Appeals court hears dispute over condo snow pile that led to Andrews' fall

At oral argument before the Utah Court of Appeals, attorneys for Kathy Andrews and Stony Brook Condominium Association disputed whether a pile of snow and underlying ice created by neighbor William Thomason was an "open and obvious" hazard and whether summary judgment was proper in Andrews' slip-and-fall appeal (Case No. 20240581).

The issue matters because the court's answer will affect whether the open-and-obvious danger doctrine or ordinary negligence principles govern claims that arise when a person slips on a human-made accumulation of snow or ice on a sidewalk. If the condition is open and obvious and not the subject of a special duty, a possessor of land can avoid liability; if factual disputes remain about dangerousness or foreseeability, the case typically belongs to a jury.

Ryan Schreiber, counsel for appellant Kathy Andrews, told the panel there were "really straightforward facts" that the plaintiff fell on a pile of snow and that the pile existed and was created by Thomason. Schreiber argued that while the snow might have been visible, the ice beneath it was not, and that unresolved factual issues remained about whether the condition was dangerous and whether reasonable people could differ about whether a possessor should have anticipated that a pedestrian might still encounter it despite an obvious path nearby. Schreiber cited case law he said called for fact-bound inquiry rather than a judge taking the issue away from a jury.

Counsel for Stony Brook, Ryan Poole, advanced multiple alternative grounds for affirming the summary judgment. Poole argued the plaintiff was not an invitee to the condominium common area in the sense that would create a higher duty, asserted the condition was temporary and not the possessor's responsibility, and emphasized record evidence he described as unrebutted — including an expert opinion that lighting was sufficient, admissions by Andrews that she saw the pile and could have gone around it, and that the pile had been present for hours — all of which, he said, supported the judge's decision. Poole also urged that causation was not proved because the plaintiff could not say whether she fell on snow or on ice beneath it.

Scarlett Smith, counsel for William Thomason, responded to questions about whether the defendant's act of displacing snow onto the sidewalk should be treated as an affirmative act (misfeasance) rather than an omission. Smith said the factual record supports treatment as an affirmative act and argued that Utah law permits application of an open-and-obvious defense where the negligence claim rests on creating a dangerous condition on the land.

Throughout the argument the panel pressed briefings and distinctions between duty and breach. One judge framed the central inquiry this way: "should a landlord or the possessor expect that or anticipate that they might become distracted and encounter it anyway or might fail to protect themselves against it despite its openness and obviousness?" The court also asked whether open-and-obvious principles developed in premises-liability cases apply more broadly to ordinary negligence claims when the theory is that an actor created a hazard on land.

Counsel and several justices referenced Utah decisions including Hale, Coburn, Downham and other cases as they debated whether the analysis is a fact-bound duty question or essentially a breach inquiry that could sometimes be resolved on summary judgment if facts are undisputed. Lighting (the fall occurred around 8:15 p.m., according to the record), the duration the pile sat on the sidewalk (counsel referred to about eight hours), and contemporaneous admissions by the plaintiff were all argued as key record points.

The court did not rule from the bench. The panel asked for supplemental briefing on at least one issue — whether the open-and-obvious doctrine can apply outside the possessor-of-land/premises-liability context — and took the matter under advisement.