Recent Developments in Utah Case Law
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When is expert testimony regarding proper warnings necessary? Should a retailer avoid any involvement in a product’s development? Is a public reservoir a natural condition? And what about those people directing traffic at BYU football games—are they immune from suit? Utah’s appellate courts answered each of these questions in 2014.
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Recent Developments in Utah Case Law
- 1. RECENT DEVELOPMENTS IN UTAH LAW Joe Stultz, Mike Young, and Rich Mrazik December 9, 2014 parsonsbehle.com
- 2. 2 Questions raised in recent cases: When do you need expert testimony to make a prima facie showing of negligence? Should a retailer avoid any involvement in the development of a product? Is a reservoir a natural condition on the land? Is the BYU kid directing traffic at the football game a governmental employee?
- 3. 3 When Are Experts Required? Jenkins v. Jordan Valley Water Conservancy Dist., 2013 UT 59 United Fire Group v. Staker & Parsons Cos., 2014 UT App 170 Callister v. Snowbird Corp., 2014 UT App 243
- 4. 4 Jenkins v. Jordan Valley Water Conservancy Dist. Pipe breaks and floods Jenkins’ basement Utah Ct. App. rules Jenkins does not need an expert to establish District’s standard of care District “negligently waited over three years before actually replacing” the pipeline, despite having already “ma[de] the determination that the [pipeline] needed to be replaced”
- 5. 5 Jenkins v. Jordan Valley Water Conservancy Dist. Utah S. Ct. holds expert testimony is required “An internal determination that a pipeline should be replaced does not establish a tort law duty to do so.” “Internal decisions may be made for any number of reasons—convenience, caution, maximization of budget, mistake—having little to do with the standard of care.”
- 6. 6 Jenkins v. Jordan Valley Water Conservancy Dist. “The question whether a pipeline needs to be replaced is outside the knowledge and experience of average lay persons” “Such nuanced assessments are beyond the ken of the average juror”
- 7. 7 United Fire Group v. Staker & Parsons Cos. United Fire (McDowells’ insurer) sued Staker for negligently maintaining construction zone Lower court dismisses—United Fire could not present prima facie case of negligence against Staker in absence of expert testimony Utah Ct. App. reverses lower court’s dismissal … Sort of.
- 8. 8 United Fire Group v. Staker & Parsons Cos. Utah Ct. App. rules expert is required to prove that Staker’s temporary traffic control was below standard of care for industry – Temporary traffic control in road construction is beyond the knowledge and understanding of average citizen However . . .
- 9. 9 United Fire Group v. Staker & Parsons Cos. If the jury believes United Fire's version of events—i.e., a total absence of warning signs— there is no question of practice beyond the knowledge of laymen which must be established through expert testimony. On the other hand …
- 10. 10 If the jury believes Staker's version of events— i.e., there were at least some warning signs and devices in place—the question becomes the adequacy of the warning thus imparted, and United Fire cannot prevail without an expert. Utah Ct. App reversed SJ and remanded to trial court. United Fire Group v. Staker & Parsons Cos.
- 11. 11 Callister v. Snowbird Corp. Callister near tram tower #3, but outside ropes surrounding tower – Stops to remove something from eye – While stopped and facing uphill, tram, or something hanging beneath tram, hits him from behind Callister sues Snowbird – Snowbird negligent for failing to rope off a larger area around tower # 3, failing to put up signs warning that the tram passes so low that it can hit skiers, and failing to adequately dig out the snow where Callister got hit
- 12. 12 Callister v. Snowbird Corp. Trial court dismissed, ruling expert testimony is necessary for negligence claim – Deadline had passed and court denied deadline extension Plaintiff argues expert testimony not necessary – Common sense that where a tram is traveling low enough to hit a skier, there is a duty to warn through ropes, signs, or digging out the snow – Jury could infer from the fact that Plaintiff was struck that Snowbird did nothing to warn him
- 13. 13 Callister v. Snowbird Corp. Utah Ct. App. rejects Plaintiff’s argument “In negligence cases against ski resorts and related industries with specialized equipment and operations, expert testimony is required because an average person would not have knowledge of standards of care in those industries and thus would be ‘forced to speculate about how a reasonable [ski resort operator] would act.’” (quoting Jenkins)
- 14. 14 Product Liability Should a retailer avoid any involvement in the development of a product? Cautionary tale: – McQuivey v. Fulmer Helmets, Inc. – 2014 UT App. 177
- 15. 15 Product Liability: The Basics “[A] manufacturer or other initial seller [who sells an] unreasonably dangerous product [may be liable for resulting] personal injury, death, or property damage. – Utah Code Ann. § 78B-6-703 (2014) “Because strict liability does not require an examination of a party’s fault, a manufacturer or other seller can be liable for a defective product regardless of its degree of fault. – McQuivey v. Fulmer Helmets, Inc., 2014 UT App. 177, ¶ 8
- 16. 16 The Passive Retailer Doctrine Retailers who do not participate in the design, manufacture, engineering, testing, or assembly of a product cannot be held strictly liable for damages. – Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 21, 94 P.3d 301; see also Yirak v. Dan’s Super Mkts. Inc., 2008 UT App 210, ¶ 5, 188 P.3d 487. – Note: Only three Utah cases have assessed the passive manufacturer doctrine: Sanns, Yirak, and McQuivey.
- 17. 17 McQuivey v. Fulmer Helmets Eight-year-old boy driving an ATV hits a ditch and is thrown from vehicle. The boy’s helmet snapped on impact and the serrated chin guard caused severe damage to boy’s face. Fulmer helmets distributed the helmet in the U.S.
- 18. 18 McQuivey v. Fulmer Helmets Trial court granted SJ for Fulmer on the ground that it qualifies as a passive retailer. Utah Ct. App. reverses – “The passive-retailer doctrine does not ask whose role in manufacturing a defective product was the greatest; rather it asks whether a party participated in the design, manufacture, engineering, testing, or assembly of the product.”
- 19. 19 McQuivey v. Fulmer Helmets: Non-Passive Behavior Helmet Design: – Fulmer provides feedback to manufacturer as to where helmet might not fit properly – Fulmer designed graphics and tags for helmets
- 20. 20 McQuivey v. Fulmer Helmets: Non-Passive Behavior Helmet Manufacture: – Fulmer performed on-site visits to factory twice annually. – Fulmer examined manufacturer’s quality control procedures – Fulmer required that helmets meet U.S. Department of Transportation standards.
- 21. 21 McQuivey v. Fulmer Helmets: Non-Passive Behavior Helmet Testing: – Fulmer required manufacturer to test helmets – Fulmer tested helmets itself from “time to time”
- 22. 22 McQuivey v. Fulmer Helmets: Non-Passive Behavior Fulmer holds itself out as manufacturer – Fulmer distributed the helmet under its own name – Fulmer typically describes itself as the “manufacturer” of Fulmer helmets on equipment safety reports filed with NHTSA – Fulmer puts its name on tags inside its helmets
- 24. 24 Governmental Immunity: exceptions to exceptions Governmental entities are generally immune from suit – except . . . Waiver of immunity for certain actions – unless … Exceptions to waiver of immunity
- 25. 25 “Natural condition” exception to waiver of immunity Immunity from suit is not waived for injuries arising out of “any natural condition on publicly owned or controlled lands” – Avalanche falling onto a road: YES. – Gust of wind moving a structure: NO. – Bear mauling a child: NO.
- 26. 26 Glaittli v. State But what about injury caused by conditions on a public reservoir? – Plaintiff went out on a floating dock on a public reservoir to tend to his boat. – Storm caused waves; waves caused dock and boat to rock violently. – Plaintiff was injured when he was struck by the bow of his boat.
- 27. 27 Glaittli v. State
- 28. 28 Glaittli v. State Because a reservoir is “topographical in nature,” a reservoir is “a condition on the land.” But is a reservoir a “natural” condition?
- 29. 29 Glaittli v. State The reservoir was “imagined, built, and brought about by ‘human efforts,’ not nature.” Because the reservoir was designed and created by human activity, and because it would not exist but for that activity, it is not a natural condition on the land.
- 30. 30 The UGIA is always lurking … Best practice is to think broadly and creatively about how the UGIA may apply to your case. Cautionary tale: – Mallory v. Brigham Young University • 2014 UT 27
- 31. 31 Mallory v. Brigham Young University Plaintiff leaving BYU football home game BYU traffic cadet directing traffic Plaintiff alleged BYU traffic cadet caused accident in which plaintiff was injured BYU is a private university So what’s the problem?
- 32. 32 Mallory v. Brigham Young University Under a city ordinance, Provo City retained the right to control the manner in which the BYU traffic cadet directed traffic. The ordinance establishes a master-servant relationship between the traffic cadet and Provo City. Therefore, the traffic cadet is an “employee” under the UGIA.
- 33. 33 Mallory v. Brigham Young University Plaintiffs who have a claim against a governmental employee for negligence committed during the performance of the employee's duties must file a notice of claim within one year after the claim arises … Or the claim is barred.
- 34. 34 Mallory v. Brigham Young University: Take-Home Message
- 35. 35 Joe Stultz Questions? – jstultz@parsonsbehle.com Mike Young – myoung@parsonsbehle.com Rich Mrazik – rmrazik@parsonsbehle.com
Editor's Notes
- REM
- REM
- Before we turn to cases this year, need to go back to 2013 – this year’s cases on subject of expert must deal with Jenkins Didn’t seem like expert was needed in Jenkins On November 19, 2005, a pipe segment near the Jenkins home broke, flooding the basement of their home. First break on that block, but a number of breaks had occurred on different blocks Employees unearthed the pipe to survey the break. They found a “hole” break on the top of the pipe at a depth of five feet and repaired it with a clamp At that time, the District voluntarily provided the Jenkinses with assistance in remedying the damage caused to their home—replacing their water heater and repairing their furnace and air conditioning system. Employees of the District determined that the pipe was in “fair” condition at the time of the 2005 repair. But a few years earlier, in an annual assessment of all of the District's pipelines, the District's engineering department had identified the 400 East pipeline segment as a candidate for replacement On October 2, 2006, as District employees were in the process of laying new pipe, another break occurred in the old line near the Jenkins property. This break was in a different location than the first break—on the side of the pipe, at a burial depth of four feet—and was not caused by the replacement process. Unfortunately, the resulting leak caused further damage to the Jenkins home. District declined to compensate Jenkins District Ct. had granted summary judgment to District. Plaintiff homeowners could not prevail on their negligence claim because they had failed to designate an expert to testify regarding the applicable standard of care. Appeals Ct. reversed - The court of appeals reversed, concluding that expert testimony was unnecessary because the District itself had previously determined that the pipeline should be replaced—a determination that in the court's view sustained a standard of care calling for replacement. Court of appeals ruled that no expert was needed - District had “negligently waited over three years before actually replacing” the pipeline, despite having already “ma[de] the determination that the [pipeline] needed to be replaced. Court of Appeals: said another way, an internal recommendation of replacement sustained a tort law duty to do so. See id. ¶ 40 (characterizing the pipeline as “obsolete”).
- Before we turn to cases this year, need to go back to 2013 – this year’s cases on subject of expert must deal with Jenkins Didn’t seem like expert was needed in Jenkins On November 19, 2005, a pipe segment near the Jenkins home broke, flooding the basement of their home. First break on that block, but a number of breaks had occurred on different blocks Employees unearthed the pipe to survey the break. They found a “hole” break on the top of the pipe at a depth of five feet and repaired it with a clamp At that time, the District voluntarily provided the Jenkinses with assistance in remedying the damage caused to their home—replacing their water heater and repairing their furnace and air conditioning system. Employees of the District determined that the pipe was in “fair” condition at the time of the 2005 repair. But a few years earlier, in an annual assessment of all of the District's pipelines, the District's engineering department had identified the 400 East pipeline segment as a candidate for replacement On October 2, 2006, as District employees were in the process of laying new pipe, another break occurred in the old line near the Jenkins property. This break was in a different location than the first break—on the side of the pipe, at a burial depth of four feet—and was not caused by the replacement process. Unfortunately, the resulting leak caused further damage to the Jenkins home. District declined to compensate Jenkins District Ct. had granted summary judgment to District. Plaintiff homeowners could not prevail on their negligence claim because they had failed to designate an expert to testify regarding the applicable standard of care. Appeals Ct. reversed - The court of appeals reversed, concluding that expert testimony was unnecessary because the District itself had previously determined that the pipeline should be replaced—a determination that in the court's view sustained a standard of care calling for replacement. Court of appeals ruled that no expert was needed - District had “negligently waited over three years before actually replacing” the pipeline, despite having already “ma[de] the determination that the [pipeline] needed to be replaced. Court of Appeals: said another way, an internal recommendation of replacement sustained a tort law duty to do so. See id. ¶ 40 (characterizing the pipeline as “obsolete”).
- Utah SC vacates appeals court Lay persons are not well equipped to decide whether a cast-iron pipe has gotten so old that it requires replacement. They would not likely know, for example, the background rate of “normal” breakages, and thus would have no non-speculative benchmark against which to assess any breakage history.8 Nor would they have any meaningful way to assess whether or to what extent past breakages portended future ones, or called for replacement rather than repair.9
- Utah SC vacates appeals court Lay persons are not well equipped to decide whether a cast-iron pipe has gotten so old that it requires replacement. They would not likely know, for example, the background rate of “normal” breakages, and thus would have no non-speculative benchmark against which to assess any breakage history.8 Nor would they have any meaningful way to assess whether or to what extent past breakages portended future ones, or called for replacement rather than repair.9
- United Fire, as the McDowell’s insurer and subrogee, sues Staker, claiming it negligently maintained construction zone when McDowells ran off the end of a paved section of road and dropped into an unfinished section On October 14, 2009, McDowells visiting a familiy member in Ogden. 12th Street exit from I-15. They realize they are going in the wrong direction. Turned from 12th to an adjacent parking lot to make a phone call. Turned back on 12th and attempt to return westbound to the freeway. Staker—the company performing the 12th Street construction project-had blocked off the westbound lanes of 12th Street and diverted westbound traffic to one of what would normally be two eastbound lanes. There was, however, no barrier preventing McDowells from entering the westbound lanes from the parking lot they were in or any sign warning them not to do so. Lower court: “United Fire needed to offer expert testimony in order to establish the standard of care for temporary traffic control during the major road construction that was taking place at the time of the [a]ccident. It did not do so.”
- Following Jenkins, the court rules: “In the absence of expert assistance, jurors would not likely possess the information or understanding necessary” to interpret the technical specifications contained in the Manual [UDOT Manual of traffic-control standards and specifications] and the standards to which a temporary traffic controller must adhere. Therefore, if the jury believes United Fire's version of events—namely, that there was a total absence of warning signs—“there is no question of skill and judgment, no question of practice beyond the knowledge of laymen which must be established through expert testimony.” Nixdorf, 612 P.2d at 355. – Nixdorf -- Patient brought medical malpractice action based on allegation that surgeon breached his duty when he left a surgical cutting needle in the patient's body and thereafter omitted to inform the patient that the needle had been left in her body. The Supreme Court, held that: (1) while the Supreme Court would not say that the surgeon's initial loss of the needle was negligent as a matter of law, the patient was not required to present expert testimony to establish that the continued presence of the needle in the patient's body more probably than not resulted from negligence But if the jury believes the thrust of Staker's version of events—that is, if the jury finds that there were at least some warning signs and devices in place over the route the McDowells traveled—and the question becomes the adequacy of the warning thus imparted, United Fire cannot prevail without an expert.
- Following Jenkins, the court rules: “In the absence of expert assistance, jurors would not likely possess the information or understanding necessary” to interpret the technical specifications contained in the Manual [UDOT Manual of traffic-control standards and specifications] and the standards to which a temporary traffic controller must adhere. Therefore, if the jury believes United Fire's version of events—namely, that there was a total absence of warning signs—“there is no question of skill and judgment, no question of practice beyond the knowledge of laymen which must be established through expert testimony.” Nixdorf, 612 P.2d at 355. – Nixdorf -- Patient brought medical malpractice action based on allegation that surgeon breached his duty when he left a surgical cutting needle in the patient's body and thereafter omitted to inform the patient that the needle had been left in her body. The Supreme Court, held that: (1) while the Supreme Court would not say that the surgeon's initial loss of the needle was negligent as a matter of law, the patient was not required to present expert testimony to establish that the continued presence of the needle in the patient's body more probably than not resulted from negligence But if the jury believes the thrust of Staker's version of events—that is, if the jury finds that there were at least some warning signs and devices in place over the route the McDowells traveled—and the question becomes the adequacy of the warning thus imparted, United Fire cannot prevail without an expert.
- Following Jenkins, the court rules: “In the absence of expert assistance, jurors would not likely possess the information or understanding necessary” to interpret the technical specifications contained in the Manual [UDOT Manual of traffic-control standards and specifications] and the standards to which a temporary traffic controller must adhere. Therefore, if the jury believes United Fire's version of events—namely, that there was a total absence of warning signs—“there is no question of skill and judgment, no question of practice beyond the knowledge of laymen which must be established through expert testimony.” Nixdorf, 612 P.2d at 355. – Nixdorf -- Patient brought medical malpractice action based on allegation that surgeon breached his duty when he left a surgical cutting needle in the patient's body and thereafter omitted to inform the patient that the needle had been left in her body. The Supreme Court, held that: (1) while the Supreme Court would not say that the surgeon's initial loss of the needle was negligent as a matter of law, the patient was not required to present expert testimony to establish that the continued presence of the needle in the patient's body more probably than not resulted from negligence But if the jury believes the thrust of Staker's version of events—that is, if the jury finds that there were at least some warning signs and devices in place over the route the McDowells traveled—and the question becomes the adequacy of the warning thus imparted, United Fire cannot prevail without an expert.
- the district court's words, “the issues involved in this case such as standards regarding aerial trams, the type and size of warning ropes, and the size, content and placement of warning signs, just to name a few, are beyond the common experience of lay people.”
- Following Jenkins, we conclude that expert testimony is necessary in cases where the jury would be unable to determine the applicable standard of care without resorting to speculation. Thus, expert testimony is necessary in any negligence case where the particularities of the alleged standard of care do not reside within the common knowledge and experience of a lay juror. See Bowman, 2008 UT 9, ¶ 7, 179 P.3d 754 . Callister cannot avoid this evidentiary burden simply by pointing to Snowbird's alleged failure to act, as he attempted to do in his brief. In order to prevail on his negligence claims, Callister is required to prove that Snowbird breached the applicable standard of care and that its breach proximately caused his injuries. Thus, regardless of whether Snowbird acted or failed to act, Callister must still establish the applicable standard of care and show how the alleged action or inaction breached that standard and caused his injuries. Also looked at two other ski cases: First, in Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, a skier who was injured in a ski race filed suit against the ski resort and other parties involved in the event, alleging ordinary negligence, gross negligence, and common law strict liability.4 Id. ¶ 1. The Utah Supreme Court reversed the district court's grant of summary judgment to the defendants on the gross negligence claim, observing that the standard of care applicable to a skiercross race course for a gross negligence claim had not been established by the evidence presented but that the expert testimony presented would have been sufficient to withstand summary judgment for ordinary negligence. Id. ¶¶ 28, 30. In the second case, Pearce v. Utah Athletic Foundation, 2008 UT 13, 179 P.3d 760, the plaintiff was injured while riding a bobsled at the Utah Winter Sports Park. Id. ¶ 6. The district court dismissed the plaintiff's action for gross negligence due to insufficient evidence.5 Id. ¶ 9. The Utah Supreme Court reversed, explaining that “[w]ithout an identified, applicable standard of care, it was error for the district court to rule on summary judgment that, as a matter of law, [plaintiff] could not show gross negligence.” Id. ¶ 26. The court also opined in a footnote that “[i]n order to determine what a reasonable bobsled ride operator would do, the finder of fact would likely need to hear testimony from expert witnesses before it could determine the operator's deviation from the standard,” presumably because “what a reasonable bobsled ride operator would do” is not within the ordinary experience or knowledge of a lay juror.
- Following Jenkins, we conclude that expert testimony is necessary in cases where the jury would be unable to determine the applicable standard of care without resorting to speculation. Thus, expert testimony is necessary in any negligence case where the particularities of the alleged standard of care do not reside within the common knowledge and experience of a lay juror. See Bowman, 2008 UT 9, ¶ 7, 179 P.3d 754 . Callister cannot avoid this evidentiary burden simply by pointing to Snowbird's alleged failure to act, as he attempted to do in his brief. In order to prevail on his negligence claims, Callister is required to prove that Snowbird breached the applicable standard of care and that its breach proximately caused his injuries. Thus, regardless of whether Snowbird acted or failed to act, Callister must still establish the applicable standard of care and show how the alleged action or inaction breached that standard and caused his injuries. Also looked at two other ski cases: First, in Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, a skier who was injured in a ski race filed suit against the ski resort and other parties involved in the event, alleging ordinary negligence, gross negligence, and common law strict liability.4 Id. ¶ 1. The Utah Supreme Court reversed the district court's grant of summary judgment to the defendants on the gross negligence claim, observing that the standard of care applicable to a skiercross race course for a gross negligence claim had not been established by the evidence presented but that the expert testimony presented would have been sufficient to withstand summary judgment for ordinary negligence. Id. ¶¶ 28, 30. In the second case, Pearce v. Utah Athletic Foundation, 2008 UT 13, 179 P.3d 760, the plaintiff was injured while riding a bobsled at the Utah Winter Sports Park. Id. ¶ 6. The district court dismissed the plaintiff's action for gross negligence due to insufficient evidence.5 Id. ¶ 9. The Utah Supreme Court reversed, explaining that “[w]ithout an identified, applicable standard of care, it was error for the district court to rule on summary judgment that, as a matter of law, [plaintiff] could not show gross negligence.” Id. ¶ 26. The court also opined in a footnote that “[i]n order to determine what a reasonable bobsled ride operator would do, the finder of fact would likely need to hear testimony from expert witnesses before it could determine the operator's deviation from the standard,” presumably because “what a reasonable bobsled ride operator would do” is not within the ordinary experience or knowledge of a lay juror.
- ¶ 18 Finally, we note that Fulmer holds itself out to the public as the manufacturer of the helmets that bear its name. Under Second Restatement of Torts, “[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965). “[O]ne puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark.” Id., § 400 cmt. d. Courts typically refer to this as the “apparent-manufacturer doctrine.” Long v. United States Brass Corp., 333 F.Supp.2d 999, 1002 (D.Colo.2004) (citing Yoder v. Honeywell Inc., 104 F.3d 1215, 1223 (10th Cir.1997)). “The primary rationale for imposing liability on the apparent manufacturer of a defective product is that it induced the purchasing public to believe that it is the actual manufacturer, and ... [thus] to purchase the product in reliance on the apparent manufacturer's reputation and skill in making it.” Hebel, 65 Ill.Dec. 888, 442 N.E.2d at 203 (emphasis omitted). Although Utah has not yet addressed the question, most jurisdictions to consider the apparent-manufacturer doctrine have adopted it.6 ¶ 19 As McQuivey has not urged us to adopt the apparent-manufacturer doctrine here, we reserve that question for another day. We note, however, that Fulmer distributed the Blade AF–C1 helmet under its own name; typically describes itself as the “manufacturer” of Fulmer helmets on equipment safety reports filed with the National Highway Traffic Safety Administration; and puts its name on tags inside its helmets, certifying that they meet the applicable safety standards. ¶ 20 Even without resort to the apparent-manufacturer doctrine, we conclude that the district court erred in granting summary judgment for Fulmer as a passive retailer. See Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301. Although KYL principally conducted the manufacturing, design, and testing of the helmets, the passive-retailer doctrine does not ask whose role in manufacturing a defective product was the greatest; rather it asks whether a party “participate[d] in the design, manufacture, engineering, testing, or assembly of” the product. Id. This follows from the passive-retailer doctrine's rationale, which is to dismiss codefendants to whom the finder of fact will, should the matter go to trial, inevitably apportion no fault.7
- 63G-7-201. Immunity of governmental entities from suit. (1) Except as may be otherwise provided in this chapter, each governmental entity and each employee of a governmental entity are immune from suit for any injury that results from the exercise of a governmental function. 63G-7-301. Waivers of immunity -- Exceptions. … (3)(a) Except as provided in Subsection (3)(b), immunity from suit of each governmental entity is waived as to any injury caused by: (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or (ii)any defective or dangerous condition of a public building, structure, dam, reservoir, or other public improvement. (b) Immunity from suit of each governmental entity is not waived if the injury arises out of, in connection with, or results from: (i) a latent dangerous or latent defective condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or (ii) a latent dangerous or latent defective condition of any public building, structure, dam, reservoir, or other public improvement. (4) Immunity from suit of each governmental entity is waived as to any injury proximately caused by a negligent act or omission of an employee committed within the scope of employment. (5) Immunity from suit of each governmental entity is not waived under Subsections (3) and (4) if the injury arises out of, in connection with, or results from: (a)the exercise or performance, or the failure to exercise or perform, a discretionary function, whether or not the discretion is abused; And don’t forget the one-year Notice of Claim provision!!
- “The government loses its immunity if a government employee negligently causes injury, but negligence or not, the government retains its immunity if the injury arose out of a natural condition on public lands.” 2014 UT 30, ¶ 12 First, in Blackner v. State, we conceptualized an avalanche as a “natural condition” sustaining immunity and held that immunity attached despite the plaintiffs' argument that the proximate cause of the injury was the government defendants' negligence in stopping traffic in a manner that put the plaintiffs at risk of harm from the avalanche. 2002 UT 44, ¶¶ 13–16, 48 P.3d 949. Then, in Grappendorf, we acknowledged that a gust of wind was in some sense “natural,” but nonetheless declined to extend immunity to an accident caused when wind interacted with an artificial pitcher's mound at a baseball park, suggesting that a “transient” force of nature does not “exist on the land as required by the plain language of the statute.” 2007 UT 84, ¶ 10, 173 P.3d 166. Most recently, in Francis v. State, we applied the Grappendorf analysis in a manner foreclosing immunity for injury caused by an attack by a wild bear, concluding that the bear was too “transitory” to be considered a natural condition on the land. 2013 UT 65, ¶ 42, 321 P.3d 1089. In Francis, we sought to distinguish “topographical” features like rivers, lakes, and trees, which were “directly a part of and persist ‘on the land’ ” from wild animals not as “closely tied to the land.” Id.
- 2014 UT 30 Boat owner brought negligence action against State, as party responsible for maintenance and operation of public reservoir, for personal injuries sustained when wave pushed owner's boat up, causing boat to strike owner while owner was standing on dock, crushing owner's shoulder. State filed motion to dismiss for failure to state claim on basis of immunity. The Third District Court granted State's motion, and owner appealed. The Court of Appeals affirmed. The court of appeals held that the presence of a dam did not “change the basic nature of the water itself” because the water had “simply expanded onto a greater area” (i.e., into the reservoir). Holding: As matter of first impression, the Supreme Court held that public reservoir where owner docked his boat on floating dock was not “natural condition” upon land, as required for claim to come within “natural condition” exception to waiver of immunity.
- 2013 UT 65, ¶ 42, 321 P.3d 1089 (“‘condition on the land’ seems to connote features that have a ... tie to the land itself, such as rivers, lakes, or trees.... We accordingly limit application of the natural condition exception to those conditions that are closely tied to the land or that persist ‘on the land’—conditions that are topographical in nature.”).
- We therefore reverse and remand to the district court for a determination of whether a government employee proximately caused Mr. Glaittli's injury through a negligent act or omission and for all other proceedings as necessary and consistent with this opinion. Glaittli v. State, 2014 UT 30, ¶ 16, 332 P.3d 953, 957
- Under the Act, plaintiffs who have a claim against a governmental employee for acts committed during the performance of the employee's duties must file a notice of claim within one year after the claim arises, or the claim is barred.
- On April 12, 2008, roughly 16,700 people attended BYU's spring football scrimmage at LaVell Edwards Stadium in Provo, Utah. Following the game, Ms. Robinson, a BYU traffic cadet, was directing traffic under the supervision of a BYU peace officer. At the time of the accident, Ms. Robinson was stationed at the stadium's west exit to facilitate the exodus of motorists onto University Avenue—the public thoroughfare adjacent to the parking lot. During this time, Ms. Robinson was in continuous radio contact with her supervising peace officer. While Ms. Robinson was directing traffic, Mr. Mallory drove his motorcycle from the stadium parking lot onto University Avenue and collided with another vehicle. Mr. Mallory suffered serious bodily injury and incurred economic damages as a result of the collision.
- In the district court, the BYU Defendants maintained that, at the time of the collision, they were “Employees” of Provo City as defined in the Act. They further argued that because Mr. Mallory failed to file a timely notice of claim with Provo City, his lawsuit was barred. The district court agreed with BYU on both points and consequently dismissed Mr. Mallory's complaint for lack of subject matter jurisdiction. Mr. Mallory timely appealed to the court of appeals, which reversed the district court, holding that dismissal was premature given insufficient evidence that the BYU Defendants were “Employees” under the Act. The Supreme Court addressed two issues. The first is whether the court of appeals erred in its construction of the Act's statutory definition of “Employee,” and the second is whether the court of appeals erred in reversing the district court's order of dismissal as premature. We conclude that the court of appeals erred both in interpreting the statutory definition of Employee and in reversing the trial court's dismissal. Accordingly, we reverse and reinstate the district court's order dismissing Mr. Mallory's claims for lack of subject matter jurisdiction.
- ¶ 4 In February of the following year, Mr. Mallory filed a complaint alleging that the BYU Defendants, among others, negligently caused Mr. Mallory's collision and were therefore liable for damages. Mr. Mallory later amended his complaint and the BYU Defendants responded with a timely answer. In their answer, the BYU Defendants asserted that Mr. Mallory's claims were barred by the Act because at the time of the accident, Ms. Robinson was an agent (and therefore an Employee) of Provo City and that Mr. Mallory was thus required—but had failed—to file a notice with Provo City within one year of when his claim arose. ¶ 5 The BYU Defendants subsequently filed a motion to dismiss, again asserting that Mr. Mallory's claims were barred because he had failed to file a timely notice of claim as required by the Act. The trial court granted the BYU Defendants' motion, holding that because the BYU Defendants were agents of Provo City, they also qualified as its Employees under the Act. As a result, the court ruled that Mr. Mallory's failure to file a timely notice of claim stripped the court of subject matter jurisdiction. The trial court entered a final judgment dismissing all claims against the BYU Defendants, and Mr. Mallory appealed.
- ¶ 4 In February of the following year, Mr. Mallory filed a complaint alleging that the BYU Defendants, among others, negligently caused Mr. Mallory's collision and were therefore liable for damages. Mr. Mallory later amended his complaint and the BYU Defendants responded with a timely answer. In their answer, the BYU Defendants asserted that Mr. Mallory's claims were barred by the Act because at the time of the accident, Ms. Robinson was an agent (and therefore an Employee) of Provo City and that Mr. Mallory was thus required—but had failed—to file a notice with Provo City within one year of when his claim arose. ¶ 5 The BYU Defendants subsequently filed a motion to dismiss, again asserting that Mr. Mallory's claims were barred because he had failed to file a timely notice of claim as required by the Act. The trial court granted the BYU Defendants' motion, holding that because the BYU Defendants were agents of Provo City, they also qualified as its Employees under the Act. As a result, the court ruled that Mr. Mallory's failure to file a timely notice of claim stripped the court of subject matter jurisdiction. The trial court entered a final judgment dismissing all claims against the BYU Defendants, and Mr. Mallory appealed.