October 11, 2013 Utah Supreme Court Case Summaries

Hill v. Superior Prop. Mgmt. Servs., 2013 UT 60, No. 20120428 (October 11, 2013)

ISSUES: Negligence, Duty of Care, Possessor Liability

Justice Lee,

A condominium resident was injured when she tripped on a group of tree root offshoots concealed within the grassy common area of her complex. She sued the complex‘s contract property management company, which was tasked with performing some maintenance activities in that area. She claimed that the company had been negligent in dealing with the tree offshoots, asserting that it had breached duties it owed her under its maintenance contract, arising from its status as a possessor of land, and based on its voluntary undertaking of root maintenance.

At ¶ 1.

The district court granted the company‘s motion for summary judgment, concluding that the company owed the resident no duty of care. We affirm. The company lived up to its relevant obligations under the maintenance contract, exercised insufficient control to be treated as a possessor, and never voluntarily undertook the root maintenance activities alleged by the plaintiffs.

At ¶ 2.

Superior performed maintenance and landscaping activities at Waterbury under a maintenance contract with the Waterbury HOA. It had done so since the mid-1990s. Under the parties‘ contract, Superior performed certain maintenance activities relating to the common area, including mowing ―lawn grass weekly and edg[ing] bi-weekly throughout the normal growing season and ―trim[ming] all small and lower branches when necessary. Waterbury HOA retained responsibility, however, for a number of maintenance functions, including ―major sidewalk repairs,― ―major trimming of all large trees, ―major fence repairs, ―major breaks of sprinklers, ―major roof repairs, and ―major painting projects.

At ¶ 6.

Both Superior and Waterbury HOA moved for summary judgment, claiming that they owed Hill no duty of care—and thus could not have been negligent. Hill opposed both motions, asserting that Waterbury owed her a duty as a possessor of land and that Superior owed her a duty under its maintenance contract, based on a variety of premises liability theories, and due to its voluntary undertakings. The court granted Superior‘s motion, determining that Superior owed Hill no duty of care because it had not violated any contractual obligation, exercised insufficient control over the property to be subject to premises liability, and had not voluntarily undertaken to remedy the hazard posed by the tree shoots. The court denied Waterbury HOA‘s motion, however, concluding that it was potentially liable as a possessor. Thereafter, Waterbury HOA settled with Hill and was dismissed as a party to this action.

At ¶ 7.

Hill asserts that Superior owed her a duty of care (a) arising under Superior‘s maintenance contract, (b) due to its extensive control of the condominium premises, (c) based on its voluntary undertaking of tree maintenance activities, and (d) because it affirmatively created the hazardous clumps of tree shoots that allegedly caused her accident. We find no basis for a duty in any of the first three asserted grounds, and conclude that Hill failed to preserve the fourth. We accordingly affirm.

At ¶ 9.

Contract Duty

Our cases have sometimes adverted to the possibility that a special relationship sustaining such a duty might be rooted in a contract. See id. ¶ 9 n.7. Invoking this principle, Hill argues that Superior‘s maintenance contract gave rise to a tort duty, which it breached by failing to perform under two provisions of the contract. The first requires Superior to ―mow . . . lawn grass weekly and edg[e] bi-weekly throughout the normal growing season. The second obligates it to ―trim . . . small and lower branches. We disagree, and find that neither provision supports the imposition of tort liability.

At ¶ 11.

In the first place, it is not at all clear that mere failure to perform would sustain liability in tort. A breach of contract, after all, typically gives rise to liability in contract, not in tort. Even assuming that Superior‘s maintenance contract could sustain a tort duty, moreover, there is still no basis for liability here, as neither of the provisions cited by Hill required Superior to perform the acts it is now charged with omitting.

At ¶ 12.

The Court analyses Superior’s contractual duties, and finds they did not obligate Superior to trim the roots at the time of the injury.

At ¶¶ 13-15.

Where a duty is rooted in the express language of a written contract, the parties are on notice of their obligations, and are in a good position to plan their activities around them. That is not at all true for the extracontractual, course-of-performance acts relied on by Hill. If we were to impose a duty in connection with those acts, we would establish a troubling perverse incentive. A party facing a tort duty in connection with any undertaking not required by contract would be discouraged from such undertaking. And a disincentive for gratuitous service benefiting another is not the sort of conduct that our tort law ought to countenance. In any event, to the extent injuries ensue from negligence in the performance of such activities, liability would properly be governed by a different branch of our tort law—by the standards governing liability for a voluntary undertaking, a theory we consider (and find unavailing) below. See discussion infra ¶¶ 39–40.

At ¶ 17.

Premises Liability

We likewise reject Hill‘s assertion that a duty arose under three different theories of premises liability: (1) possessor liability, (2) liability of a party who receives the ―entire charge of the land from a possessor under section 387 of the Restatement (Second) of Torts, and (3) liability of a contractor ―who does an act or carries on an activity upon land on behalf of the possessor pursuant to section 383 of the Restatement.

At ¶ 19.

None of these theories sustains a duty here. While Superior performed many maintenance functions, it exercised insufficient control of the Waterbury property to be deemed a possessor. As for section 387, the liability principles stated there do not extend to Superior for similar reasons; it did not take over the entire charge of the land. And section 383, which affords independent contractors the same immunity from liability to trespassers that possessors enjoy, would not require Superior to deal with the tree shoots differently than it did.

At ¶ 20.

Possessor liability

Although we have not articulated a comprehensive list of attributes of a ―possessor, we have generally invoked the standard for invitees in the Restatement (Second) of Torts. See id. And that standard defines a ―possessor as ―a person who is in occupation of the land with intent to control it; ―a person who has been in occupation of the land with intent to control it, if no other person has subsequently occupied it with intent to control it; or ―a person who is entitled to immediate occupation of the land, if no other person is in possession under either of the other two tests. RESTATEMENT (SECOND) OF TORTS § 328E (1965). Thus, under the Restatement, ―control stemming from actual ―occupation, or from an immediate entitlement to actual occupation, is the hallmark of possessor status.

At ¶ 22.

. . . Thus, while we 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.

At ¶ 23.

The Court indicates that the “right of exclusion” and the “right to take necessary precautions” are indicative of “possessor” status.

At ¶¶ 25-26

The Court concludes that Superior had neither the “right of exclusion” or the “right to take necessary precautions.  Accordingly, Superior was not a possessor.

At ¶¶ 27-29.

Restatement section 387

Where an ―owner or possessor of land turns over the entire charge of the land to ―[a]n independent contractor or servant,” that person ―is subject to the same liability for harm . . . as though he were the possessor of the land. See RESTATEMENT (SECOND) OF TORTS § 387 (1965). Hill invokes this principle in arguing that Superior received the ―entire charge of the Waterbury premises and thus acquired the duties of a possessor.

At ¶ 30.

We see the matter differently. Even Superior‘s substantial maintenance responsibilities do not rise to the level of taking ―entire charge of property. As the comments to section 387 clarify, this theory of liability does not extend to a contractor who has merely ―undertaken to make specific repairs, or even to inspect the land or building and from time to time make such repairs as he should discover to be necessary. Id. cmt. a. To impose such liability ―the contractor must have taken over the entire charge of the land or building. Id. Thus, the rule in section 387 is ―usually applicable in circumstances where a contractor ―takes over the entire charge of a building or parcel of land, including the renting or collection of rent as well as its maintenance in safe repair. Id. cmt. b (emphasis added).

At ¶ 31.

Restatement section 383

Even if Superior had less than the ―entire charge of the property, Hill still seeks to impose a possessor-like duty on Superior under section 383 of the restatement. That provision, which we have never formally adopted, articulates a limitation of liability for ―[o]ne who does an act or carries on an activity upon land on behalf of the possessor for physical harm caused thereby to others upon and outside of the land. RESTATEMENT (SECOND) OF TORTS § 383 (1965). The liability limitation is this: Section 383 clarifies that ―one acting on behalf of the possessor is treated as a possessor, in that such person ―is given the same immunity from liability to trespassers as is conferred upon the possessor. Id. cmt. b.

At ¶ 33.

 

The Court rejects Hill’s reading of section 383, i.e. that it articulates a broad principle of possessor-like premises liability that attaches whenever an independent contractor undertakes activities on behalf of a possessor, and determines that it “reaches only ―physical harm caused by affirmative ―act[s] or ―activit[ies] actually carried out by the independent contractor. Id. It does not impose liability for mere conditions on the land. Id.

At ¶¶ 34-37.

Voluntary Undertaking

This theory falters in its failure to connect up any activity that Superior voluntarily undertook with an allegation of negligence in the performance of that activity. Hill makes broad assertions relating to Superior‘s many maintenance activities, and its allegedly pervasive control over the Waterbury grounds. But the only specific voluntary undertaking she points to is its mowing of the lawn (and of the tree shoots in the process).

At ¶ 39.

That limited activity is insufficient to establish a broad duty to perform comprehensive maintenance activities related to the tree shoots. As Hill has acknowledged, the tree shoot hazard could not be remedied by mere mowing; additional activities were required to achieve that objective. So Superior did not undertake any voluntary action meaningfully aimed at remedying the tree shoots. And because it didn‘t, Hill cannot demonstrate that the harm she suffered ―result[ed] from a ―failure to exercise reasonable care [in] perform[ing] [the] [voluntary] undertaking of mowing. Id.

At ¶ 40.

Affirmative Conduct

Hill‘s final theory, of a duty arising out of Superior‘s affirmative conduct, is arguably her strongest. See Jeffs ex rel. B.R., 2012 UT 11, ¶ 7 (noting that acts of ―misfeasance . . . typically carry a duty of care, while those of ―nonfeasance do not). Under this theory, Hill claims a duty based on Superior‘s repeated mowing of the tree growths. Specifically, she contends that Superior‘s repeated mowing created the hardened clumps of tree growths that caused her to trip and fall.

At ¶ 42.

The problem with this theory is that it was not preserved below. . . .

At ¶ 43.

The Court explains its determination that the issue was not preserved.

At ¶¶ 44-54.

Justice Parrish, dissenting,

While in agreement with the majority‘s conclusions that Superior did not owe Ms. Hill a duty of care based on theories of contract liability, premises liability, or voluntary undertaking, I respectfully dissent from the majority‘s holding that Ms. Hill failed to preserve in the district court her argument that Superi-or‘s affirmative conduct gave rise to a duty. . . .

At ¶ 55.

Justice Parrish explains her belief that the issue of negligent affirmative conduct was preserved.

At ¶¶ 56-66.