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Mingolello v. Megaplex Theaters

Court of Appeals of Utah

January 6, 2017

Ralph Mingolello, Appellant,
v.
Megaplex Theaters, Appellee.

         Fifth District Court, St. George Department The Honorable Jeffrey C. Wilcox No. 140500180

          Douglas D. Terry and Trevor D. Terry, Attorneys for Appellant.

          Geoffrey C. Haslam, Kristen C. Kiburtz, and Jeremy S. Stuart, Attorneys for Appellee.

          Judge Kate A. Toomey authored this Memorandum Decision, in which Judges J. Frederic Voros Jr. and Jill M. Pohlman concurred.

          MEMORANDUM DECISION

          TOOMEY, Judge.

         ¶1 Ralph Mingolello appeals the district court's grant of summary judgment in favor of Megaplex Theaters. We affirm.

         ¶2 Mingolello and his stepson attended an afternoon matinee at Megaplex Theaters (Megaplex) in January 2013. They arrived about ten minutes early and were some of the first people in the theater. Choosing seats in the back, they waited for the feature to begin as more people arrived. Half an hour into the movie, Mingolello got up to leave for a few minutes. As he descended the stairs, he slipped on a small, camouflage-patterned flashlight. Mingolello was injured and taken to the hospital in an ambulance. Neither Mingolello nor his stepson knew how the flashlight came to be on the stairs or how long it had been there. The manager had never seen the flashlight before; Megaplex only used flashlights that were large and black or made from blue-colored plastic. The manager had inspected the theater earlier that morning and did not see the flashlight.

         ¶3 The manager testified that she inspected the theater at 10:30 a.m. and that her inspection occurred thirty minutes before the accident. She also testified she believed the movie began around 11:30 a.m. Mingolello maintains the movie began at 3:00 p.m.

         ¶4 Mingolello sued Megaplex, and the district court ultimately granted summary judgment in Megaplex's favor. Mingolello appeals.

         ¶5 Mingolello contends the district court erred in granting Megaplex's motion for summary judgment because there is a genuine issue of material fact and Megaplex was therefore not entitled to judgment as a matter of law. He argues there is a dispute "as to when the theater was inspected in relation to the time of the accident."

         ¶6 We review a district court's ruling on a motion for summary judgment for correctness. Prince, Yeates & Geldzahler v. Young, 2004 UT 26, ¶ 10, 94 P.3d 179. A court may grant summary judgment when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). When reviewing a district court's grant of summary judgment, we view all facts and reasonable inferences in a light most favorable to the nonmoving party. Surety Underwriters v. E & C Trucking, Inc., 2000 UT 71, ¶ 15, 10 P.3d 338.

         ¶7 A business owner has a "duty to use reasonable care to maintain the floor of his establishment in a reasonably safe condition for his patrons." Jex v. JRA, Inc., 2008 UT 67, ¶ 25, 196 P.3d 576 (citation and internal quotation marks omitted). There are generally two types of premises liability cases, "those involving temporary conditions and those involving permanent conditions." Price v. Smith's Food & Drug Centers, Inc., 2011 UT App 66, ¶ 9, 252 P.3d 365. Mingolello concedes the incident in this case involved a temporary condition. He also acknowledges that Megaplex did not have actual notice of the condition. Mingolello must therefore show that Megaplex had "constructive knowledge [of the temporary condition] because the condition had existed long enough that [Megaplex] should have discovered it" and that after obtaining such knowledge, "sufficient time elapsed that in the exercise of reasonable care [Megaplex] should have remedied it."[1] See Jex, 2008 UT 67, ¶ 16 (citation and internal quotation marks omitted). A court may impute constructive notice only "when there is some evidence of the length of time the debris has been on the floor." Id. ¶ 19.

         ¶8 Mingolello has provided no evidence regarding when the flashlight came to be on the stairs in relation to the accident. Instead, he claims there is a dispute over the amount of time between the manager's inspection and the accident. The manager testified she inspected the theater at 10:30 a.m. She also testified her inspection was half an hour before the accident, but Mingolello testified the accident occurred after 3:00 p.m. Mingolello argues this discrepancy demonstrates there were up to four and a half hours the flashlight could have been on the floor. He concludes the grant of summary judgment was in error because the jury should have been allowed to determine whether the length of time between the inspection and the accident constituted a breach of duty. But summary judgment is not precluded "simply whenever some fact remains in dispute." Heglar Ranch, Inc. v. Stillman, 619 P.2d 1390, 1391 (Utah 1980). Rather, the factual dispute must be "material to [the] resolution of the underlying legal issue." See Wilberg v. Hyatt, 2012 UT App 233, ¶ 16, 285 P.3d 1249.

         ¶9 The dispute regarding the inspection time of the theater is not material to the resolution of the underlying legal issue in this case. Jex requires that a plaintiff "present evidence that would show that . . . [the temporary condition] had been [on the floor] for an appreciable time." See2008 UT 67, ¶ 19 (omission in original) (citation and internal quotation marks omitted). Though there was some inconsistency in the testimonies, Mingolello has not presented any evidence about how the flashlight came to be on the floor or how long it might have been on the floor before the accident. Mingolello conceded that neither he nor his stepson knew to whom the flashlight belonged, when it was dropped, or how long it was on the floor. Given this lack of evidence, there was no way to determine whether "the condition had existed long enough that [Megaplex] should have discovered it" or whether "sufficient time elapsed that in the exercise of reasonable care [Megaplex] should have remedied it." See id. ¶ 16 (citation and internal quotation marks omitted). Mingolello was required to make this showing; a jury cannot speculate whether there was a breach of duty based only on evidence of a lapse of time between an inspection and an accident. See Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d 600 (requiring the moving party to show that there is no genuine issue ...


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