The Appellate Group

Brown v. Fruit Heights

Brown v. Fruit Heights, 2023 UT App 39 (Luthy, J.)

Civil Procedure

Shelly Brown sustained serious injuries after she slipped on fell on some black ice in a park-and-ride lot maintained by the city of Fruit Heights. She sued the City, and the City succeeded on a motion for summary judgment because she failed to present evidence that the City created the black ice or had actual or constructive evidence of the condition. The Utah Court of Appeals affirmed, holding among other things:

  • The district court did not err in relying only on the evidence that Brown failed to produce when it concluded that Brown did not produce enough evidence to support her claim that the City breached its duty of care to her by creating the black ice.
  • Practice Tip: On appeal, ensure that missing exhibits a party intends to rely on become part of the appellate record. Here, Brown produced photos of the black ice that were not part of the record on appeal. The photos did not factor into the district court’s order below or the evidence on appeal.
  • Judicial Tip: In the summary judgment context, courts do not make factual findings and should avoid using the word “find” when announcing a ruling.

Read the full court opinion