Zazetti v. Prestige Senior Living Center

2022 UT App 42THE UTAH COURT OF APPEALS
PEGGY ZAZZETTI,
Appellant,
v.
PRESTIGE SENIOR LIVING CENTER LLC AND
ACTION SNOW PLOW AND LAWN CARE INC.,
Appellees.
Opinion
No. 20200357-CA
Filed March 31, 2022
Third District Court, Silver Summit Department
The Honorable Kent R. Holmberg
No. 170500337
Daniel F. Bertch and Caleb Bertch,
Attorneys for Appellant
Jeremy S. Stuart and Nathanael J. Mitchell, Attorneys
for Appellee Prestige Senior Living Center LLC
Joseph E. Minnock, Attorney for Appellee
Action Snow Plow and Lawn Care Inc.
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.
HARRIS, Judge:
¶1 Peggy Zazzetti was injured after she slipped and fell on a
patch of ice at her apartment complex. She sued the owner of the
complex as well as a snow removal company the owner had
hired. Prior to trial, pursuant to a summary judgment motion,
the trial court dismissed the snow removal company from the
lawsuit. And after a three-day trial, a jury found that the owner
was not at fault for Zazzetti’s injuries. Zazzetti now appeals,
asserting that the court should not have dismissed the snow
Zazzetti v. Prestige Senior Living Center
removal company from the lawsuit, and that the jury’s verdict
was the result of various errors on the part of the court. We
affirm.
BACKGROUND
¶2 In 2013, Zazzetti moved into an apartment at the
Prestige Senior Living Center (Prestige). Zazzetti selected
Prestige, as opposed to other housing options, because Zazzetti
was disabled and Prestige billed itself as a “Low Income
Housing Tax Credit Project” in which only people “62 and older
or disabled” were allowed to live. Zazzetti and Prestige signed
an apartment rental agreement—a form document drafted by
Prestige—that, among other provisions, contained this language:
“Tenant . . . agrees to keep snow off stairs and walks in the
winter.” In this opinion, we refer to this language as “the Snow
Removal Provision.”
¶3 In January 2017, Zazzetti walked her boyfriend to his car
following a visit and, after he drove away, as she was returning
to her apartment, she slipped and fell on the snowy and icy
sidewalk leading from the parking lot to the building. The fall
caused an injury to her left knee that later required surgery.
¶4 Zazzetti subsequently sued Prestige, asserting claims of
negligence, breach of the implied warranty of habitability, and
breach of contract. In its answer, Prestige denied all liability and
gave notice that “it intend[ed] to apportion fault” to Action
Snow Plow and Lawn Care (Action), a company it had hired to
remove snow at the apartment complex. In response, Zazzetti
amended her complaint, this time including claims against
Action that were identical to the claims she had asserted against
Prestige.
¶5 Later, after discovery, Prestige and Action both filed
motions for summary judgment. In its motion, Prestige argued,
in part, that it had satisfied its duty to Zazzetti and that
20200357-CA 2 2022 UT App 42Zazzetti v. Prestige Senior Living Center
Zazzetti’s own failure to comply with the Snow Removal
Provision had contributed to her injuries. For its part, Action
argued, among other things, that it was “an independent
contractor who owe[d] no direct duty” to Zazzetti. The trial
court denied Prestige’s motion for summary judgment, but
granted Action’s, dismissing it as a party from the case.
¶6 Zazzetti then filed a motion asking the court to forbid
Prestige from making any reference to the Snow Removal
Provision during trial, arguing that the provision was
unconscionable and irrelevant. Prestige resisted the motion,
apparently wanting to keep the door open to arguing, at trial,
that the accident was at least partially Zazzetti’s fault due to her
failure to comply with the Snow Removal Provision. The court
denied the motion, expressing doubt that the doctrine of
unconscionability could even apply where Prestige was not
seeking to enforce the Snow Removal Provision, but concluding
in any event that the provision was not unconscionable. On that
basis, the court declined Zazzetti’s invitation to forbid Prestige
from referring to the Snow Removal Provision at trial, although
it stated that the provision could not “alter [Prestige’s] duties”
under principles of premises liability and that it would, if
necessary, so instruct the jury.
¶7 Later, just days before trial, the court asked Prestige at the
final pretrial conference to clarify its position regarding the
Snow Removal Provision. In response, Prestige acknowledged a
“possibility” that it would, during trial, “point out” the Snow
Removal Provision, but stated that its position at trial was “not
going to be that [it] didn’t do any snow removal efforts because
[it was] anticipating that [Zazzetti] was going to do it herself,”
and that it was “not going to argue that this is [Zazzetti’s] fault
because it was her responsibility to get out there and shovel and
salt herself.” Indeed, Prestige conceded that the Snow Removal
Provision did not “change[] the non-delegable duty” that it
owed to Zazzetti, and stated that it would not argue otherwise at
trial.
20200357-CA 3 2022 UT App 42Zazzetti v. Prestige Senior Living Center
¶8 The parties also submitted proposed jury instructions
prior to trial. Among Zazzetti’s requested instructions was one
entitled “Duty of landlord,” which stated that Zazzetti “must
prove that . . . [Prestige] failed to use reasonable care to keep the
rented property . . . safe and suitable for its intended use; or . . .
free of defects or dangerous conditions of which [Prestige] knew
or should have known would expose others to an unreasonable
risk of harm.” Prestige did not oppose the “Duty of landlord”
instruction. But it asked the court to provide an additional
instruction on the topic, this one captioned “Open and obvious
danger rule,” which stated that “[a] landlord is not liable to its
tenants for physical harm caused to them by any activity or
condition on the land whose danger is known or obvious to
them, unless the landlord should anticipate the harm despite
such knowledge or obviousness.” At the final pretrial
conference, the court acknowledged the parties’ respective jury
instruction requests, but indicated that it would entertain
argument about them during the course of the trial.
¶9 The case proceeded to a three-day jury trial. During his
opening statement, Zazzetti’s counsel introduced the Snow
Removal Provision, stating that “if you think [including that
language in the rental agreement was] not fair, and that’s not
right, and that is not fulfilling the duty that a landlord has
toward vulnerable tenants, then your verdict should be for
[Zazzetti].” Zazzetti then called various witnesses, including her
husband (her boyfriend at the time of the incident) and her
brother, who both testified that the walkways at the apartment
complex were rarely plowed or shoveled, and that they were
frequently icy. And Zazzetti herself testified that, on the day of
her fall, the walkways were icy, and that in the days leading up
to the fall she had not seen anyone shoveling or spreading ice
melt on the walkways. A representative of Action, however,
testified that Action had indeed plowed and shoveled several
times in the days leading up to the incident, including twice on
the day of the accident itself, and pointed to handwritten plow
logs to support that assertion. The manager of the apartment
20200357-CA 4 2022 UT App 42Zazzetti v. Prestige Senior Living Center
complex (an employee of Prestige) also testified that she had
remotely—via video camera—observed Action plowing and
shoveling in the days leading up to the incident, that Prestige
would not have paid Action if it had not actually fulfilled its
plowing and shoveling duties, and that—despite the language of
the Snow Removal Provision—Prestige did not expect its tenants
to do their own snow removal.
¶10 Following the manager’s testimony, Zazzetti moved for a
mistrial, asserting that Prestige’s “flip flop” on whether it
intended to argue that tenants had a duty to remove snow
pursuant to the Snow Removal Provision had “prejudice[d] the
way that the trial ha[d] unfolded.” In particular, Zazzetti’s
counsel implied that he would not have discussed the Snow
Removal Provision during his opening statement had he known,
in advance, that Prestige did not intend to argue that tenants had
a duty to remove snow, and stated that he had been “baited into
making a big deal out of language in the lease that now we’re all
agreeing” had no bearing on the duty question. In response,
Prestige stated that it had “not put the [Snow Removal
Provision] in front of the jury a single time in this trial,” and that
it “was never going to show up and say that the duty was
entirely on or even partially on the tenants.” The trial court
denied the motion for a mistrial, specifically recalling that, at the
final pretrial conference, Prestige had indicated that it was not
going to use the Snow Removal Provision to argue that tenants
were responsible for removing the snow, and concluding that,
under these circumstances, Zazzetti’s choice to introduce the
provision to the jury during opening statement had been hers
alone.
¶11 At the conclusion of the trial’s first day, the court invited
argument regarding the parties’ proposed jury instructions.
Zazzetti argued that Prestige’s requested “Open and obvious
danger rule” instruction was inappropriate. Specifically, Zazzetti
asserted that the open and obvious danger rule was inconsistent
with the general duty of care owed by a landlord to its tenants,
20200357-CA 5 2022 UT App 42Zazzetti v. Prestige Senior Living Center
and that, while the doctrine may still have significance in certain
contexts, it does not apply in the landlord-tenant context. In
response, Prestige argued that the open and obvious danger rule
was “still good law” and that it applies in situations involving
landlords and tenants, at least in cases where the accident occurs
in a common area, like a walkway or a parking lot. The court
took the matter under advisement, and the next day announced
that it would give Prestige’s requested instruction regarding the
open and obvious danger rule, in addition to Zazzetti’s
requested instruction regarding the general duty of a landlord.
¶12 At the close of the evidence, Prestige moved for a directed
verdict. In support of its motion, Prestige argued, in part, that it
owed no duty to Zazzetti because of the open and obvious
nature of any danger along the sidewalk at the time of her fall.
Zazzetti, in turn, argued that, even if the danger was open and
obvious, a landlord retains a duty of reasonable care in cases
where the landlord should nevertheless anticipate the possibility
of harm, and that in this particular case, it was highly foreseeable
that a tenant might slip and fall on an icy sidewalk. The court
denied the motion for a directed verdict, concluding that the jury
needed to decide whether Prestige should have anticipated that
someone would fall on the sidewalk despite the open and
obvious nature of danger related to snow and ice.
¶13 The trial court then instructed the jury. Regarding the
general duty of a landlord to a tenant, the court gave Zazzetti’s
requested instruction, to which Prestige did not object. This
instruction was numbered as “Instruction 31.” The court also
gave, over Zazzetti’s objection, Prestige’s requested instruction
regarding the open and obvious danger rule. This instruction
was numbered as “Instruction 34.” Also, following through on
its earlier statement that it did not want the jury to draw
improper conclusions from references to the Snow Removal
Provision, the court additionally instructed the jury that “[t]he
owner of a premises has a nondelegable duty to keep her
premises reasonably safe for business invitees.”
20200357-CA 6 2022 UT App 42Zazzetti v. Prestige Senior Living Center
¶14 During his rebuttal closing argument, Zazzetti’s counsel
again mentioned the Snow Removal Provision, asking the jury to
consider this question: “If Prestige really was relying on Action
to remove the snow [from the premises], why was [the Snow
Removal Provision] in the lease?” Later, after just over an hour
of deliberation, the jury answered the first question on the
verdict form in the negative, finding that Prestige was not at
fault. The verdict form did not ask the jury to select a basis for its
finding regarding fault, or to make any specific determination
that an open and obvious condition did or did not exist.
ISSUES AND STANDARDS OF REVIEW
¶15 Zazzetti now appeals and presents three issues for our
consideration. First, she asserts that the trial court erred when it
gave two allegedly irreconcilable jury instructions regarding a
landlord’s duty toward its tenants. “Whether a jury instruction
correctly states the law presents a question of law which we
review for correctness.” State v. Sanders, 2019 UT 25, ¶ 15, 445
P.3d 453 (quotation simplified).
¶16 Second, Zazzetti argues that the court erred by denying
her motion to exclude any reference to the Snow Removal
Provision. A trial court’s decision to admit or exclude evidence is
usually reviewed for an abuse of discretion. See State v. Burke,
2011 UT App 168, ¶ 16, 256 P.3d 1102. However, “[e]ven when
evidence is improperly admitted, reversal is required only where
the admission of the evidence amounted to prejudicial error.”
Avalos v. TL Custom, LLC, 2014 UT App 156, ¶ 19, 330 P.3d 727;
see also Utah R. Civ. P. 61 (“The court at every stage of the
proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”).
¶17 Third, Zazzetti argues that the trial court erred by
granting Action’s motion for summary judgment. Action, in
turn, asserts that the jury’s verdict rendered this issue moot.
Before we reach the merits of this issue, “we must be satisfied
20200357-CA 7 2022 UT App 42Zazzetti v. Prestige Senior Living Center
that the issue raised is not moot.” State v. Legg, 2016 UT App 168,
¶ 7, 380 P.3d 360 (quotation simplified), aff’d, 2018 UT 12, 417
P.3d 592. A mootness challenge presents a question of law. See
State v. Legg, 2018 UT 12, ¶ 7, 417 P.3d 592 (“Appellate courts
review the issue of mootness de novo.” (quotation simplified)).
Because we ultimately conclude that this issue has been
rendered moot by the jury’s verdict, we need not reach the
merits of Zazzetti’s argument. See State v. Black, 2015 UT 54, ¶ 10,
355 P.3d 981 (“Courts generally will not resolve an issue that
becomes moot.”).
ANALYSIS
¶18 In our first section, we address the two challenges
Zazzetti raises to the verdict the jury issued in favor of Prestige.
In our second section, we address Zazzetti’s challenge to the trial
court’s summary judgment order dismissing Action from the
case.
I. Zazzetti’s Appeal of the Verdict
¶19 With regard to the jury’s verdict that Prestige was not at
fault, Zazzetti asks us to consider two issues. First, she asserts
that the verdict was tainted by the trial court’s decision to give
Instruction 34, regarding the open and obvious danger rule.
Second, she contends that the verdict was inappropriately
affected by the court’s denial of her motion to exclude any
reference to the Snow Removal Provision at trial. We address
these arguments in turn.
A
¶20 Zazzetti’s chief argument is that the trial court erred by
giving Instruction 34, which she asserts is in conflict with
Instruction 31. We disagree; in our view, the two instructions are
not in irreconcilable conflict, and the trial court did not err by
giving them both. In explaining the basis for our decision, we
20200357-CA 8 2022 UT App 42Zazzetti v. Prestige Senior Living Center
begin with a general discussion of the open and obvious danger
rule, before turning to an examination of Zazzetti’s assertion that
the rule has no application in the residential landlord-tenant
context. We ultimately conclude that the open and obvious
danger rule can apply in the residential landlord-tenant context,
at least where the accident occurs in a common area open to
invitees, and on that basis conclude that the trial court did not
err in giving Instruction 34.
1
¶21 Under Utah law, possessors of land owe a common-law
duty of reasonable care to invitees that come onto their land. See
Hale v. Beckstead, 2005 UT 24, ¶ 30, 116 P.3d 263 (“[T]he law
simply requires owners to take reasonable steps to protect
invitees.”). Today, the contours of this duty are “set forth in
sections 343 and 343A of the Second Restatement of Torts.” Id.
¶ 7; see also id. ¶ 23 (stating that “Restatement sections 343 and
343A . . . define[] the duty of care a possessor of land owes to
invitees”). These sections of the Restatement are “often referred
to as the ‘open and obvious danger rule,’” but they “are actually
substantially different from the old common law rule governing
landowner liability bearing the same name.” Id. ¶ 7. The
common-law version of the open and obvious danger rule, if it
applied, operated to bar any recovery by the plaintiff. See id.
¶¶ 21, 23. But “[t]he Restatement version of the open and
obvious danger rule . . . does not act as a complete bar to the
recovery of a plaintiff injured as a result of another’s
negligence.” Id. ¶ 23.
¶22 Under Utah’s modern version of the rule, “a possessor of
land may be subject to liability for injuries to invitees caused by
a condition on the land” if, but only if, three conditions are met:
(1) the possessor knows or should know about the condition
“and should realize that it involves an unreasonable risk of
harm” to invitees; (2) the possessor “should expect” that invitees
“will not discover or realize the danger, or will fail to protect
20200357-CA 9 2022 UT App 42Zazzetti v. Prestige Senior Living Center
themselves against it”; and (3) the possessor “fails to exercise
reasonable care to protect [invitees] against the danger.” See
Downham v. Arbuckle, 2021 UT App 121, ¶ 11, 502 P.3d 312 (citing
Restatement (Second) of Torts § 343 (Am. L. Inst. 1965)).
However, section 343 must be read in conjunction with section
343A, see Hale, 2005 UT 24, ¶ 8 (stating that the “two sections . . .
must be read together”), which “provides an exception to the
possessor’s duty of care,” see Downham, 2021 UT App 121, ¶ 12.
Under section 343A, “[a] possessor of land is not liable to his
invitees for physical harm caused to them by any activity or
condition on the land whose danger is known or obvious to
them, unless the possessor should anticipate the harm despite
such knowledge or obviousness.” Restatement (Second) of Torts
§ 343A(1) (Am. L. Inst. 1965); see also Hale, 2005 UT 24, ¶ 9.
¶23 Our supreme court has made clear that the open and
obvious danger rule, as set forth in Restatement sections 343 and
343A, “defines the duty of care a possessor of land owes to
invitees. It does not excuse negligence; it defines it.” Hale, 2005
UT 24, ¶ 23. Thus, where the open and obvious danger rule
clearly applies—that is, where the danger is known or obvious to
the plaintiff, and where the possessor has no reason to anticipate
harm to the plaintiff despite that knowledge or obviousness—
“the land possessor owes no duty to its invitees with respect to
the open and obvious danger and therefore cannot be held liable
for any injury caused thereby.” See Coburn v. Whitaker Constr. Co.,
2019 UT 24, ¶ 12, 445 P.3d 446; see also Hale, 2005 UT 24, ¶ 24
(“Where there is no duty, there is no fault to compare or
distribute under the comparative fault scheme.”).
¶24 But our supreme court has also made clear that the open
and obvious danger rule is not necessarily inconsistent with our
statutory comparative fault scheme. See Hale, 2005 UT 24, ¶¶ 19–
30. The Restatement version of the open and obvious danger rule
“still does not absolutely bar a party from recovering for injuries
sustained from an open and obvious danger in all
circumstances,” because it “does not so strictly define a
20200357-CA 10 2022 UT App 42Zazzetti v. Prestige Senior Living Center
landowner’s duty as to eliminate any duty to protect or warn his
invitees of obvious dangers.” Id. ¶ 25. For instance, “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. (quoting Restatement (Second) of Torts § 343A(1)). This may
be the case where a landowner should anticipate that “an
invitee’s attention may be distracted,” or if the “possessor has
reason to believe that the invitee will proceed to encounter the
known or obvious danger because to a reasonable [person] in his
position the advantages of doing so would outweigh the
apparent risk.” Id. ¶ 26 (quotation simplified). In sum, “a
possessor of land must protect invitees against dangers of which
they are unaware, may forget, or may reasonably encounter
despite the obviousness of the danger.” Id. ¶ 27. In these
situations, “[w]hile the invitee may also share responsibility for
his injuries, he may still recover from the defendant in
proportion to the defendant’s fault.” Id. ¶ 26.
¶25 “In this sense, there are two key steps to this analysis—
the ‘open and obvious danger’ step and the ‘anticipated harm’
step.” Downham, 2021 UT App 121, ¶ 14. Application of the open
and obvious danger rule therefore “calls for a context-specific
analysis that takes into account both steps,” each of which
present factual questions that are ordinarily best left to the
factfinder’s determination. See id. ¶¶ 15, 22–26.
2
¶26 Zazzetti acknowledges that, under Utah law, there exists
an open and obvious danger rule, as set forth in Restatement
sections 343 and 343A and as interpreted by our supreme court
in Hale and other cases. And Zazzetti raises no argument that
Instruction 34, as given by the court in this case, inaccurately
recited the law as set forth by those authorities. Instead, Zazzetti
argues that the open and obvious danger rule, while certainly
applicable in most cases involving possessors of land, does not
20200357-CA 11 2022 UT App 42Zazzetti v. Prestige Senior Living Center
apply in the residential landlord-tenant context. Zazzetti’s
arguments are not entirely without merit, and we stop short of
holding that the rule applies in all cases involving landlords and
tenants. But Zazzetti’s arguments are not sufficient to persuade
us that the rule has no application in this case, where the
accident occurred not inside the rental unit itself but, instead, on
a snowy walkway open to public invitees.
¶27 Perhaps most significantly, Zazzetti’s arguments run
headlong into two of our previous cases, in which we applied
the open and obvious danger rule to accidents occurring in
public areas outside an apartment complex and a commercial
building. See Candelaria v. CB Richard Ellis, 2014 UT App 1, 319
P.3d 708; Jensen v. Gardner, 2012 UT App 146, 279 P.3d 844. In
Jensen, a prospective tenant visited an apartment complex “to
look at an available rental unit.” 2012 UT App 146, ¶ 2. She
parked in the tenant parking area and went inside to look at the
apartment. Id. While she was inside, it started to rain, and upon
leaving the apartment after the tour, she “ran” along the
walkway leading to the tenant parking lot “with her head
down” to avoid the rain, and while running she “hit her head on
a balcony overhang, fell, and broke her leg.” Id. We applied the
open and obvious danger rule to this situation, ultimately
concluding that the overhanging balcony was open and
obvious to the prospective tenant and that she had not
demonstrated that the landowner “should have realized that the
balcony created an unreasonable risk of harm to her as an
invitee.” Id. ¶¶ 5, 8.
¶28 In Candelaria, the plaintiff was a tenant who operated a
café in space she had leased in a commercial building. 2014 UT
App 1, ¶ 2. One winter day, snow fell and covered the parking
lot in front of the building; six days later, the parking lot was still
icy, and the tenant slipped and fell while taking garbage to
dumpsters in the parking lot. See id. ¶¶ 2–3. We applied the open
and obvious danger rule to that situation as well, concluding on
the facts of that case that “a disputed issue of material fact
20200357-CA 12 2022 UT App 42Zazzetti v. Prestige Senior Living Center
remains regarding whether the ice was an open and obvious
danger.” Id. ¶ 7.
¶29 The facts of those cases are strikingly similar to the facts
of this case. Each accident occurred in more or less the same
place: the common area outside a landlord’s building. And in
those cases, we treated both a prospective residential tenant and
a commercial tenant as invitees for purposes of applying the
open and obvious danger rule. Zazzetti attempts to distinguish
Jensen and Candelaria on the basis that Zazzetti is a residential
tenant, but we can conceive of no compelling reason to apply a
different rule in cases where an actual residential tenant—as
opposed to a commercial tenant or a prospective residential
tenant—slips and falls within a common area outside a
landlord’s building. Such areas are generally open not just to
tenants but to the public at large, including tenants’ friends,
prospective tenants, and delivery persons. 1 In our view, the
outcome of this case should not turn on whether the person who
slipped and fell was a residential tenant as opposed to some
other type of invitee. 2 And this is especially true here, where
Zazzetti herself acknowledged, during oral argument on a
pretrial motion, that she “[a]bsolutely” was an invitee at the time
of her fall.
1. There is no indication, in the record before us, that Prestige
made any effort to gate or fence off its property, or to limit entry
onto its premises only to existing tenants and other authorized
persons.
2. Indeed, we note that other states have applied sections 343
and 343A in similar cases, in which residential tenants have
fallen on icy areas outside apartment complexes. See, e.g., Mucsi
v. Graoch Assocs. Ltd. P’ship No. 12, 31 P.3d 684, 689–91 (Wash.
2001).
20200357-CA 13 2022 UT App 42Zazzetti v. Prestige Senior Living Center
¶30 Despite Jensen and Candelaria, Zazzetti resists the
application of the open and obvious danger rule to the facts of
this case and makes several arguments in support of her
position.
¶31 First, Zazzetti points to a number of Utah Supreme Court
cases that she claims stand for the proposition that the open and
obvious danger rule does not apply in the residential landlord-
tenant context. See Williams v. Melby, 699 P.2d 723 (Utah 1985);
Schofield v. Kinzell, 511 P.2d 149 (Utah 1973); Cornwell v. Barton,
422 P.2d 663 (Utah 1967). She asserts that, in these cases, the
court held that residential landlords have a simple “duty to
exercise reasonable care toward their tenants in all
circumstances.” See Williams, 699 P.2d at 726. And she points out
that none of these older cases applied—or even mentioned—
Restatement sections 343 or 343A, or the common-law version of
the open and obvious danger rule. But these cases were all
decided prior to Hale, in which our supreme court expressly
adopted those Restatement sections. See 2005 UT 24, ¶ 17. The
court in those earlier cases simply did not confront any questions
concerning the applicability of the open and obvious danger
rule, and therefore these cases are of limited assistance here.
¶32 Moreover, as our supreme court explained in Hale, the
open and obvious danger rule is not necessarily inconsistent
with a general duty of reasonable care. All possessors of land—
whether residential landlords or not—owe duties of reasonable
care to invitees who come onto their land. See Hale, 2005 UT 24,
¶¶ 7–8; see also Restatement (Second) of Torts § 343 (stating that
possessors of land must, among other things, “exercise
reasonable care to protect” invitees against danger). And as
discussed above, see supra Part I.A.1, our supreme court has held
that the open and obvious danger rule is not inconsistent with
general negligence concepts; to the contrary, it “defines” the
scope of a land possessor’s duty of care. See Hale, 2005 UT 24,
¶ 23. Thus, the open and obvious danger rule can still be
20200357-CA 14 2022 UT App 42Zazzetti v. Prestige Senior Living Center
appropriately applied even when the overarching duty owed is
one of reasonable care.
¶33 Second, Zazzetti points to a passage in Hale in which our
supreme court noted that the open and obvious danger rule may
not apply where “the condition . . . fall[s] within a separate
category of negligence or an exception to sections 343 and
343A.” See id. ¶ 28. Specifically, Zazzetti argues that other
sections of the Restatement deal more specifically with duties
owed in a landlord-tenant context, and posits that these sections
“control over sections 343 and 343A.” She centers her argument
around section 360 of the Restatement, which provides as
follows:
A possessor of land who leases a part thereof and
retains in his own control any other part which the
lessee is entitled to use as appurtenant to the part
leased to him, is subject to liability to his lessee . . .
for physical harm caused by a dangerous condition
upon that part of the land retained in the lessor’s
control, if the lessor by the exercise of reasonable
care could have discovered the condition and the
unreasonable risk involved therein and could have
made the condition safe.
Restatement (Second) of Torts § 360 (Am. L. Inst. 1965). Zazzetti
also relies on a comment to section 360, which states that
the section applies “even though the person injured . . . has
knowledge of the existence of the dangerous condition.” See id.
cmt. b.
¶34 Zazzetti’s first problem, in advancing this argument, is
that Utah appellate courts have not yet adopted section 360. See
Pullan ex rel. Pullan v. Steinmetz, 2000 UT 103, ¶ 13, 16 P.3d 1245(“We leave for another day the decision whether to adopt as law
of the state the standards of liability contained in sections 518
and 360.”). Our supreme court has, by contrast, clearly adopted
20200357-CA 15 2022 UT App 42Zazzetti v. Prestige Senior Living Center
sections 343 and 343A. See Hale, 2005 UT 24, ¶¶ 8–10. The court
spoke quite broadly in Hale, announcing that the “duty of care
that possessors of land in Utah owe to invitees upon their
property is set forth in sections 343 and 343A of the Second
Restatement of Torts.” Id. ¶ 7. Moreover, as noted above, we
have applied sections 343 and 343A—and not section 360—in a
case involving a commercial landlord and tenant in which the
accident occurred in a common area. See Candelaria, 2014 UT
App 1, ¶¶ 6–7. And because section 360, at least on its face,
applies to all landlords—both commercial and residential—our
analysis in Candelaria is directly at odds with Zazzetti’s position
here.
¶35 But we need not decide whether to adopt section 360 in
this case because we do not view the principles of section 360—
at least as applied to this case—as necessarily inconsistent with
the open and obvious danger rule as articulated by our supreme
court in Hale. As set forth there, the modern version of the rule is
not inconsistent with Utah’s statutory comparative fault scheme
and allows plaintiffs to “recover from the defendant in
proportion to the defendant’s fault,” even in cases where the
plaintiff “may also share responsibility for his injuries.” 3 See
Hale, 2005 UT 24, ¶ 26. According to the comments
accompanying it, section 360 “may . . . apply even though the
3. We recognize that some other states have held that section 360,
and not sections 343 and 343A, provides the controlling rule in
cases involving landlords and tenants. See, e.g., Woolston v. Wells,
663 P.2d 408, 410 (Or. Ct. App. 1983). But in some of those cases,
courts rejected application of sections 343 and 343A because they
viewed those sections as incompatible with statutory
comparative fault schemes. See id. at 411–12. Such an argument
fails here, however, given our supreme court’s articulation of the
open and obvious danger rule in Hale and its related conclusion
that the rule is not incompatible with Utah’s comparative fault
scheme.
20200357-CA 16 2022 UT App 42Zazzetti v. Prestige Senior Living Center
person injured . . . has knowledge of the existence of the
dangerous condition.” See Restatement (Second) of Torts § 360
cmt. b. This statement is not inconsistent with the open and
obvious danger rule as articulated by our supreme court. Under
that rule, a plaintiff may still recover in situations where a
reasonable person in the plaintiff’s position would “proceed to
encounter the known or obvious danger.” See Hale, 2005 UT 24,
¶ 26. This tracks the language of comment b to section 360,
which states that a plaintiff will not be allowed to recover where
“the danger is so apparent and so great that it is unreasonable
for him to encounter it.” See Restatement (Second) of Torts § 360
cmt. b. Both section 360, as illuminated by comment b, and
sections 343 and 343A, as articulated by our supreme court,
allow, in appropriate cases, for a comparison between the
responsibility of the landowner and the responsibility of the
plaintiff. See id. (stating that the plaintiff’s “knowledge may put
him in contributory fault”); see Hale, 2005 UT 24, ¶ 26 (stating
that “the invitee . . . may still recover from the defendant in
proportion to the defendant’s fault,” even if “the invitee may
also share responsibility for his injuries”).
¶36 In this case, the trial court denied Prestige’s motion for a
directed verdict on the duty question, specifically crediting
Zazzetti’s argument that, even if the danger posed by the snowy
sidewalk was open and obvious, Prestige would nevertheless
retain a duty of reasonable care toward Zazzetti if Prestige
should have anticipated that a tenant might slip and fall on a
snowy sidewalk. The court denied the motion specifically
because it concluded that the jury needed to determine whether
Prestige should have anticipated that someone would fall on the
sidewalk despite the open and obvious nature of danger related
to the snow and ice. Thus, the jury was afforded the opportunity
to consider not only whether the danger presented by the snowy
sidewalk was open and obvious, but also Zazzetti’s rather strong
argument that—even assuming the danger was open and
obvious—Prestige should have anticipated that a tenant would
reasonably choose to encounter snow and ice on the sidewalk,
20200357-CA 17 2022 UT App 42Zazzetti v. Prestige Senior Living Center
there being no other reasonable way to walk back to the
apartment from the parking lot. 4 Under the circumstances
presented here, we do not consider the trial court to have
proceeded in a manner inconsistent with the principles set forth
in section 360.
¶37 Third, Zazzetti asserts that Instruction 34 is incompatible
with the Utah Fit Premises Act (UFPA). See Utah Code Ann.
§§ 57-22-1 to -7 (LexisNexis 2020 & Supp. 2021). The UFPA
“provides specific remedies to residential tenants whose rental
units become uninhabitable due to violations of health and
safety standards.” Myrah v. Campbell, 2007 UT App 168, ¶ 16, 163
P.3d 679 (quotation simplified). The UFPA provides residential
tenants with a statutory pathway to remedy conditions they
consider deficient. See Utah Code Ann. § 57-22-6 (LexisNexis
2020). Tenants must provide notice of the allegedly deficient
condition to the landlord, who then is given a certain period of
time to remedy the problem; if the landlord does not remedy the
problem, then tenants may avail themselves of various statutory
remedies, and may sue the landlord if the remedy is not
provided. See id. Thus, at its core, the UFPA imposes certain
statutory duties of care on landlords—with concomitant
remedies and mechanisms for enforcement—that are distinct
from the common-law duty of reasonable care. In the present
case, while Zazzetti brought suit alleging that Prestige breached
4. We note that the jury’s verdict in favor of Prestige does not
necessarily mean that it determined either (a) that the danger
was open and obvious or (b) that Prestige should not have
reasonably anticipated that someone might slip on the sidewalk.
There were other grounds upon which a defense verdict could
have been based, most notably the evidence indicating that
Prestige had discharged its duty of reasonable care by having
Action remove snow at the premises several times during the
week of the accident, including twice on the very day of the
accident.
20200357-CA 18 2022 UT App 42Zazzetti v. Prestige Senior Living Center
its common-law duty of reasonable care, Zazzetti did not bring a
claim against Prestige under the UFPA. And because the duties
implicated are not the same, we see no reason that the open and
obvious danger rule—which implicates only common-law
duties—should be viewed as inconsistent with the UFPA.
¶38 Finally, Zazzetti asserts that Instruction 34 is incompatible
with the implied warranty of habitability and the contractual
responsibilities that stem from that warranty. We disagree. A
claim for breach of the implied warranty of habitability sounds
in contract, not tort. See Carlie v. Morgan, 922 P.2d 1, 6 (Utah
1996) (stating that the Utah Supreme Court has “adopted the
implied warranty of habitability as a contractual provision
implicit in all residential leases”). Indeed, in her amended
complaint, Zazzetti brought a separate claim against Prestige,
apart from her negligence claim, for breach of the implied
warranty of habitability (which, we note, Zazzetti appears to
have at some point abandoned). 5 As with any potential claim for
violation of the UFPA, a claim for breach of the implied
5. As far as we can tell from the record before us, Zazzetti’s
claims for breach of contract and breach of the implied warranty
of habitability were never formally dismissed by the trial court.
In her proposed jury instructions, Zazzetti did request an
instruction relating to the implied warranty of habitability, but
that instruction was ultimately not given and Zazzetti, in this
appeal, does not complain about its absence. Moreover, the
special verdict form to which Zazzetti stipulated makes no
mention of either the breach of contract claim or the implied
warranty of habitability claim, and therefore the jury was not
asked to weigh in on those issues. Zazzetti made no mention of
these claims in either her opening statement or closing
arguments. And Zazzetti does not assert, on appeal, that the trial
court erred in any way in relation to those claims. We therefore
assume, for purposes of this appeal, that Zazzetti abandoned
these two claims sometime prior to trial.
20200357-CA 19 2022 UT App 42Zazzetti v. Prestige Senior Living Center
warranty of habitability is an issue separate from breach of the
common-law duty of reasonable care, and we perceive no
inconsistencies between the open and obvious danger rule—a
duty-defining rule in the context of a negligence claim—and a
landlord’s contractually implied warranty of habitability.
¶39 We are thus unpersuaded by Zazzetti’s efforts to convince
us of the categorical inapplicability of the open and obvious
danger rule to this case. In situations like this one, where a
residential tenant slips and falls on a sidewalk outside her
apartment complex, Restatement sections 343 and 343A (as
interpreted by our supreme court in Hale) apply to partially
define the scope of the landlord’s duty of reasonable care. 6 The
6. Given the location of the accident in this case—on a sidewalk
outside the apartment complex—we need not grapple with the
question of whether sections 343 and 343A would apply in a case
in which an open and obvious danger exists inside a tenant’s
apartment itself (or even inside another part of the complex’s
common area to which only tenants had access). We left that
question open in one of our recent cases, see Downham v.
Arbuckle, 2021 UT App 121, ¶ 20, 502 P.3d 312, and we leave it
open again here. We can see some differences between that
situation and this one that may, or may not, counsel in favor of a
different result. First, it is not clear to us whether a landlord is
(or should be) considered a “possessor” of a tenant’s actual
living space. See Hill v. Superior Prop. Mgmt. Services, Inc., 2013
UT 60, ¶ 23, 321 P.3d 1054 (stating that while Utah courts “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”). Second, there
may be persuasive policy reasons to forbid a landlord from
availing itself of the open and obvious danger rule when the
dangerous condition is located in a tenant’s living space, was
created by the landlord prior to the lease, and cannot be
reasonably avoided by the tenant. In that situation, it may in any
(continued…)
20200357-CA 20 2022 UT App 42Zazzetti v. Prestige Senior Living Center
trial court therefore did not err by giving Instruction 34, in
addition to Instruction 31, and thereby leaving it to the jury to
sort out the outstanding factual questions on which applicability
of the open and obvious danger rule turned.
B
¶40 Zazzetti also argues that the trial court erred by denying
her motion to exclude any reference to the Snow Removal
Provision at trial. Specifically, she asserts that the Snow Removal
Provision was both contrary to public policy and
unconscionable, and therefore argues that it was not relevant
and that Prestige should have been barred, in advance, from
discussing it at trial. But because we ultimately conclude that
any prejudice Zazzetti may have sustained as a result of the
court’s ruling was the result of her own tactical decisions, and
not the result of the court’s ruling, we need not reach the
question of whether the ruling was correct on its merits.
¶41 “To prevail on appeal” regarding a claim of erroneously
admitted evidence, “an appellant has the burden to show that
[the] erroneously admitted evidence was prejudicial.” State v.
Bowden, 2019 UT App 167, ¶ 20, 452 P.3d 503; see also Avalos v. TL
Custom, LLC, 2014 UT App 156, ¶ 19, 330 P.3d 727 (“Even when
evidence is improperly admitted, reversal is required only where
the admission of the evidence amounted to prejudicial error.”).
“For an error to be harmful, the likelihood of a different outcome
(…continued)
event be apparent as a matter of law that the landlord should
reasonably anticipate harm despite the obvious nature of the
hazard, and the tenant may well have remedies sounding in the
UFPA or the implied warranty of habitability. But we need not
further examine these issues in this case, where the accident
occurred not inside a tenant’s living space but, instead, outside
the apartment on a walkway leading to the building.
20200357-CA 21 2022 UT App 42Zazzetti v. Prestige Senior Living Center
must be sufficiently high to undermine confidence in the
verdict.” City of Hildale v. Cooke, 2001 UT 56, ¶ 30, 28 P.3d 697(quotation simplified). Here, even assuming, for the purposes of
the argument, that the trial court should have barred Prestige, in
advance, from discussing the Snow Removal Provision during
trial, the court’s failure to so rule did not prejudice Zazzetti.
¶42 At the final pretrial conference, Prestige made it clear that
it would not be arguing that Zazzetti’s fall was her own fault
due to any failure on her part to comply with the Snow Removal
Provision. Indeed, Prestige explicitly acknowledged that the
Snow Removal Provision did not “change[] the non-delegable
duty” of reasonable care that it owed to Zazzetti, and
represented that it would not argue otherwise at trial.
¶43 Despite these clear statements from Prestige, Zazzetti (or
her counsel) made the decision to bring the Snow Removal
Provision to the jury’s attention during opening statement, and
then again in her rebuttal closing argument. Apparently,
Zazzetti believed that, by directing the jury’s attention to the
Snow Removal Provision, she could bolster her argument that
Prestige was an unreasonable actor. And when Zazzetti
argued—after Prestige’s building manager testified that Prestige
did not expect tenants to perform snow removal—that she had
been prejudiced by Prestige’s alleged “flip flop” regarding the
provision, the trial court disagreed, specifically recalling that
Prestige had indicated at the final pretrial conference that it was
not going to use the Snow Removal Provision to argue that
tenants were responsible for snow removal, and concluding that
Zazzetti’s choice to introduce the provision to the jury had been
hers alone. The situation might be different had Prestige not
committed, in open court at the final pretrial conference, not to
raise the issue, or if Prestige had in fact raised the issue during
trial despite its previous commitment not to do so. But on the
record before us, any prejudice Zazzetti might have sustained
from introduction of the Snow Removal Provision was the result
of her own tactical decision to voluntarily tell the jury about it,
20200357-CA 22 2022 UT App 42Zazzetti v. Prestige Senior Living Center
and cannot fairly be laid at the feet of either Prestige or the trial
court. Cf. Vehicle Market Research, Inc. v. Mitchell Int’l, Inc., 839
F.3d 1251, 1257 (10th Cir. 2016) (stating that “‘a party
introducing evidence cannot complain on appeal that the
evidence was erroneously admitted,’” and that “[t]his is true
even if the party introduces the evidence only to limit its impact
on cross-examination” (quoting Ohler v. United States, 529 U.S.
753, 755 (2000)).
¶44 Furthermore, as already noted, the trial court instructed
the jury that Prestige had a nondelegable duty to keep the
premises reasonably safe for its tenants, including Zazzetti.
Jurors are presumed to have followed a trial court’s instructions.
See State v. Wall, 2020 UT App 168, ¶ 33, 479 P.3d 355 (“In the
absence of any circumstances suggesting otherwise, courts
presume that the jury follows [its] instructions.” (quotation
simplified)). Because of this clear guidance offered by the trial
court, and because Prestige did not argue otherwise, we believe
it unlikely that the jury would have relied on the Snow Removal
Provision to conclude that Zazzetti’s accident was her own fault
due to her failure to personally clear the sidewalks.
¶45 And finally, “[e]rrors involving the improper admission
of evidence are often harmless where there is other
overwhelming evidence in the record” that supports the verdict.
State v. Leech, 2020 UT App 116, ¶ 44, 473 P.3d 218. Here, there
was ample evidence presented at trial—including documents
and testimony indicating that Action had actually performed
snow removal at the apartment complex in the days leading up
to, and on the day of, the fall—to support the jury’s conclusion
that Prestige had fulfilled its duty to Zazzetti.
¶46 For all of these reasons, and even assuming that the trial
court should have barred Prestige, in advance, from mentioning
the Snow Removal Provision during trial, the court’s failure to so
rule does not undermine our confidence in the jury’s verdict. It is
unlikely that Zazzetti sustained any prejudice at all from the
20200357-CA 23 2022 UT App 42Zazzetti v. Prestige Senior Living Center
court’s failure to so rule but, to the extent she did, any prejudice
she sustained was the result of her own tactical decision to
voluntarily tell the jury about the Snow Removal Provision.
¶47 We therefore affirm the jury’s verdict in Prestige’s favor,
and see no reason to set aside the jury’s determination that
Prestige fulfilled its duty to Zazzetti.
II. Zazzetti’s Appeal of the Summary Judgment Order
¶48 Zazzetti next asserts that the trial court erred when it
granted Action’s motion for summary judgment and dismissed
it from the lawsuit. Specifically, she contends that Action
assumed at least part of Prestige’s duty to maintain the premises
in a reasonably safe condition, and that Action can therefore be
held liable for failing to use reasonable care in discharging that
duty. Action resists this argument on its merits but, in addition,
asserts that the verdict in favor of Prestige renders this issue
moot. As Action puts it, “[t]he issue of whether Prestige or
Action” or both “had the duty to remove snow was rendered
moot by the jury’s conclusion that [any such] duty was fulfilled.”
We agree with Action that the verdict rendered the issue moot,
and therefore we need not discuss the merits of Zazzetti’s
argument. 7
7. On the merits, Zazzetti’s argument is far from frivolous. See
Restatement (Second) of Torts § 324A(b) (Am. L. Inst. 1965)
(stating that “[o]ne who undertakes . . . to render services to
another which he should recognize as necessary for the
protection of a third person . . . is subject to liability to the third
person for physical harm resulting from his failure to exercise
reasonable care . . . if . . . he has undertaken to perform a duty
owed by the other to the third person”); see also Alder v. Bayer
Corp., 2002 UT 115, ¶¶ 28, 32, 61 P.3d 1068 (adopting section
324A and holding that subsection (b) applies where the actor
(continued…)
20200357-CA 24 2022 UT App 42Zazzetti v. Prestige Senior Living Center
¶49 “Mootness is a jurisdictional issue.” State v. Legg, 2016 UT
App 168, ¶ 9, 380 P.3d 360, aff’d, 2018 UT 12, 417 P.3d 592; see also
Carlton v. Brown, 2014 UT 6, ¶¶ 29–30, 323 P.3d 571(characterizing mootness as one component of “justiciability,”
and stating that “in the absence of any justiciable controversy
between adverse parties, the courts are without jurisdiction”
(quotation simplified)). “The burden of persuading the court that
an issue is moot lies with the party asserting mootness.” Legg,
2016 UT App 168, ¶ 9 (quotation simplified). “An issue on
appeal is considered moot when the requested judicial relief
cannot affect the rights of the litigants,” State v. Sims, 881 P.2d
840, 841 (Utah 1994) (quotation simplified), or, in other words,
when the requested relief appears to be “impossible or of no
legal effect,” State v. McClellan, 2014 UT App 271, ¶ 3, 339 P.3d
942 (quotation simplified).
¶50 Here, Action has met its burden of demonstrating that the
trial court’s summary judgment decision regarding Action was
rendered moot by the jury’s verdict. As previously noted,
Zazzetti brought identical claims against both Prestige and
Action. And the trial court clearly instructed the jury that
Prestige had a nondelegable duty to Zazzetti to keep its premises
reasonably safe, meaning that while Prestige could have hired
Action to help discharge its duty, the duty itself was, and always
remained, Prestige’s. See, e.g., Price v. Smith’s Food & Drug
(…continued)
“undertook at least some portion of” the other’s duty); Gazo v.
City of Stamford, 765 A.2d 505, 510 (Conn. 2001) (applying section
324A in a snow removal case, and concluding that “under
§ 324A(b)” a snow removal contractor “is subject to liability to
the plaintiff for his physical injuries if the plaintiff can show that
[the contractor] failed to exercise reasonable care when
performing the duty owed by [the landowner] to the plaintiff”).
But we need not delve into the matter further, because the
verdict renders the matter moot.
20200357-CA 25 2022 UT App 42Zazzetti v. Prestige Senior Living Center
Centers, Inc., 2011 UT App 66, ¶ 26, 252 P.3d 365 (“A
nondelegable duty means that an employer of an independent
contractor, by assigning work consequent to a duty, is not
relieved from liability arising from the delegated duties
negligently performed.” (quotation simplified)). Thus, regardless
of whether Action also could have been held liable for breach of
duty, any breach would have had to involve Prestige. Action
was, at most, a kind of duty subcontractor; the entirety of the
duty to keep the premises in a reasonably safe condition was
always Prestige’s, even if Prestige asked Action for assistance in
discharging part of that duty. In this situation, a determination
that Action fulfilled its part of Prestige’s duty does not
necessarily dictate the conclusion that Prestige fulfilled its larger
overarching duty. But a jury’s decision that Prestige had fulfilled
its larger overarching duty necessarily encompasses the
conclusion that Action fulfilled the part of that duty with which
it had agreed to assist. Stated another way, in this situation,
given the nondelegable nature of the overarching duty, it is
legally impossible for the jury to conclude that Prestige fulfilled
its duty but that Action did not.
¶51 And in the present case, the jury determined that Prestige
had not breached its duty to Zazzetti. Because this duty included
any duty Action might have owed Zazzetti, it necessarily follows
that Action did not cause Prestige to breach its duty. If the jury
believed Action had failed in its contractual snow removal
responsibilities, thereby causing Zazzetti’s injuries, it would
have consequently found Prestige liable, as it was Prestige that
held the nondelegable duty to keep its premises reasonably safe.
Thus, because we have upheld the jury’s verdict as to Prestige,
Zazzetti’s requested relief would be “of no legal effect,” see
McClellan, 2014 UT App 271, ¶ 3 (quotation simplified), because
a jury has already determined—by finding that Prestige did not
breach its nondelegable duty—that Action also fulfilled
whatever responsibility it owed to Zazzetti. We thus conclude
that the issues surrounding the propriety of the court’s grant of
summary judgment in favor of Action were rendered moot by
20200357-CA 26 2022 UT App 42Zazzetti v. Prestige Senior Living Center
the jury’s verdict in favor of Prestige, and we resolve Zazzetti’s
challenge to the court’s summary judgment ruling on this basis.
CONCLUSION
¶52 The trial court did not err in giving Instruction 34,
because that instruction was not inconsistent with Instruction 31
or with any other principle of Utah law. Additionally, any
potential error in the court’s evidentiary ruling regarding the
Snow Removal Provision did not prejudice Zazzetti, because any
harm she sustained as a result of that ruling was attributable to
her own tactical decisions. Finally, any question about whether
the court erred by granting Action’s motion for summary
judgment was rendered moot by the jury’s verdict.
¶53 Affirmed.
20200357-CA 27 2022 UT App 42