District Court, Salt Lake Department The Honorable Paige
Petersen No. 130907594
H. Cazier, Attorney for Appellant
Angus Edwards, Attorney for Appellee
David N. Mortensen authored this Memorandum Decision, in
which Judges Gregory K. Orme and Jill M. Pohlman concurred.
Late in December of 2012, Kachina Choate slipped and fell on
a sidewalk outside a convenience store owned by ARS-Fresno
LLC (ARS). In the negligence suit that followed, a jury found
that ARS and Choate were each the proximate cause of
Choate's fall but determined that Choate bore 60% of the
fault. Because Choate was more at fault than ARS, the jury
did not reach the question of damages. Choate filed a motion
for a new trial, which was denied. She now appeals the denial
of that motion, and we affirm.
"On appeal, we review the record facts in a light most
favorable to the jury's verdict and recite the facts
accordingly. We present conflicting evidence only as
necessary to understand issues raised on appeal."
USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 8
n.3, 372 P.3d 629 (citation and internal quotation marks
On December 28, 2012, Choate and her mother were grocery
shopping. On their way between stores, they took a shortcut
by walking across the convenience store parking lot. To avoid
a car pulling into the convenience store, the two
"stepped up onto the concrete walkway at the front of
the store." Choate testified that although the sidewalk
appeared wet, she did not see any ice. She nevertheless
slipped on what she called "a patch of black ice"
and fell. Once she landed on the ground, she saw and felt ice
Choate's mother went into the store to report the
accident. Choate eventually followed. The two women spoke
with the clerk on duty, who had previously observed a water
drip from the building's overhang onto the sidewalk in
the area where Choate fell. The clerk called the manager of
another ARS store and asked for assistance with the accident.
The manager arrived ten to fifteen minutes later, but by that
time, Choate and her mother had already left.
At trial, Choate argued that this drip led to the formation
of black ice, including "a buildup of ice when the
temperature was cold enough." It was the convenience
store employees' practice to distribute ice melt over the
spot where the water dripped if ice formation was likely.
Choate's mother testified that there was no ice melt on
the sidewalk when Choate fell, but the clerk testified he was
"90% sure that he applied ice melt" that day
"before" Choate's fall. The manager testified
that when he arrived at the store, "there was adequate
ice melt" on the sidewalk where Choate had fallen, and
the clerk testified that he "was busy with customers and
did not have time to apply ice melt between the time the
accident was reported and when" the manager arrived,
suggesting the ice melt the manager saw had been in place
before Choate's fall. The manager also testified that he
did not see any ice on the sidewalk.
Multiple expert witnesses testified concerning potential
causes of Choate's fall, including weather conditions,
the construction of the sidewalk, and the soffit overhang
with the associated water drip. The clerk also testified that
Choate had declined to have an ambulance called; that the
clerk "had never seen anyone walk across the gas station
at an angle and get up on the walkway at the front of the
store, when there was a perfectly good sidewalk in the same
direction they were going"; that Choate did not appear
injured; and that he found it "odd" that Choate and
her mother, after reporting the accident, walked back toward
the spot where Choate had fallen.
The jury determined that ARS and Choate "were both at
fault and their fault had caused harm." But on a special
verdict form, the jury apportioned fault 60% to Choate and
40% to ARS, barring Choate from recovering damages.
See Utah Code Ann. § 78B-5-818(2) (LexisNexis
2012) (allowing recovery only when the fault of "any
defendant or group of defendants . . . exceeds the fault of
the person seeking recovery"). Choate moved for a new
trial under rule 59(a) of the Utah Rules of Civil Procedure.
The trial court denied the motion, concluding that "the
evidence was sufficient for the jury to have decided in favor
of either party."
In this appeal, Choate argues that the trial court should
have granted her motion for a new trial because the
"jury lacked sufficient evidence to determine that
Choate was 60% at fault where ARS knew of the defect and
failed to make [its] premises safe." "The trial
court's denial of a motion for a new trial will be
reversed only if the evidence to support the verdict was
completely lacking or was so slight and unconvincing as to
make the verdict plainly unreasonable and unjust."
Schreib v. Whitmer, 2016 UT App 61, ¶ 31, 370
P.3d 955 (citation and internal quotation marks omitted). The
applicable standard is crucial to our disposition of this
appeal. The Utah supreme court
has held that the existence of contradictory evidence or of
conflicting inferences does not warrant disturbing the
jury's verdict when the sufficiency of the evidence is
challenged on appeal. Indeed, it is the exclusive function of
the jury to weigh the evidence and to determine the
credibility of the witnesses, and we will not overturn a
verdict on a challenge to the sufficiency of the ...