MORTENSEN, Judge
Opinion Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 150900203 George S. Diumenti, Clifton W. Thompson, and Karra J. Porter, Attorneys for Appellants Thomas D. Walk, Swen R. Swenson, and Ryan R. Beckstrom, Attorneys for Appellee JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred. MORTENSEN, Judge: ¶1 In mid-January, during subfreezing temperatures, Plaintiff Curtis W. Warrick cut across Defendant Property Reserve Inc.'s (PRI) parking lot on his way to work. Before he could complete his sojourn, he slipped and fell on a patch of ice. Warrick and his wife, Shawna J. Warrick (collectively, the Warricks), sued PRI for negligence, but the district court dismissed their claims on summary judgment on the basis that the Warricks provided no evidence of how long the temporary condition had existed. The Warricks appeal, and we affirm.
BACKGROUND
¶2 Warrick left for work early one January morning in 2011. He boarded a bus and arrived in Salt Lake City just before 8:00 a.m. The weather was below freezing with light snowfall. ¶3 Warrick walked until he came to a private walkway that cut across a commercial property. The walkway had apparently been cleared of snow and salted. Warrick traveled along the walkway until it came to a pay-to-use parking lot owned by PRI. Warrick noticed a skiff of snow on the parking lot and piles of plowed snow, roughly two feet high, around the perimeter of the lot. ¶4 While attempting to cross the parking lot, Warrick slipped and fell, breaking his leg. After the fall, Warrick found that he had slipped on "crystal clear" ice, which he described as "just water under that thin layer of snow." The Warricks sued PRI for negligence. ¶5 After discovery, PRI moved for summary judgment, arguing (1) that Warrick was a trespasser and (2) that even if he was a licensee, PRI did not breach any duties because it did not have actual or constructive notice of the ice. The district court granted the motion, considering Warrick an invitee for purposes of the motion and ruling that Warrick presented no evidence that PRI had actual or constructive notice of the ice. The Warricks appeal.
ISSUE AND STANDARD OF REVIEW
¶6 The Warricks contend that the district court erroneously granted summary judgment. We review the district court's grant of summary judgment for correctness, "considering only whether the [district] court correctly applied the law and correctly concluded that no disputed issues of material fact existed." North Fork Special Service District v. Bennion, 2013 UT App 1, ¶ 12, 297 P.3d 624 (cleaned up).
ANALYSIS
¶7 The Warricks' argument on appeal is twofold. First, the Warricks assert that the district court misapplied controlling case law when it required them to demonstrate that PRI had actual or constructive notice of the ice. Second, in the alternative, the Warricks argue that the evidence presented on summary judgment reasonably supported an inference that the ice existed long enough for PRI to have discovered and remedied it. Before turning to issues of preservation and the merits of the district court's grant of summary judgment, we first address the procedural parameters of summary judgment. Particularly, we focus on what constitutes the facts to be considered by the district court.
I. The Constellation of Facts on Summary Judgment
¶8 We acknowledge the black letter law that the court must construe all facts and draw all reasonable inferences in favor of the non-moving party. Less clear is which facts the district court may consider in the first place. A conclusion that a genuine issue of fact exists, even when based upon a reasonable inference, must flow from a specific fact or set of facts. ¶9 Rule 56 of the Utah Rules of Civil Procedure is explicit in this regard. Subsection (a)(1) of rule 56 provides:
[A] motion for summary judgment must contain a statement of material facts claimed not to be genuinely disputed. Each fact must be separately stated in numbered paragraphs and supported by citing to materials in the record under paragraph (c)(1) of this rule.
Utah R. Civ. P. 56(a)(1). Correspondingly, subsection (a)(2) provides:
[A] memorandum opposing the motion must include a verbatim restatement of each of the moving party's facts that is disputed with an explanation of the grounds for the dispute supported by citing to materials in the record under paragraph (c)(1) of this rule. The memorandum may contain a separate statement of additional material[] facts in dispute, which must be separately stated in numbered paragraphs and similarly supported.
Id. R. 56(a)(2). Finally, subsection (a)(4) provides:
Each material fact set forth in the motion or in the memorandum opposing the motion under paragraphs (a)(1) and (a)(2) that is not disputed is deemed admitted for the purposes of the motion.
Id. R. 56(a)(4). Thus, the fact statements of the moving and opposing memoranda constitute the constellation of facts to be considered by the district court on summary judgment. Those same facts are to be considered by the reviewing court on appeal. Limiting consideration to this array of facts is fundamentally fair. Although a summary judgment motion
that even if evidence were properly before us that the ice was one inch thick, Warrick's claim would still fail for the reasons we next explain.
A non-moving party is not entitled to "every possible inference of fact, no matter how remote or improbable, in favor of the nonmoving party." IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588. The district court is required, however, only to draw reasonable inferences, and such inferences must present something more than speculation. Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 21, 390 P.3d 314.
Similarly, the Warricks attached to their appellate brief photographs of ice in a parking lot. However, the record reflects that when asked in his deposition whether the photos represented the ice on which he fell, Warrick stated: "I think it isn't . . . . I'm thinking not."
We recognize that the district court has discretion to grant or deny a motion for summary judgment based on a "mere technical" failure to meet briefing requirements. See Jennings Inv., LC v. Dixie Riding Club, Inc., 2009 UT App 119, ¶ 24, 208 P.3d 1077. But regardless of whether there has been a "technical violation" of the rules, the existence of a fact somewhere in the record does not absolve a party from its duty to include that fact in its summary judgment memorandum. Id. ¶ 25; see also id. ¶ 26 ("A district court is not obliged to comb the record to determine whether a genuine issue as to any material fact exists to prevent summary judgment. Rather, it is the nonmoving party's burden to demonstrate that such a conflict exists."); Utah R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record.").
II. The Requirement to Demonstrate Actual or
Constructive Notice
¶11 The Warricks claim on appeal that the district court misapplied Utah case law by requiring a showing of actual or constructive notice. They argue that a showing of notice is not required in a situation where a defendant creates the dangerous condition. We conclude that this argument is unpreserved. ¶12 "When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. "An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on it." Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (cleaned up). "To provide the court with this opportunity, the motion for summary judgment whether the Warricks "ha[d] any facts that would indicate that the owner . . . actually knew" about the ice, they responded, "We're not asserting that . . . . We're not saying that this was an obvious condition . . . ." Such an argument that PRI had constructive notice cuts against a conclusion that the Warricks argued that their claim did not require a showing of constructive notice. Accordingly, we cannot conclude that the Warricks raised this argument with adequate specificity for the district court to rule on it. See Johnson, 2017 UT 76, ¶ 15. ¶16 Second, the Warricks failed to provide the district court with "relevant legal authority." Id. The Warricks direct us to no place in the record where they cited Jex or any similar authority to the district court. Again, the Warricks argued only that the existence of the ice and the presence of salt on the sidewalks were sufficient to show that PRI had constructive notice of the ice. Thus, the issue of whether PRI created a dangerous condition was not preserved and we will not consider it.
Indeed, at oral argument the Warricks acknowledged that they neither made this argument in the briefing before the district court nor at the hearing on the motion for summary judgment. --------
III. The Sufficiency of the Evidence to Support
Constructive Notice
¶17 Having rejected the Warricks' first argument, we now consider their alternative argument—that the evidence presented to the district court was sufficient, under the summary judgment standard, to support the conclusion that PRI had constructive notice of the ice. We disagree and conclude that the existence of the ice and the presence of salt on the surrounding sidewalks demonstrate neither how long the ice had been on the ground nor whether PRI had sufficient time to recognize and remedy the hazard. ¶18 "The mere presence of a slippery spot on a floor does not in and of itself establish negligence." Price v. Smith's Food & Drug Centers, Inc., 2011 UT App 66, ¶ 8, 252 P.3d 365 (cleaned up). A business owner is not charged with insuring the safety of all up), we conclude, as did the district court, that the Warricks presented no evidence going to the amount of time the ice existed. And absent evidence upon which a factfinder could conclude that PRI should have known about the hazardous condition and remedied it, the Warricks' claim fails as a matter of law.
CONCLUSION
¶26 We conclude that the district court properly granted summary judgment. The Warricks' argument that they were not required to show actual or constructive notice of the dangerous condition was not preserved. Further, the Warricks presented no competent evidence going to the amount of time that the dangerous condition existed. ¶27 Affirmed.