Fishbaugh v. Utah Power & Light
In Fishbaugh v. Utah Power & Light, 969 P.2d 403 (Utah 1998) the Court found that a plaintiff's failure to present evidence of notice and opportunity to remedy was fatal to his case. The plaintiff in Fishbaugh had been crossing a street at night when he was hit by a car. Id.
None of the streetlights were functioning. Consequently, in addition to suing the driver of the car, the plaintiff sued the power company for negligently failing to maintain or operate the streetlights. Id.
The plaintiff also sued the city, claiming that the street was in a dangerous condition, and that the city had negligently failed to repair the lights even though it knew about the lighting problem before the accident. Id.
The city and the power company both moved for summary judgment, based partly on their argument that they "had no notice of the outage prior to the accident and thus could not be held negligent." Id. A key issue on appeal was whether the trial court erred in granting summary judgment to the defendants on the ground that there was no evidence of either actual or constructive notice and, therefore, no negligence. Id. at 405.
The Court expressly applied the rule we articulated in Schnuphase, requiring evidence of both notice and sufficient time in which to remedy the dangerous condition. Id. at 407.
As a result, we affirmed the grant of summary judgment, reasoning that even if there was evidence that the defendants had notice of the dangerous condition of the streetlights at some indeterminate time before the accident, "there is no evidence indicating how long UP&L had such notice. Without any evidence to that effect, Fishbaugh cannot prove that the City and UP&L failed to repair the streetlights within a reasonable time after receiving notice and that they were thus negligent in maintaining the streetlights." Id. at 408 .