2016 UT App 112
THE UTAH COURT OF APPEALS
JEFFREY WOOD,
Appellant,
v.
SALT LAKE CITY CORPORATION,
Appellee.
Memorandum Decision
No. 20150074-CA
Filed May 26, 2016
Third District Court, West Jordan Department
The Honorable Barry G. Lawrence
No. 120412801
Leonard E. McGee and Peter R. Mifflin, Attorneys
for Appellant
Samantha J. Slark, Attorney for Appellee
JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGE STEPHEN L. ROTH and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1
TOOMEY, Judge:
¶1 In October 2011, Jeffrey Wood seriously injured his left
arm when he tripped in a pothole on a city-owned street in Salt
Lake City.2 He sued Salt Lake City Corporation (the City) for
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
2. ‚On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard.‛ Johnson v. Higley, 1999
(continued…)
Wood v. Salt Lake City Corporation
negligence, claiming it failed to identify and repair the pothole.
The district court decided in favor of the City, finding that the
City did not have the necessary notice to be liable for not
repairing the pothole and thus concluded that the City had not
failed to exercise reasonable care. We affirm.
¶2 The pothole at issue was on the side of a residential street,
Blaine Avenue, near a cement curb. At the November 2014 bench
trial, to show the City had notice or should have had notice of
the pothole, Wood presented evidence that the pothole had been
there for approximately four months. He also presented
evidence that at some point there was spray paint on the asphalt
around the pothole and that Salt Lake City employees had been
on the street during the time the pothole existed. Specifically, the
City’s Streets Division director testified that street sweepers
swept Blaine Avenue five times and that sanitation workers
collected garbage approximately sixteen times in the four
months before Wood’s accident.
¶3 But the director also testified that the City does not spray
paint around potholes. And although sanitation workers and
street sweepers are asked to report potholes when they happen
to see them, the City does not require those workers to identify
and report potholes. The director further testified that street
sweepers and sanitation workers might not notice a pothole on
the side of the road and cannot be expected to actively look for
potholes because ‚they need to pay attention to what they’re
doing‛ and ‚[t]hey have their hands full performing that job.‛
Street sweepers, he testified, have ‚got to be making sure that
they don’t cause any accidents, they don’t run the kids down,
there are no pets in the way, they’re not hitting any parked cars
or items like that.‛ He also testified that sanitation workers
might not notice a pothole because they ‚have to drive a heavy
(…continued)
UT App 278, ¶ 2, 989 P.2d 61 (citation and internal quotation
marks omitted).
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Wood v. Salt Lake City Corporation
truck and make sure they park exactly where the arm can reach
and . . . pick up a can.‛
¶4 The court also heard testimony that the City’s engineering
department surveys and inspects the condition of city-owned
roadways on a regular basis and its asphalt-maintenance crews
actively look for and repair potholes every day. The director
testified that because they can appear overnight, potholes are ‚a
moving target‛ on the approximately 1,858 miles of city-owned
streets and thus he said the City cannot ‚guarantee that *its
streets are+ not going to have any potholes.‛ In an effort to
combat the problem, the director testified that the City monitors
trouble areas and responds to citizens’ and other employees’
reports of potholes through a telephone or web-based reporting
system. Moreover, the asphalt-maintenance crews look up and
down streets as they perform other work to identify and then
repair potholes they see.3 Once a pothole is reported, the City’s
policy is to repair it within twenty-four hours.
¶5 Finding that the City exercised reasonable care to
maintain its streets, the court stated,
The [C]ity has a . . . system in place that was able to
identify and fix 29,000 potholes in 2011. For
*Wood’s+ argument to prevail on this, we would
have to conclude that that wasn’t good enough . . . .
I cannot conclude that the *City’s+ system . . . was
unreasonable or that [it] should have done
something more to detect the potholes.
3. We note that the pothole at issue in this case was repaired
when a citizen reported another pothole on a nearby street and
before the City knew of Wood’s accident. When he was there to
repair the reported pothole, an asphalt-maintenance crew
member noticed the Blaine Avenue pothole and repaired it.
20150074-CA 3 2016 UT App 112
Wood v. Salt Lake City Corporation
Thus, as the fact-finder, the district court determined that,
although it found that the pothole existed for approximately four
months before Wood’s accident, the City was not negligent
because it had reasonable practices and procedures to identify
and repair potholes.
¶6 ‚To assert a successful negligence claim, a plaintiff must
establish that (1) defendant owed plaintiff a duty of care, (2)
defendant breached that duty, and . . . (3) the breach was the
proximate cause of (4) plaintiff’s injuries or damages.‛ B.R. ex rel.
Jeffs v. West, 2012 UT 11, ¶ 5 n.2, 275 P.3d 228. Although it ‚need
not keep its streets in a perfect or an absolutely safe condition,‛
Braithwaite v. West Valley City Corp., 860 P.2d 336, 338 (Utah
1993), a municipality has a duty to keep its streets in a
‚reasonably safe condition,‛ Trapp v. Salt Lake City Corp., 835
P.2d 161, 161–62 (Utah 1992).4
4. ‚*D+uty is a question of law determined on a categorical
basis . . . .‛ B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 25, 275 P.3d 228.
Wood argues the district court inappropriately evaluated the
City’s duty ‚based on case-specific factual determinations.‛ We
disagree. A review of the court’s determination makes clear that
it applied the duty that applies to all municipalities—the duty to
keep its streets and sidewalks in a reasonably safe condition. See
Braithwaite v. West Valley City Corp., 860 P.2d 336, 338 (Utah 1993)
(explaining ‚that it has long been the law in Utah . . . that a
municipality has a duty to exercise ordinary care to keep streets
which it has opened for travel and which it has invited the
public to use in a reasonably safe condition‛); Trapp v. Salt Lake
City Corp., 835 P.2d 161, 161–62 (Utah 1992) (explaining that
cities have a duty ‚to keep sidewalks and streets in a reasonably
safe condition‛). Then, based on the specific facts of this case, the
court reviewed whether the City had actual notice or
constructive notice and whether it breached its duty to maintain
the streets in a reasonably safe condition.
20150074-CA 4 2016 UT App 112
Wood v. Salt Lake City Corporation
¶7 If a plaintiff alleges that a defendant negligently failed to
remedy a temporary unsafe condition that the defendant did not
create, the plaintiff must present evidence to show that the
defendant had notice of the unsafe condition.5 See Jex v. JRA, Inc.,
2008 UT 67, ¶ 16, 196 P.3d 576; Goebel v. Salt Lake City S. R.R.,
2004 UT 80, ¶ 22, 104 P.3d 1185. ‚A plaintiff . . . must show that
the defendant had actual or constructive knowledge of the
condition before the accident.‛ Kerr v. City of Salt Lake, 2013 UT
75, ¶ 39, 322 P.3d 669. ‚Constructive knowledge may be proven
by demonstrating that the unsafe condition ‘existed long enough
that *the defendant+ should have discovered it.’‛ Id. (alteration in
original) (quoting Jex, 2008 UT 67, ¶ 18). ‚In the case of either
actual knowledge or constructive knowledge, the plaintiff must
also show that the defendant had sufficient notice of the unsafe
condition ‘that in the exercise of reasonable care *the defendant+
should have remedied it.’‛ Id. (alteration in original) (quoting
Goebel, 2004 UT 80, ¶ 19). Thus, the City can be held liable only if
it failed to exercise reasonable care to remedy the pothole after it
obtained actual or constructive notice of it.
¶8 ‚*W+hether a duty exists is a question of law which we
review for correctness.‛ Fishbaugh v. Utah Power & Light, 969 P.2d
403, 405 (Utah 1998) (citation and internal quotation marks
omitted). But ‚*i+t is a question of fact for the [fact-finder]
whether under all these circumstances the defendant had actual
or constructive notice.‛ Ohlson v. Safeway Stores, Inc., 568 P.2d
753, 755 (Utah 1977). ‚*A+ challenge to the findings of fact must
show that the evidence, viewed in a light most favorable to the
trial court, is legally insufficient to support the contested finding.
The challenging party must marshal all the supporting evidence
and demonstrate its insufficiency.‛ Cowley v. Porter, 2005 UT
App 518, ¶ 32, 127 P.3d 1224 (citation omitted). ‚*A+ party
challenging a factual finding or sufficiency of the evidence to
support a verdict will almost certainly fail to carry its burden of
5. The parties do not dispute that this is a temporary dangerous
condition, as opposed to a permanent dangerous condition.
20150074-CA 5 2016 UT App 112
Wood v. Salt Lake City Corporation
persuasion on appeal if it fails to marshal.‛ State v. Nielsen, 2014
UT 10, ¶ 42, 326 P.3d 645.
¶9 Wood makes no apparent challenge to the district court’s
factual findings. But to the extent Wood challenges the finding
that the City had no notice of the pothole, Wood’s analysis of the
authority and the facts is wholly lacking. Wood does not
marshal any of the supporting evidence. Rather, without
reference to the record, he merely states, ‚The court found that
the pothole at issue had existed for four months‛ and
‚[e]vidence was presented to the trial court that over 21 city
employees pass[ed] the pothole.‛6 He then asserts, ‚A
landowner has constructive notice of a dangerous condition
when the condition has ‘existed long enough that *the
landowner+ should have discovered it.’‛ (Alteration in original.)
(Quoting Jex, 2008 UT 67, ¶ 16.) He does not apply that case to
the facts of this case or explain how the court’s findings were
insufficient. See State v. Thomas, 961 P.2d 299, 305 (Utah 1998).
Thus, regarding the court’s factual findings, Wood has failed to
carry his burden of persuasion on appeal. See State v. Roberts,
2015 UT 24, ¶ 18, 345 P.3d 1226 (explaining that ‚like the
marshaling requirement imposed by rule 24(a)(9) of the Rules of
Appellate Procedure, our adequate briefing requirement‛ is a
‚‘natural extension of an appellant’s burden of persuasion.’‛
(quoting Nielsen, 2014 UT 10, ¶ 40)). We therefore conclude the
court did not err when it determined the City had no notice of
the pothole’s existence and did not breach its duty to maintain
the streets in a reasonably safe condition.
¶10 Nevertheless, Wood argues the district court’s decision
was incorrect as a matter of law. Specifically, he argues the court
erred ‚when it declined to find a duty on Salt Lake City’s
employees to report dangerous condition[s] they may observe
6. We note that Wood has not supported this proposition; it is
unclear from the record whether twenty-one city workers
actually passed the pothole.
20150074-CA 6 2016 UT App 112
Wood v. Salt Lake City Corporation
within the course and scope of their employment.‛ Wood’s
argument is far from clear, but he seems to argue that without
holding that all city employees have a duty to report unsafe
conditions, the court improperly failed to impute to the City the
sanitation workers’ and street sweepers’ knowledge of the
pothole. He asserts that a ‚corporation’s knowledge is entirely
‘imputed to it from the knowledge possessed by its officers and
agents.’‛ (Quoting Lowe v. April Indus., Inc., 531 P.2d 1297, 1299
(Utah 1974).) Thus, he argues, the ‚correct duty analysis turns on
whether employees of a municipal corporation impute notice to
the municipal corporation of temporary dangerous conditions
within the municipality.‛ Although we agree that an agent’s
knowledge may be imputed to its principal, we are not
persuaded by Wood’s argument.
¶11 Wood asks us to assume that because the court did not
find the City had constructive notice, it did not consider what
the street sweepers and sanitation workers knew. But, again,
whether the City had constructive notice of the pothole is a
question of fact, which Wood failed to sufficiently challenge.
There was no evidence any City employee knew of the pothole.
Although the court declined to hold that all of the City’s public
works employees have a duty to report potholes when they see
them, nothing in the record suggests the court failed to consider
whether the sanitation workers and street sweepers knew of or
should have known of the pothole. To the contrary, it found
there was no evidence that ‚show*ed+ any City worker identified
and reported the pothole prior to *Wood’s+ fall.‛ (Emphasis
added.) And the court expressly considered whether the
sanitation workers and street sweepers should have known
about the pothole when it determined that ‚*s+anitation workers
and street sweepers should be most concerned with doing the
job they are supposed to be doing‛ and to ‚charge them with the
additional task of pothole inspection is not reasonable and could
be unsafe.‛ The court explained it had ‚difficulty concluding the
City should have discovered and repaired the pothole‛ when
Blaine Avenue residents ‚did not think it was important enough
to report.‛ It further concluded that, considering the staggering
20150074-CA 7 2016 UT App 112
Wood v. Salt Lake City Corporation
number of potholes the City repaired in 2011, the City’s
allocation of resources for pothole repair was reasonable and the
court would not require the City to do more. Therefore, Wood’s
argument fails because without evidence that an employee had
actual notice or constructive notice of the pothole, he cannot
demonstrate the court failed to impute a worker’s notice to the
City.
¶12 In conclusion, although it is regrettable that Wood
suffered this injury, ‚*n+ot every accident that occurs gives rise
to a cause of action upon which the party injured may recover
damages from someone. Thousands of accidents occur every day
for which no one is liable in damages, and often no one is to
blame, not even the ones who are injured.‛ Schnuphase v.
Storehouse Mkts., 918 P.2d 476, 479–80 (Utah 1996) (alteration in
original) (citation and internal quotation marks omitted). For the
aforementioned reasons, we conclude the district court did not
err when it determined the City did not negligently fail to repair
the pothole. We therefore affirm.
20150074-CA 8 2016 UT App 112