Four of the six opinions published on January 16, 2014, dealt with family law or criminal law. Pursuant to my new policy, I have not summarized those cases.
Winegar v. Springville City, 2014 UT App 9, No. 20120898-CA
(January 16, 2014)
ISSUE:
Timeliness under the Utah Governmental Immunity Act; Denial of Claim;
restriction of additional information in a reply memorandum
Judge
Roth,
The [Utah Governmental Immunity] Act provides that‚ “within 60 days of the filing of a notice of claim, the governmental entity or its insurance carrier shall inform the claimant in writing that the claim has either been approved or denied.” Id. § 63G-7-403(1)(a). “A claim is considered to be denied if, at the end of the 60-day period, the governmental entity or its insurance carrier has failed to approve or deny the claim.” Id. § 63G-7-403(1)(b). Then, “the claimant shall begin the action [in the district court] within one year after the denial of the claim or within one year after the denial period . . . has expired.” Id. § 63G-7-403(2)(b). On March 20, 2006—fifty-two days after the filing of the notice of claim—URMMA [Springville City’s Insurance Carrier] wrote the Winegars that it “must respectfully decline to make any voluntary payments on [the] claim.” The issue presented to us on appeal is whether the City established as a matter of law that the March 20 letter denied the Winegars’ claim so as to entitle the City to judgment on the basis that the complaint, filed in April 2007, was untimely. We agree with the Winegars that the City did not.
At ¶ 13.
The Winegars disputed only the City’s representation as to when it had denied their claim and did so on two grounds. First, the Winegars disputed that the March 20 letter was actually a denial of their claim because the letter did not explicitly say the claim was denied but rather stated that URMMA “must respectfully decline to make any voluntary payments on [the] claim.” Second, they asserted that URMMA, not the City, wrote the March 20 letter and the letter did not identify URMMA as the City’s insurer. The Winegars further contend that the City did not explain that discrepancy in Fact Number 2, where the City simply alleged that it had “denied the claim by letter,” which was attached with no affidavit and no explanation of who URMMA was—“A claims adjusting company? An agent of Springville’s insurer? Springville’s insurer itself?” Thus, the Winegars argued that even if the letter amounted to a denial of their claim, the City had failed to establish that either the City or its insurer sent the March 20 letter, as the Act required, see Utah Code Ann. § 63G-7-403(1) (providing that only the governmental entity or its insurance carrier may approve or deny a claim).
At ¶ 15.
The City’s initial statement of undisputed facts alleges that “Springville City” denied the Winegars’ claim by letter on March 20, 2006. This statement is called into question, at least on its face, by the attached March 20 letter, which is on URMMA letterhead and signed only by a “claims adjuster.” And while the letter itself refers to “the claim you have made against Springville City,” it does not contain any information that supports a reasonable evidentiary inference that although the City said it denied the claim, the City actually meant that it complied with the statutory denial requirements by having its insurer deny the claim. While one might reach the conclusion that URMMA was the City’s insurer by a series of logical steps—e.g., the City asserts that it denied the claim; under Utah law, the City could only deny the claim itself or through its insurer; the City itself did not write the March 20 letter; therefore, URMMA must be the City’s insurer—those steps require assumptions not supported by actual evidence and the conclusion they lead to is necessarily speculative. See State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d 1096 (. . . ) In considering whether an inference may reasonably be drawn, a “reviewing court will stretch the evidentiary fabric as far it will go. But this does not mean [we] can take a speculative leap across a remaining gap . . . .” State v. Pullman, 2013 UT App 168, ¶ 14, 306 P.3d 827 (citation and internal quotation marks omitted). For the City to establish that it had denied the claim on March 20 in accordance with the Act, it must have introduced evidence establishing that URMMA was its insurer at the time, and the letter itself does not accomplish that.
At ¶ 20.
The City acknowledged this problem in its reply memorandum supporting its motion for summary judgment by purporting to amend the original Fact Number 2 to read, “On March 20, 2006, City, through its insurer, the Utah Risk Management Mutual Association (“URMMA”), denied [the Winegars’] Notice of Claim.” (Emphasis added.) This is insufficient. A reply memorandum is “limited to rebuttal of matters raised in the memorandum in opposition.” Utah R. Civ. P. 7(c)(1). “Where a party first raises an issue in his reply memorandum, it is not properly before the trial court” unless the party has received leave of the court to raise a new issue. Soriano v. Graul, 2008 UT App 188, ¶ 12, 186 P.3d 960 (citations and internal quotation marks omitted). Moreover, even if the City’s amendment of Fact Number 2 could be construed as “rebuttal of matters raised in the [Winegars’] . . . opposition,” see Utah R. Civ. P. 7(c)(1), the amendment of Fact Number 2 alone does not demonstrate that the City is entitled to summary judgment as a matter of law, see id. R. 56(c). To prevail on summary judgment, the moving party must produce some factual evidence to demonstrate that there is no genuine issue of material fact. See Orvis v. Johnson, 2008 UT 2, ¶¶ 16, 18, 177 P.3d 600 ( . . . ). The City’s fact statement is not adequately supported. It amounts to a bare allegation, the truth and sufficiency of which have been called into question by the Winegars’ opposition. Without a supporting affidavit or some other evidence establishing that the City’s insurer was, in fact, URMMA, the City has failed to demonstrate that it is entitled to judgment as a matter of law.
At ¶21.
Furthermore, the City’s attempt to add a crucial fact demonstrating its entitlement to summary judgment in the reply memorandum deprived the Winegars of an opportunity to fully challenge the summary judgment motion, either by contesting the new statement of undisputed facts or by raising other defenses, such as the estoppel defenses they raise on appeal. The Winegars took appropriate action under rule 7 by filing a motion for leave to file a response, but the district court did not resolve that motion prior to granting summary judgment. Indeed, it is not apparent from the record whether the court even saw the Winegars’ motion, as it was filed the day before the grant of summary judgment and was not yet ripe for the district court to resolve. See Utah R. Civ. P. 7(c)(1) (allowing the other party ten days to file an opposition to a motion); id. R. 7(d) (providing for submission to the district court for decision after briefing is complete). We therefore conclude that the Winegars were prejudiced by the lack of an opportunity to respond to the City’s reply memorandum.
At ¶ 22.
Accordingly, we vacate the grant of summary judgment and remand for further proceedings. Because of the nature of our decision, we do not reach any of the other issues the Winegars raised regarding the district court’s decision.
At ¶ 23.
Porter v.
Farmington City, 2014 UT App 12, No. 20120911-CA
(January 16, 2014)
ISSUES: Premises liability
Senior Judge Greenwood,
Generally, a landowner is liable for injuries resulting from a temporary hazard only if it “knew, or in the exercise of reasonable care should have known, of any hazardous condition and had a reasonable opportunity to remedy the same.” Canfield v. Albertsons, Inc., 841 P.2d 1224, 1226 (Utah Ct. App. 1992) (citation and internal quotation marks omitted). It is undisputed that the City did not have actual knowledge of the hole that injured Porter. Thus, the arguments on appeal center on whether the City should be deemed to have had knowledge of the hole’s existence because it created the hole [by using the sprinkling system that caused it] or, in the alternative, whether the City could be found to have had constructive knowledge of the hole due to the length of time it had existed [about three months].
At ¶5.
If a plaintiff alleges that a defendant negligently failed to remedy a dangerous condition that the defendant did not create (as in Schnuphase), negligently failed to repair a dangerous malfunction in an otherwise safe system (as in Fishbaugh), or negligently allowed an otherwise safe condition to degrade over time into a dangerous condition (as in the instant case), then evidence of notice and a reasonable time to remedy are required to survive a motion for summary judgment or directed verdict. These requirements do not apply where the negligence claim requires the plaintiff to establish that the defendant actually created the dangerous condition or purposefully built the dangerous condition into the system for which the defendant is responsible. The rationale behind these distinct rules is that it is reasonable to presume that a party has notice of conditions that the party itself creates, but it is not reasonable to presume notice of conditions that someone else creates (as in Schnuphase), that arise from malfunctions (as in Fishbaugh), or that gradually evolve on their own.
[Goebel v. Salt Lake City S. R.R., 2004 UT 80, ¶
22.]
At ¶ 7.
At most, the City “failed to repair a dangerous malfunction in an otherwise safe system” or “allowed an otherwise safe condition to degrade over time into a dangerous condition.” See id. ¶ 22. However, under such circumstances, “it is not reasonable to presume notice,” id., and the trial court’s refusal to impute notice to the City in this case was correct as a matter of law.
At ¶ 8.
Constructive Notice?
A landowner has constructive notice of a dangerous condition when the condition has “existed long enough that [the landowner] should have discovered it.” Jex v. JRA, Inc., 2008 UT 67, ¶ 16, 196 P.3d 576 (citation and internal quotation marks omitted). To establish constructive notice of an unsafe temporary condition, “a plaintiff must present evidence that would show . . . that it had been there for an appreciable time.” Id. ¶ 19 (omission in original) (citation and internal quotation marks omitted).
At ¶ 10.
The parties’ stipulated facts include no evidence that . . . reasonable inspection could have discovered the concealed hole. On appeal, Porter argues only that the City was “solely responsible for the maintenance, repair, and inspection of the sprinkling system” and that the City’s agents “routinely drive lawn mowers and trucks over the cemetery grounds.” However, the mere possibility that a City vehicle might have eventually revealed the hole by driving across it does not provide a reasonable basis for a jury to conclude that the City “should have discovered” the hole. See Jex, 2008 UT 67, ¶ 16.
At ¶ 12.
The Court affirms summary judgment in the city’s favor.
At ¶ 13.
