Fall 2016

Dewhirst DolvenLLC Attorneys at Law Legal Update s Wyoming sColoradosTexas

Plaintiffs appealed, seeking a trial de novo Utah at the district court. At trial, Defendant in brief stressed the multiple inconsistencies in Plaintiffs’ medical records as to how the DEWHIRST & DOLVEN accident occurred and as to the alleged UTAH OBTAINS THREE DEFENSE injuries. Upon bench trial, the district court • The Utah VERDICTS IN A TRIAL DE judge also held that the alleged injuries did judicially adopted a new cause of NOVO not match the vehicle’s minor scrape mark. action for filial consortium for County: Dewhirst & As such, the judge rendered “no cause of losses sustained from a Dolven attorney Kyle Shoop obtained action” as to all three of the Plaintiffs’ minor-child’s serious injury. In three defense verdicts upon a trial de actions. adopting the cause of action, the novo to the bench. This matter involved Damian v. Nesbit, Court held that the same statutory alleged personal injuries from three Case No. 168900005, requirements for a spousal loss of Plaintiffs, who were brothers, after an Salt Lake County, Utah. consortium claim must be met. alleged impact between Plaintiffs’ ...... Page 2 vehicle and a semi tractor-trailer driven by Defendant Ryan Nesbit. COLORADO In a construction defect case, the Plaintiffs initially filed their actions • against Defendant Nesbit in small claims Colorado Court of Appeals court. They alleged that the rear interpreted when “substantial driver-side of Defendant’s trailer completion” of a contractor’s impacted their vehicle as the truck made In This Issue work occurs under the builder’s a right turn onto northbound Bangerter statute of repose. The Court held Highway. Though Plaintiffs alleged that substantial completion is receiving soft tissue injuries from the ABOUT OUR FIRM...... Page 5 when the contractor “finishes impact, none of them received any UTAH working on the improvement,” medical care until over 70 days after the rather than when the certificate of alleged impact. However, one month after the accident, the driver of the D&D Obtains Three Defense occupancy is issued. Verdicts...... Page 1 Page 3 passenger vehicle, Plaintiff Wellington ...... Damian, provided a recorded statement Cause of Action for Loss of Filial WYOMING to the insurance carrier wherein he Consortium Adopted...... Page 2 • The denied anyone in his vehicle having Savings Statute Does Not Apply adopted the notice-prejudice rule sustained any injuries. He also described to GIA...... Page 2 for denial of a claim due to the accident as “minor.” Indeed, the Water Damage Not Covered for untimely notice. That rule is: impact only left a scrape on the hood of Temporary Roof...... Page 2 “Before being entitled to deny the Plaintiffs’ vehicle. Based upon the directionality and the scrape and the COLORADO coverage based upon untimely point of impact of the vehicles, it was notice of an occurrence that also doubtful that the impact would have “Substantial Completion” Interpreted under SOR...... Page 3 triggers coverage, an insurer must occurred without Plaintiffs’ vehicle be prejudiced, regardless of the rear-ending Defendant’s trailer. Formation of HOA under CCIOA express language of the policy.” Interpreted...... Page 3 At the small claims trial, the judge ruled ...... Page 4 Defense Verdict in Medical in Defendant’s favor as to all three of the Malpractice $10 Million Case...Page 3 Texas Plaintiffs’ claims. The judge found that • In a wrongful death case arising Plaintiffs would not have sustained their Wyoming from a drug overdose, the Texas alleged injuries from such a minor accident which resulted in only a scrape Notice-Prejudice Rule Adopted for Supreme Court held that a Insurance Claim Denial...... Page 4 malfunction in the 911 phone mark to the vehicle. As such, the judge rendered three “no cause” verdicts in Oil CGL Policy Is Valid Under system did not waive Defendant Nesbit’s favor. He did not Anti-Indemnity Statute...... Page 4 governmental immunity under the make a ruling as to fault for the accident, Texas Tort Claims Act. The as doing so was unnecessary based upon Texas malfunction was determined not his ruling of there being no damages Governmental Immunity Not to be the cause of the sustained. Waived in WD Case...... Page 5 death. Defense SJ Reversed in Premises ...... Page 5 Liability Case...... Page 6 R Page 2 Dewhirst & Dolven’s Legal Update

UTAH SUPREME COURT Plaintiffs’ lawsuit was brought under policy covered water damage to a house JUDICIALLY ADOPTS CAUSE the Governmental Immunity Act of without a complete roof. OF ACTION FOR LOSS OF Utah (“GIA”). As required by the GIA, Plaintiffs purchased a homeowner’s Plaintiffs submitted a “Notice of FILIAL CONSORTIUM insurance policy from Defendant Claim” to Provo City before filing an Farmers Insurance Exchange to cover Utah Supreme Court: After a action in court. Upon their claim being fourteen-year-old student at a high Plaintiffs’ primary residence. The denied, Plaintiffs filed their lawsuit in policy generally excluded from school suffered serious and court within the one year filing period life-threatening injuries in his drama coverage water intrusion into the house provided for in the GIA. However that with certain exceptions outlined in a class, his parents filed a lawsuit. His lawsuit was dismissed on the basis that parents filed as Plaintiffs, individually limited water coverage provision. As it was filed without the $300 bond relevant to the case, that provision did and as parents and guardians of the required under the GIA. student. They asserted negligence not cover water damage unless the claims and also sought to bring a By the time the court dismissed the water entered through an opening in the personal claim for loss of filial lawsuit, the one year filing period had roof caused by a windstorm. The consortium. For the claim, they had expired. Plaintiffs nonetheless filed a provision further specified that sought to recover damages for the loss second lawsuit (with the bond). temporary coverings were not to be of consortium, companionship, Defendant again moved to dismiss, but considered as roofs. services, comfort, society, and attention this time due to the lawsuit being Plaintiffs had begun replacing shingles of their minor child. The district court outside the one year filing period. In on the roof of their house. As Plaintiffs dismissed the loss of filial consortium response, Plaintiffs argued that the installed the last two rolls of claim, and the parents appealed. Savings Statute, U.C.A. § 78B-2-111, underlayment below new shingles, a excused their failure to file within the sudden and severe storm arrived, The issue before the Utah Supreme one year period. The Savings Clause Court was: whether Utah should bringing with it torrential rains. The generally allows a plaintiff to storm ripped the underlayment off the “judicially adopt a cause of action that commence a new action within one allows the parents of a tortuously roof, allowing the rain to penetrate the year of the dismissal of a previous house. This resulted in damage to both injured minor child to recover for loss action that was timely when filed, but of the child’s consortium.” The Court the structure and personal property which was dismissed for reasons other within the house. Plaintiffs filed an ruled: “we adopt a cause of action for than on the merits. loss of filial consortium allowing insurance claim, which Defendant parents to recover for loss of filial The district court granted Defendant’s denied under the terms of the policy. consortium due to tortious injury to a motion to dismiss, holding that claims At the district court, Plaintiffs provided minor child in cases where the injury against governmental entities are an expert affidavit stating that the meets the definition set forth in U.C.A. comprehensively governed by the GIA. underlayment layers were not a § 30-2-11, the spousal consortium As the GIA does not provide a savings temporary covering because those statute.” In doing so, the Court also provision, Plaintiffs’ claims were thus layers were to be installed on the roof stated: “Like the relationship between time-barred. permanently. However, that expert spouses, the relationship between The issue on appeal was thus whether recognized that the underlayment alone parents and a minor child is a legally the Savings Clause applies to actions was not a complete roof system without recognized relationship involving legal brought under the GIA. The Utah shingles. The district court therefore obligations. Like the relationship Supreme Court held: “We interpret the entered summary judgment in between spouses, it also tends to be a Governmental Immunity Act to Defendant’s favor, on the basis that particularly close relationship highly foreclose the applicability of the there was not a roof installed on the valued in society.” Savings Statute….” The Court noted house within the policy terms. Benda v. Roman Catholic Bishop that the GIA even includes a savings On appeal, the Utah Court of Appeals of Salt Lake City, provision of its own, and thus the recognized Utah’s policy of liberally 2016 UT 37 filing-period requirement under the construing policy terms in favor of the (Utah Supreme Court, GIA was exclusive of the Savings insured. Despite this, the Court filed August 25, 2016, Statute. determined that there was no ambiguity not yet released for publication Craig et al. v. Provo City, in the policy’s term “roof,” which in the permanent law reports). 2016 UT 40 (Utah Supreme Court, required a completed roof. As Plaintiffs’ filed August 26, 2016, expert even recognized there was not a not yet released for publication complete roof system installed, the UTAH SUPREME COURT in the permanent law reports). Court affirmed the district court’s HOLDS THE SAVINGS ruling. STATUTE DOES NOT APPLY Poulsen v. Farmers Insurance TO ACTIONS UNDER THE HOMEOWNER’S INSURANCE Exchange, 2016 UT App 170 POLICY TERMS HELD NOT (Utah Court of Appeals, GOVERNMENTAL filed August 4, 2016, IMMUNITY ACT OF UTAH TO COVER WATER DAMAGE not yet released for publication FROM A TEMPORARY ROOF Utah Supreme Court: Plaintiffs filed a in the permanent law reports). tort lawsuit against Defendant Provo Utah Court of Appeals: The issue in City based upon an alleged false arrest. this appeal was whether an insurance R Dewhirst & Dolven’s Legal Update Page 3

With regard to Sierra’s first argument, plat for the community were recorded. Colorado the Colorado Court of Appeals held It also determined that the developer’s that the statute of repose was not properties were brought into the tolled until the settlement of the community when those documents “SUBSTANTIAL COMPLETION” underlying action. The Court found were recorded. Thus, per the Court of INTERPRETED UNDER THE that, unlike a statute of limitations, a Appeals’ decision, the developer was BUILDER’S STATUTE OF statute of repose cannot be tolled. liable for the assessments under both REPOSE As to Sierra’s second argument, the the community’s covenants and the Colorado Court of Appeals: In this Court noted that § 104 provides: “in CCIOA. construction defect dispute, Plaintiff no case shall such an action be The Sierra Pacific Industries (“Sierra”) brought more than six years after the disagreed. On the facts of the case, the appeals the district court’s entry of substantial completion of the Court concluded that recordation of summary judgment in favor of improvement to the real property.” the covenants and plat did not create a Defendant Jason Bradbury d/b/a The Court thus ruled that “substantial common interest community. Rather, Bradbury Construction (“Bradbury”). completion” for a subcontractor is the community was created when the Sierra was hired by a contractor to when it “finishes working on the developer first subjected the property supply windows and doors for the improvement.” This occurred by to the covenants, and the remaining construction of condominiums at Ajax Bradbury at the earliest in 2002, and property could not become part of the Lofts Condominium Association. in 2004 at the latest. Thus, Sierra’s community until the developer added Sierra hired Bradbury to install the lawsuit was time barred under the it in accordance with certain windows and doors. Bradbury began statute of repose. prescribed steps. Because the and completed its work in 2002. In Sierra Pacific Industries, Inc. v. developer’s property could not June 2004, Denver City and County Bradbury, 2016 COA 132 become part of the community until it issued a certificate of occupancy for (Colorado Court of Appeals, was added, the Court held that the all units. When residents began filed September 8, 2016, developer was not liable for the complaining of water infiltration, not yet released for publication assessment. Accordingly, the Court of Sierra and the general contractor in the permanent law reports). Appeals’ ruling was reversed. attended to them from 2004 through Pulte Home Corp., Inc. v. 2011. Bradbury participated in some Countryside Community Assoc., Inc., repairs efforts in 2004, but none COLORADO SUPREME 2016 CO 64 (Colorado Supreme Court, thereafter. COURT INTERPRETS filed September 26, 2016, not yet released for publication After Sierra settled with the general FORMATION OF A in the permanent law reports). contract and the association, Sierra COMMON INTEREST eventually filed suit against Bradbury COMMUNITY UNDER THE DEFENSE VERDICT IN to recover for the losses. Bradbury CCIOA MEDICAL MALPRACTICE filed a motion for summary judgment, Colorado Supreme Court: In this ACTION WHICH SOUGHT arguing that Sierra’s claims were time decision, the Colorado Supreme Court $10 MILLION barred under the six-year statute of addressed “when and how common repose in Colorado’s Construction interest communities are formed under El Paso County: Plaintiff Mina Beall Defect Action Reform Act the Colorado Common Interest alleged that she suffered (“CDARA”), § 13-80-104, C.R.S. Ownership Act (“CCIOA”), §§ cardiopulmonary arrest and a 2015. In response, Sierra made two 38-33.3-101 to -402, C.R.S. (2016).” profound hypoxic brain injury as a arguments: (1) that its claims did not result of Defendants’ negligence. arise until after it reached the The Countryside Townhome Plaintiff sued three of her medical settlement with the general contractor Subdivision is a residential common doctors for negligently failing to and association; and (2) even if the interest community in Fountain, evaluate her heart function prior to an statute of repose was not tolled by the Colorado. Their homeowners’ upper undoscopy (“EGD”). association filed a complaint against settlement, then the statute of repose Plaintiff alleged that an still had not began to commence until the subdivision’s developer seeking over $400,000 in past-due assessments echocardiogram should have been 2011, when the improvements to the performed prior to the EGD. She also property in connection with for maintenance of the developer’s unsold properties. The developer’s alleged that Defendants failed to Bradbury’s work were substantially review imaging before the procedure; completed. liability turned on when its properties became part of the subdivision under that there was substantial evidence to Bradbury’s response was two-fold: (1) the community’s governing support not proceeding with the EGD; that there is no settlement exception to instruments and the CCIOA. and that Defendants should not have the statute of repose; and (2) that the gone forward with the procedure. statute of repose commence, at the The Colorado Court of Appeals had Defendants claimed that their care and latest, when its work was completed in determined that the community was treatment of Plaintiff was reasonable. 2004. formed when the document containing the community’s covenants and the More on page 4 R Page 4 Dewhirst & Dolven’s Legal Update

practicable.” Failure to do so “will COMMERICIAL GENERAL Continued from Page 3 result in exclusion of coverage LIABILITY POLICY HELD whether we are prejudiced or not.” VALID UNDER They also claimed that there was no ANTI-INDEMNITY STATUTE need to perform a heart evaluation On March 31, 2011, one of Hipner’s IN OIL RIG INJURY CASE prior to the EGD. They explained that drivers created a road obstruction that during the procedure Plaintiff had an produced an injury-generating, U.S. Court of Appeals, 10th Cir.: airway obstruction that is a known multi-vehicle collision. Hipner learned Darrell Jent suffered serious injuries potential complication of the EGD. of the accident the same day that it while working on an oil rig. The rig’s Further, Plaintiff suffered respiratory occurred. Hipner was informed by a owner, Defendant Precision Drilling, arrest that was unrelated to the heart police officer that “there were no paid Mr. Jent a settlement. An issue function. serious injuries.” The police report existed concerning who was reflected there being individuals who Plaintiff was 29 years old, and alleged ultimately responsible for payment of sustained injuries from the accident. the settlement. Precision contended that she would need lifetime care and On the day of the accident, Hipner would be unable to work. She sought that its insurance company, Plaintiff reported the accident to Lexington, should reimburse the damages up to $10 million for lifetime representatives of Willis of Wyoming care and lost earnings. Her final money Precision paid for the and Great West Casualty Company, settlement. Lexington issued two demand before trial was $3 million the underlying primary insurance total ($1 million to each Defendant). commercial general liability polices to companies for Hipner. But no one at Precision, which covered accidents In response, one Defendant offered Hipner notified Century. Hipner $50,000, and the other two Defendants exactly like the one sustained by Mr. testified at a deposition that he Jent. did not make any offer. The jury thought notifying Willis of Wyoming returned a verdict in favor of satisfied his obligations to notify all of Lexington argued that a Wyoming Defendants. the insurance companies. statute rendered the policies a nullity, so that any coverage was illusory Beall v. Solano, MD et al., One of the individuals involved in the Case No. 14CV31351. instead of real. The district court accident was rendered quadriplegic. agreed and held that that Lexington Hipner learned about this in May was free from any liability. 2011. In September 2011, Century On appeal, the Wyoming Supreme Wyoming was first notified of the accident indirectly through Willis of Wyoming. Court stated: “There can be no doubt Century later declined to participate in that Wyoming law [under the State’s Anti-Indemnity Statute, W.S.A. § WYOMING SUPREME a settlement with the injured individual because it determined 30-1-131] prohibits those engaged in COURT ADOPTS THE the oil and gas industry from NOTICE-PREJUDICE RULE Hipner was not covered due to lack of timely notification. Century then filed contractually shifting to others FOR DENIAL OF suit against Hipner, seeking a liability for their own negligence.” INSURANCE CLAIMS declaratory judgment that it did not However, the Court noted that the Wyoming Supreme Court: The have a duty to defend or indemnify Anti-Indemnity Statute specifically following question was certified to the Hipner for the accident. states that the provision “shall not Wyoming Supreme Court from the affect the validity of any insurance The Wyoming Supreme Court adopted contract.” U.S. Court of Appeals: “Whether, the notice-prejudice rule, which under Wyoming law, an insurer must requires proof of prejudice for an Lexington further argued that the be prejudiced before being entitled to insurer to avoid liability in the event policy was void under the deny coverage when the insured has that a policyholder provides untimely Anti-Indemnity Statute because failed to give notice as soon as notice of an event. In adopting the Precision did not pay for the policy. practicable.” In certifying that rule, the Court was influenced by the Rather, the well-site manager paid the question, the U.S. Court of Appeals uneven bargaining power between a policy to insure Precision, at the also noted that many states have policyholder and an insurance request of another entity (the expressly adopted a notice-prejudice company. It also was influence by leaseholder). Lexington argued that rule under which an insurer will only public policy of enforcing insurance the policy arrangement therefore was be able to disclaim coverage if it contracts. identical to an indemnity agreement demonstrates it was actually that was barred under the statute. It prejudiced by late notice of a claim. Century Surety Co. v. thus asked the Wyoming Supreme Jim Hipner, LLC et al., Court to bar Precision from claiming Defendant Jim Hipner LLC, a 2016 WY 81, 377 P.3d 784 trucking company, obtained a $2 coverage under a policy someone else (Wyoming Supreme Court, had to purchase. million umbrella policy from Plaintiff filed August 17, 2016). Century Surety Company. That policy provided a notice provision that Hipner was to notify Century of a claim in writing “as soon as More on Page 5 R Dewhirst & Dolven’s Legal Update Page 5 Continued from Page 4 Once on scene, however, the property … if the governmental unit emergency personnel provided would, were it a private person, be The Wyoming Supreme Court assistance to a different drug overdose liable to the claimant according to disagreed with Lexington’s argument. victim and then left the premises Texas law.” Rather, the Court was influenced by without rendering aide to Sanchez. the statutory language upholding the The Texas Supreme Court held that They erroneously concluded that the governmental immunity is not waived, validity of “any” insurance contract. two closely-timed 911 calls concerning The Court thus refused to override the and dismissal is therefore required, overdose victims at the same location because the causal nexus between the plain meaning of the statute. were redundant. In a wrongful death alleged telephone condition and Lexington Insurance Co. v. lawsuit against Defendant City of Sanchez’s injury was not established. Precision Drilling Co., L.P. et al., Dallas, Sanchez’s parents allege the 911 The Court ruled that for immunity to be 830 F.3d 1219 telephone system malfunctioned and waived under the TCA, the personal (U.S. Court of Appeals, 10th Circuit, disconnected Sanchez’s call before the injury or death must be proximately filed July 26, 2016). responders could establish the overdose caused by a condition or use of tangible victims were not duplicative. personal property. To establish this, the The issue on appeal before the Texas phone’s condition must have been Supreme Court was whether the Texas determined to be a proximate cause of Texas Tort Claims Act (“TCA”) waives the Sanchez’s death. The Court determined City’s immunity from suit based upon that the causal connection between the allegations in the lawsuit that a phone system and the death was too far MALFUNCTION OF condition of the City’s telephone attenuated, especially since six hours 911-SYSTEM RULED NOT TO system proximately caused Sanchez’s passed between the phone malfunction WAIVE GOVERNMENTAL death. Plaintiffs alleged that Sanchez and when Sanchez passed away. IMMUNITY IN WRONGFUL was prevented from receiving City of Dallas v. Sanchez, DEATH LAWSUIT potentially life-saving medical care due to the telephone system issue. The TCA 2016 WL 3568055 Texas Supreme Court: Hours before provides a limited waiver of (Texas Supreme Court, Matthew Sanchez died from a drug governmental immunity for “personal filed July 1, 2016, overdose, a 911 operator dispatched an injury and death so caused by a not yet released for publication ambulance to his apartment complex. condition or use of tangible personal in the permanent law reports).

Dewhirst & Dolven would like to recognize and thank several of its attorneys for their recent philanthropic activities: About Our Firm • The firm has supported the Argonaut Group to benefit Portland’s Transitional Community School. • Miles Dewhirst has supported the Pikes Peak Challenge hike to benefit the Brain Dewhirst & Dolven’s Injury Alliance. He has also sponsored the Down Syndrome Association buddy walk. Legal Update • Pat Maggio serves on the Edson Foundation Board, a non-profit philanthropic is published quarterly by organization that provides grants to help young people expand educational and career choices. Rick N. Haderlie, Esq and • Lars Bergstrom serves on the board of The Homes Front Cares, which provides Kyle L. Shoop, Esq emergency grants to pay essential life expenses for veterans. of • Susan Pray and Kathleen Kulasza spent time last fall, winter, and spring coaching high school mock trial. Dewhirst & • Marilyn Doig heads the firm’s holiday giving program, which provides books to children from low income families and gives a needy family a holiday dinner, new Dolven, LLC winter clothes, and toys to make the season festive. For more information regarding • Kyle Shoop has spoken at elementary assemblies to promote reading among students legal developments, assistance with any and families. Utah, Wyoming, Colorado, or Texas matter, Dewhirst & Dolven, LLC is pleased to serve our clients throughout the intermountain west or to receive this publication via email, and Texas from the following offices: Salt Lake City, Utah • Denver, Colorado • Colorado contact Rick Haderlie at Springs, Colorado • Grand Junction, Colorado • Casper, Wyoming • Dallas, Texas • and Port Isabel, Texas. Please see our website at DewhirstDolven.com for specific contact [email protected] information. 2225 East Murray-Holladay Rd., Dewhirst & Dolven, LLC has been published in the A.M. Best’s Directory of Recommended Suite 103 Insurance Attorneys and is rated an “AV” law firm by Martindale Hubbell. Our attorneys Salt Lake City, UT 84117 have extensive experience and are committed to providing clients throughout Utah, (801) 274-2717 Wyoming, Colorado and Texas with superior legal representation while remaining sensitive www.DewhirstDolven.com to the economic interests of each case. R SALT LAKE CITY GRAND JUNCTION Dewhirst Dolven 2225 East Murray-Holladay Rd, 2695 Patterson Road, Ste 2, #288 Attorneys at Law Ste 103 Grand Junction, CO 81506 www.DewhirstDolven.com Salt Lake City, UT 84117 (970) 241-1855 (801) 274-2717 DALLAS DENVER 5430 LBJ Freeway 650 So. Cherry St., Ste 600 Suite 1200 Denver, CO 80246 Dallas, TX 75240 (303) 757-0003 (972) 789-9344

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DEFENSE SUMMARY eliminate the condition; and (6) the failure However, the Texas Court of Appeals JUDGMENT REVERSED IN thus caused Plaintiff’s injuries. disagreed. It held that Defendant should have SLICK FLOOR, PREMISES Smokey Mo’s filed a motion for summary filed an objection to the affidavit, and LIABILITY CASE judgment. In doing so, it did not contest that because it didn’t, the objection was waived. Plaintiff was in invitee of its premises or that Thus, evidence existed (by the affidavit) that it was the possessor of the premises. Rather, created an issue of fact as to Defendant’s Texas Court of Appeal, Austin District: knowledge of the unsafe condition. Plaintiff Gerald Kostecka filed a lawsuit it sought summary judgment on the basis that all of the other elements of the claim Accordingly, the Court reversed the grant of against Defendant Smokey Mo’s BBQ, summary judgment. seeking recovery for personal injuries. He were unsupported by evidence. In opposition to the motion, Plaintiff submitted a lengthy Kostecka v. Smokey Mo’s BBQ, alleged that while eating at the restaurant, he 2016 WL 5874868 reached across the table for the salt. While affidavit. Included in this affidavit were statements from Smokey Mo’s employees to (Texas Court of Appeal, Austin District, doing so, his chair “shot out” from under filed October 7, 2016, him, causing him to fall to the floor and Plaintiff about how the business was aware of the slick floor condition created by the not yet released for publication hurting himself. Specifically, his left leg and in the permanent law reports). knee were injured. He claimed, among other bottom of the chairs and the paint used on things, that the floor on the restaurant was the floor. Plaintiff was also told about how coated with a material that created an unsafe the business tried to sand down the floor to surface. eliminate the slick condition. The affidavit also stated that Plaintiff was not warned of The elements of Plaintiff’s premises liability the floor condition. Despite this affidavit, the claim were: (1) he was an invitee; (2) district court granted Defendant’s motion for Smokey Mo’s BBQ was the possessor of the summary judgment. premises; (3) a condition of the premises posed an unreasonable risk of harm to him; Plaintiff appealed. On appeal, Defendant (4) Smokey Mo’s had actual or constructive argued that Plaintiff’s affidavit was knowledge of the condition; (5) Smokey self-serving and did not provide any Mo’s did not exercise reasonable care to evidence of the matter set forth in affidavit. R