December 17,2013 Utah Supreme Court Case Summaries & Announcement

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.