               This opinion is subject to revision before final
                    publication in the Pacific Reporter

                               2020 UT 14

                                  IN THE

     SUPREME COURT OF THE STATE OF UTAH

                       CANDICE COCHEGRUS,
                           Appellant,
                                       v.
      HERRIMAN CITY, ROSECREST VILLAGE HOMEOWNERS
   ASSOCIATION, INC., and FUTURE COMMUNITY SERVICES, INC.
            DBA FCS COMMUNITY MANAGEMENT,
                          Appellees.

                          No. 20161073
                     Heard February 14, 2018
                      Filed March 26, 2020


                          On Direct Appeal

                   Third District, Salt Lake
               The Honorable Andrew H. Stone
                     Case No. 140900711

                               Attorneys:
     Kenneth Parkinson, Peter Lattin, Provo, for appellant
  David L. Church, Salt Lake City, for appellee Herriman City
Cory D. Memmott, Salt Lake City, for appellees Rosecrest Village
    Homeowners Association, Inc., and Future Community
        Services, Inc. dba FCS Community Management


 JUSTICE PETERSEN authored the opinion of the Court, in which
     CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
       JUSTICE HIMONAS, and JUSTICE PEARCE concurred.


  JUSTICE PETERSEN, opinion of the Court:
                   COCHEGRUS v. HERRIMAN CITY
                       Opinion of the Court

                        INTRODUCTION
    ¶1 Candice Cochegrus tripped and fell while walking across
a park strip 1 in Herriman City. She asserts that she tripped over a
metal rod protruding out of a hole in the ground. Cochegrus sued
Herriman City, Rosecrest Village Homeowners Association, and
its maintenance company Future Community Services (FCS)
(collectively, defendants) for negligence. The district court
granted summary judgment to all three defendants, ruling that
Cochegrus had failed to produce enough evidence to create a
dispute of fact as to when the unsafe condition arose. The court
concluded that, without this, she could not meet her burden to
show that the defendants had constructive notice of the
protruding metal rod and an opportunity to remedy the
condition. Cochegrus appeals.
    ¶2 We conclude that under the circumstances here, the
durable, nontransitory nature of the unsafe condition itself is
evidence from which a factfinder could infer longevity. This is
sufficient to create a uine dispute as to the length of time the
condition existed. Based on this and the evidence regarding the
noticeability of the condition, we conclude Cochegrus produced
evidence in support of the disputed elements of her claim.
   ¶3   Accordingly, we reverse and remand.
                         BACKGROUND
    ¶4 As Cochegrus walked across a park strip located between
a sidewalk and a Herriman City street, she tripped, fell, and was
injured. 2 At the time, she did not know what she tripped over, but


   1 A park strip is the area “between the sidewalk and the curb.”
Gallegos v. Midvale City, 492 P.2d 1335, 1336 (Utah 1972), abrogated
on other grounds by Scott v. Sch. Bd. of Granite Sch. Dist., 568 P.2d
746 (Utah 1977). It is “part of the public streets designed for the
use of the public.” Ingram v. Salt Lake City, 733 P.2d 126, 127 (Utah
1987) (per curiam).
   2  When reviewing a district court’s grant of summary
judgment, 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, ¶ 6, 177 P.3d 600 (citation omitted).
Accordingly, we view the facts in the light most favorable to
Cochegrus.


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                         Opinion of the Court

her husband later returned to the area to investigate what had
happened. 3
    ¶5 Cochegrus’s husband did not see the accident occur, but
he testified that his wife later explained to him where she had
fallen. While inspecting that area, he found a “rusted” metal rod
extending approximately five inches from a hole in the ground.
He testified that the metal rod was “not easy to see” initially
because it was “covered by grass.” But when he moved the grass
aside, he noticed that it “looked like [the rod] had been hit . . .
with the blade of a lawn mower.” Cochegrus’s husband surmised
that his wife must have tripped over the metal rod because her
foot was cut and the rod was the only object in the vicinity that
could have inflicted that injury. Cochegrus’s mother-in-law
affirmed in a declaration that she saw Cochegrus trip over
something in the park strip and that she had noticed the metal rod
moments after Cochegrus fell.
    ¶6 Cochegrus herself later returned to inspect and
photograph the park strip and protruding metal rod. She testified
that “it looked as if [the rod] had been there for quite sometime
[sic]” and that “when [she] tugged on it, [the rod] was securely
fastened in the ground.” She also stated that she had seen
individuals mowing the lawn after her accident and that she
would observe how they reacted to the metal rod. According to
her testimony, “one gentleman went around it” and “another
gentleman ran right over it.” Cochegrus stated that the rod was
“visible” “[w]hen the grass was freshly mowed.”
   ¶7 Herriman City was not notified of the metal rod until
seven months after the accident. 4 Upon notification, however,
Herriman City immediately sent a streetlight technician to
remedy the unsafe condition. The streetlight technician used a
Sawzall 5 to cut off the portion of the rod that protruded from the
hole and then filled in the hole with some dirt. He testified that


   3 Cochegrus’s husband does not recall how soon after the
accident he returned to examine the park strip.
   4The record does not indicate who reported the condition to
Herriman City.
   5   Sawzall is a brand of reciprocating saw.


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                       Opinion of the Court

the rod looked like it had been “hit multiple times” and that some
of the nicks looked “rusted” while others were “clean.” The
streetlight technician agreed that “it was clear . . . somebody knew
that . . . something was there, because somebody was hitting [the
rod] with their lawnmower.”
    ¶8 The Director of Operations for Herriman City also
testified that it looked like the metal rod had been cut by a metal
blade, stating that the nicks “appear to be from [a] lawn mower.”
According to him, the nicks had “oxidized” and were “not really
fresh.”
   ¶9 Herriman City acknowledged that it owns the park strip
and that the metal rod was the end of a copper-clad stainless steel
grounding rod from a nearby streetlight that a private contractor
had installed for the city in 2006. The streetlight technician was
surprised that “the ground rod was sticking up out of the
ground,” explaining that “[w]hoever did it didn’t put [the rod]
down deep enough.” He theorized that the contractors may have
been “going off . . . grade stakes” and it was possible “[i]f the
grade stakes were saying [the road] was supposed to be two feet
above, . . . they factored [that] they didn’t need to pound the
ground rod two more feet[] because the road was coming up.”
    ¶10 Although Herriman City inspected the streetlight in 2006
when the final streetlight connections were done, the inspection
report does not mention whether the rod was completely buried
or protruding from the ground at the time of inspection. 6
    ¶11 Cochegrus sued the defendants, arguing that they each
breached a duty of care owed to her. She first alleged that
Herriman City breached its nondelegable duty by “having the
hazardous condition on its property.” She then alleged that
Rosecrest had a statutory duty under Herriman City Code section
7-6-1 to maintain the area where she tripped because it owns the
private property abutting the park strip. Finally, she alleged that
FCS had a duty because it had contracted with Rosecrest to


   6 The streetlight technician’s theory about the rod protruding
from the ground with the expectation that the ground would
eventually be brought up to grade with the road could explain
why the rod would have passed the inspection in 2006 even if it
was sticking out of the ground.


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                      Opinion of the Court

maintain the park strip. 7 According to Cochegrus, Rosecrest and
FCS breached their duties because they “knew or should have
known about the protruding rusted rebar and should have done
something to warn the public or the city or taken action to make
the area safe.”
     ¶12 All three defendants filed motions for summary
judgment, which the district court granted. The court found that
Cochegrus had not provided sufficient evidence to create a
genuine factual dispute regarding the length of time that the
unsafe condition had existed. The court ruled that this prevented
her from meeting her burden to show that the hazard existed long
enough that the defendants should have discovered and remedied
it. Cochegrus timely appeals.
   ¶13 We exercise jurisdiction under Utah Code section
78A-3-102(3)(j).
                   STANDARD OF REVIEW
    ¶14 In reviewing a district court’s grant of summary
judgment, we review “a [district] court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness.”
Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation omitted)
(internal quotation marks omitted). We apply an “objective
standard” to determine whether a genuine factual dispute exists,
which asks “whether reasonable jurors, properly instructed,
would be able to come to only one conclusion, or if they might
come to different conclusions, thereby making summary
judgment inappropriate.” Heslop v. Bear River Mut. Ins. Co., 2017
UT 5, ¶ 20, 390 P.3d 314 (citation omitted).




   7    Although discovery is complete, Cochegrus never
conclusively determined who mowed the park strip during the
relevant timeframe. Herriman City disclosed that, while it
contracts lawn-mowing services for some park strips, it did not do
so for this one. And FCS denied mowing the park strip for
Rosecrest. During his deposition, however, the Herriman City
streetlight technician disclosed that he lived in Rosecrest during
the relevant timeframe and that he had noticed the same company
mowing both the interior lawns of Rosecrest and the park strip.


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                   COCHEGRUS v. HERRIMAN CITY
                       Opinion of the Court

                            ANALYSIS
    ¶15 The district court granted summary judgment to the
defendants because it concluded Cochegrus had not presented
evidence showing that the unsafe condition existed long enough
to infer that the defendants had constructive knowledge of the
condition and an opportunity to remedy it. 8 Cochegrus disagrees,
arguing that: (1) the district court should have treated the rod as a
permanent unsafe condition rather than a temporary one, which
would have eliminated the knowledge element; (2) she presented
evidence showing the defendants had actual knowledge of the
protruding rod, so she did not need to show constructive
knowledge; (3) she did present sufficient evidence to show the
condition had existed long enough that the defendants should
have noticed and remedied it; and (4) the district court erred by
not drawing reasonable inferences in her favor.
    ¶16 The defendants argue that the district court’s summary
judgment order was correct. As an alternative ground for
affirmance, Rosecrest and FCS also argue that Cochegrus has not
shown that they had a duty to maintain Herriman City’s
streetlight infrastructure. We address these issues in turn.
             I. PERMANENT VERSUS TEMPORARY
                    UNSAFE CONDITIONS
    ¶17 Cochegrus first argues that the rod was a permanent
unsafe condition and the district court should have analyzed her
claim accordingly. In tort claims involving unsafe conditions on
property, the applicable law depends on whether the condition at
issue is deemed to have been temporary or permanent.
Temporary unsafe conditions are those “such as a slippery

   8  Summary judgment is proper “if the moving party shows
that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” UTAH R.
CIV. P. 56(a). Where the nonmoving party will bear the burden to
prove the underlying legal theory at trial, it also bears the burden
to produce evidence to support each essential element of a claim.
See Salo v. Tyler, 2018 UT 7, ¶ 2, 417 P.3d 581. Under this
circumstance, a moving party can show that it is entitled to
judgment as a matter of law simply by establishing that the
nonmoving party has not produced evidence on one of those
elements. See id.


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                        Opinion of the Court

substance on the floor and usually where it is not known how it
got there.” Allen v. Federated Dairy Farms, Inc., 538 P.2d 175, 176
(Utah 1975). In a negligence case involving a temporary unsafe
condition, “fault cannot be imputed to the defendant so that
liability results therefrom” unless the plaintiff shows (1) that the
defendant “had knowledge of the condition, that is, either actual
knowledge, or constructive knowledge because the condition had
existed long enough that [the defendant] should have discovered
it”; and (2) that after obtaining such knowledge, sufficient time
elapsed that in the exercise of reasonable care the defendant
should have remedied the dangerous condition. Id.
   ¶18 Unsafe conditions of a permanent nature include those,
“such as: in the structure of a building, or of a stairway, . . . or in
equipment or machinery, or its manner of use, which was created
or chosen by the defendant (or his agents), or for which he is
responsible.” Id. In a negligence case involving a permanent
unsafe condition, “where the defendant either created the
condition, or is responsible for it, he is deemed to know of the
condition; and no further proof of notice is necessary.” 9 Id.
    ¶19 Cochegrus argues the district court should have deemed
the unsafe condition here to be permanent because the rebar was
installed as part of Herriman City’s streetlight infrastructure.
Accordingly, she asserts she should not be required to show that
the defendants had knowledge of the condition.
    ¶20 But Cochegrus did not argue this in the district court. In
fact, in opposing summary judgment, she conceded that “the
hazard in this case was, admittedly, a temporary condition” and
that she “d[id] not have evidence suggesting that [the defendants]
created the condition.”
   ¶21 Accordingly, this issue is not preserved. We have stated
that notions of fairness and judicial economy dictate that appellate
courts should not reverse a district court for reasons first raised on
appeal. See Patterson v. Patterson, 2011 UT 68, ¶¶ 15–16, 266 P.3d
828. Because Cochegrus did not argue below that the rod was a

   9 Notably, however, we have explained that “in cases where
temporary unsafe conditions are created by owners, the notice
requirement also does not apply.” Jex v. JRA, Inc., 2008 UT 67,
¶ 26, 196 P.3d 576.


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                       Opinion of the Court

permanent unsafe condition, we decline to address this issue on
the merits.
   ¶22 Consequently, we analyze Cochegrus’s claim under the
framework applicable to a temporary unsafe condition. To prevail
at the summary judgment stage, she must have produced
evidence in support of the contested elements of this claim:
specifically, that the defendants had actual or constructive
knowledge of the condition; and sufficient time elapsed that, in
the exercise of reasonable care, they should have remedied the
condition. Allen, 538 P.2d at 176.
     ¶23 Cochegrus contends that the defendants had actual
notice of the unsafe condition. But she argues this for the first time
on appeal. Before the district court, she argued only that the
defendants had constructive knowledge of the rod’s existence. To
preserve an issue for appeal, a party must present it to the district
court “in such a way that the court has an opportunity to rule on
[it],” Patterson, 2011 UT 68, ¶ 12 (alteration in original) (citation
omitted), and, “if appropriate, correct it,” id. ¶ 15 (citation
omitted). Cochegrus did not argue actual notice before the district
court, so we conclude that she also failed to preserve this issue for
appeal.
    ¶24 Accordingly, to show the district court erred, Cochegrus
must demonstrate that she produced evidence that the defendants
had constructive notice of the temporary unsafe condition. To do
this, she must have shown that the unsafe condition existed long
enough that the defendants “should have discovered it.” See, e.g.,
Kerr v. City of Salt Lake, 2013 UT 75, ¶¶ 39–41, 322 P.3d 669
(citation omitted) (finding constructive notice of a sidewalk defect
where a witness testified that he observed the condition a year
and a half before the accident).
    ¶25 Both constructive notice and the second element on
which Cochegrus bears the burden of proof—that sufficient time
had elapsed that the defendants should have remedied the unsafe
condition—require evidence regarding the length of time the
condition existed. The district court found that Cochegrus’s
evidence on this point was insufficient to create a genuine dispute
of fact. This is a fact-intensive inquiry and depends on the
circumstances of each case. But, in all cases, a “mere hypothesis”
that the condition “may have existed for some unknown length of
time does not suffice.” Goebel v. Salt Lake City S. R.R. Co., 2004 UT
80, ¶ 25, 104 P.3d 1185. A plaintiff must offer some evidence of the


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length of time the condition had existed prior to the injury. Id.
¶¶ 24–25. It is not enough to rely on “conjecture and speculation.”
Jex v. JRA, Inc., 2008 UT 67, ¶ 21, 196 P.3d 576 (citation omitted).
    ¶26 However, a plaintiff is not required to prove the precise
length of time that an unsafe condition existed. A plaintiff must
show only that the condition “had been there for an appreciable
time.” Id. ¶ 19 (citation omitted). This means that under the
circumstances, the condition existed long enough to be noticed.
See, e.g., Ohlson v. Safeway Stores, Inc., 568 P.2d 753, 754–55 (Utah
1977).
   ¶27 Whether the unsafe condition existed for an
“appreciable” amount of time implicates both the length of time it
has endured and its noticeability. A factfinder should consider
any relevant factors in making this determination, such as the
number of people using the premises, the frequency of use, the
nature and prominence of the defect, its location on the premises,
and its probable origin. See Pollari v. Salt Lake City, 176 P.2d 111,
117 (Utah 1947); see also Hagan v. Caldor Dep’t Stores, Inc., No. 89-
7810, 1991 WL 8429, at *4 (E.D. Pa. Jan. 28, 1991).
    ¶28 Cochegrus argues that she did offer sufficient evidence
of the length of time the condition existed, but that the district
court did not make reasonable inferences in her favor as required
at the summary judgment stage. See Heslop v. Bear River Mut. Ins.
Co., 2017 UT 5, ¶ 21, 390 P.3d 314. In support of this argument,
Cochegrus points to specific language in the district court’s oral
ruling. While we see no problem with the statement Cochegrus
challenges, 10 we clarify that the nature of an unsafe condition may

   10  The basis of Cochegrus’s argument is a statement by the
district court that the unsafe condition “may have existed—
yesterday, it may have existed for years.” Cochegrus reasons that
because the court was required to draw all reasonable inferences
in the light most favorable to her, it had to find that the metal rod
existed for “years” rather than “yesterday.” But Cochegrus
misconstrues the district court’s statement. When ruling on the
summary judgment motion, the court stated, “I think the
constructive notice cases are pretty tough. And I recognize that
it’s a hard burden to put on [p]laintiffs sometimes when there’s a
dangerous condition that may have existed—yesterday, it may
have existed for years.” This statement did not constitute a
                                                             (cont’d.)

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                    COCHEGRUS v. HERRIMAN CITY
                         Opinion of the Court

itself be evidence of its age. See, e.g., Blunt v. Ritz-Carlton Hotel Co.,
No. 15-6637, 2017 WL 1079970, at *4 (E.D. Pa. Mar. 21, 2017); Neve
v. Insalaco’s, 771 A.2d 786, 791 (Pa. Super. Ct. 2001). With regard to
the element of time, a transitory unsafe condition—such as a
puddle of water or spilled food—will by nature do little to
indicate the length of its existence. 11 In contrast, the nature of a
durable, nontransitory unsafe condition like the protruding metal
rod inherently suggests longevity. See Neve, 771 A.2d at 791
(stating that the “relative durability of the defect comprises a
related factor” to deciding whether it is reasonable to impute
knowledge of the unsafe condition to a defendant).
    ¶29 The evidence here that the metal rod was firmly fixed in
the ground supports an inference that it had likely presented a
hazard for some time. The metal rod is a grounding rod that was
installed and inspected as part of Herriman City’s streetlight
infrastructure in 2006. The streetlight technician testified that the
rod is “10 feet long,” bound “10 feet into the ground,” and
“connected to a J box and . . . stainless steel meter cabinet.”
According to Cochegrus, she tugged on the rod and discovered
that “it was securely fastened in the ground.” Indeed, the
streetlight technician had to use a Sawzall to remove the section of
the metal rod jutting from the hole in the ground. Based on its
durable nature, it is unlikely that the metal rod suddenly sprung
from the ground. Instead, it is reasonable to infer that the rod was


finding that the rod may have protruded from the ground for
years or for one day. Rather, the court was commenting more
generally on the challenge of proving constructive notice when
the origin of the dangerous condition is unknown. We reject
Cochegrus’s contention that this was an instance of the district
court failing to draw inferences in her favor.
   11  See Jex, 2008 UT 67, ¶ 3 (puddle of water); Goebel v. Salt Lake
City S. R.R. Co., 2004 UT 80, ¶¶ 4, 25, 104 P.3d 1185 (gap between
field panels at railroad crossing that “may have formed suddenly
by being scraped or struck by . . . a snow plow”); Fishbaugh v. Utah
Power & Light, 969 P.2d 403, 404 (Utah 1998) (temporary streetlight
outage); De Weese v. J.C. Penney Co., 297 P.2d 898, 899–900 (Utah
1956) (slippery floor); Porter v. Farmington City Corp., 2014 UT App
12, ¶ 2, 318 P.3d 1198 (hole in grass); Price v. Smith’s Food & Drug
Ctrs., Inc., 2011 UT App 66, ¶ 1, 252 P.3d 365 (puddle of water).


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either installed incorrectly as suggested by the streetlight
technician or that it emerged over time.
    ¶30 This conclusion is further bolstered by testimony that the
metal rod was exposed to the elements long enough that it
appeared “rusted” or “oxidized.” In addition, several witnesses
noted that it appeared as though the rod had been nicked with a
metal blade like that of a lawnmower and that some of the nicks
were “not really fresh.” It could be argued that oxidation and
nicks on the rod do not indicate precisely when the rod became a
trip hazard, and that these characteristics could have materialized
in the seven-month period between the accident and when the
unsafe condition was reported to Herriman City. Putting aside
that this argument does not give Cochegrus the benefit of all
reasonable inferences, we conclude that the durable,
nontransitory nature of the grounding rod itself is enough to give
rise to an inference that it existed for a substantial amount of time.
This is sufficient to create a dispute of fact regarding how long the
unsafe condition existed.
    ¶31 Whether this is sufficient to support a claim of
constructive notice, in other words that this was long enough that
the defendants should have discovered the condition, also
requires consideration of evidence relevant to the condition’s
noticeability, such as its prominence, visibility, and location. See
Pollari, 176 P.2d at 117. A trip hazard in a field of naturally tall
grass with few passersby must be distinguished from a rod that
protrudes from regularly mowed grass in a residential area. 12

   12 Regarding Herriman City, we have stated that whether a
city “charged with the duty of supervising miles of streets and
sidewalks” has “exercised proper vigilance to discover defects
depends on the element of time, the nature and extent of the
defect, its prominence in location and other factors.” Pollari v. Salt
Lake City, 176 P.2d 111, 117 (Utah 1947) (emphasis added) (holding
that, under the circumstances, a small hole that had existed on a
main sidewalk in a residential area for about two years presented a
question of constructive notice properly left to the jury); see also
Porter v. Farmington City Corp., 2014 UT App 12, ¶¶ 11, 13, 318
P.3d 1198 (affirming summary judgment in favor of defendants
where the parties stipulated that a large sink hole covered by
grass could not have been discovered “by reasonable visual
                                                            (cont’d.)

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                       Opinion of the Court

    ¶32 We conclude that Cochegrus produced sufficient
evidence in support of a constructive notice theory to preclude
summary judgment. The evidence presented here suggests that
the metal rod was a prominent condition in a residential,
regularly maintained park strip. There appears to be some
inconsistent testimony about how far the rod extended from the
grass, 13 but at the summary judgment phase we must view the
facts in the light most favorable to Cochegrus. Under that
standard, we accept the streetlight technician’s testimony that the
rod protruded approximately five inches above the grass. This
testimony is supported by a photograph in the record. Another
photograph illustrates a contrast between the dark metal rod and
the surrounding green grass. And while Cochegrus’s husband
testified that the rod was obscured by tall grass on the day he
returned to survey the area, it is reasonable to infer that the rod
was prominently poised when the park strip was mowed. Indeed,
Cochegrus’s mother-in-law stated that she saw the metal rod
moments after Cochegrus tripped and fell.
    ¶33 Affording Cochegrus the benefit of all reasonable
inferences, we conclude that a jury could reasonably infer from
the durable, nontransitory nature of the metal rod that it had
existed for a significant period of time. Along with evidence of its
prominence in a regularly maintained residential area, Cochegrus
has produced evidence on the disputed elements of her claim—
that the defendants had constructive knowledge of the condition
and sufficient time to remedy it. Accordingly, we conclude


inspection of the area” (emphasis omitted)). While factors related
to noticeability are relevant to all defendants, this precedent
establishes that where a city is a defendant, its responsibility for
supervising premises throughout the city limits should be
considered in determining whether it should have discovered the
unsafe condition in question.
   13We note that the inconsistencies may have resulted from the
relevant question being posed in different ways. For example,
Cochegrus’s husband was asked “how far the rod came out above
the soil level of the grass.” But the streetlight technician was
asked, “How far above the grass did th[e] rod stick up?” These
questions differ in where they asked the deponent to begin
measuring the length of the protrusion.


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summary judgment is not available to the defendants on this
basis.
                             II. DUTY
    ¶34 Rosecrest and FCS argue as an alternative basis for
affirmance that they owed no duty to Cochegrus. 14 Because the
district court granted summary judgment on the grounds
discussed above, it did not reach this issue.
    ¶35 Rosecrest and FCS have assumed here that they had a
statutory duty under Herriman City Code section 7-6-1 to
maintain the park strip where Cochegrus fell. In relevant part, the
city statute provides: “It shall be the duty of each owner of real
property abutting or fronting upon any street, highway or alley
within the city, to repair and maintain in good condition all . . .
park strips . . . across or immediately abutting their property.” But
they argue that even assuming such a duty, they did not have a
duty or even a right to repair or remove the grounding rod, which
is part of Herriman City’s streetlight infrastructure.
    ¶36 It is within our discretion “to affirm [a] judgment on an
alternative ground if it is apparent in the record.” Madsen v. Wash.
Mut. Bank, 2008 UT 69, ¶ 26, 199 P.3d 898. For a legal theory “[t]o
be ‘apparent on the record,’ ‘[t]he record must contain sufficient
and uncontroverted evidence supporting the ground or theory to
place a person of ordinary intelligence on notice that the
prevailing party may rely thereon on appeal.’” Francis v. State,
Utah Div. of Wildlife Res., 2010 UT 62, ¶ 10, 248 P.3d 44 (second
alteration in original) (citation omitted).
    ¶37 Rosecrest and FCS argue that Hill v. Superior Property
Management Services, Inc., supports their argument that they owed
Cochegrus no duty. See 2013 UT 60, 321 P.3d 1054. But in Hill, we
analyzed whether a contracted property management company
had a duty to the plaintiff under various theories of premises
liability. Id. ¶¶ 19–20. We did not have before us a city statute
explicitly conferring a duty upon the defendant in that case to


   14Herriman City does not join in this argument. It accepts that
it had a nondelegable duty to exercise reasonable care in
maintaining its park strips in a reasonably safe condition for
pedestrians.


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                       Opinion of the Court

“repair and maintain in good condition” the area on which the
injury occurred. So Hill does not address the limits of such a
statute.
    ¶38 Rosecrest and FCS have not provided any additional
authority or analysis as to why the statutory duty to maintain the
park strip did not encompass a duty to exercise reasonable care to
remediate any danger posed by the protruding grounding rod.
While we acknowledge Rosecrest and FCS’s argument that they
did not have a right to repair Herriman City’s streetlight
infrastructure, they do not explain why that is dispositive here.
Repairing the streetlight was not necessarily required of them. As
Cochegrus suggests, they could have notified Herriman City of
the hazard or otherwise taken action to warn unwitting
pedestrians of the danger. Duty requires only the exercise of
reasonable care.
    ¶39 Rosecrest and FCS also contend that as a factual matter,
they did not mow the park strip where Cochegrus fell. But even
assuming this is true, while it may be relevant to notice, it is not
relevant to the legal question of whether they had a duty to
Cochegrus. Rosecrest and FCS have not disputed that the
Herriman City Code imposes a duty on abutting property owners
to maintain park strips, and their briefing assumed arguendo that
the statute applies to them. And while Herriman City agrees that
it performs this task in some locations, without definitive
evidence that Herriman City had somehow relieved Rosecrest of
its duty to maintain the park strip here, Rosecrest and FCS cannot
prevail on summary judgment by simply alleging that they did
not mow this area.
   ¶40 We conclude that the record before us does not contain
sufficient evidence to affirm the district court on the alternative
basis urged by Rosecrest and FCS. 15
                         CONCLUSION
    ¶41 We conclude that the durable, nontransitory nature of
the unsafe condition here was evidence from which a jury could
infer longevity. This is sufficient to create a genuine dispute

   15 We have not been presented with any additional arguments
related to the existence or scope of any duty Rosecrest or FCS may
have owed Cochegrus. This opinion should not be construed to
reach such issues.


                                14
                      Cite as: 2020 UT 14
                     Opinion of the Court

regarding the length of time the unsafe condition existed. In
conjunction with evidence relevant to the noticeability of the
metal rod, Cochegrus produced evidence in support of the
contested elements of her claim.
   ¶42 We therefore reverse the order of summary judgment
and remand to the district court for further proceedings.




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