Case Information
*1
T HE U TAH C OURT OF A PPEALS
L ISA P ENUNURI AND B ARRY S IEGWART ,
Appellants, v.
S UNDANCE P ARTNERS L TD ., S UNDANCE H OLDINGS LLC, S UNDANCE
D EVELOPMENT C ORPORATION , R OBERT R EDFORD , R EDFORD 1970
T RUST , AND R OCKY M OUNTAIN O UTFITTERS LC,
Aрpellees. Opinion No. 20140854-CA Filed July 21, 2016 Fourth District Court, Provo Department The Honorable Claudia Laycock No. 080400019 Robert D. Strieper, Attorney for Appellants H. Burt Ringwood and A. Joseph Sano, Attorneys for Appellees
J UDGE J. F REDERIC V OROS J R . authored this Opinion, in which J UDGE M ICHELE M. C HRISTIANSEN and S ENIOR J UDGE R USSELL W.
B ENCH concurred. [1]
VOROS, Judge: Plaintiffs Lisa Penunuri and Barry Siegwart appeal the
district court’s entry of summary judgment in favor of Rocky Mountain Outfitters LC and the other defendants (collectively, Rocky Mountain). Penunuri suffered injuries when she fell from her horse on a guided trail ride. On that ride, potentially dangerous gaps formed between horses. Rather than addressing 1. Senior Judge Russell W. Bench sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(6). these gaps immediately, the trail guide decided to deal with them after the company had passed some hikers and reached a clearing. But before they did, Penunuri fell off her horse. Plaintiffs sued Rocky Mountain and related parties for ordinary negligence and gross negligence. The district court ruled that a release signed by Penunuri
barred the ordinary negligence claim. This court and the Utah Supreme Court upheld that ruling in a prior appeal. On remand, the district court rejected the gross negligence claim on summary judgment. We agree with the district court that this set of facts cannot as a matter of law support a claim of gross negligence. Accordingly, we affirm.
BACKGROUND [2] On August 1, 2007, Penunuri joined a guided horseback
trail ride operated by Rocky Mountain at Sundаnce Resort. Her group consisted of a guide and four other riders: Penunuri’s two friends, an eight-year-old child (Child), and Child’s mother (Mother). Before beginning the ride, Penunuri and the other riders received instruction from the guide and signed liability releases. The guide worked as a horseback trail guide for Rocky Mountain from summer 2004 to fall 2008. She was trained by Rocky Mountain at the beginning of each season to guide horseback trail rides. Rocky Mountain instructed guides to close up large gaps between horses as they walked and to warn riders about hazards on the trail.
2. When reviewing a district court’s rulings on a summary
judgment motion, we recite the facts and inferences in the light
most favorable to the nonmoving party.
Poteet v. White
, 2006 UT
63, ¶ 7,
the ride, the guide rode at the head of the group. For the first 45 minutes, Mother, Child, and Penunuri were the first three riders, followed by Penunuri’s friends. After stopping at a meadow, the order of the riders changed. Penunuri’s friends rode behind thе guide, while Mother, Child, and Penunuri brought up the rear. Both Child and Penunuri struggled to keep their horses from grazing. The grazing caused Child’s and Penunuri’s horses to lag behind, creating gaps between the horses. The guide tried to keep the group together by slowing
down. One of Penunuri’s friends asked the guide to stop and
wait for Child and Penunuri to catch up. The guide responded
that they would be stopping at a clearing about 100 feet away so
that she could take the reins of Child’s horse. To reach the
clearing, the horses had to climb a steep section of the trail
around a bend where hikers were present. Child’s horse again
stopped to graze, creating a gap of several feet between
Penunuri and the rest of the group. When Child’s and
Penunuri’s horses began moving again, Penunuri testified that
‚it was a rougher ride than [she] remember[ed] having had
before.‛ She testified that ‚with other grazing episodes my horse
would, you know, kind of giddyup a little faster than it had been
gоing, because *Child’s+ horse would start up and then mine
would start up, too, and then would slow down. And this
particular incident, it seemed even rougher than, you know, the
giddyup that I had gotten in other stops.‛ Her horse suddenly
accelerated and Penunuri fell off, suffering injuries.
Plaintiffs sued Rocky Mountain alleging ordinary
negligence, gross negligence, and vicarious liability. Plaintiffs
filed a motion for partial summary judgment and declaratory
relief. They argued that a release Penunuri had signed was
unenforceable under the Limitations on Liability for Equine and
Livestock Activities Act. The district court concluded that the
Act did not prevent a party from contracting away its liability
for ordinary negligence. The court accordingly ruled the release
enforceable and dismissed all of Plaintiffs’ claims based on
ordinary negligence. This court and the Utah Supreme Court
affirmed the district court’s ruling.
See Penunuri v. Sundance
Partners, Ltd.
, 2013 UT 22, 301 P.3d 984;
Penunuri v. Sundance
Partners, Ltd.
,
¶7 On remand, Plaintiffs pursued their gross negligence claim. Rocky Mountain filed two motions for summary judgment, the first to dismiss Plaintiffs’ gross negligence claim and the second, in the alternative, to exclude Plaintiffs’ proposed expert witness. The court granted both motions, dismissing the gross negligence claim and ruling that Plaintiffs’ proposed expert was ‚not qualified to render expert opinion testimony concerning the standard of care applicable to commercial horseback trail guiding.‛ The court also awarded Rocky Mountain costs pursuаnt to rule 54 of the Utah Rules of Civil Procedure. Plaintiffs appeal.
ISSUES ON APPEAL
¶8 First, Plaintiffs contend that the district court erred when it granted summary judgment to Rocky Mountain in a gross negligence case where the standard of care was not fixed by law. Second, Plaintiffs contend that the district court erred when it determined that no facts supported their claims of gross negligence. Third, Plaintiffs contend that the district court ‚erred
when it determined the outcome of the entire case bаsed upon one alleged, disputable fact.‛ Fourth, Plaintiffs contend that the district court erred
when it ‚granted *Rocky Mountain’s+ motion for summary judgment on causation based upon mischaracterization of deposition testimony.‛
¶12 Fifth, Plaintiffs contend that the district court erred when it granted Rocky Mountain’s alternative motion for summary judgment and excluded testimony from Plaintiffs’ proposed expert witness. Because our resolution of Plaintiffs’ first four claims on appeal renders this claim moot, we do not consider its merits. Finally, Plaintiffs contend that the district court abused its
discretion when it awarded Rocky Mountain costs.
ANALYSIS
I. The District Court Properly Granted Rocky Mountain’s Summary Judgment Motion Relating to Gross Negligence. Plaintiffs’ first four contentions each challenge the district
court’s granting of Rocky Mountain’s first motion for summary judgment. The district court granted the motion on the ground that Plaintiffs ‚presented no evidence upon which reasonable minds could conclude that [Rocky Mountain’s] guide . . . exercised no care.‛ Summary judgment is appropriate ‚if the moving party
shows that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.‛
Utah R. Civ. P. 56(a). ‚An appellate court reviews a trial court’s
legal conclusions and ultimate grant or denial of summary
judgment for correctness, and views the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party.‛
Orvis v. Johnson
,
care; it is carelessness or recklessness to a degree that shows utter indifferencе to the consequences that may result.’‛ Pearce v. Utah Athletic Found. , 2008 UT 13, ¶ 24, 179 P.3d 760 (quoting Berry v. Greater Park City Co. , 2007 UT 87, ¶ 26, 171 P.3d 442). Further, ‚gross negligence, which is associated with willful, wanton, and reckless conduct, applies to conduct that is so far from a proper state of mind that it is treated in many respects as if harm was intended and usually is accompanied by a conscious indifference to consequences.‛ Blaisdell v. Dentrix Dental Sys., Inc. , 2012 UT 37, ¶ 16, 284 P.3d 616 (citation and internal quotation marks omitted). First, Plaintiffs contend that the district court erred when
it granted summary judgment to Rocky Mountain in a gross negligence case where the standard of care was not fixed by law. They argue that the ‚standard of care regarding how a guide manages gaps in the train of horses is not fixed by law‛ and that it was therefore ‚inappropriate for the *district+ court to grant the summary judgment motion.‛ Plaintiffs rely on the Utah Supreme Court’s opinions in
Berry v. Greater Park City Co.
,
[S]ummary judgment is ‚‘inappropriate unless the aрplicable standard of care is fixed by law, and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.’‛
Berry , 2007 UT 87, ¶ 27 (quoting White v. Deseelhorst , 879 P.2d 1371, 1374 (Utah 1994) (quoting Wycalis v. Guardian Title of Utah , 780 P.2d 821, 825 (Utah Ct. App. 1989))). Plaintiffs read this passage to mean that summary judgment may never be granted in negligence cases unless both the standard of care is ‚fixed by law‛ and reasonable minds could not differ as to the defendant’s negligence. And to be sure, the passage does describe the two elements in the conjunctive. But that is not how our supreme court has read Berry.
Utah courts grant summary judgment with some frequency in
negligence cases—usually against the plaintiff—where the
standard of care is not ‚fixed by law‛ in the sense that the
defendant violated a statute or precedent specific to the industry
or practice at issue. And our supreme court, citing
Berry
, did that
very thing in
Blaisdell v. Dentrix Dental Systems, Inc.
,
negligence. Id . ¶ 2. The court affirmed the district court’s grant of summary judgment in favor of the defendant. The plaintiff argued on appeal, quoting Berry , that ‚summary judgment is inapprоpriate on the issue of gross negligence unless there is a ‘standard of care . . . fixed by law.’‛ Id. ¶ 14 (quoting Berry , 2007 UT 87, ¶ 30). But the court, also citing Berry , disposed of the claim under the rule that summary judgment ‚is generally inappropriate to resolve negligence claims and should be employed only in the most clear-cut case.‛ Id. ¶ 15 (quoting Berry , 2007 UT 87, ¶ 27). And despite the absence of any law fixing the standard of care for providers of dental practice management software, the supreme court affirmed on the ground thаt reasonable minds could not differ as to whether the defendant’s conduct in that case was grossly negligent (it wasn’t). Id. ¶ 16. In other words, the supreme court read the Berry test as if the two factors were disjunctive rather than conjunctive elements. We conclude that the supreme court’s application of the
two-part test in
Blaisdell
represents the original and best reading
of that test. The two-part test came to Utah via
Wycalis v.
Guardian Title of Utah
,
Accordingly, summary judgment is inappropriate unless the applicable standard of care is ‚fixed by lаw,‛ and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.
Id.
at 825 (quoting
Elmer v. Vanderford
,
employed by our supreme court, under the fixed-by-law formulation a district court must grant summary judgment if, based on undisputed facts and undеr the governing legal standard, reasonable minds could not differ as to whether the defendant acted negligently. In any event, we look to the governing standard in rule 56: ‚The court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.‛ Id. And that is the case here. ¶23 Consequently, we hold that Berry did not require the district court to deny Rocky Mountain’s summary judgment motion on the ground that the standard of care governing ‚how a guide manages gaps in the train of horses‛ on commercial trail rides is not fixed by law. The district court handled the gross negligence claim here just as the supreme court handled the gross negligence claim in Blaisdell . Second, Plaintiffs contend that the district court ‚erred
when it determined there were no facts to support *Plaintiffs’+ gross negligence claim.‛ Specifically, Plaintiffs argue that the court ‚chose to ignore *Rocky Mountain’s+ emрloyee manual,‛ which instructed its guides to ‚keep gaps from forming, warn of obstacles such as hills and hikers, and keep the saddle from slipping.‛ The district court ruled that Plaintiffs ‚presented no
evidence upon which reasonable minds could conclude that [Rocky Mountain’s+ guide . . . exercised no care.‛ It further ruled that Plaintiffs did not present ‚any evidence to show that *the guide] knew or had reason to know of facts that would have created a high risk of physicаl harm to . . . Penunuri, but deliberately proceeded to act, or failed to act, in conscious disregard of, or indifference to, that risk.‛ And, the court concluded, without any evidence of the guide’s gross negligence—in other words, without any evidence that she acted with ‚utter indifference‛ to Penunuri’s safety during the horseback ride—‚reasonable minds could reach but one conclusion‛: that the guide was not grossly negligent. See Pearce v. Utah Athletic Found. , 2008 UT 13, ¶ 24, 179 P.3d 760 (citation and internal quotation marks omitted). As previously explained, ‚*g+ross negligence requires
proof of conduct substantially more distant from the appropriate
standard of care than does ordinary negligence.‛
Berry v. Greater
Park City Co.
,
manual’s warning about gaps as well as testimony from Rocky Mountain employees about the potential problems when gaps form ‚should have created a rebuttable presumption of negligencе.‛ Plaintiffs do not support this argument with legal authority stating that internal training manuals may define a standard of care. [3] But even if that assertion were true, it is not relevant. Plaintiffs cannot succeed by showing that the evidence would support a finding of ordinary negligence ; their claim alleges gross negligence . And even they do not contend that the manual demonstrates that the guide exercised no care and acted with utter indifference to the consequences of her actions. Furthermore, we agree with the district cоurt that, even resolving all inferences in Plaintiffs’ favor, the evidence could not support a finding of gross negligence. On the contrary, the facts indisputably show that the guide did observe, at the very least, slight care: she gave Penunuri instructions on how to mount the horse and how to stop the horse from grazing, she had been ‚slowing down the whole ride‛ for Penunuri and Child, and she planned to take the reins of Child’s horse once the riders reached a suitable area to rearrange the order of the riders. In addition, Plaintiffs’ own proposed expert ‚testified that there 3. We express no opinion on this unbriefed question.
is no evidence in this case indicating that *Rocky Mountain’s+ guide . . . exercised no care or acted in willful disregard for the care of others.‛ [4] In sum, the undisputed evidence before the court could not sustain a jury finding of gross negligence. Third, Plaintiffs contend that the district court ‚erred when it determined the outcome of the entirе case based upon one alleged, disputable fact.‛ Plaintiffs argue that the district court granted Rocky Mountain’s motion for summary judgment based on the ‚guide’s testimony that she was slowing down the entire ride.‛ Plaintiffs further argue that the guide’s ‚failure to stop the moment she came upon the hikers to close the gaps that had formed‛ breached the standard of care. We do not read the district court’s ruling so narrowly.
True, the court prominently cited the guide’s testimony that she ‚had been slowing down the whole ride.‛ But the court also cited the fact that the guide ‚was attempting to get the group to a larger clearing‛ to take the reins of Child’s horse, as well as Plaintiffs’ own proposed expert’s testimony that the guide had not ‚exercised no care.‛ Moreover, we agree with the district court’s
characterization of the guide’s testimony as undisputed. The guide testified, ‚I had been slowing down the whole ride.‛ Plaintiffs argue that this testimony ‚is fully contradicted by the facts that the trial court disregarded.‛ Plaintiffs refer to testimony that the guide ‚just march[ed] on at a normal speed‛ and did not stop when requested. But the page of the record Plaintiffs cite in support of this assertion does not support it. The witness testified as follows: ‚I told *the guide+ that we had to 4. Solely for purposes of analyzing the summary judgment motion on gross negligence, we assume that the opinion testimony of Plaintiffs’ proposed expert witnеss was admissible. wait up, to stop. And she said that we would stop at the clearing farther on and that she would pony *Child+ in.‛ This testimony does not contradict the guide’s testimony that she had been slowing down the whole ride. Accordingly, the court’s summary judgment does not rest on a single disputed fact. In addition, Plaintiffs cite other testimony from which
they allege that a finder of fact could conclude that the guide knew the potential danger of gaps between horses, knew that gaps had formed in this company, and decided to close those gaps only after the group got past the foot traffic and bends in the trail. But, as explained above, this testimony would at most support a claim for ordinary negligence. Even assuming the truth of all the evidence on which Plaintiffs rely, it does not support a claim of gross negligence. Finally, Plaintiffs contend that the district court ‚erred
when it granted *Rocky Mountain’s+ motion for summary judgment on causation based uрon mischaracterization of deposition testimony.‛ Plaintiffs’ proposed expert testified that ‚several things could have startled that horse and caused it to start running‛; he also testified that if there had not been a gap between the horses, ‚all of those causes could have been minimalized.‛ He testified that ‚there should have been extra care taken to get the horses together.‛ The court ruled that summary judgment was appropriate bеcause Plaintiffs ‚presented no evidence beyond speculation concerning causation.‛ Plaintiffs argue that the court ignored the expert’s
testimony that the danger could have been lessened or eliminated if the gaps had been closed between the horses. We do not agree with Plaintiffs’ characterization of the district court’s assessment of the causation evidence. But even if the district court erroneously concluded that the evidence could not support a finding of causation, the outcome of this case would be the same, because, as explained above, we agree with the district court that evidence of gross negligence is lacking here. For the foregoing reasons, the district court did not err in granting Rocky Mountain’s summary judgment motion on the gross negligence claim. And because we conclude that the undisputed facts support summary judgment for Rocky Mountain еven assuming the admissibility of the testimony of Plaintiffs’ proposed expert, we need not address Plaintiffs’ challenge to the district court’s exclusion of that witness.
II. The District Court Did Not Abuse Its Discretion When It Awarded Deposition Costs to Rocky Mountain. Plaintiffs contend that the district court ‚erred when it
determined that Rocky Mountain was entitled to the deposition
costs in the amount of $2,577.32, together with post-judgment
interest, when the same evidence could have been obtained
through lеss expensive means.‛ ‚In reviewing a district court’s
denial or award of costs, we apply a highly deferential
standard.‛
Giusti v. Sterling Wentworth Corp.
,
Penunuri, Mother, and one of Penunuri’s friends (Friend) ‚were not necessary and the information in the Motion for Summary Judgment certainly could have been obtained through less expensive means.‛ However, the district court did not decide that the depositions were essential ‚because the development of the case was of such a complex nature that the information in the depositions could not be obtained through less expensive means of discovery.‛ See id. In fact, the court stated, ‚I haven’t really reached a conclusion as to whether or not this case was of such a complex nature that . . . less expensive discovery could have been obtained.‛ Instead, the court considered whether the depositions
were used ‚in a meaningful way‛ in resolving the case through summary judgment. [5] The court, in considering Penunuri’s deposition, found that ‚her deposition was used in a very meaningful way in establishing the undisputed facts for the purpose of the motion for summary judgment.‛ The court further stated, ‚I’m finding and ruling that whether or not it was complex, this was discovеry that had to be done with Ms. Penunuri, through a deposition.‛ The court similarly found that both Mother’s and Friend’s depositions were ‚used in a significant way and a meaningful way . . . in the motion for summary judgment.‛ The court additionally found that depositions were required to obtain Mother’s and Friend’s testimony, as ‚lesser means of discovery were either not 5. Plaintiffs do not argue that the district court could not analyze whether the depositions were essential under the ‚used in a meaningful way‛ prong.
available or not accurate and . . . through their deposition[s], they were able to clear up issues and facts.‛ The district court also found that Penunuri’s, Mother’s, and Friend’s depositions ‚were taken in good faith‛ and that they ‚appeared to be essential for the development and presentation of the case because they were ‚used in a meaningful way‛ in resolving the case. See id. ¶¶ 6, 11. Under our deferential standard, this is enough. We therefore conclude that the district court did not abuse its discretion in awarding Rocky Mountain costs for the depositions of Penunuri, Mother, and Friend.
CONCLUSION The judgment of the district court is affirmed.