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CV1101 Premises Liability Committee Notes.
CV1102 Duty to invitee.

[Name of plaintiff] claims that [name of defendant] failed to use reasonable care to [conduct [describe activity]] [discover [describe condition]] on [name of defendant]'s property and to repair, replace, or adequately warn about it. To succeed in this claim, [name of plaintiff] must prove that [name of defendant]:

[(1) held [his] property open to the public or that [name of defendant] held [his] property open for a purpose directly or indirectly connected to [his] business; and]

(2) knew or should have known of [describe activity or condition]; and

(3) knew or should have known that [describe activity or condition] presented an unreasonable risk of harm; and

(4) knew or should have known that [name of plaintiff] would not discover [describe activity or condition] or that [name of plaintiff] would fail to protect [himself].

In deciding whether [name of defendant] used reasonable care to discover or correct the [describe activity or condition], you may consider, among other factors, the following:

[(a) the location of the property; or]

[(b) the likelihood that someone would come onto the property in the same manner as [name of plaintiff] did; or]

[(c) the likelihood of harm; or]

[(d) the probable seriousness of the harm.]

References

Porter v. Farmington City Corp., 2014 UT App 12, 318 P.3d 1198.
Jex v. JRA, Inc., 2008 UT 67, 196 P.3d 576.
Hale v. Beckstead, 2005 UT 24, 116 P.3d 263.
Berrett v Albertsons, 2012 UT App 371.
Gonzalez v. Russell Sorensen Construction, 2012 UT App 154, extends this principal to a general contractor who controls a job site.
Carlile v. Wal-Mart, 2002 UT App 412, 61 P.3d 287.
Canfield v. Albertsons, Inc., 841 P.2d 1224 (Utah App 1992).
Glenn v. Gibbons & Reed Co., 265 P.2d 1013 (1954).
Restatement (Second) of Torts sect.343 (1965).

MUJI 1st Instruction

11.2; 11.3

Committee Notes

If the status of the plaintiff as an invitee is not disputed, the court does not need to give bracketed paragraph (1) to the jury. For examples of an invitee, see the Restatement (Second) of Torts Section 343 (1965).

Instruct only on factors (a) - (d) for which there is evidence.

CV1103 Duty to licensee for an activity on the property.

[Name of plaintiff] claims that [name of defendant] failed to use reasonable care in [describe activity] on [name of defendant]'s property. To succeed in this claim, [name of plaintiff] must prove that:

[(1) [name of plaintiff] entered or remained on [name of defendant]'s property with [name of defendant]'s express or implied permission; and]

(2) [name of defendant] knew or had reason to know that [name of plaintiff] would not realize the danger involved in [describe activity]; and

(3) [name of plaintiff] did not know or have reason to know of [describe activity] or did not know or have reason to know of its danger.

References

Berrett v Albertsons, 2012 UT App 371.
Gonzalez v. Russell Sorensen Construction, 2012 UT App 154, extends this principal to a general contractor who controls a job site.
Lambert v. Western Pac. R. Co., 135 Cal. App. 81, 26 P.2d 824 (1933).
Restatement (Second) of Torts sect.341 Activities Dangerous to Licensees (1965).

MUJI 1st Instruction

11.4; 11.5

Committee Notes

If the status of the plaintiff as a licensee is not disputed, the court does not need to give bracketed paragraph (1) to the jury.
CV1104 Duty to licensee for a condition on the property.

[Name of plaintiff] claims that [name of defendant] failed to use reasonable care to repair, replace, or adequately warn about [describe condition] on [name of defendant]'s property. To succeed in this claim, [name of plaintiff] must prove that:

[(1) [name of plaintiff] went onto [name of defendant]'s property with [name of defendant]'s express or implied permission; and]

(2) [name of defendant] knew or had reason to know of [describe condition]; and

(3) [name of defendant] knew or had reason to know that [describe condition] presented an unreasonable risk of harm; and

(4) [name of defendant] knew or had reason to know that [name of plaintiff] would not discover [describe condition] or realize its danger; and

(5) [name of plaintiff] did not discover [describe condition] or did not realize its danger.

References

Berrett v Albertsons, 2012 UT App 371.
Gonzalez v. Russell Sorensen Construction, 2012 UT App 154, extends this principal to a general contractor who controls a job site.
Lambert v. Western Pac. R. Co., 135 Cal. App. 81, 26 P.2d 824 (1933).
Stevens v. Salt Lake County, 25 Utah 2d 168, 171, 478 P.2d 496 (1970).
Restatement (Second) of Torts sect.342 Dangerous Conditions Known to Possessor (1965).

MUJI 1st Instruction

11.4; 11.6

Committee Notes

If the status of the plaintiff as a licensee is not disputed, the court does not need to give bracketed paragraph (1) to the jury.
CV1105 General duty to a trespasser.

If you find that [name of plaintiff] entered or remained on [name of defendant's] property without [invitation / permission / privilege / consent], then, generally, [name of defendant] owes [name of plaintiff] no duty to use reasonable care to put the property in a safe condition or to use reasonable care to [describe activity] so as not to endanger [name of plaintiff].

[However, ... [As applicable, follow with:

Instruction CV1105A. Duty to a trespasser for an activity on the property.

Instruction CV1105B. Duty to trespasser for an artificial condition on the property.

Instruction CV1105C. Duty to trespassing child for an attractive nuisance on the property.]

References

Kessler v. Mortenson, 2000 UT 95, 16 P.3d 1225, 1230 (rejecting 'allurement' basis for attractive nuisance doctrine in Brown v. Salt Lake City, 33 Utah 222, 93 P. 570, 572 (1908)).
Connor v. Union Pac. R.R. Co., 972 P.2d 414, 417 (Utah 1998).
Whipple v. Am. Fork Irr. Co., 910 P.2d 1218, 1220 (Utah 1996) (citing and quoting Restatement (Second) of Torts Sections 333-339).

MUJI 1st Instruction

11.7; 11.8

Committee Notes

The court in Whipple adopted the Restatement Sections 333-339 as the "more accurate" statement of the law regarding the duty owed by a possessor of land. While a possessor does not generally owe a duty to trespassers, there are several exceptions enumerated in the Restatement Sections 334-339. Only those exceptions at issue should be given as part of the jury instructions. The last exception is the 'attractive nuisance doctrine,' formerly MUJI 11.1. The conditions of the attractive nuisance doctrine, as described in Section 339, impose a reasonable balance between the interests of the property owner and the interests of children.

Committee Amended

CV1105A Duty to a trespasser for an activity on the property.

... [name of plaintiff] claims that [name of defendant] owes a duty to use reasonable care in [describe activity or force]. To succeed in this claim, [name of plaintiff] must prove that:

(1) [name of defendant] knew or should have known:

[(a) that trespassers constantly intruded upon a limited area of the property in dangerous proximity to [describe activity or force]; or]

[(b) that [name of plaintiff] was on the property in dangerous proximity to [describe activity or force];] and

(2) [name of defendant] was in immediate control of [describe activity or force]; and

(3) [name of plaintiff] did not discover [describe activity or force] or did not realize its danger.

References

Restatement (Second) of Torts Section 334 (1965).
Restatement (Second) of Torts Section 336 (1965).
Restatement (Second) of Torts Section 338 (1965).

Committee Notes

This instruction should be preceded by Instruction CV1105. General duty to a trespasser.

Instruct the jury on paragraphs (1)(a) and/or (1)(b), depending on the evidence.

CV1105B Duty to trespasser for an artificial condition on the property.

... [name of plaintiff] claims that [name of defendant] owes a duty to use reasonable care to warn about [describe condition]. To succeed in this claim, [name of plaintiff] must prove that:

(1) [name of defendant] knew or should have known:

[(a) that trespassers constantly intruded upon a limited area of the property in dangerous proximity to [describe condition]; or]

[(b) that [name of plaintiff] was on the property in dangerous proximity to [describe condition];] and

(2) [describe condition] is an artificial condition that [name of defendant] created or maintained; and

(3) [name of defendant] knew that coming in contact with [describe condition] likely would cause death or seriously bodily harm; and

(4) [describe condition] is of such a nature that [name of defendant] had reason to believe that trespassers would not discover it or would not realize its danger; and

(5) [name of plaintiff] did not discover [describe condition] or did not realize its danger.

References

Restatement (Second) of Torts Section 335 (1965).
Restatement (Second) of Torts Section 337 (1965).

Committee Notes

This instruction should be preceded by Instruction CV1105. General duty to a trespasser.

Instruct the jury on paragraphs (1)(a) and/or (1)(b), depending on the evidence.

CV1105C Duty to trespassing child for an attractive nuisance on the property.

... [name of plaintiff] claims that [name of defendant] owes a duty to use reasonable care to eliminate the danger from [describe condition] or to protect children from the danger. To succeed in this claim, [name of plaintiff] must prove that:

(1) [describe condition] is an artificial condition; and

(2) [name of defendant] knew or had reason to know that [describe condition] involves an unreasonable risk of death or serious bodily harm; and

(3) [name of defendant] knew or had reason to know that children were likely to intrude on the property in dangerous proximity to [describe condition]; and

(4) [name of child], because of [his] youth, did not discover [describe condition] or did not realize its danger; and

(5) the benefit to [name of defendant] of maintaining [describe condition] and the burden of eliminating the danger are slight compared to the risk to children.

References

Restatement (Second) of Torts Section 339 (1965).

Committee Notes

This instruction should be preceded by Instruction CV1105. General duty to a trespasser.
CV1106 Duty to persons on a public way.

[Name of plaintiff] claims that [name of defendant] failed to use reasonable care to discover conditions creating an unreasonable risk of harm to persons on [describe public way] and to repair the condition. To succeed in this claim, [name of plaintiff] must prove that:

(1) [name of defendant] created [describe condition] or that it was created with [name of defendant]'s express or implied consent; and

(2) [name of defendant] did not use reasonable care to make [describe condition] safe after [name of defendant] knew or should have known of it; and

[(3) [name of defendant] knew or should have known that [name of plaintiff] might leave the [describe public way] and encounter the [describe condition.]

References

Schulz v. Quintana, 576 P.2d 855, 856 (Utah 1978).
Restatement (Second) of Torts, Sections 364-370 (1965).

Committee Notes

Bracketed paragraph (3) should be given for conditions existing wholly on the land of the defendant, but which a plaintiff may only encounter through an innocent deviation from the public way, e.g., a trench adjacent to a public sidewalk which the plaintiff may step into in the dark by virtue of having left the public sidewalk.
CV1107 Duty of landlord.

[Name of plaintiff] claims that [name of defendant] is liable for [name of plaintiff]'s harm. To succeed in this claim, [name of plaintiff] must prove that:

[(1) [name of defendant] is the landlord for the property; and that]

(2) [name of defendant] failed to use reasonable care to keep the rented property:

[(a) safe and suitable for its intended use; or]

[(b) free of defects or dangerous conditions of which [name of defendant] knew or should have known would expose others to an unreasonable risk of harm.]

References

Williams v. Melby, 699 P.2d 723 (Utah 1985) (quoting Stephenson v. Warner, 581 P.2d 567 (Utah 1978)).
Hall v. Warren, 632 P.2d 848 (Utah 1981).
Gregory v. Fourthwest Investments, Ltd., 754 P.2d 89, 91 (Utah App. 1988).
English v. Kienke, 848 P.2d 153 (Utah 1993), aff'g 774 P.2d 1154 (Utah App. 1989).
Darrington v. Wade, 812 P.2d 452, 458 (Utah App. 1991).
Utah Air Quality Bd. v. Truman, 2000 UT 67, para. 28, 8 P.3d 266, 272.

MUJI 1st Instruction

11.10

Committee Notes

If the defendant's role as a landlord is not in dispute, the court does not need to instruct the jury with bracketed paragraph (1). Instruct the jury on bracketed paragraphs (2)(a) and/or (2)(b) as supported by the evidence.

Under Utah law "the landlord's common law duty has been expanded" and is not limited by the "artificial common law categories" of invitee, licensee or trespasser. Gregory v. Fourthwest Investments, Ltd., 754 P.2d 89, 91 (Utah App. 1988). Utah law recognizes that "a landlord may be subject to a duty of care imposed by a statute or ordinance." Hall v. Warren, 632 P.2d 848, 850 (Utah 1981). In such circumstances, counsel and the court should consider adding other duties based on these laws. Counsel may also consider use of Instruction CV212. Violation of a safety law.

Court and counsel should also consider including additional language as needed such as a duty to inspect under Darrington v. Wade, 812 P.2d 452, 458 (Utah App. 1991)("landlords who lease their property for public admission have a higher duty than run-of-the-mill landlords.")

Previous MUJI 11.13 and 11.14 have been eliminated as they involve a situation subject to resolution as a matter of law. In effect, if the condition is created by the tenant or in an area not subject to the control of the landlord, there is no duty and hence no question for the jury to resolve. See, e.g. English v. Kienke, 848 P.2d 153 (Utah 1993), aff'g 774 P.2d 1154 (Utah App. 1989)(summary judgment affirmed, no duty by landlord); Stephenson v. Warner, 581 P.2d 567 (Utah 1978) (directed verdict granted in favor of landlord, no evidence that landlord aware of or created the condition); and, Williams v. Melby, 699 P.2d 723 (Utah 1985) (overruling summary judgment on the grounds that the dangerous condition was located within area subject to control of the landlord).

CV1108 Duty of property seller.

[Name of plaintiff] claims that [name of defendant] is liable for [name of plaintiff]'s physical injury. To succeed in this claim, [name of plaintiff] must prove that:

[(1) [name of defendant] sold the property;]

[(2) [name of plaintiff] [purchased the property / was on the property with [name of purchaser]'s permission];]

(3) [name of defendant] knew or had reason to know of [describe condition] on the property and the risk involved;

(4) [name of defendant] had reason to believe that [name of purchaser] would not discover [describe condition] or realize the risk;

(5) [name of purchaser did not discover [describe condition]; and

(6) [name of defendant] failed to disclose [describe condition] to [name of purchaser].

References

Loveland v. Orem City Corp., 746 P.2d 763 (Utah 1987).
Restatement (Second) of Torts Section 353 (1964).

Committee Notes

The committee adopts this instruction as a plain language replacement for MUJI 11.15. The committee notes, however, that Loveland v. Orem City Corp., 746 P.2d 763 (Utah 1987) was a split decision, which upheld a motion for summary judgment granted by the trial court. Accordingly, a paucity of facts prevented the clear adoption of a rule regarding a property seller's duty, but nonetheless provided the court with an opportunity to outline such a duty. For example, the court stated that liability should follow the ability to possess or control the land giving rise to the dangerous condition. "Thus, even where bare legal title has been divested, liability has been imposed where a vendor continued to exercise possession or control." Id. at 767. However, the court did not adopt this as a rule of law because there was "no reasonable dispute" that the defendant lacked control or supervision over the premises. Id. Further, the court noted that sellers owe a duty to disclose concealed dangerous conditions, but again found insufficient facts to support the theory of liability. Id. at 768. Ultimately, the court and counsel should use the above instruction as an outline of liability and tailor the instruction to fit the applicable facts and relevant authorities.
CV1109 Duty of recreational property owner.

[Name of defendant] claims that [he] is not liable for [name of plaintiff]'s harm. To succeed in this claim, [name of defendant] must prove that:

(1) [name of defendant] did not charge [name of plaintiff] a fee to come upon [name of defendant]'s property for a recreational purpose; and,

(2) [name of defendant] held the property open to the public for [insert relevant usage enumerated under Utah Code Section 57-14-2].

If you find that both (1) and (2) above are true, then [name of defendant] owed no duty to exercise reasonable care to make the land safe or to warn of conditions on the land, unless [name of plaintiff] proves that:

(A) [name of defendant] willfully or maliciously caused [name of plaintiff]'s harm; or

(B) [name of defendant] willfully or maliciously failed to guard or warn against [describe the condition, use, structure or activity].

If you find either (A) or (B), then [name of defendant] is liable for harm caused as a result of (A) or (B).

References

Utah Code Section 57-14-3.
Utah Code Section 57-14-4.
Crawford v. Tilley, 780 P.2d 1248 (Utah 1989)
De Baritault v. Salt Lake City Corp., 913 P.2d 743, 748 (Utah 1996)
Perrine v. Kennecott Mining Corp, 911 P.2d 1290 (Utah 1996)

MUJI 1st Instruction

11.22

Committee Notes

This instruction should be used only if a question of fact exists as to the application of the act limiting liability or as to the character of the alleged omissions as willful or malicious. The existence of a duty is generally a question of law. If no question exists about the application of the act or the nature of the conduct, the presence or absence of a duty will presumably be determined as a matter of law by application of the act and this instruction will be unnecessary.

This instruction should be accompanied by the related instructions defining "recreational lands" and "recreational purposes," and should also be accompanied by definitions of "willful" and "malicious." If appropriate, a definition of a "charge" for use of the land may be given. The last paragraph may be omitted if no question exists of an intentional or willful injury.

This instruction is inappropriate if applied to property that exists in an urban, improved land environment. The instruction is based on Utah's Recreational Use statute and should only be given where the land is: "(1) rural, (2) undeveloped, (3) appropriate for the type of activities listed in the statute, (4) open to the general public without charge, and (5) a type of land that would have been opened in response to the statute." De Baritault v. Salt Lake City Corp., 913 P.2d 743, 748 (Utah 1996).

CV1110 Recovery for injury to ski resort patrons.

No skier may recover from any ski area operator for injury resulting from any of the inherent risks of skiing.

References

Utah Code Section 78B-4-402.
Utah Code Section 78B-4-403.
Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991).
Ghionis v. Deer Valley Resort Co., 839 F. Supp. 789 (D. Utah 1993).
White v. DeSeelhorst, 879 P.2d 1371 (Utah 1994).
Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560.

MUJI 1st Instruction

11.16

Committee Notes

This instruction is designed for use when a question of fact exists about whether the mechanics of the injuries or the instrumentality involved falls within those risks inherent in skiing. This instruction should be given with instructions defining the elements of negligence and reasonable care and with an instruction that all of the jury instructions be read together and considered as a whole.

Give this instruction in conjunction with Instruction CV202A. "Negligence" defined.

CV1111 Inherent risks of skiing defined.

"Inherent risks of skiing" means those dangers or conditions which are such an integral part of the sport of recreational, competitive, or professional skiing that the sport cannot be undertaken without confronting these risks. These risks may include the following:

(1) changing weather conditions;

(2) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;

(3) surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

(4) variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain;

(5) impact with lift towers and other structures and their components such as signs, posts, fences or enclosures, hydrants, or water pipes;

(6) collisions with other skiers;

(7) participation in, or practicing or training for, competitions or special events; and

(8) the failure of a skier to ski within the skier's own ability.

References

Utah Code Section 78B-4-402.
Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1047 (Utah 1991).

MUJI 1st Instruction

11.18

Committee Amended

CV1112 Types of inherent risks of skiing.

There are two types of inherent risks of skiing:

The first are risks that skiers want to confront or that [name of defendant] cannot eliminate by using reasonable care. [Name of defendant] has no obligation to eliminate these types of risks.

The second are risks that skiers do not want to confront and that [name of defendant] can eliminate by using reasonable care. Such risks are also inherent in skiing, but [name of defendant] must use reasonable care to eliminate risks of this second type.

References

Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1047 (Utah 1991).

MUJI 1st Instruction

11.18

Committee Notes

Although Section 78B-4-402 lists several categories of inherent risks of skiing and several examples within each category, Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991) recognizes that the statutory list is not exclusive and further defines "inherent risk" as "those risks that are essential characteristics of skiing-risks that are so integrally related to skiing that the sport cannot be undertaken without confronting [them]." Id. at 1047.

Clover further differentiates among inherent risks, based on whether the skier wants to confront the risk and whether the risk can be eliminated using reasonable care. If the skier wants to confront the risk, there is an assumption of the risk; if the risk can be eliminated using reasonable care, the risk is not an essential characteristic of skiing. Sections 78B-4-401 through -404 protect a ski area operator from liability only for injuries caused by risks that the skier wants to confront and risks that cannot be eliminated by reasonable care.

"[W]ithout a duty, there can be no negligence. Such an interpretation, therefore, harmonizes the express purpose of the statute, protecting ski area operators from suits arising out of injuries caused by the inherent risks of skiing, with the fact that the statute does not purport to abrogate a skier's traditional right to recover for injuries caused by ski area operators' negligence." Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1046 (Utah 1991).

Committee Amended

CV1113A Burden of proof.

[Name of plaintiff] claims that the risk causing [his] harm was not an inherent risk of skiing. To prove this claim, [name of plaintiff] must prove:

(1) that [he] did not want to confront this risk; and

(2) that [name of defendant] could have eliminated the risk by using reasonable care.

If you find that both are true, then the risk is not an inherent risk of skiing.

Committee Notes

Neither the statutes nor the caselaw establish who has the burden of proving whether a risk is an inherent risk.

If the court determines that the issue is an element of the cause of action, then the judge should instruct the jury with Instruction CV1113A.

If the court determines that the issue is an affirmative defense, then the judge should instruct the jury with Instruction CV1113B.

However, failure to use reasonable care is usually an element of the cause of action, suggesting that the plaintiff has the burden of proof on whether the defendant could have eliminated the risk by using reasonable care, and URCP 8 describes assumption of risk as an affirmative defense, suggesting that the defendant has the burden of proof on whether the plaintiff wanted to confront the risk. Instruction CV1113C is such a blended instruction.

Committee Amended

CV1113B Burden of proof.

[Name of defendant] claims that the risk causing [name of plaintiff]'s harm was an inherent risk of skiing. To prove this claim, [name of defendant] must prove:

(1) that [name of plaintiff] wanted to confront the risk; or

(2) that [name of defendant] could not have eliminated the risk by using reasonable care.

If you find that either is true, the risk is an inherent risk of skiing.

Committee Notes

Neither the statutes nor the caselaw establish who has the burden of proving whether a risk is an inherent risk.

If the court determines that the issue is an element of the cause of action, then the judge should instruct the jury with Instruction CV1113A.

If the court determines that the issue is an affirmative defense, then the judge should instruct the jury with Instruction CV1113B.

However, failure to use reasonable care is usually an element of the cause of action, suggesting that the plaintiff has the burden of proof on whether the defendant could have eliminated the risk by using reasonable care, and URCP 8 describes assumption of risk as an affirmative defense, suggesting that the defendant has the burden of proof on whether the plaintiff wanted to confront the risk. Instruction CV1113C is such a blended instruction.

Committee Amended

CV1113C Burden of proof.

An inherent risk of skiing is one that [name of plaintiff] wanted to confront or that [name of defendant] could not have eliminated by using reasonable care. If you find that either is true, then the risk is an inherent risk of skiing.

[Name of defendant] has the burden of proving that the risk was an inherent risk of the first type, risks that [name of plaintiff] wanted to confront.

[Name of plaintiff] has the burden of proving that the risk was an inherent risk of the second type, risks that [name of defendant] could have eliminated using reasonable care.

Committee Notes

Neither the statutes nor the caselaw establish who has the burden of proving whether a risk is an inherent risk.

If the court determines that the issue is an element of the cause of action, then the judge should instruct the jury with Instruction CV1113A.

If the court determines that the issue is an affirmative defense, then the judge should instruct the jury with Instruction CV1113B.

However, failure to use reasonable care is usually an element of the cause of action, suggesting that the plaintiff has the burden of proof on whether the defendant could have eliminated the risk by using reasonable care, and URCP 8 describes assumption of risk as an affirmative defense, suggesting that the defendant has the burden of proof on whether the plaintiff wanted to confront the risk. Instruction CV1113C is such a blended instruction.

Committee Amended