There is good news for contractors in Utah who take care to appropriately mark, sign and warn of hazards. Of course it does not mean they will avoid being sued. But in Coburn v. Whitacker Construction Co., 2019 UT 24, the Utah Supreme Court recently reaffirmed Utah’s embrace of the open and obvious danger rule, affirming a summary judgment in favor of a contractor whose warning signs and orange netting were consciously ignored by a plaintiff who tripped over them and suffered injuries.
In July 2018, a woman and her husband went for a walk on a trail in a recreational area. At the trail head, a contractor had posted a sign warning that there were construction activities in the area and that portions of the trail were closed. The contractor had also placed orange netting across the trail to deter people from accessing the construction site. The woman and her husband saw both the sign and the netting strung between two orange barrels. The woman chose to try to step over the netting, tripped, fell and injured her arm and shoulder.
The woman sued the contractor for negligence. After obtaining admissions that the woman had seen the sign, the barrels and the netting, the contractor filed a motion for summary judgment, claiming that the open and obvious danger rule in Utah barred such a suit. The trial court granted the motion for summary judgment, and on appeal the Utah Court of Appeals affirmed it. On a petition of certiorari to the Utah Supreme Court, the Utah Supreme Court affirmed Utah’s adoption of Section 343 and 343A of the Restatement (Second) of Torts. In short, “[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, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Resisting arguments that only a jury could decide what is open and obvious, and finding that the arguments to overturn precedent were unpersuasive, the Utah Supreme Court let the ruling stand. Of some import to the Court was the fact that the plaintiff and her husband were able to safely traverse the netting on the way back to their car, thus demonstrating that a “reasonable person exercising ordinary attention, perception and intelligence” could avoid the danger.
Construction can create hazards that may be unavoidable and thus need to be warned against. The irony in the Coburn case is that it was the warnings themselves, and not the dangers, that led to harm. But it is heartening that a contractor who conscientiously takes reasonable and visible steps to warn of those hazards can avoid liability, even if getting there may ultimately require three levels of judicial review.