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Coburn v. Whitaker Construction Co.

Supreme Court of Utah

June 18, 2019

Julie Coburn, Petitioner,
v.
Whitaker Construction Co., Respondent.

          On Certiorari to the Utah Court of Appeals Second District, Farmington The Honorable Glen R. Dawson No. 150700668

          James R. Hasenyager, Ogden, Stony V. Olsen, Moroni, for petitioner

          Paul P. Burghardt, Ryan J. Schriever, North Salt Lake, for respondent

          Justice Himonas authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Justice Petersen joined.

          OPINION

          Himonas Justice

         INTRODUCTION

         ¶1 Sometimes the path we take makes all the difference. In this case, Julie Coburn chose to step over orange construction netting that was strung across a public walking trail. In doing so, her foot got caught in the netting and she fell to the ground, suffering injuries to her arm and shoulder. The district court ruled that the orange netting was an open and obvious danger and therefore Whitaker Construction-the company that strung the orange netting across the trail-owed Ms. Coburn no duty of care with respect to the netting. The court of appeals issued an order without an opinion upholding the district court's ruling. We now affirm.

         BACKGROUND

         ¶2 Whitaker was hired to install a water pipeline in the Kays Creek Parkway, a recreational area in Layton, Utah. The Kays Creek Parkway contains a number of walking trails that are designated for public use, one of which led to the pipeline construction site. Whitaker placed a "Trail Closed Ahead" sign at the trailhead indicating that portions of the trail were closed for construction and strung orange netting across the trail to deter people from accessing the construction site. Despite the warning sign and the orange netting, people consistently ignored the sign and would take down the orange netting, which Whitaker acknowledges it had to replace on a consistent basis.

         ¶3 On July 8, 2018, Ms. Coburn and her husband went for a walk in the Kays Creek Parkway. Despite seeing the "Trail Closed Ahead" sign at the trailhead, the Coburns assumed the trail was open and continued on.[1] A short distance into the trail, Ms. Coburn encountered two barrels on either side of the trail with orange netting strung between them, but the netting had fallen down and was lying across the paved trail. Ms. Coburn testified that the netting was "maybe a couple of inches" off the ground and that the width of the netting to be stepped over was about "nine inches to a foot," which was "a little bit larger" than Ms. Coburn's walking stride. She also testified that she recognized that the orange netting was a hazard but chose to step over it anyway. She tripped on the netting and fell, sustaining injuries to her arm and shoulder.

         ¶4 Ms. Coburn filed a negligence action against Whitaker seeking damages for her injuries. Whitaker filed a motion for summary judgment, arguing that it did not owe Ms. Coburn a duty of care under the open and obvious danger rule found in the Restatement (Second) of Torts-which we adopted in Hale v. Beckstead, 2005 UT 24, 116 P.3d 263-a');">116 P.3d 263-and therefore could not be held liable for her injuries. The district court agreed with Whitaker and granted its motion for summary judgment.

         ¶5 Ms. Coburn filed an appeal with the court of appeals, arguing that a genuine issue of material fact existed as to whether Whitaker owed her a duty under the Restatement (Second) of Torts and our opinion in Hale. She also argued that the court should

          abandon the open and obvious danger rule from the Restatement (Second) of Torts and replace it with a different rule from the Restatement (Third) of Torts. The court of appeals, on its own motion and pursuant to Utah Rule of Appellate Procedure 31, issued an order affirming the district court without a written opinion.[2]

         ¶6 Ms. Coburn filed a writ of certiorari in this court, and we granted the writ as to the following issues:

1. Whether the Court of Appeals erred in deciding the appeal in this case under Rule 31 of the Rules of Appellate Procedure without providing any explanation of the grounds for its decision. The Court requests that the parties address both the merits of that issue and the question of whether [Petitioner's] petition for certiorari adequately raised an argument with respect to that issue.
2. Whether the Court should reconsider its adoption of the open-and-obvious-danger rule of Sections 343 and 343A of the Restatement (Second) of Torts. The Court requests that the parties address both the merits of that issue and the question of whether Petitioner ...

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