MacFarlane v. Applebee's Restaurant

2016 UT App 158

THE UTAH COURT OF APPEALS

ELIZABETH MACFARLANE,
Appellant,
v.
APPLEBEE’S RESTAURANT, AMERICAN FORK APPLETTE LLC,
AND JOHN D. PRINCE,
Appellees.

Opinion
No. 20140991-CA
Filed July 29, 2016

Fourth District Court, Provo Department
The Honorable Fred D. Howard
No. 120400036

James G. Clark and Dallas B. Young, Attorneys
for Appellant
Heinz J. Mahler, Kirk G. Gibbs, and Samuel A.
Goble, Attorneys for Appellees

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.

ROTH, Judge:

¶1 Elizabeth MacFarlane appeals the district court’s grant of
summary judgment in favor of Applebee’s Restaurant, American
Fork Applette LLC, and John D. Prince (collectively, the
Restaurant). We affirm.
 MacFarlane v. Applebee's Restaurant

BACKGROUND 1

¶2 In January 2008, MacFarlane slipped on ice and fell while
walking in the parking lot next to an Applebee’s Restaurant in
the American Fork Commercial Center (the Shopping Center), a
large shopping center in which the Applebee’s Restaurant
occupied a detached building. At the time of the incident, the
Restaurant leased 48,545 square feet of space in the Shopping
Center from AFCC Limited (the Landlord). The Restaurant’s
building occupies approximately 5,100 square feet of the leased
space, with a parking area comprising most of the remainder of
what the ground lease (the Lease) described as the “Leased
Premises.” In the Lease, the Landlord agreed to “provide all
necessary parking for [the Restaurant’s] customers and
employees” but stated that the parking “shall be non-exclusive
and in compliance with the Shopping Center criteria” as well as
several existing covenants and cross-easements that encumbered
the property. The Landlord was also “responsible for the
maintenance of all common areas,” for which the Restaurant was
required to “pay a portion of the . . . maintenance cost based on a
prorata percentage.” In this regard, the Lease stipulated that
“[a]ll common areas and facilities which [the Restaurant] may be
permitted to use and occupy are to be used and occupied under
a revocable license, coterminous with this Lease.”

¶3 MacFarlane filed a premises liability complaint against
the Restaurant in January 2012, claiming that the Restaurant
failed to fulfill its duty to clear the parking lot of hazardous ice
or warn her of the danger. She alleged that the Restaurant had
negligently failed to “remove, salt, sand, or warn of ice in the

1. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (citation and internal quotation marks omitted).

20140991-CA 2 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

parking lot” when it knew, or should have known, that “the ice
in the parking lot created a foreseeable hazard to patrons and/or
invitees of the business” and that “the ice needed to be
eliminated, neutralized, or [a] warning should have been given.”
MacFarlane claimed that as a result of the Restaurant’s
negligence she suffered injuries and special damages, including
“medical bills, lost wages, and the loss of future earning ability.”

¶4 Among other defenses to MacFarlane’s claims, the
Restaurant asserted that it was “not the owner[], or in control, of
the parking lot in which [MacFarlane] allegedly slipped and
fell.” Rather, it claimed that “[t]he duty to keep the parking lot
free of snow and ice, if any, was at [the] relevant time . . . with
[the Landlord], . . . the property owner of the parking lot.” 2 The
Restaurant subsequently moved for summary judgment, arguing
that it did not owe MacFarlane a duty, because although it
leased the parking lot, it did not own or control the parking lot.

¶5 The district court granted the Restaurant’s summary
judgment motion and dismissed MacFarlane’s claim. It reasoned
that summary judgment was appropriate because, “even when
viewing the facts in the light most favorable to [MacFarlane],
[the Restaurant] did not have ownership or control over the
parking lot, and thus did not have a duty of care towards
[MacFarlane].” The court determined that the Lease made the
Landlord “responsible for maintenance of all common areas,”
which “included all snow removal during the winter months,”
and that the “necessary parking . . . was ‘non-exclusive.’” Thus,
the court concluded that the Landlord “explicitly retained
control over the parking lot, including responsibility for snow
removal,” and that “because the accident occurred outside an
area controlled by [the Restaurant],” judgment in favor of the

2. The Landlord was subsequently added as a party in an
amended complaint but successfully moved to dismiss the
claims against it on statute of limitations grounds.

20140991-CA 3 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

Restaurant was proper as a matter of law. MacFarlane appeals
this ruling.

ISSUE AND STANDARD OF REVIEW

¶6 MacFarlane argues that the district court erred when it
granted summary judgment in favor of the Restaurant on the
basis that the company owed her no duty to maintain the
parking lot in a reasonably safe condition. “We review a
[district] court’s summary judgment [decision] for correctness,
considering only whether the [district] court correctly applied
the law and correctly concluded that no disputed issues of
material fact existed.” Hermansen v. Tasulis, 2002 UT 52, ¶ 10, 48
P.3d 235.

ANALYSIS

¶7 MacFarlane argues that we should reverse the district
court’s grant of summary judgment in favor of the Restaurant
because the Restaurant had a duty under common law principles
of premises liability to maintain the parking lot in a reasonably
safe condition, which it breached by failing to clear the ice in the
parking lot or warn her of the hazard. According to MacFarlane,
the Restaurant’s duty arose out of its possession and control of
the parking lot as a leaseholder. She asserts that the parking lot
was part of the leased premises that the Restaurant occupied and
for which it paid rent and that by virtue of its leasehold, the
Restaurant “had possessory rights in the entire portion” of the
space it occupied, which included both the restaurant building
and the adjacent parking area. In this regard, she contends that
although the Lease created a contractual obligation for the
Landlord to perform “routine maintenance such as snow
removal and ice remediation,” the Restaurant nonetheless “had
full authority to perform [the routine snow and ice removal]
because nothing in [the Lease] prohibit[ed]” it from doing so.

20140991-CA 4 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

She further argues that the Restaurant’s duty to her was
nondelegable and that the Landlord’s obligation under the Lease
to maintain the parking lot could not legally insulate the
Restaurant from its own primary responsibility as the
leaseholder.

I. Only a “Possessor” of Land Has a Duty to an Invitee Under
Principles of Premises Liability.

A. A “Possessor” of Land’s Duty to Invitees

¶8 To prevail on a negligence claim, “a plaintiff must
establish, among other things, that the defendant owed a duty of
care to the plaintiff.” See Williams v. Bench, 2008 UT App 306,
¶ 21, 193 P.3d 640. There is, however, a distinction between
duties that arise due to a person’s or entity’s affirmative actions
and those that arise due to omissions. See B.R. ex rel. Jeffs v. West,
2012 UT 11, ¶ 7, 275 P.3d 228. In general, “we all have a duty to
act reasonably in our affirmative acts.” Hill v. Superior Prop.
Mgmt. Servs., Inc., 2013 UT 60, ¶ 10, 321 P.3d 1054. But “passive
inaction, a failure to take positive steps to benefit others, or to
protect them from harm not created by any wrongful act of the
defendant . . . generally implicates a duty only in cases of special
legal relationships.” See Jeffs, 2012 UT 11, ¶ 7 (citation and
internal quotation marks omitted); see also Hill, 2013 UT 60, ¶ 10
(noting that “no such duty [to act reasonably] attaches with
regard to omissions except in cases of a special relationship”).

¶9 The legal relationship between a possessor of land and his
or her invitees to that land is one such special relationship. See
Restatement (Second) of Torts § 314A(3) (Am. Law Inst. 1965)
(“A possessor of land who holds it open to the public is under
a . . . duty to members of the public who enter in response to his
invitation.”); see also Jeffs, 2012 UT 11, ¶ 7. “[P]ossessors [of land]
owe significant duties to invitees who come onto their
property—including affirmative duties to remedy or warn
against dangerous conditions.” Hill, 2013 UT 60, ¶ 21.

20140991-CA 5 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

MacFarlane claims that the Restaurant owed her a duty to
remove the ice or warn her of its presence because the
Restaurant was a possessor of the parking lot where her injury
occurred and she was in the parking lot as the Restaurant’s
invitee. 3

¶10 “The duty of care that possessors of land in Utah owe to
invitees upon their property is set forth in sections 343 and 343A
of the Second Restatement of Torts.” Hale v. Beckstead, 2005 UT
24, ¶¶ 7, 17, 116 P.3d 263. Restatement (Second) of Torts section
343, the section most pertinent to this case, states,

A possessor of land is subject to liability for
physical harm caused to his invitees by a
[dangerous] condition on the land if . . . he (a)
knows or by the exercise of reasonable care would
discover the [dangerous] 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.

Restatement (Second) of Torts § 343 (Am. Law Inst. 1965). Thus,
the central question in this case is whether the Restaurant is “[a]
possessor of land.” See id. If the Restaurant is not a possessor of
the land where the injury occurred, the duty outlined in section
343 of the Restatement attendant to the special relationship
between possessors of land and invitees will not arise. See Hill,
2013 UT 60, ¶¶ 21, 29 (noting that a party who “is not a
possessor . . . has no duty as such”).

3. The parties do not dispute that MacFarlane was the
Restaurant’s invitee on the occasion of her fall.

20140991-CA 6 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

B. The Core Capacities of a “Possessor” of Land Under the
Hill Decision

¶11 In Hill v. Superior Property Management Services, Inc., 2013
UT 60, 321 P.3d 1054, the Utah Supreme Court addressed the
question of what constitutes a possessor of land in the context of
a premises liability negligence case. Id. ¶¶ 21–29. While noting
that it had “not articulated a comprehensive list of attributes of a
‘possessor,’” the court stated that it had “generally invoked the
standard for invitees in the Restatement (Second) of Torts.” Id.
¶ 22; see also Hale, 2005 UT 24, ¶ 17 (“Utah law does adopt the
Restatement’s definition of a landowner’s duty to invitees upon
his property.”). The Restatement (Second) of Torts defines
“possessor” as

(a) a person who is in occupation of the land with
intent to control it or (b) a person who has been in
occupation of land with intent to control it, if no
other person has subsequently occupied it with
intent to control it, or (c) a person who is entitled to
immediate occupation of the land, if no other
person is in possession under Clauses (a) and (b).

Restatement (Second) of Torts § 328E (Am. Law Inst. 1965).
Based on this definition, the supreme court stated that “control
stemming from actual occupation . . . is the hallmark of
possessor status” and that “the degree of control [must] be
substantial” in order for a party to qualify as a possessor. Hill,
2013 UT 60, ¶¶ 22–23 (internal quotation marks omitted). In this
regard, a possessor must have “both the rights and the
corresponding abilities to deal with the [land where the injury
occurred] as he sees fit.” Id. ¶ 24. In other words, a possessor of
land must have “the control necessary to undertake plenary
care.” See id. ¶ 29; see also id. ¶ 23 (“Those who have qualified as
possessors in our cases have been landowners and others
exercising plenary control over . . . [the] premises.”).

20140991-CA 7 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

¶12 In Hill, the plaintiff lived in a condominium development
and was injured when she tripped on protruding tree roots in
the grassy common area appurtenant to her unit. Id. ¶¶ 1, 4. She
sued for negligence both the homeowners association and the
landscape maintenance company that the homeowners
association had engaged to perform specified maintenance in the
common area. Id. ¶ 5. The lower court dismissed the negligence
suit against the landscape maintenance company because it
found that the company “owed [the plaintiff] no duty of care”
where, among other things, it “exercised insufficient control over
the property to be subject to premises liability.” Id. ¶ 7. The
supreme court affirmed the dismissal. Id. ¶¶ 2, 29.

¶13 In so doing, the court highlighted two “core capacities”
that marked a possessor of land’s plenary control: “the right to
exclude others from the property altogether” and “the right to
take all necessary precautions and make necessary repairs.” Id.
¶¶ 24, 27. The court stated that “[t]he right of exclusion is
significant” because it permits the “person with such a right . . .
[to] effectively limit her exposure to liability” by permitting that
person to “determine how broadly to open her property to
others, weighing the economic benefits against the costs
(including increased liability).” Id. ¶ 25. Regarding the right to
take all necessary precautions, the court stated that this right “is
also pivotal,” particularly in light of a possessor’s duty to
“‘exercise reasonable care’ in identifying dangerous conditions
[on the land] and in protecting invitees against them.” Id. ¶ 26
(quoting Restatement (Second) of Torts § 343). The court
reasoned that the right to take necessary precautions and make
repairs enables a person “with plenary control of property . . . to
take precautions to prevent business invitees . . . from
encountering dangerous conditions on the land,” noting that “a
person with less than full control over property might lack the
ability to take measures necessary to protect an invitee against
such conditions.” Id.

20140991-CA 8 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

¶14 The court determined that the landscape maintenance
company lacked both of the “core capacities” it identified as
incumbent on possessors of land. Id. ¶ 27. In particular, it
determined that there was “no indication that [the landscape
company had] the right to exclude others from” the common
area property. Id. Rather, it noted, “[a]ll indications are that [the
homeowners association had] retained that right.” Id. It also
determined that the landscape maintenance company had “only
limited authority to perform repairs” and that “[m]ost major
repairs [were] beyond the scope of [the landscape company’s]
authority.” Id. ¶ 28. The court, therefore, concluded that “despite
[the landscape company’s] many duties under the management
contract, it lacks plenary authority to engage in whatever
measures it might deem necessary to prevent harm to those who
visit the property” and that in such circumstances “possessor
liability would extend to injuries resulting from hazards [the
landscape company had] little or no control over.” Id. ¶ 29. As a
result, it held that “[a] party like [the landscape company] who
lacks the control necessary to undertake plenary care is not a
possessor, and thus has no duty as such.” Id.

¶15 Applying the principles of Hill and the Restatement
(Second) of Torts to the instant case, we conclude that the district
court did not err when it determined that the Restaurant did not
have sufficient control over the parking lot where MacFarlane
was injured to make it a “possessor” for purposes of premises
liability.

II. The Restaurant Is Not a Possessor of the Parking Lot for
Purposes of Premises Liability Because It Lacks
Requisite Control.

¶16 MacFarlane’s argument that the Restaurant controlled the
adjacent parking lot rests on the Lease itself. She contends that
the Restaurant’s status as lessee necessarily includes the right to
exclude others and the right to remediate dangerous conditions.
As proof of the latter, she points to the fact that the parking lot

20140991-CA 9 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

was part of the leased premises and that nothing in the Lease
“prevents [the Restaurant] from performing maintenance on the
parking lot area.” “When possible, the court should give effect to
all words and clauses of the lease, and construe the lease as a
whole.” Stevensen v. Bird, 636 P.2d 1029, 1031 (Utah 1981)
(citation and internal quotation marks omitted). A review of the
Lease as a whole indicates that although the “leased premises”
include the parking area adjacent to its restaurant building, the
Restaurant “exercise[s] insufficient control over the property to
be subject to premises liability.” Hill, 2013 UT 60, ¶ 7. In
particular, the Lease provides the Restaurant little ability to
“limit [its] exposure to liability” or “determine how broadly to
open [the parking lot] to others” by “weighing the economic
benefits against the costs (including increased liability)” for
doing so. See id. ¶ 25. It also affords the Restaurant significantly
“less than full control over [the parking lot]” to make repairs and
engage in necessary maintenance. See id. ¶ 26. As a result, we
conclude that the Restaurant has neither the right to exclude
persons from the parking lot nor the “plenary authority to
engage in whatever measures it might deem necessary to
prevent harm to those who visit the property.” See id. ¶ 29.

¶17 First, the provision of the Lease that relates directly to
parking plainly limits the Restaurant’s rights to exclude others.
See Holladay Towne Center, LLC v. Brown Family Holdings, LC, 2008
UT App 420, ¶ 10, 198 P.3d 990 (noting that a “[l]ease is a
contract,” which we interpret by “first look[ing] to the contract’s
four corners to determine the parties’ intentions, which are
controlling,” and further that “[i]n the absence of ambiguity, . . .
we determine the parties’ intentions as a matter of law under the
plain contractual language” (citations and internal quotation
marks omitted)). Provision Twenty-Two of the Lease states that
the Landlord “will provide all necessary parking for [the
Restaurant’s] customers and employees,” and specifies that
“[s]uch parking shall be non-exclusive.” (Emphasis added.) The
Lease also requires the nonexclusive parking area to be shared

20140991-CA 10 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

with others “in compliance with the Shopping Center criteria”
and certain agreements establishing easements in favor of other
shopping center tenants “which encumber the Leased
Premises.” 4 And the Restaurant not only agreed to be bound by
these other agreements, but it also acknowledged that the other
agreements “shall control” “[i]n the event of conflict between
[them and] the terms of this Lease.” Thus, the nonexclusive
character of the parking lot and the overlay of other easement
agreements to which it is subject plainly indicate that the
Restaurant lacks the right to exclude others from that portion of
the leased premises.

¶18 Second, the Lease does not authorize the Restaurant to
maintain or make necessary repairs to the parking area. The
Lease expressly states that the “Landlord shall be responsible for
the maintenance of all common areas,” and neither party on
appeal contests that the Landlord’s common-area maintenance
responsibilities include “all snow removal during the winter
months.” In other words, the entire onus of the maintenance
responsibility of the common areas, including the parking lot,
was placed on the Landlord. Further, when viewed as a whole,
the Lease does not grant the Restaurant the sort of plenary
ability to maintain, make repairs, and make changes to the
parking lot that Hill described as “pivotal” to this aspect of the
control analysis. 2013 UT 60, ¶ 26. Indeed, as in Hill, “[m]ost
major repairs are beyond the scope of [the Restaurant’s]
authority,” see id. ¶ 28, given that under the Lease, the Landlord
is contractually obligated to provide the “parking areas,”
including the “paving, striping, traffic signs, and drainage”—
improvements all of a type that seem to go directly to making
the parking lot safe. And any repair obligations the Restaurant

4. The Lease states that use of the leased premises (including the
parking lot portion) must comply with other easements and
restrictions encumbering the property.

20140991-CA 11 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

has in the parking lot appear to involve only “areas modified by
[it]”; there is no claim here that the Restaurant made any such
modifications. 5

¶19 In sum, the Lease defines the Restaurant’s entire
relationship to the parking lot as subordinate to the role and
authority of the Landlord, with the Restaurant’s rights in the
parking lot limited to a non-exclusive right of use in common
with others and with no attendant responsibility or
authorization for general maintenance, including snow removal.
Thus, MacFarlane’s reliance on the Lease as the source of the
Restaurant’s duty to her is misplaced, because the Lease does not
provide the Restaurant the “core capacities” of control required
of a possessor of land. See id. ¶ 27. The Lease neither permits the
Restaurant to exclude persons from the parking lot nor grants
the Restaurant plenary authority to make repairs and perform
necessary maintenance to protect its invitees from dangerous
conditions. Therefore, like the landscape company at issue in
Hill, the Restaurant “lacks the control necessary to undertake
plenary care.” See id. ¶ 29. As a result, the Restaurant “is not a
possessor, and has no duty as such.” See id.

5. In her reply brief, MacFarlane points us to provisions in the
Lease that she contends demonstrate that the Restaurant had
possessory control over the parking lot. In particular, she points
out that the Restaurant had “the right to construct a new
building on any part of the Leased Premises”; that it had the
“right to place signage on the Leased Premises”; and that it had
the “unilateral right to grant a utility easement over the Leased
Premises.” However, these are prospective, theoretical rights,
and MacFarlane has not persuaded us that the fact that the
Restaurant might acquire expanded rights in the future by
exercising certain lease options modified or enhanced the
Restaurant’s rights in the parking lot at the time of MacFarlane’s
accident.

20140991-CA 12 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

¶20 MacFarlane’s arguments do not persuade us that a
different conclusion is warranted. MacFarlane argues that the
Restaurant had a duty because it could have taken precautions to
maintain the ice in the parking lot immediately adjacent to its
building—that nothing in the Lease affirmatively prevented it
from doing so. But the theoretical ability of a lessee to engage in
certain prevention measures on a leased property cannot
establish a duty in the absence of a special relationship. And the
lack of a prohibition against doing some action in a lease cannot
itself create the sort of possessory interest that creates the special
relationship necessary to require a party to take affirmative
measures to avoid harm to another. MacFarlane’s argument
inverts the analytical sequence by assuming that the duty to act
to avoid harm exists before the required special relationship has
been established.

¶21 MacFarlane also contends that the Lease provision
making the Landlord responsible for the parking lot
maintenance amounts to an attempt by the Restaurant to
delegate to the Landlord its own duty to MacFarlane as a
possessor of property. She correctly points out that a “possessor
of property has ‘a nondelegable duty to keep the premises
reasonably safe for business invitees.’” (Quoting Sullivan v. Utah
Gas Serv. Co., 353 P.2d 465, 466 (Utah 1960).) But that is not what
happened here. Rather, the Lease’s allocation of responsibility to
the Landlord for parking lot maintenance is more accurately
characterized as the Landlord’s retention of common area
maintenance responsibility—as the landowner—than a delegation
of responsibility from the Restaurant. See Delegation of Duties,
Black’s Law Dictionary (10th ed. 2014) (“A transaction by which
a party to a contract arranges to have a third party perform the
party’s contractual duties.”). And delegation is an issue only if a
duty has arisen in the first place. See Price v. Smith’s Food & Drug
Ctrs., Inc., 2011 UT App 66, ¶ 26, 252 P.3d 365 (“A nondelegable
duty means that an employer of an independent contractor, by
assigning work consequent to a duty, is not relieved from liability

20140991-CA 13 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

arising from the delegated duties negligently performed.”
(emphasis added) (citation and internal quotation marks
omitted)). Because we have determined that the Restaurant had
no duty to MacFarlane here, it follows that the nondelegation
doctrine does not come into play in this case. 6

¶22 It is also worth noting that other jurisdictions have
applied similar reasoning to decide that a lessee in a multitenant
shopping center does not owe a duty to keep the common areas
of the shopping center free of hazards for invitees. See, e.g.,
Holmes v. Kimco Realty Corp., 598 F.3d 115 (3d Cir. 2010). In
Holmes, the invitee of a store in a multitenant shopping center
slipped and fell on ice while returning to his car after making
purchases at the store. Id. at 116–17. Like the present case, the
store’s lease provided that the tenants of the center and their
invitees “enjoyed a non-exclusive right to use the parking lot
and other common areas” and that the landlord was
“required . . . to maintain the Common Areas, including snow

6. MacFarlane also briefly contests the factual basis of the district
court’s ruling. She first argues that the district court improperly
relied on the affidavit of the Restaurant’s Vice President of
Operations to interpret the contract, and, second, suggests that it
is not clear that the parking lot is included as “common area”
subject to the common area maintenance provision because the
Lease did not specifically define what areas are designated as
“common area.” As to the first, we conclude that the Lease itself
supports the district court’s decision without consideration of
the affidavit and we therefore do not further address this issue.
As to the second, MacFarlane did not raise this contention in her
opening brief and only asserted it in passing—a mere three
sentences—in her reply brief. We “will not consider matters
raised for the first time in the reply brief.” Davis v. Davis, 2011
UT App 311, ¶ 14, 263 P.3d 520 (citation and internal quotation
marks omitted). Therefore, we decline to reach these arguments.

20140991-CA 14 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

removal,” for which each tenant “was required to pay a prorata
share of common area maintenance costs.” Id. at 117. The Third
Circuit Court of Appeals affirmed the grant of summary
judgment in favor of the store tenant, concluding that the state in
which the injury occurred “would not impose a duty on an
individual tenant for snow removal from the common areas of a
multi-tenant parking lot when the landlord has retained and
exercised that responsibility.” 7 Id. at 124–25.

7. See also, e.g., McDevitt v. Sportsman’s Warehouse, Inc., 255 P.3d
1166, 1167 (Idaho 2011) (holding that a tenant in a multitenant
shopping center was not liable for injury that occurred on the
sidewalk in front of the tenant’s store where the sidewalk was
not part of the leased premises, where the tenant did not have
control over the sidewalk, and where the tenant did not create
the hazard); Strahs v. Tovar’s Snowplowing, Inc., 812 N.E.2d 441,
443–47 (Ill. App. Ct. 2004) (holding that where the landlord was
responsible for snow and ice removal from the parking lot, the
lessee of a store in a multitenant shopping center did not owe
plaintiff a duty to remove ice in the parking lot or warn of the
danger, even though the lease provided that “certain portions of
the parking lot were for the use of [the tenant’s] customers and
employees” and that the tenant “had the right to give notice to
[the landlord] if [the landlord] failed to properly remove snow
and ice” or “remedy and fix the situation after 30 days” if the
landlord did not); Kandrac v. Marrazzo’s Market at Robbinsville, 57
A.3d 11, 12, 18 (N.J. Super. Ct. App. Div. 2012) (holding that “as
a general rule, when a commercial tenant in a multi-tenant
shopping center has no control or contractual obligation to
maintain a parking lot shared with other tenants, the common
law does not impose a duty upon the tenant to do so”); DePompo
v. Waldbaums Supermarket, Inc., 737 N.Y.S.2d 646, 646–47 (N.Y.
App. Div. 2002) (holding that a supermarket operating in a
multitenant shopping center was not liable to a customer who
fell in the parking lot where the supermarket “did not own,
(continued…)

20140991-CA 15 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

¶23 The Third Circuit also identified several policy
considerations that supported the decision not to impose a duty
on a lessee under such circumstances. The court reasoned that
“[t]o oblige tenants [in multitenant shopping centers] to
maintain common areas would result in substantially increased
costs with little added benefit,” particularly where “[l]andlords
already have great incentive to keep the parking areas of their
shopping centers free of snow, ice, and other hazards.” Id. at
123–24. It also noted that the “risk of not imposing a duty on [the
tenant] is minimal” where the landlord has a snow removal
program in place and that if the tenant had a duty to maintain
the parking lot, the result would be “duplicative effort and
interference with the landlord’s maintenance program” as well
as “uncertainty with respect to the areas of the parking lot for
which each tenant is responsible.” Id. at 124. Finally, the court
observed that injured customers were not left “without a
remedy,” because the landlord itself would generally have a
duty to the plaintiff. Id. These considerations are also relevant to
the present case, where the parking lot serves multiple tenants in
the Shopping Center and the Landlord has both an incentive and
a contractual responsibility to keep the parking lot free of snow
and ice.

¶24 We conclude that under the Lease, the Restaurant is not a
possessor of land in relation to the parking lot, and because it is
not, no special relationship existed between the Restaurant and
MacFarlane in relation to the condition of the parking lot at the
time of her accident. Thus, the district court correctly determined

(…continued)
occupy, possess, or put to a special use the parking lot where the
plaintiff fell, and . . . it had no right or obligation to maintain this
area” and where the “lessor retained the obligation to maintain
the parking lot and [the tenant] had the right to use the parking
lot with other tenants of the shopping center”).

20140991-CA 16 2016 UT App 158
 MacFarlane v. Applebee's Restaurant

that the Restaurant did not owe a duty to MacFarlane to clear the
ice or warn her of the dangerous condition in the parking lot,
and we affirm the court’s decision to grant summary judgment
in the Restaurant’s favor.

CONCLUSION

¶25 For the reasons stated above, we affirm the district court’s
grant of summary judgment in favor of the Restaurant.

20140991-CA 17 2016 UT App 158