ANNOUNCEMENT
As
many of you know, I have been searching for a full time associate attorney
position in a Utah firm for some time.
That opportunity has finally presented itself, and I will be joining G.
Eric Nielson & Associates at the beginning of the new year. My practice will focus exclusively on
Medical Malpractice.
I
anticipate that my new job will require more time than my current job with the
Utah Second District Court.
Accordingly, I will no longer summarize cases that focus on criminal law
or family law. I will also limit
summaries of cases that are extremely fact specific; for example, cases that
focus exclusively on the interpretation of a specific contract provision. Although I will summarize such cases if they
are likely to have a significant impact on interpretation of other contracts.
I
intend to continue summarizing every other civil case, but postings may become
less regular. If it becomes apparent
that I do not have time to continue this service, my case summaries will
be discontinued.
I appreciate all of
your support in the advancement of my career.
Hopefully, I will be able to work more directly with you as I begin
representing clients.
Sincerely,
Mark
Kerr
v. Salt Lake City, 2013 UT 75, No. 20110909 (December 17, 2013)
ISSUES:
Personal Injury, Discretionary Function Immunity, Review of Motion for New
Trial Granted Prior to a Jury Verdict
Justice
Durham,
Alexander Kerr
injured himself when he tripped on a sidewalk defect in Salt Lake City. He sued
the city and obtained a judgment in his favor. Salt Lake City now appeals,
alleging: (1) the city is entitled to discretionary function immunity, (2) Mr.
Kerr did not present evidence that the city had adequate notice of the sidewalk
defect during summary judgment proceedings or at trial, and (3) the trial court
erroneously excluded opinion testimony regarding the level of danger posed by
the sidewalk defect. We find no reversible error and affirm the judgment.
At ¶ 1.
Discretionary Function Immunity
“[A} party’s entitlement to discretionary
function immunity is a question of law,” provided that the trial court has
sufficient facts before it to evaluate the question of immunity. Laney v. Fairview City, 2002 UT 79, ¶ 16, 57 P.3d 1007. The facts
before the trial court were sufficient to allow it to rule on the immunity
question. See infra ¶ 25.
At ¶ 11.
The Utah
Governmental Immunity Act requires a three-step analysis to determine if a
governmental entity is immune from liability. Van de Grift v. State, 2013 UT 11, ¶ 8, 299 P.3d 1043. We first consider whether the
Act affords immunity to the governmental conduct. See UTAH CODE § 63G-7-201(1). If the Act does afford
immunity, we next examine whether the Act waives immunity in the particular
circumstance at issue. See
id. § 63G-7-301(1)–(4).
Finally, if a waiver does apply, we determine whether the governmental action
qualifies as an exception to the waiver of immunity. See id. § 63G-7-301(5).
At ¶ 12.
The parties agree
that Salt Lake City is immune for “any injury that results from the exercise of
a governmental function.” Id.
§ 63G-7-201(1). They also
agree that immunity is waived in circumstances where there is a “defective,
unsafe, or dangerous condition of any . . . sidewalk.” Id. § 63G-7-301(3)(a)(i). The parties disagree, however,
over whether Salt Lake City’s decision not to remedy the sidewalk displacement
that caused Mr. Kerr’s injuries qualifies as a discretionary function, which
would restore Salt Lake City’s immunity. See id. §
63G-7-301(5)(a).
At ¶ 13.
The discretionary
function exception allows the government to retain immunity for high-level
policy decisions “regulated by the political process.” Johnson v. Utah Dep’t of Transp., 2006 UT 15, ¶ 20, 133 P.3d 402 (internal
quotation marks omitted). Otherwise the threat of lawsuits “would make public
administration all but impossible.” Id.
(internal quotation marks
omitted). This exception, however, must be read narrowly in order to prevent it
from swallowing a general waiver of governmental immunity. Id. ¶ 19.
At ¶ 14.
Salt Lake City
argues that because it maintains approximately eight hundred miles of sidewalk
with a limited budget, its decision not to remedy the defective section of
sidewalk that caused Mr. Kerr to trip and fall should be deemed a discretionary
function. But since any repair decision necessarily involves the allocation of
limited funds, the inevitable extension of the city’s argument is that all
maintenance decisions are discretionary functions. Thus, the broad
interpretation of the discretionary function exception advocated by Salt Lake
City would completely negate the explicit waiver of liability for the
“dangerous condition of any . . . sidewalk.” UTAH CODE § 63G-7-301(a)(i).
At ¶ 15.
When interpreting
statutes, “we must give effect to every provision of a statute and avoid an
interpretation that will render portions of a statute inoperative.” Thayer v. Washington Cnty. Sch. Dist., 2012 UT 31, ¶ 12, 285 P.3d 1142 (internal
quotation marks omitted). If we restore immunity to Salt Lake City through the
discretionary function exception, we would render the specific waiver of
immunity for the “defective, unsafe, or dangerous condition of any . . .
sidewalk” inoperative. UTAH
CODE §
63G-7-301(3)(a)(i). Because all cities must decide how to allocate scarce public
funds to maintain sidewalks, Salt Lake City’s interpretation of the
discretionary function exception would completely negate the explicit waiver of
governmental immunity for defective or dangerous sidewalks. For this reason
alone, we must reject Salt Lake City’s broad governmental immunity claim. . . .
At ¶ 16.
An independent
analysis of the discretionary function exception also demonstrates that Salt
Lake City did not carry its burden to show that it qualifies for discretionary
function immunity. See
id. ¶ 21 (“[T]he government
carries the burden to prove that it qualifies for the discretionary function
exception to the immunity waiver.”). When determining if the discretionary
function exception applies to a particular case, courts look to the test established
in Little v. Utah
State Division of Family Services,
667 P.2d 49 (Utah 1983). The Little
test asks four questions:
(1) Does the challenged act, omission, or
decision necessarily involve a basic governmental policy, program, or
objective?
(2) Is the questioned act, omission, or
decision essential to the realization or accomplishment of that policy,
program, or objective as opposed to one which would not change the course or
direction of the policy, program, or objective?
(3) Does the act, omission, or decision require
the exercise of basic policy evaluation, judgment, and expertise on the part of
the governmental agency involved?
(4) Does the governmental agency involved
possess the requisite constitutional, statutory, or lawful authority and duty
to do or make the challenged act, omission, or decision?
Id. at 51.
At ¶ 17.
Utah courts have applied this test consistent
with these guidelines and have found discretionary function immunity only where
all of the questions are answered affirmatively. . . .
At ¶ 18.
Applying the Little test, we answer the first and fourth questions
affirmatively. The parties do not dispute that the first factor is met because
Salt Lake City’s program of building and maintaining sidewalks involves “a
basic governmental policy, program, or objective” of providing public walkways.
See Johnson, 2006 UT 15, ¶¶ 23–24. The fourth factor is
also satisfied because Salt Lake City had the requisite authority to make
decisions regarding sidewalk repair. An
affirmative response to the first and fourth questions of the Little test, however, is not dispositive. See id. ¶¶ 25, 38–39. The fact that a governmental act,
omission, or decision involves a basic governmental policy and is within a
governmental entity’s authority does not, by itself, mean that the government
is immune from suit.
At ¶ 19.
The second
question—whether an act, omission, or decision is essential to the
accomplishment of the governmental policy—is answered in the negative here.
Salt Lake City did not produce evidence that its decision not to remedy the
displaced sidewalk that Mr. Kerr tripped on was essential to its program of building and maintaining
sidewalks throughout the city. An individual decision regarding one piece of
sidewalk does not destroy Salt Lake City’s ability to continue a broader
sidewalk policy and program.
At ¶ 20.
The third
question—whether the act, omission, or decision requires the exercise of a
basic policy evaluation—is often the most determinative because it epitomizes
the primary purpose of the Little
test: to distinguish between
broad policy decisions and operational decisions that implement a given
governmental policy. . . . The key to distinguishing policy decisions from
operational decisions is evaluating whether “the government actually exercises
a level of discretion in a manner that implicates policy-making and thrusts the
decision into the political process.” . . .
At ¶ 21.
Our case law has
identified several examples of operational decisions that involve “everyday,
routine matters not requiring evaluation of broad policy factors.” [The Co0urt
provides some examples].
At ¶ 22.
We have also
identified examples of policy-making decisions that are immune from suit. [The
Court provides some examples].
At ¶ 23.
In this case, Mr.
Kerr alleged that Salt Lake City negligently failed to remedy a sidewalk
displacement that caused him to trip and injure himself. If the city’s failure
to act was the direct result of policy-level decision making, it is immune from
suit. If the omission resulted from an operational decision or from the
ministerial implementation of a broader policy, Salt Lake City is subject to
liability.
At ¶ 24.
As noted above, Salt
Lake City’s official policies regarding sidewalk maintenance permit a range of
responses to a sidewalk defect. . . . But Salt Lake City provided no evidence
of any policylevel guidelines for what constitutes a “hazardous condition.”
Thus, this decision is entrusted the judgment of city employees.
At ¶ 25.
In sum, Salt Lake
City’s sidewalk maintenance policies did not mandate the decision made by a
city employee in this case to provide a sidewalk replacement estimate to the
adjacent business but to take no other remedial measures. The city’s policies
also allowed—indeed promoted—horizontal saw cutting to eliminate tripping
hazards for displacements less than one and a quarter to one and a half inches.
The displacement at issue here, which ranged “from one inch down to
three-quarters of an inch,” qualified for such a repair. Thus, the decision by
a city employee not to directly remedy the sidewalk defect is a classic
operational determination—that is, a decision implementing the existing
sidewalk maintenance policy. See
Stuckman, 919 P.2d at 576 (a
city’s failure to repair a known breach in a fence was “an operational decision
on the part of the governmental entity responsible for maintaining the fence”).
In other words, this individual repair decision did not “implicate[]
policy-making” or “thrust[] the decision into the political process.” Johnson, 2006 UT 15, ¶ 21.
At ¶ 26.
We therefore answer
the second and third Little
inquiries in the negative and
hold that Salt Lake City is not entitled to discretionary function immunity.
The trial court did not err by denying the city’s summary judgment motion on
this ground.
At ¶ 27.
Ruling Denying Summary Judgment on
Issue of Notice of Defect
We do not review on
appeal, however, whether a dispute of material fact existed at the summary
judgment stage of a litigation if the trial court denies summary judgment. . .
.
At ¶ 29.
There are two
reasons for this rule. First, the purpose of summary judgment “is to eliminate
the time, trouble and expense of trial when upon any view taken of the facts as
asserted by the party ruled against, he would not be entitled to prevail.” . .
. Second, after the denial of a motion for summary judgment, both parties are
afforded an opportunity to litigate factual disputes at trial. . . . Thus, the
proper focus of an evidentiary challenge on appeal shifts to the adequacy of
the evidence presented at trial rather than at the summary judgment proceeding.
It would serve no legitimate judicial purpose to reach back and overturn a
verdict on the merits based on a litigant’s failure to adduce evidence in
opposition to summary judgment if the relevant evidence was presented at trial.
In other words, the denial of summary judgment on evidentiary grounds should
not “become a bomb planted within the litigation at its early stages and
exploded on appeal.” . . .
At ¶ 30.
Ruling Granting New Trial After
Directed Verdict On Notice of Defect Issue
On appeal from the
judgment entered after the second trial, Salt Lake City argues the trial court
should not have granted the motion for a new trial because Mr. Kerr did not
produce evidence of notice of the defect at the first trial. We first address
the preliminary question of whether an appellate court may review an order
granting a new trial where a jury did not enter a verdict in the first trial.
At ¶34.
Nearly a century
ago, this court reasoned that the grant of a new trial after a verdict should
be reviewable in order to preserve the integrity of jury verdicts . . . Hirabelli v. Daniels, 138 P. 1172, 1173 (Utah 1914). An examination of subsequent cases reveals
that this court has only reviewed the grant of a new trial in situations
implicating the policy concerns expressed in Hirabelli—that
is, where the grant of a new trial nullified a jury verdict.
At ¶ 36.
This case is
different, however, because the trial court granted a new trial in a situation
where the jury had not rendered a verdict. The justification for reviewing the
grant of a new trial motion expressed in Hirabelli,
therefore, is entirely absent. Because the jury did not enter a verdict, there
is no danger that the trial court granted a new trial in order to negate a
result it simply disagreed with in derogation of the litigants’ rights to a
trial by jury. See
Hirabelli, 138 P. at 1173.
Instead, the grant of a new trial in these circumstances is akin to a
reconsideration of the trial court’s prior directed verdict ruling, placing the
litigants in the same procedural position as if the prior aborted trial had
never occurred. Haslam
v. Paulsen, 389 P.2d 736, 736
(Utah 1964) (granting a motion for a new trial “sets aside the verdict and
places the parties in the same position as if there had been no previous
trial”). In this situation, the same reasons for which we decline to review the
denial of a motion for summary judgment on evidentiary grounds militate in
favor of refusing to review the trial court’s grant of a new trial motion. See supra, ¶¶ 29–30. Because the litigants had a full and
fair opportunity to litigate the facts in the second trial, we need not
evaluate the sufficiency of the evidence at the truncated first trial.
At ¶ 37.
Sufficiency of Evidence Regarding
Notice of Defect
Salt Lake City also
contends the trial court erred by denying its motion for a directed verdict at
the second trial because Mr. Kerr did not produce evidence that the city had
sufficient notice of the sidewalk defect to remedy the condition. . . .
At ¶ 38.
A plaintiff seeking
recovery for injuries caused by a temporary unsafe condition, such as the
sidewalk defect at issue here, must show that the defendant had actual or
constructive knowledge of the condition before the accident. Goebel v. Salt Lake City S. R.R. Co., 2004 UT 80, ¶ 19, 104 P.3d 1185; Schnuphase v. Storehouse Mkts., 918 P.2d 476, 478 (Utah 1996). Constructive
knowledge may be proven by demonstrating that the unsafe condition “existed
long enough that [the defendant] should have discovered it.” Jex v. JRA, Inc., 2008 UT 67, ¶ 18, 196 P.3d 576 (internal
quotation marks omitted). In the case of either actual knowledge or
constructive knowledge, the plaintiff must also show that the defendant had
sufficient notice of the unsafe condition “that in the exercise of reasonable
care [the defendant] should have remedied it.” Goebel, 2004 UT 80, ¶ 19 (internal quotation marks
omitted). In other words, a plaintiff “must present evidence of the length of
time that the defendant had notice” so that the fact-finder may evaluate
whether the notice was sufficient to permit remedial measures. Id. ¶ 25.
At ¶ 39.
Mr. Kerr proffered evidence supporting a
conclusion that Salt Lake City had sufficient notice of the sidewalk defect to
remedy its condition. First, Mr. Kerr produced evidence of sufficient
constructive notice. Mr. Hwang testified that the sidewalk displacement existed
in approximately the same condition a year and a half before Mr. Kerr’s
accident. A reasonable fact-finder could conclude from this evidence that Salt
Lake City had constructive notice of the condition and should have discovered
it in time to take remedial measures.
At ¶ 41.
Mr. Kerr also
presented evidence that Salt Lake City had sufficient actual notice of the
defect to remedy the unsafe condition. Mr. Hwang testified that his employee
called the city eight days before the accident to request that the sidewalk be
repaired because laundry carts were catching on the displacement. Salt Lake
City’s call log records indicate that it received a call reporting the
condition. And a Salt Lake City engineer admitted that the city became “aware
of this change in elevation of the sidewalk” when it received the call from the
Metropolitan Inn employee. Finally, Mr. Kerr presented evidence that a sidewalk
displacement could be remedied either through horizontal saw cutting or through
replacement of the defective section of sidewalk in less than a day. Spray
painting the displacement to make it more visible could have been accomplished
in seconds.
At ¶ 42.
This evidence, taken
in the light most favorable to Mr. Kerr, was sufficient to raise a question of
material fact as to whether Salt Lake City had adequate notice of the sidewalk
defect to take remedial measures. The trial court, therefore, properly denied
the city’s motion for a directed verdict.
At ¶ 43.
Evidentiary Issues
Salt Lake City
argues the trial court erred by precluding the owner of the Metropolitan Inn, Mr. Hwang, and
Salt Lake City’s capital project manager, Mr. Jarman, from
giving their lay opinion on whether the sidewalk displacement was
dangerous. . . .
At ¶ 44.
The trial court’s initial ruling excluding
testimony regarding the dangerousness of the displacement, which was requested
by Salt Lake City, necessarily required the court to exclude similar testimony
from the city’s witnesses. In these circumstances, the invited error doctrine
prevents the city from retaining both the benefit of the ruling it asked for at
trial and appellate review of subsequent rulings required by the city’s
requested ruling. . . .
At ¶ 46.
Finally, Salt Lake
City argues the trial court erred by excluding part of Mr. Jarman’s testimony
because his testimony “was important for establishing how the city responds to
calls about sidewalks.” In addition to barring Mr. Jarman from giving his
opinion that the displacement was dangerous, the court ruled that Mr. Jarman
“may not offer—and no questions should be asked that would elicit as to why he
took or did not take any action.” Viewed in isolation, this ruling appears
problematic. A defendant’s subjective reasons for acting or failing to act are
relevant to the analysis of whether the defendant breached its duty of care. .
. .
At ¶ 47.
A fuller examination
of the in limine hearing, however, reveals that the trial court did not exclude
evidence of Salt Lake City’s reasons for failing to remedy the sidewalk
displacement. In response to Mr. Kerr’s motion to exclude Mr. Jarman’s opinions
about the displacement, Salt Lake City argued that Mr. Jarman would not
directly testify whether he believed the condition was dangerous. Instead, the
city proposed to show Mr. Jarman pictures of the sidewalk displacement and ask
him whether he would classify the displacement as a hazardous defect that would
require immediate repair or as the type of normal defect that could be repaired
by the adjacent landowner. Mr. Kerr opposed Salt Lake City’s proposal, arguing
that the city should not be permitted to perform an end run around the blanket
exclusion of opinion testimony regarding the dangerousness of the displacement
by having Mr. Jarman testify as to how the city would respond to the sidewalk
defect (i.e., how the city would respond to a hazardous condition or a
nonhazardous condition). In the context of these arguments, the trial court’s
ruling that Mr. Jarman could not testify “why he took or did not take any
action” was merely a ruling that Mr. Jarman could not give indirect opinion
testimony that the defect was not dangerous. In other words, Mr. Jarman could
not testify that Salt Lake City would respond to this particular displacement
in the same way it would respond to other nonhazardous conditions.
At ¶ 48.
Mr. Jarman’s
testimony at trial further clarifies that the trial court’s ruling only
excluded opinion testimony regarding the characterization of the displacement
at issue in this case. Mr. Jarman was permitted to testify extensively
regarding his knowledge of Salt Lake City’s policies regarding sidewalk repair,
including how the city categorizes and responds to hazardous and nonhazardous
sidewalk conditions; how the city repairs sidewalk defects through horizontal
saw cutting, grinding, and sidewalk replacement; and budgeting constraints on
the number of repairs the city can address. Counsel only objected when Mr. Jarman
was asked for his opinion on whether a half-inch displacement was a tripping
hazard and when Mr. Jarman spontaneously gave his opinion that he believed the
sidewalks in Salt Lake City are reasonably safe. Taken in context, therefore,
the trial court did not exclude testimony regarding Salt Lake City’s reasons
for failing to remedy the sidewalk displacement.
At ¶ 49.
JUSTICE LEE, concurring in part and concurring in the
judgment,
I would deem the decision granting a new trial
appealable . . . .
At ¶ 52.
Hirabelli
announced a clear rule of
statutory construction. Under a statute providing that “‘upon an appeal from a
[final] judgment, all
orders, rulings, and decisions
in the action or proceeding to which exceptions have been taken . . . below . .
. are before the Supreme Court for review,’” the Hirabelli court found “no good reason” for treating
decisions granting a new trial as somehow excepted from the court’s
jurisdiction. 138 P. at 1173 (emphasis added) (citing UTAH COMP. LAWS § 3304 (1907)). Parties to litigation should be
entitled to rely on the continued viability of that principle. Our appellate
courts retain broad jurisdiction over final judgments, and that appellate
jurisdiction encompasses all orders, rulings, and decisions that were properly
preserved below. UTAH
CODE §
78A-3-102(3)(j) (granting the Supreme Court jurisdiction over “orders,
judgments, and decrees of any court of record over which the Court of Appeals
does not have original appellate jurisdiction”). Under these longstanding principles
of Utah law, Salt Lake City is entitled to appeal the decision granting Kerr’s
motion for new trial—as that decision has never (until today) been excepted
from our jurisdiction.
At ¶ 56.
I would accordingly
review both the decision to grant a new trial and the decision denying the
City’s motion for directed verdict. And I would affirm—essentially on the
grounds articulated by the majority, as the new trial motion and the directed
verdict motion in this case raised nearly identical arguments.
At ¶ 58.
