332 P.3d 394
Utah Ct. App.2014Background
- On Oct. 14, 2009, Scott and Brenda McDowell, driving near 12th Street in Ogden, entered a construction area where westbound lanes had been redirected; there were no barriers preventing entry from an adjacent parking lot.
- The McDowells drove on a newly paved section that abruptly ended; their vehicle dropped into an unfinished section and they were injured. Plaintiff's evidence alleges no flashing lights, no signs, no barricades, and no workers present at the dropoff.
- United Fire Group, subrogee for the McDowells, paid medical and vehicle damages and sued Staker & Parson Companies (Staker) for negligent maintenance of the construction zone.
- After discovery, Staker moved for summary judgment arguing United Fire needed an expert to prove the standard of care and breach for temporary traffic control; United Fire had not designated an expert.
- The district court granted summary judgment for Staker, holding United Fire could not establish duty/breach without expert testimony; United Fire appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to establish the standard of care for temporary traffic control in a major construction project | Expert testimony not required because adequacy of warnings (or lack thereof) is within common juror knowledge | Expert testimony required because temporary traffic control during major construction is technical and governed by detailed engineering standards | Generally, expert testimony is required for standards/adequacy in major temporary traffic control, but not if the plaintiff shows a total absence of any warnings or devices such that the issue is within common knowledge |
Key Cases Cited
- Salt Lake County v. Holliday Water Co., 234 P.3d 1105 (Utah 2010) (standard of review for summary judgment)
- Thurston v. Workers Comp. Fund, 83 P.3d 391 (Utah Ct. App. 2003) (elements of negligence claim)
- Dikeou v. Osborn, 881 P.2d 943 (Utah Ct. App. 1994) (plaintiff must present evidence of each prima facie element to avoid summary judgment)
- Wycalis v. Guardian Title, 780 P.2d 821 (Utah Ct. App. 1989) (expert testimony required where laymen lack understanding of professional duties)
- Jenkins v. Jordan Valley Water Conservancy Dist., 321 P.3d 1049 (Utah 2013) (technical nature of certain duties removes them from lay knowledge)
- Nizdorf v. Hicken, 612 P.2d 348 (Utah 1980) (no expert needed when issue is within common knowledge)
- Salt Lake City Sch. Dist. v. Galbraith & Green, 740 P.2d 284 (Utah Ct. App. 1987) (expert evidence required when issue needs special knowledge)
- Hansen v. Clyde, 56 P.2d 1366 (Utah 1936) (contractor must place barricades/warnings for hazards created on public highways)
- B.R. ex rel. Jeffs v. West, 275 P.3d 228 (Utah 2012) (duty to exercise care when affirmative conduct creates risk)
- Nguyen v. IHC Health Servs., Inc., 232 P.3d 529 (Utah Ct. App. 2010) (no expert needed where claim is that no disclosure was made)