Utah Appellate Court Shoots Down Open and Obvious Defense

A few years ago, our firm signed up a woman who fell on a makeshift step her landlord Alan Arbuckle had set up at a house he rented out in Magna, Utah. She ended up requiring surgery for her injuries and still has lingering issues stemming from this fall. Early on, we tried to resolve the case without filing but were denied by the insurance carrier who offered nothing for it. So we filed suit against the landlord and proceeded forward.

During litigation and during the landlord’s deposition, the landlord actually denied that he placed the makeshift step outside the rear patio door and instead claimed he had placed cinderblocks outside the back patio door to act as a step. So much safer! As the case got closer to trial, the defense team filed a motion for summary judgment claiming that the step my client fell on was an “open and obvious” hazard and that under Utah law, a landlord has no responsibility for this. Unfortunately, the trial court agreed with the defense and granted their motion to dismiss the case.

Not satisfied with what we thought was an unfair ruling, we appealed the case. A few weeks ago, the Utah Court of Appeals issued its opinion and reversed the trial court’s ruling. Along with the reversal, the Court of Appeals provided valuable guidance for Utah attorneys who litigate premises liability cases like this one.

In its ruling, the court found that the makeshift step our client had complained to the landlord about on multiple occasions, was in fact an “open and obvious” hazard. But that determination, the court said, did not end the analysis. (“Determining that danger is open and obvious is not the end of the analysis in assessing whether a defendant breached his duty of care.”) Downham v. Arbuckle, 2021 UT App 121, ¶ 33. The court still needs to consider whether a landlord might suspect that its tenant will suffer physical injury from the hazard. And this could happen if the tenant (or invitee in legal parlance) may be “unaware, may forget, or may reasonably encounter” the defective condition despite its obviousness.

Thus, despite the obviousness of the hazard, if reasonable minds could differ on whether the tenant might still use the defective step because the benefits at the time might outweigh the risks, then the case should not be decided on summary judgment but should instead go to a jury for their review. More specifically, if a landowner such as Arbuckle “should have anticipated” that a tenant or invitee might still encounter the danger, then they will remain on the hook for foreseeable injuries that might result from the hazard.

Ron Kramer is an attorney practicing personal injury law in West Jordan and throughout Utah.