable for such harm “while the work is in
his charge,” see Restatement (Second) of Torts § 384. Indeed, the court’s statement that
the landowner’s acceptance of a hazardous condition does not “abrogate [the] duty”
owed by the condition’s creator (the section 385 situation), see id. ¶ 9, presupposes the
existence of such a duty while the work is still in his charge (the section 384 situation).
We thus conclude that section 384 of the Restatement (Second) of Torts correctly states
Utah law.
¶27 We do not see this conclusion as an expansion of contractor liability, as Sorensen
suggests. We are supported in this view by the Tenth Circuit Court of Appeals. That
court, on facts similar to those alleged by Gonzalez here, concluded over forty years ago
that the rule of section 384 is the law of Utah:
As applied to a general contractor in control of a structure or
premises upon which work is being done, the rule is that
such contractor is liable to an employee of another contractor
rightfully using any portion of the premises for negligence in
failing to keep it in a safe condition and to give warning of
latent or concealed perils.
Titan Steel Corp. v. Walton, 365 F.2d 542, 546 (10th Cir. 1966) (applying Utah law). We
agree with the Tenth Circuit’s observation that “[t]his rule is not inconsistent nor
incompatible with the general rule of non‐liability of a general contractor for torts of an
independent contractor.” Id.; see also Magana v. Dave Roth Constr., 2009 UT 45, ¶ 38, 215
P.3d 143 (holding that a general contractor “remains liable for its own direct actions”).
Finally, this result is in step with a significant number of jurisdictions that have adopted
20100671‐CA 11
section 384 or have similarly applied principles of premises liability to independent
contractors. See, e.g., Smithey v. Stueve Constr. Co., No. 04‐4067 KES, 2007 WL 172511, at
*4 (D.S.D. Jan. 18, 2007) (listing jurisdictions that have adopted section 384).6
¶28 Gonzalez contends that Sorensen owed a duty of care with respect to the
premises where Gonzalez was injured. In violation of this duty, Gonzalez alleges,
Sorensen constructed or oversaw the construction of the building too close to energized
power lines, or knew of the building’s dangerous proximity to them, and could have
foreseen harm to Gonzalez and other subcontractors and employees. Therefore,
Gonzalez alleges, Sorensen had a duty akin to that of a landowner to remedy this
dangerous condition, or at least to warn Gonzalez of the danger, under the principles
articulated in section 384 and Hale v. Beckstead, 2005 UT 24, ¶ 25, 116 P.3d 263 (“a
landowner has a duty to protect his invitees from obviously harmful conditions or
activities on the property if the landowner should anticipate the harm despite the
obvious nature of the danger.”) Id. (citation and internal quotation marks omitted). We
see nothing in this reasoning that contradicts the general rule of non‐liability applicable
to vicarious liability claims.
¶29 “Summary judgment is appropriate only upon a showing that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5, 178 P.3d 343. The trial
court correctly found disputed issues here. These include whether Sorensen created a
dangerous condition on the premises and whether Sorensen took reasonable steps to
protect invitees from any dangerous conditions it had created. In light of Gonzalez’s
direct negligence claims, these disputed factual issues preclude summary judgment.
¶30 We hold that section 384 correctly states Utah law governing the liability of
general contractors for harm caused to others by conditions at a job site. Gonzalez
alleged material facts to support a claim of direct negligence based on principles
6
At least twenty other jurisdictions have followed the principles articulated in
section 384. See Smithey v. Stueve Constr. Co., No. 04‐4067 KES, 2007 WL 172511, at *4
(D.S.D. Jan. 18, 2007). See, e.g., Yee Chuck v. Board of Trustees of Leland Stanford Jr. Univ., 3
Cal. Rptr. 825, 830 (Cal. Ct. App. 1960); Duggan v. Esposito, 422 A.2d 287, 289 (Conn.
1979); Tipton v. Texaco, Inc., 712 P.2d 1351, 1358 (N.M. 1985); Leonard v. Commonwealth,
771 A.2d 1238, 1240–41 (Pa. 2001).
20100671‐CA 12
articulated in section 384. At least some of those facts are in dispute. Therefore, the
trial court was correct to deny Sorensen’s motion for summary judgment.
CONCLUSION
¶31 Under Utah’s liberal notice pleading rules, Gonzalez’s amended complaint
alleged facts that could support a finding of premises liability against Sorensen. Thus,
the trial court did not abuse its discretion in rejecting Sorensen’s argument that
Gonzalez raised this claim for the first time in his memorandum opposing summary
judgment. In addition, supreme court precedent compels the conclusion that the
Restatement (Second) of Torts section 384 accurately states Utah law with respect to
direct liability of persons who create structures or other artificial conditions on land.
Because genuine issues of material fact remain, the trial court properly denied
Sorensen’s motion for summary judgment.
¶32 Affirmed.
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
‐‐‐‐‐
¶33 WE CONCUR:
____________________________________
Carolyn B. McHugh,
Presiding Judge
____________________________________
Michele M. Christiansen, Judge
20100671‐CA 13