Downham v. Arbuckle

2021 UT App 121

THE UTAH COURT OF APPEALS

TARA DOWNHAM,
Appellant,
v.
ALAN ARBUCKLE,
Appellee.

Opinion
No. 20200612-CA
Filed November 12, 2021

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 190904244

Ron J. Kramer and Allen M. Young,
Attorneys for Appellant
Mitchel T. Rice, Andrea M. Keysar, and Marianne
Schumann, Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and DIANA HAGEN concurred.

TENNEY, Judge:

¶1 Tara Downham rented a home from Alan Arbuckle.
Outside one of the back doors was a wooden pallet that served
as the back step. After this wooden step broke one day, allegedly
injuring Downham in the process, Downham sued Arbuckle for
negligence.

¶2 Arbuckle moved for summary judgment based on the
“open and obvious danger” rule. This is a “duty-defining rule”
that shields land possessors from liability for injuries that were
sustained on their property if those injuries were caused by open
and obvious dangers. Lyman v. Solomon, 2011 UT App 204, ¶ 4,
 Downham v. Arbuckle

258 P.3d 647 (quotation simplified). Applying this rule, the
district court granted summary judgment to Arbuckle.

¶3 We disagree with the district court’s application of this
rule to this case. Contrary to the court’s conclusion, this rule
doesn’t stop with a determination that there was an open and
obvious danger. Instead, even where there is an open and
obvious danger, the land possessor may still be liable if, under
the circumstances, he should anticipate that the invitee will
encounter the dangerous condition. Because a jury could
reasonably conclude that this was the case here, we reverse the
grant of summary judgment.

BACKGROUND 1

¶4 Tara Downham lived in a home that she rented from Alan
Arbuckle. The home had two doors that led to the backyard: one
was a wooden swinging door, and the other was a sliding glass
door. To bridge the gap between the home and the backyard, a
wooden step had been placed outside the sliding glass door.

¶5 Downham used this make-shift step for at least 18 months
before the incident in question. During that time, Downham
complained to Arbuckle that the step was “very wobbly,
unsafe[,] and that it was moving.” Still, she kept it there because
“[t]here was a drop-off from the door to the ground.” So
although her family acknowledged that it “was safer than not
having a step,” they “expected a replacement with a permanent
step.” But Arbuckle didn’t provide one.

1. “When reviewing a grant of summary judgment, we view the
facts in the light most favorable to the non-moving party.” Utah
Golf Ass’n v. City of N. Salt Lake, 2003 UT 38, ¶ 10, 79 P.3d 919.

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¶6 One day in June 2015, Downham stepped on the wooden
step as she entered the backyard. It broke as she did, and she
was injured as a result.

¶7 Downham sued Arbuckle for negligence based on
principles of premises liability. Arbuckle later moved for
summary judgment, arguing that the “open and obvious danger
rule” barred Downham’s recovery. The district court granted
Arbuckle’s motion, holding that Arbuckle owed no duty to
Downham because the wooden step presented an “open and
obvious” danger to her.

¶8 Downham now appeals the court’s grant of summary
judgment.

STANDARD OF REVIEW

¶9 “We review the district court’s decision on summary
judgment de novo.” Potter v. South Salt Lake City, 2018 UT 21,
¶ 16, 422 P.3d 803 (quotation simplified).

ANALYSIS

¶10 Downham argues that summary judgment was improper
because the district court misapplied the open and obvious
danger rule to this case. We agree.2

2. Downham also argues that summary judgment was improper
because there are genuine disputes of material fact about
whether the wooden step existed or whether Arbuckle knew of
the step’s existence. Given our disposition, we need not rule on
this alternative argument. But in any event, we note that
although Arbuckle did question the step’s existence in his initial
(continued…)

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¶11 In Utah, “a possessor of land may be subject to liability
for injuries to invitees caused by a condition on the land if” the
possessor

(a) knows or by the exercise of reasonable care
would discover the condition, and should realize
that it involves an unreasonable risk of harm to
such invitees, and (b) should expect that they will
not discover or realize the danger, or will fail to
protect themselves against it, and (c) fails to
exercise reasonable care to protect them against the
danger.

Lyman v. Solomon, 2011 UT App 204, ¶ 4, 258 P.3d 647 (quotation
simplified); see also Restatement (Second) of Torts § 343 (1965).

¶12 The open and obvious danger rule provides an exception
to the possessor’s duty of care. Under this rule, a “possessor of
land is not liable to his invitees for physical harm caused to them
by any activity or condition on the land whose danger is known
or obvious to them.” Lyman, 2011 UT App 204, ¶ 4 (quotation
simplified); cf. Coburn v. Whitaker Constr. Co., 2019 UT 24, ¶ 12,
445 P.3d 446 (noting that the Utah Supreme Court has “adopted
the open and obvious danger rule as embodied in sections 343
and 343A of the Restatement (Second) of Torts”); Hale v.
Beckstead, 2005 UT 24, ¶ 17, 116 P.3d 263 (same). “If the open and
obvious danger rule applies, then the land possessor owes no

(…continued)
responsive pleadings, he admitted for purposes of summary
judgment that there was a wooden step and that he knew about
it. Because the district court accepted Arbuckle’s concessions and
yet ruled in his favor anyway on legal grounds, there is no
genuine dispute of material fact on this that would provide a
separate basis for overturning the summary judgment ruling.

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 Downham v. Arbuckle

duty to its invitees with respect to the open and obvious danger
and therefore cannot be held liable for any injury caused
thereby.” Coburn, 2019 UT 24, ¶ 12.

¶13 But this rule does not always shield a land possessor from
liability where the danger is later determined to have been open
and obvious. Instead, a possessor may still be liable if the
possessor should have “anticipate[d] harm despite” the invitee’s
knowledge of the danger or the danger’s obviousness.
Restatement (Second) of Torts § 343A(1); see also Coburn, 2019 UT
24, ¶ 12; Lyman, 2011 UT App 204, ¶ 4. In other words, the
“possessor is not relieved of the duty of reasonable care which
he owes to the invitee for [the invitee’s] protection” if the
possessor had “reason to expect that the invitee” would
“nevertheless suffer physical harm” from the open and obvious
danger. Restatement (Second) of Torts § 343A cmt. f. “Such
reason may . . . arise,” for example, “where the possessor has
reason to expect that the invitee will proceed to encounter the
known or obvious danger because to a reasonable man in his
position the advantages of doing so would outweigh the
apparent risk.” Id. The same is true where there is “reason to
expect” that the invitee “would forget the danger, would become
distracted from it, or would reasonably encounter the danger
despite the risk.” Hale, 2005 UT 24, ¶ 34.

¶14 In this sense, there are two key steps to this analysis—the
“open and obvious danger” step and the “anticipated harm”
step. And as evidenced by the parties’ arguments in this case,
these can sometimes seem to be in tension. After all, if the
danger is truly open and obvious, then one could argue that the
possessor should always anticipate that the invitee will
encounter it. But if that were always enough to open the
possessor to liability, the rule’s practical effect would be
something of a nullity.

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¶15 It’s not. Properly understood, the open and obvious
danger rule calls for a context-specific analysis that takes into
account both steps to determine whether the possessor should be
legally shielded from liability. This rule “simply states that,
under appropriate circumstances, a landowner’s duty of care
might not include warning or otherwise protecting visitors from
obvious dangers,” but it nevertheless “does not operate to allow
a landowner to act negligently and remain free from liability”
just because “his negligence was obvious to those who were
injured thereby.” Id. ¶ 23.

¶16 Thus, when the rule is invoked, a court must “inquir[e]
into whether factors existed to vest in the [land possessor] a duty
to warn or otherwise protect the [invitee]” from the obvious
danger. Id. ¶ 32. Among other considerations, application of the
rule will “var[y] in stringency depending upon the nature of the
invitee and the nature of the possessor of land.” Id. ¶ 31.

¶17 A few cases illustrate how this plays out. In Lyman, for
example, we held that the open and obvious danger rule
shielded a land possessor from liability for injuries that an
invitee suffered when traversing the possessor’s unlit driveway.
2011 UT App 204, ¶¶ 5–6. Considering the first part of this rule,
we concluded that the dangers associated with the unlit and
uneven driveway were open and obvious. Id. ¶ 5. This was so
because “[t]he driveway’s uneven surface condition was
familiar” to the invitee, “as she had encountered it many times,”
and also because “the indentation alleged [was] typical of
unpaved roads.” Id. Considering the second part, we held that
although the possessor “could have expected” that the invitee
“would choose to traverse the driveway despite the potential
danger,” there was nothing in the record suggesting that the
possessor “should have expected” that her invitee “would not
do so safely.” Id. ¶ 6. For instance, “there [was] no suggestion
that” the possessor had told the invitee to “hurry” or that the
possessor knew of “any physical condition” that would render

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the invitee “incapable of safely negotiating the driveway.” Id. “In
the absence of such factors,” we affirmed the grant of summary
judgment to the possessor. Id. ¶¶ 6–7.

¶18 We reached a similar conclusion in Jensen v. Gardner, 2012
UT App 146, 279 P.3d 844. There, we held that an apartment
complex owner was not liable to a prospective tenant who hit
her head on a balcony during a rainstorm. Id. ¶¶ 8–9. Although
the balcony presented an “open and obvious danger,” id. ¶ 6, the
“undisputed facts demonstrate[d]” that the complex owner “did
not know” that the prospective tenant “was coming from and
running to the private tenant parking lot” and did not have any
“knowledge of anyone else ever hitting his or her head on the
balcony.” Id. ¶ 7. We thus held that the owner “could not
reasonably have anticipated that [the prospective tenant] would
have been running by that balcony with her head down and
looking at her feet rather than at the balcony” when she returned
to the private parking lot in the rain. Id. ¶ 8. And because of this,
the open and obvious danger rule relieved the owner from
liability for the prospective tenant’s subsequent injuries. Id. ¶ 9.

¶19 By contrast, our supreme court in Hale concluded that the
rule did not shield a homeowner from liability after a hired
painter fell from the homeowner’s unenclosed balcony. 2005 UT
24, ¶¶ 3–6, 39–40. The supreme court explained that the “danger
the unenclosed balcony presented was indisputably obvious,”
thus satisfying the first part of the rule. Id. ¶ 34. But the court
nevertheless held that summary judgment in the homeowner’s
favor was “premature” because it did not have the facts
surrounding the incident “in full.” Id. ¶¶ 32, 37–38. Without
knowing, for instance, whether the painter “was instructed to
paint a wall by the unenclosed balcony” or whether reasonable
alternatives existed that would have allowed the painter to
complete his work without “encounter[ing] the danger,” the
court could not conclude as a matter of law that the homeowner
was entitled to summary judgment. Id. ¶¶ 37–38.

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¶20 With these principles in mind, we turn to the case at issue.
In doing so, we first note that the parties and the district court
below all assumed that Arbuckle qualifies as a possessor and
Downham qualifies as an invitee for purposes of this rule.
Neither party has contested this on appeal, so we proceed
accordingly.

¶21 The question, then, is how the open and obvious danger
rule applies to this case—i.e., whether the rule relieved Arbuckle
of his duty of care because of the obviousness of the danger, or
whether Arbuckle can instead still be liable because he had
“reason to expect” that Downham would “nevertheless suffer
physical harm” from the open and obvious danger. Restatement
(Second) of Torts § 343A cmt. f. And more to the point, given
that the district court granted summary judgment to Arbuckle,
the question is whether summary judgment was warranted
under this rule under these circumstances.

¶22 A court grants 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).
The “initial question of the existence of a legal duty in tort cases
is a question of law for the court to determine.” Lyman, 2011 UT
App 204, ¶ 3. But even so, “[m]ost cases involving claims of
negligence are not susceptible to summary disposition.” Id.
(quotation simplified). One reason that they are not is that while
the question of whether a duty existed is a question of law
reserved for the court, that question sometimes turns on
subsidiary questions that are factual in nature and thus more
appropriately left to the jury. See Restatement (Second) of Torts
§ 328B cmt. b; id. § 328C cmt. b. In this sense, “[l]iability for
negligence is often said” to involve a “mixed question of law and
fact.” Id. § 328B cmt. b.

¶23 Where the existence of a duty turns on a factual question,
and where “the evidence is such that no reasonable [person]”

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could disagree about the facts, the court may “remove the issue
from the jury” and determine those facts itself. Id. § 328B cmt. d.
But where the evidence is such that “the jury may reasonably
arrive at either conclusion as to the existence or non-existence”
of the necessary facts, “the issue is for the jury to decide.” Id.
§ 328C cmt. a.

¶24 The Utah Supreme Court applied this construct in Gray v.
Scott, 565 P.2d 76 (Utah 1977). Relying on Restatement § 328B,
the supreme court held that it is the “function of the court to
determine whether, upon facts in evidence which the jury may
reasonably find to be true, the law imposes upon the defendant
any legal duty to act . . . for the protection of the plaintiff.” Gray,
565 P.2d at 78 (quotation simplified). If “the existence of the
duty” depends on facts about “which the jury may reasonably
come to either one of two conclusions,” however, the court must
simply “instruct the jury as to [the] defendant’s duty, or absence
of duty, if either conclusion as to such fact is drawn.” Id.
(quotation simplified).

¶25 Previous Utah decisions about the open and obvious
danger rule have not explicitly held that the rule’s steps present
factual questions. But they have implicitly treated them as such.
This appears to be why Hale concluded that summary judgment
was “premature” in that case—namely, the supreme court
thought that there were unanswered factual questions that might
have altered the legal question of whether a duty existed. See
2005 UT 24, ¶¶ 32, 37–38. This also appears to be why this Court
stressed in Jensen that the relevant facts were “undisputed”
before holding that summary judgment was warranted in that
case. See 2012 UT App 146, ¶ 5.

¶26 Other jurisdictions have recognized this more explicitly.
Courts have commonly held that the rule’s first step (whether
there was an open and obvious danger) presents a factual
question. See, e.g., Six Flags Am., LP v. Gonzalez-Perdomo, 242 A.3d

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1143, 1153 (Md. Ct. Spec. App. 2020); Schulman v. Old Navy/The
Gap, Inc., 845 N.Y.S.2d 341, 342 (N.Y. App. Div. 2007); Johnson v.
American Italian Golf Ass’n. of Columbus, 113 N.E.3d 1144, 1150–51
(Ohio Ct. App. 2018); Carrender v. Fitterer, 469 A.2d 120, 124 (Pa.
1983); Millson v. City of Lynden, 298 P.3d 141, 144–45 (Wash. Ct.
App. 2013); Gable v. Gable, 858 S.E.2d 838, 854 (W. Va. 2021). 3 So
too with respect to the second step (whether the land possessor
should have anticipated that the invitee would encounter the
danger). See, e.g., Olmanson v. LeSueur County, 693 N.W.2d 876,
881 (Minn. 2005); Hellmann v. Droege’s Super Market, Inc., 943
S.W.2d 655, 660 (Mo. Ct. App. 1997) (en banc); Steichen v. Talcott
Props., LLC, 2013 MT 2, ¶ 17, 292 P.3d 458. We agree on both
fronts.

¶27 Given this framework, we must accordingly determine
whether reasonable jurors could disagree about whether (a) the
wooden step presented an open and obvious danger or
(b) Arbuckle should have anticipated that Downham would
encounter it anyway. If jurors could disagree on either front,
then the district court’s grant of summary judgment was
“premature.” Hale, 2005 UT 24, ¶¶ 32, 37. If reasonable jurors
could not disagree, however, then Arbuckle was entitled to
judgment as a matter of law.

3. Illinois has bifurcated this question, holding that questions
about “the physical nature of the condition” are factual but
questions about “whether the dangerous condition is open and
obvious” are legal. Bruns v. City of Centralia, 2014 IL 116998, ¶ 18,
21 N.E.3d 684. We need not rule on this potential wrinkle here,
however, because it would not change our resolution of this
case. As discussed below, no reasonable jury could disagree
about either the physical condition of this step or whether it
presented an open and obvious danger.

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 Downham v. Arbuckle

¶28 In its decision, the district court first held that the wooden
step presented an “open and obvious” danger as a matter of
law—i.e., that no reasonable juror could conclude otherwise. On
this, we agree with the district court. In her deposition,
Downham said that she “stepped on” the wooden step
“numerous times” before this incident and that she thought it
was “wobbly” and “unsafe.” Others familiar with the step also
explained that it would sometimes “slid[e] out a little bit” and
“squeak” when stepped on. For his part, Arbuckle once
acknowledged that he “need[ed] to get that [step] replaced” after
Downham’s husband had slipped on it in his presence. And on
appeal, Arbuckle argues to us that this step did present an open
and obvious danger as a matter of law.

¶29 The nature of the step itself corroborates that this was so.
This was not a professionally constructed step of the type that
one would expect to see outside a home. Rather, as shown by the
below photograph that was taken after the incident, this was
essentially a “[s]tandard pallet” that “just looked like [it] had
been cut into a step.”

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 Downham v. Arbuckle

Given this, the dangers associated with this step were indeed
open and obvious.

¶30 Downham nevertheless resists this conclusion in her
brief. Relying on Normandeau v. Hanson Equipment, Inc., 2009 UT
44, 215 P.3d 152, Downham suggests that because her prior
complaints focused on the step potentially slipping, rather than
breaking, the danger of it breaking was not open and obvious.
But it’s unclear whether Normandeau even applies to an analysis
under the open and obvious danger rule. The language that
Downham relies on discusses general principles of foreseeability
as they relate to general concepts of duty. See Normandeau, 2009
UT 44, ¶¶ 18–20. Although the open and obvious danger rule is
also about duty, it has its own particular contours. Downham
does not adequately brief any argument for how (or even
whether) the general foreseeability discussion from Normandeau
interacts with the inquiry called for by the open and obvious
danger rule. See State v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d
770 (holding that an “issue is inadequately briefed when the
overall analysis of the issue is so lacking as to shift the burden of
research and argument to the reviewing court” (quotation
simplified)).

¶31 In any event, even if there were some analytical cross-
over, Normandeau does not help Downham on this point.
Normandeau held that “[w]hether a harm was foreseeable . . .
depends on the general foreseeability of such harm, not whether
the specific mechanism of the harm could be foreseen.” 2009 UT
44, ¶ 20 (quotation simplified). As noted, Downham complained
about this step slipping, about it squeaking, and about its
unsuitability for use. That she was later injured in a different
way from the one she was apparently most worried about does
not mean that this step still did not pose an obvious danger of
some kind.

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 Downham v. Arbuckle

¶32 Given all this, we agree with the district court that, as a
matter of law, this step presented an open and obvious danger to
those who would use it. No reasonable jury could conclude
otherwise.

¶33 But “determining that a danger is open and obvious is not
the end of the analysis in assessing whether a defendant
breached his duty of care.” Hale, 2005 UT 24, ¶ 34. Again, even
where there is an open and obvious danger, a possessor can be
liable if the possessor had “reason to expect that the invitee”
would “nevertheless suffer physical harm” from it. Restatement
(Second) of Torts § 343A cmt. f. And this could be so if there is
reason to believe that the invitee will be “unaware, may forget,
or may reasonably encounter” the danger despite its
obviousness. Hale, 2005 UT 24, ¶ 27.

¶34 We part ways with the district court here. Downham
rented a home from Arbuckle, and the wooden step in question
was placed outside one of the back doors that led into the
backyard. In his deposition, Arbuckle said that he thought “it
might be helpful to have a small[] step” to bridge the gap
between the home and the cement of the backyard, thus
implicitly (if not explicitly) recognizing that his tenants would
use both this door and this step. From this, a jury could
reasonably find that Arbuckle either should have anticipated, or
in fact did anticipate, that his tenants would use the back door
and whatever back step had been provided as a means of
accessing that backyard.

¶35 Arbuckle nevertheless argues that he should be shielded
from liability because Downham “had multiple alternatives to
avoid the wooden step,” including “walk[ing] out the front door
and . . . around the house to the back,” “mov[ing] the wooden
step out of the way and not us[ing] it,” or “exit[ing] from the
wooden, swinging door located just a few feet away.” But even
assuming that Downham had reasonable alternatives to protect

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herself from the open and obvious danger posed by the step, the
jury must still decide whether Arbuckle should have anticipated
that Downham might fail to do so. In particular, the jury would
need to determine whether Arbuckle had reason to believe that
Downham would continue using the dangerous step “because to
a reasonable [person] in [her] position the advantages of doing
so would outweigh the apparent risk.” Restatement (Second) of
Torts § 343A cmt. f; see also Hale, 2005 UT 24, ¶ 26. Because a
reasonable jury could reach different conclusions about this from
the undisputed evidence, this issue is not susceptible to
resolution on summary judgment.

¶36 Moreover, Hale also contemplated that a possessor can be
liable if there’s reason to anticipate that the invitee may “forget
the danger,” “become distracted from it,” or might “reasonably
encounter the danger despite the risk.” 2005 UT 24, ¶ 34. There
are any number of reasons why Downham (not to mention her
children) might have momentarily forgotten about the problems
with this step, or instead why she might have chosen to use it
anyway for reasons of exigency, necessity, or convenience. We
cannot say that, as a matter of law, Downham was legally
required to always avoid using the back door to her own
backyard, particularly where the landlord himself recognized
that she was likely using it. Instead, under these circumstances,
we conclude that a jury could reasonably determine that
Arbuckle should have anticipated that Downham would
encounter this danger despite the risk.

CONCLUSION

¶37 The sole question presented on appeal is whether the
open and obvious danger rule would prevent a jury from
holding Arbuckle liable in this case. The circumstances at issue
involve an occupant of a home, a back door to the backyard, and
an obviously dangerous step from that door that the landlord

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knew was being used by the tenants to enter that backyard.
Under these circumstances, although this step presented an open
and obvious danger, a jury could reasonably determine that
Arbuckle should have anticipated that Downham would
encounter and be harmed by this step anyway. We accordingly
reverse the district court’s grant of summary judgment.

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