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Edwards v. Utah's Johnny Appleseed Inc.

Court of Appeals of Utah

March 22, 2018

Kimberly Gay Edwards, Appellant,
v.
Utah's Johnny Appleseed Inc., Appellee.

          Fourth District Court, Provo Department The Honorable Fred D. Howard No. 150400421

          Karra J. Porter, Kristen C. Kiburtz, and Patricia Kuendig, Attorneys for Appellant

          Andrew D. Wright and James C. Thompson, Attorneys for Appellee

          Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen and Kate A. Toomey concurred.

          ORME, Judge

         ¶1 Kimberly Gay Edwards slipped and fell while dining at an Applebee's restaurant (the Restaurant). Edwards sued the operator of the Restaurant, Utah's Johnny Appleseed Inc. (Appleseed), to recover damages for injuries she sustained from the fall. She appeals the district court's order granting summary judgment in favor of Appleseed, arguing that summary judgment was inappropriate because a genuine dispute of material fact exists. We agree and therefore reverse.

         ¶2 Edwards and her family were dining at the Restaurant when Edwards's husband suddenly became ill. Although they had not finished their food, Edwards asked the server for the bill and some to-go boxes, as she was in a hurry to take her husband home. The server brought the bill but forgot the to-go boxes. After growing impatient while waiting for the boxes, Edwards went to find someone to help her. Because no one was at the hostess station, she walked down two steps, next to the hostess station, which led to the Restaurant's bar area and kitchen. She found a staff member there who gave her some boxes.

         ¶3 Making her way back to her table, Edwards began to walk up the steps but slipped and fell, injuring her hands, wrists, and shoulders. By this point, the hostess had returned to her station. The hostess witnessed Edwards fall, saw that Edwards was hurt, and began assisting her. Worried, the hostess told Edwards, "Let me go get the manager." Upon investigating what caused her to fall, Edwards found a "blackish, " "yellowish, " "oily substance" on the bottom of her shoe, which she believed may have been butter. Before the hostess went to get the manager, Edwards said, "You need to clean that up before someone else gets hurt." Still in a rush and without looking at the floor where she fell, Edwards hurried back to her husband, and they left.

         ¶4 Edwards sued Appleseed, alleging that Appleseed had negligently created the hazardous condition that caused her injuries. As part of its discovery, Appleseed deposed Edwards. During her deposition, Edwards explained that she believed Appleseed created the hazardous condition because (1) she did not observe any other patrons at the Restaurant during her time there; (2) she did not slip any other time that day before falling in the Restaurant, including when she made her way down to the kitchen; and (3) the server appeared to have walked up the steps to deliver their food shortly before Edwards fell.

         ¶5 After the close of discovery, Appleseed moved for summary judgment. It attached, as an exhibit to its motion, a declaration from the hostess who witnessed Edwards fall. In her declaration, the hostess stated, "I thoroughly wiped the area [where Edwards fell] . . . . However, after wiping the entire area, nothing came off the floor besides a little dust. I found no butter or any substance that could have caused or contributed to the fall." She further stated that she had inspected the area where Edwards fell "one to four minutes before the incident occurred" and "did not see anything on the floor when walking through and inspecting the area."

         ¶6 In its motion for summary judgment, Appleseed argued that it

did not have constructive notice of a temporary, dangerous condition. The evidence demonstrates that there was no substance on the floor. However, even if there were a substance on the floor, the undisputed evidence establishes that the substance had not been on the floor for more than four minutes. As such, [Appleseed] did not have an appreciable amount of time to identify the condition prior [to the] incident.

         Appleseed also argued that Edwards could not show causation because her claims were speculative.

         ¶7 In arguing that it did not have notice of the hazardous condition, Appleseed relied on Allen v. Federated Dairy Farms, Inc., 538 P.2d 175 (Utah 1975). In Allen, our Supreme Court explained that in slip-and-fall cases where it is unknown how a temporary hazardous condition was created, "fault cannot be imputed to the defendant . . . unless two conditions are met: (A) that he had knowledge of the condition, that is, either actual knowledge, or constructive knowledge . . . and (B) that after such knowledge, sufficient time elapsed that in the exercise of reasonable care he should have ...


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