Date: 07-19-2018

Case Style:

Case Number: 17-4100

Judge: Michael R. Murphy

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Utah (Salt Lake County)

Plaintiff's Attorney: Dan Bertch and Kevin Robson

Defendant's Attorney: Scott D. Festin, Thomas M. Flaskamp, Sean C. Miller, Samantha E. Wilcox

Description: Roland Critchfield slipped and fell on the wet, soapy bathroom floor of a
Buffalo Wild Wings Bar & Grill (“Buffalo Wild Wings”) in Sandy, Utah.
Critchfield brought suit against Blazin Wings, Inc. (“Blazin”), the parent
company of Buffalo Wild Wings, asserting injuries he suffered in the slip-and-fall
*This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
arose out of Blazin’s negligence. The district court granted summary judgment to
Blazin, concluding the danger posed by the wet floor was so obvious, no
reasonable juror could conclude Blazin owed a duty to Critchfield. Critchfield
appeals, asserting the district court erred as to evidentiary rulings and erred in
concluding Blazin did not, as a matter of law, owe a duty to Critchfield.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.
II. BACKGROUND
A. Factual Background
Critchfield drove to Buffalo Wild Wings to meet a group of friends. Before
joining his friends, he went to the restroom. The restroom featured two urinals
and a toilet stall. As he entered, Critchfield saw a small yellow sign on the floor
by a urinal that said: “Caution Wet Floor.” He understood the sign to indicate a
wet floor and to walk with caution. He observed “more water than you would
expect to see on a public restroom floor,” indicating either a toilet had overflowed
or cleaning had not been finished. After taking approximately four steps into the
bathroom, he perceived water underfoot and felt uncomfortable. During his
deposition, Critchfield drew a circle around the area of the floor that was wet and
identified the location of the caution sign on a photograph of the bathroom. The
area he identified is adjacent to the urinal Critchfield selected and between the
urinal and the location of the yellow caution sign. Thus, there was, according to
Critchfield’s deposition testimony, a dry path to one urinal and the toilet stall.
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Critchfield did not proceed along the dry path. Instead, using “extreme
caution,” he stepped in front of the caution sign and walked through the wet area
to the nearest urinal. Upon finishing at the urinal, Critchfield headed back toward
the sink. Before reaching the sink, he slipped and fell. He got up, washed off at
the sink, exited the restroom, and joined his party. Critchfield completed a
“Guest Statement” describing the incident in detail before leaving the restaurant.
B. Procedural Background
After Critchfield filed suit in Utah state court, Blazin removed the matter to
federal court based upon diversity jurisdiction. See generally 28 U.S.C. §§ 1332,
1441. Blazin served its initial disclosures on Critchfield on December 31, 2015.
See generally Fed. R. Civ. P. 26(a)(1). Critchfield never exercised his right to
serve Blazin with interrogatory requests or requests for production. Blazin’s
initial disclosures identified Corey Rappleye, a then current manager, as a person
with knowledge of the incident. Thereafter, Blazin sent Critchfield a letter
advising that Rappleye was no longer its employee. That letter provided
Critchfield with Rappleye’s last known contact information. On November 18,
2016, Critchfield and Brandon Elmont, a representative of Blazin, were deposed.
Fact discovery closed on January 13, 2017. On February 2, 2017, Critchfield
requested video, sweep and inspection logs, and proprietary policies and
procedures. Dissatisfied with Blazin’s response (i.e., that it did not have the
video or logs), Critchfield filed a motion for sanctions which alleged various
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discovery abuses. Blazin opposed Critchfield’s motion, asserting the requested
items were irrelevant.
On February 21, 2017, Blazin filed its motion for summary judgment.
Blazin asserted it owed Critchfield no duty with respect to the known and obvious
danger of the wet floor adjacent to the urinal Critchfield used or, alternatively, it
did not breach its duty. In opposition to Blazin’s motion for summary judgment,
Critchfield filed a declaration which changed his prior sworn deposition
testimony regarding the extent of the area of the bathroom floor covered by water.
The district court heard oral argument on Critchfield’s motion for sanctions
and Blazin’s motion for summary judgment. As to Critchfield’s motion for
sanctions, the district court apparently1 denied it in relevant part from the bench.
The minute order entered by the district court at the conclusion of the hearing
states as follows:
Motion Hearing held on 5/1/2017 re . . . MOTION for Sanctions and
Memorandum in Support filed by Roland Critchfield . . . . Court
hears argument from counsel and TAKES UNDER ADVISEMENT/
DENIES . . . Motion for Sanctions, DENYING as to evidence
produced in conjunction with Summary Judgment, taking the rest of
the motion under advisement.
The district court then heard argument on Blazin’s motion for summary judgment
and took the matter under advisement. Thereafter, it entered a written order
1We use the term “apparently” because Critchfield did not include in the
record on appeal a transcript of the hearing or the district court’s oral ruling that
was eventually memorialized in a minute entry.
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granting Blazin’s motion. It began by excluding the statements made in
Critchfield’s post-deposition declaration asserting that the entire floor of the
bathroom was wet. Employing the guiding analysis set out by this court in
Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir. 2001),
the district court concluded the statements set out in Critchfield’s affidavit were
an attempt to create a sham issue of fact. Thus, in deciding whether Blazin owed
Critchfield a duty under Utah law, the district court considered only that a portion
of the bathroom floor adjacent to the urinal Critchfield chose to use was
obviously wet and slippery. Given that set of facts, the district court concluded
Blazin did not owe Critchfield a duty under controlling Utah law. District Ct.
Order at 9-11 (citing Hale v. Beckstead, 116 P.3d 263 (Utah 2005)).
III. ANALYSIS
A. Evidentiary Issues
A district court’s decision to exclude affidavits submitted in response to a
summary judgment motion is reviewed for abuse of discretion. Law Co., Inc. v.
Mohawk Constr. & Supply Co., Inc., 577 F.3d 1164, 1169 (10th Cir. 2009); see
also Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (“[T]he utility of
summary judgment as a procedure for screening out sham fact issues would be
greatly undermined if a party could create an issue of fact merely by submitting
an affidavit contradicting his own prior testimony.”). The same standard applies
to a district court’s refusal to grant sanctions for spoliation of evidence. Turner
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v. Pub. Serv. Co., 563 F.3d 1136, 1150 (10th Cir. 2009). A district court does not
abuse its discretion unless its ruling is arbitrary, capricious, whimsical, or
manifestly unreasonable.
In his brief on appeal, Critchfield asserts the district court erred when it
excluded his post-deposition declaration as an attempt to create a sham factual
issue on the basis that the declaration asserted the floor was soapy, while his
deposition testimony merely stated the floor was wet. The problem with
Critchfield’s assertion is that the district court did not exclude his declaration on
that basis. A review of the district court’s order granting summary judgment
reveals that the district court analyzed the existence of a duty on the part of
Blazin with reference to a wet, soapy floor. The district court excluded
Critchfield’s declaration only after concluding the declaration amounted to an
attempt to create a sham issue of fact as to whether there was a dry path around
the puddle of water to an alternate urinal or toilet stall.2
Critchfield asserts the district court erred in denying his motion for
sanctions based on Blazin’s alleged spoliation of evidence. We conclude
Critchfield’s failure to file a transcript of the hearing on the motion for sanctions
constitutes a waiver of the issue. Under 10th Cir. R. 10.1(A)(1), “[t]he appellant
2For the first time at oral argument, Critchfield’s attorney asserted the
district court erred in excluding Critchfield’s declarations on this basis. This
court does not consider arguments raised for the first time at oral argument.
Dodds v. Richardson, 614 F.3d 1185, 1207-08 (10th Cir. 2010).
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must provide all portions of the transcript necessary to give the court a complete
and accurate record of the proceedings related to the issues on appeal.” See also
10th Cir. R. 10.3(C)(3) (requiring a record on appeal to contain transcripts of oral
rulings). “[F]ailure to file the required transcript involves more than
noncompliance with some useful but nonessential procedural admonition of
primarily administrative focus. It raises an effective barrier to informed,
substantive appellate review.” McGinnis v. Gustafson, 978 F.2d 1199, 1201 (10th
Cir. 1992). Without the transcript, we affirm the district court’s order. See id.
B. Summary Judgment
This court reviews de novo an order of the district court granting summary
judgment, viewing the evidence in the light most favorable to the non-moving
party. Milne v. USA Cycling Inc., 575 F.3d 1120, 1129 (10th Cir. 2009).
Summary judgment is appropriate if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “We consider the availability of summary
judgment against the backdrop of the forum state’s substantive law.” Evanston
Ins. Co. v. Law Office of Michael P. Medved, P.C., 890 F.3d 1195, 1198 (10th
Cir. 2018). Thus, in determining whether Blazin is entitled to judgment as a
matter of law, this court applies Utah substantive law. See id. Whether or not
there exists a legal duty in a tort case like this is a question of law for the court.
Jensen v. Gardner, 279 P.3d 844, 845-46 (Utah Ct. App. 2012).

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Critchfield argues the district court erred in determining that, as a matter of
law, Blazin did not owe him a duty of care because it could not have reasonably
expected him to walk through the obviously slippery puddle of water to use the
nearest urinal when there was an available dry path to an alternate toilet.3
Critchfield’s arguments in this regard are unconvincing.
It is uncontested Blazin possessed the land (i.e., restaurant and bathroom)
and invited Critchfield onto the property as a customer, making Critchfield a
business invitee. “The duty of care that possessors of land in Utah owe to
invitees upon their property is set forth in sections 343 and 343A of the Second
Restatement of Torts.” Hale, 116 P.3d at 265. As interpreted by the Utah
Supreme Court, these provisions permit land possessors to maintain open and
obvious dangers on their premises without liability so long as the condition does
not fall within an exception set out in the Restatement. Id. at 269. That is, a duty
only attaches if the land possessor should reasonably expect invitees not to
perceive the danger, to forget the danger, or to reasonably encounter the danger
despite its obviousness. Id.
3To prevail on a negligence claim, Critchfield must establish the following:
Blazin owed him a duty of care, it breached that duty, and the breach caused him
to suffer legally compensable damages. Cope v. Utah Valley State Coll., 342 P.3d
243, 248 (Utah 2014). The district court resolved this case solely on the basis
Blazin did not owe Critchfield a duty of care.
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The record makes clear that upon entering the bathroom, and before
proceeding to the urinal, a reasonable person could see the condition of the floor
and could see a sign warning that caution was necessary. Indeed, Critchfield
recognized the floor had “more water than you would expect to see on a public
restroom floor[,] indicating that either a toilet had overflowed or perhaps cleaning
hadn’t been finished.” Perceiving this danger, he walked through the wet area to
the nearest urinal using “extreme caution,” feeling “completely uncomfortable
even taking the very smallest of steps.” Thus, the record definitively
demonstrates there was no reason for Blazin to expect an invitee would not
perceive the danger or would forget about its existence. Likewise, with a puddle
of liquid visible in front of one urinal, an obvious dry path to an alternate urinal
or toilet stall, and a sign encouraging caution, Blazin could not have reasonably
expected that Critchfield would choose to walk through the puddle to use the
identified urinal. See Jensen, 279 P.3d at 845-46 (granting summary judgment to
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landowner in analogous situation).4 That being the case, the district court
correctly concluded Blazin did not owe a duty to Critchfield under Utah law.

* * *

4Critchfield is simply wrong in arguing the district court engaged in an
improper assessment of comparative negligence in granting Blazin summary
judgment. Instead, the district court undertook a proper analysis of the existence
of a duty on the part of Blazin, a legal question, by considering whether Blazin
would reasonably expect a business invitee like Critchfield to walk through an
obvious puddle of water on the floor of a public restroom to use the first urinal in
a bathroom when there was a dry path to an alternate urinal or toilet stall. See
Hale v. Beckstead, 116 P.3d 263, 268 (Utah 2005). Having correctly concluded
the answer to that question was “no,” the question of comparative fault became
irrelevant. Id. (“Where there is no duty, there is no fault to compare or distribute
under the comparative fault scheme.”).
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Outcome: For those reasons set out above, the orders of the United States District
Court for the District of Utah excluding Critchfield’s declaration, denying
Critchfield’s motion for sanctions, and granting summary judgment in favor of
Blazin are hereby AFFIRMED.

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