2015 UT App 105
_________________________________________________________
THE UTAH COURT OF APPEALS
AVIVA GOWE,
Plaintiff and Appellant,
v.
INTERMOUNTAIN HEALTHCARE, INC.,
Defendant and Appellee.
Memorandum Decision
No. 20130884-CA
Filed April 30, 2015
Second District Court, Ogden Department
The Honorable Noel S. Hyde
No. 110902127
Steve S. Christensen, David M. Corbett, and Craig
L. Pankratz, Attorneys for Appellant
Peter H. Christensen, Kathryn T. Smith, and
Stephen J. Trayner, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and JOHN A.
PEARCE concurred.
CHRISTIANSEN, Judge:
¶1 Aviva Gowe was injured when she slipped and fell in the
entryway of an Intermountain Healthcare clinic. She filed suit
against Intermountain Healthcare, Inc. (IHC), alleging that she had
slipped on a puddle of rainwater that IHC negligently allowed to
accumulate on the tile floor. The district court granted summary
judgment in favor of IHC, concluding that Gowe had failed to
present any evidence that IHC knew that the puddle existed or had
an opportunity to discover the unsafe condition before Gowe’s fall.
Gowe v. Intermountain Healthcare, Inc.
¶2 On appeal, Gowe argues that IHC’s actual or constructive
notice of the unsafe condition could be reasonably inferred from
the evidence she presented in opposition to summary judgment.
We conclude that Gowe has failed to demonstrate error in the
district court’s summary judgment ruling, and we therefore affirm.
¶3 “Summary judgment is proper only if ‘there is no genuine
issue as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law.’” Francis v. State, 2013 UT 65, ¶ 19,
321 P.3d 1089 (omission in original) (quoting Utah R. Civ. P. 56(c)).
“[W]e review a district court’s grant of summary judgment for
correctness, considering only whether the trial court correctly
applied the law and correctly concluded that no disputed issues of
material fact existed.” Id. (citation and internal quotation marks
omitted). And we view “the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party.” Orvis v. Johnson, 2008 UT 2, ¶ 19, 177 P.3d 600 (citation and
internal quotation marks omitted). Gowe asserts that the district
court erred in granting summary judgment, because “[t]here is a
genuine issue of material fact as to whether IHC had actual or
constructive knowledge of the puddle.”
¶4 “The owner of a business is not a guarantor that his business
invitees will not slip and fall.” Preston v. Lamb, 436 P.2d 1021, 1023
(Utah 1968). Rather, a business owner “‘is charged with the duty to
use reasonable care to maintain the floor of his establishment in a
reasonably safe condition for his patrons.’” Jex v. JRA, Inc., 2008 UT
67, ¶ 25, 196 P.3d 576 (quoting Schnuphase v. Storehouse Mkts., 918
P.2d 476, 478 (Utah 1996)). Thus, “[t]he mere presence of a slippery
spot on a floor does not in and of itself establish negligence.” Price
v. Smith's Food & Drug Ctrs., Inc., 2011 UT App 66, ¶ 8, 252 P.3d 365
(citation and internal quotation marks omitted). To prevail in a slip-
and-fall case, a plaintiff must generally show the presence of a
permanent unsafe condition for which the defendant was
responsible or a temporary unsafe condition that the defendant had
notice of and an opportunity to remedy. Schnuphase, 918 P.2d at
478.
20130884-CA 2 2015 UT App 105
Gowe v. Intermountain Healthcare, Inc.
¶5 Gowe argues that the puddle in the entryway of the clinic
was a temporary unsafe condition and that she put forward
sufficient evidence from which a jury could find that IHC had
notice of the puddle.1 Under a temporary-unsafe-condition theory,
a plaintiff must show that the defendant had actual or constructive
notice of the unsafe condition and that sufficient time elapsed after
the defendant obtained such knowledge that the defendant should
have remedied the condition. Jex, 2008 UT 67, ¶ 16. Gowe argues
that the evidence she presented at summary judgment was
adequate to create an issue of fact material to either actual and
constructive notice.
¶6 Gowe first contends that the evidence she presented in
opposition to summary judgment was sufficient to create an issue
of fact as to whether IHC had actual notice of the puddle. To
establish actual notice, Gowe needed to present evidence that the
puddle presented a hazard of which IHC or its employees had
actual knowledge. See id. She asserts that IHC’s actual knowledge
of the puddle can be inferred from evidence that IHC knew the
clinic’s floor could become wet during inclement weather, that
clinic employees were responsible for keeping the waiting room in
order, that the clinic’s receptionist was in a position to see the
water, that the water was on the floor long enough to be
discovered, and that the size of the water puddle and placement of
mats near the water were such that an IHC employee must have
seen the water.
¶7 We do not reach the merits of this claim, because Gowe
failed to present this argument to the district court in her
opposition to summary judgment and thus failed to preserve it for
appeal. We generally do not address unpreserved arguments
raised for the first time on appeal. Jacob v. Bezzant, 2009 UT 37, ¶ 34,
1. Before the district court, Gowe argued primarily that IHC had
created a permanent dangerous condition through a “method of
operation” that involved negligent placement of carpet mats in the
entryway of the clinic. Gowe has abandoned this argument on
appeal.
20130884-CA 3 2015 UT App 105
Gowe v. Intermountain Healthcare, Inc.
212 P.3d 535. To preserve an argument for appellate review, the
appellant must first present the argument to the district court “in
such a way that the court has an opportunity to rule on [it].”
Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (alteration in
original) (citation and internal quotation marks omitted).
¶8 In the district court, Gowe’s principal theory of her case was
that IHC’s placement of the mats, not the puddle itself, was the
unsafe condition that resulted in her injuries. Her only argument
that IHC had actual notice of “the water accumulation itself” was
a claim that the placement of the mats in the lobby “suggest[ed]
that [IHC] may have moved the mat in order to clean up water
accumulation, but had not cleaned it up yet.” As a result, Gowe’s
opposition to summary judgment identified no other facts or
evidence in support of her actual-notice theory. She did not present
any evidence that IHC knew the floor could become slippery or
that the receptionist or any other IHC employee was in a position
to or had a responsibility to notice the puddle. While she presented
evidence below that the puddle was “eight inches across,” she did
not argue to the district court, as she does on appeal, that the size
of the puddle, the amount of time it had been on the floor, or the
placement of the mats were such that an IHC employee must have
actually seen the puddle before Gowe’s fall.
¶9 The only evidence that Gowe argued was material to actual
notice was her testimony that, on the day of the accident, one of the
lobby mats “was much farther away from the door than it had been
on previous occasions.” While Gowe argued below that the
placement of the mats “suggest[ed] that [IHC] may have moved
the mat in order to clean up water accumulation” and that IHC
therefore had actual knowledge of the puddle, she has not renewed
this argument on appeal. Thus, Gowe never raised to the district
court the actual-notice argument she now pursues on appeal.2 That
2. We recognize that Gowe raised the “issue” of actual notice
below. However, our supreme court has explained that, whether
termed issues, arguments, theories, or claims, all matters must be
(continued...)
20130884-CA 4 2015 UT App 105
Gowe v. Intermountain Healthcare, Inc.
argument was therefore never presented to the district court in
such a way that the court had an opportunity to rule on in, and we
will not reverse the district court’s summary judgment ruling on
that basis. See Patterson, 2011 UT 68, ¶ 12.
¶10 Gowe also argues that IHC had constructive notice of the
puddle. Constructive notice is generally imputed to a business
owner when “the condition had existed long enough that he should
have discovered it.” Schnuphase v. Storehouse Mkts., 918 P.2d 476,
478 (Utah 1996) (citation and internal quotation marks omitted).
“To establish that a temporary condition existed long enough to
give a store owner constructive notice of it, a plaintiff must present
evidence that would show . . . that it had been there for an
appreciable time.” Jex v. JRA, Inc., 2008 UT 67, ¶ 19, 196 P.3d 576
(omission in original) (citation and internal quotation marks
omitted). However, we will not impute constructive notice “where
there is no evidence regarding the amount of time the unsafe
condition has existed.” Id.
¶11 Gowe has not directed us to any record evidence regarding
the amount of time the puddle had existed, such as witness
testimony or floor-inspection logs that would tend to identify a
range of time that the puddle had been present. See Price v. Smith's
Food & Drug Ctrs., Inc., 2011 UT App 66, ¶¶ 14, 17, 252 P.3d 365.
Rather, Gowe relies on a New York case for the proposition that
“[a] puddle in the entry way of a building after inclement weather
2. (...continued)
first presented to the district court to preserve them for appeal, as
we will not reverse the district court for a reason not first presented
to that court. See Patterson v. Patterson, 2011 UT 68, ¶¶ 14–17, 266
P.3d 828. Presentation of one argument or theory to the district
court does not preserve for appeal any alternative arguments, even
regarding the same issue. See Salt Lake County v. Butler, Crockett &
Walsh Dev. Corp, 2013 UT App 30, ¶ 32, 297 P.3d 38. Thus, because
Gowe never presented to the district court the theory of actual
notice she has raised on appeal, her argument against the grant of
summary judgment grounded in that theory is not preserved.
20130884-CA 5 2015 UT App 105
Gowe v. Intermountain Healthcare, Inc.
creates ‘a reasonable inference . . . that the water accumulated
gradually’ and that the puddle was on the ground long enough to
be discovered.” (Quoting Padula v. Big V Supermarkets, Inc., 570
N.Y.S.2d 850, 851 (App. Div. 1991).) However, in Padula, the
plaintiff had submitted evidence not only that the area of the
accident was wet and that it had snowed before the accident, but
also that the accident occurred “in a heavy traffic area where
customers entered from the slushy parking lot with wet shopping
carts.” 570 N.Y.S.2d at 851. There, the court concluded that, given
this evidence, “[a] reasonable inference could be drawn that the
water accumulated gradually by the dripping from the wet carts
and from customers’ footwear.” Id. Thus, the Padula court had
evidence before it that water had been brought into the store in a
particular fashion and would have accumulated over time. Here,
Gowe presented no evidence to explain how water may have
entered IHC’s clinic that could provide the basis for an inference of
gradual accumulation. Indeed, the only record evidence even
tenuously related to members of the public tracking water into the
clinic that day is Gowe’s testimony that it had rained that day but
her own sandals were dry when she entered the clinic.3
¶12 Moreover, it is not clear that Padula’s approach to
constructive notice is viable under Utah law. In Jex v. JRA, Inc., our
supreme court rejected a plaintiff’s constructive-notice argument,
concluding that the plaintiff presented insufficient evidence that a
puddle had been present for an appreciable length of time. 2008 UT
67, ¶ 21, 196 P.3d 576. There, the plaintiff relied on evidence that
store employees had been shoveling snow that morning and that
the deep tread of their shoes was likely to track snow into the store.
3. Gowe asserts in her brief that the puddle had formed “in a high-
traffic area where the Clinic’s patients entered.” However, she has
pointed us to no record evidence of the volume of traffic at the
clinic in general, or through this entrance on the date of the
accident in particular, that could provide some basis for “[a]
reasonable inference . . . that the water accumulated gradually by
the dripping from . . . customers’ footwear.” See Padula v. Big V
Supermarkets, Inc., 570 N.Y.S.2d 850, 851 (App. Div. 1991).
20130884-CA 6 2015 UT App 105
Gowe v. Intermountain Healthcare, Inc.
Id. However, the supreme court observed that “while these
arguments bear upon who created the puddle, they do little to
establish how long it had been there.” Id. The court concluded that
where “conjecture and speculation is the only way to determine the
length of time the puddle was on the floor,” constructive notice
could not be imputed to the defendants. Id. (citation and internal
quotation marks omitted).
¶13 Here, even if we accept Gowe’s assertion that the puddle
accumulated in the clinic’s entryway as rainwater dripped from
patrons’ shoes, we conclude that this argument “bear[s] upon who
created the puddle” but does “little to establish how long it had
been there.” See id. Gowe’s own testimony regarding the rain
establishes only that “it had been raining at some point that day”
and that she did not know when it had stopped. Gowe has simply
not put forward evidence to show the puddle had been present for
“an appreciable time” before the accident. Id. ¶ 19. Because the
evidence is insufficient for a finding of constructive notice without
resort to “conjecture and speculation,” we conclude that Gowe has
failed to establish a disputed issue of material fact that would
preclude summary judgment on her constructive-notice argument.
See id.¶ 21 (citation and internal quotation marks omitted).
¶14 We conclude that Gowe failed to present legally sufficient
evidence that IHC had constructive notice of the puddle to create
a genuine issue of material fact for trial. Gowe did not preserve her
challenge to the district court’s ruling that she failed to
demonstrate actual notice. Because Gowe has not shown that IHC
had notice of the temporary unsafe condition, she cannot
demonstrate that IHC breached a duty owed to her. IHC was
therefore entitled to judgment as a matter of law. We affirm the
district court’s grant of summary judgment to IHC.
20130884-CA 7 2015 UT App 105