Colosimo v. Gateway Cmty. Church

• Decision Date: 15 September 2016
• Docket Number: No. 20140852–CA,20140852–CA
• Citation: 382 P.3d 667,2016 UT App 195
• Court: Utah Court of Appeals
• Parties: Lawrence Colosimo and Sarah Jean Colosimo, Appellants, v. Gateway Community Church, Appellee.

382 P.3d 667

2016 UT App 195

Lawrence Colosimo and Sarah Jean Colosimo, Appellants,

v.Gateway Community Church, Appellee.

No. 20140852–CA

Court of Appeals of Utah.

Filed September 15, 2016

Richard D. Burbidge, Jefferson W. Gross, Salt Lake City, and Aida Neimarlija, Attorneys for Appellants

Troy L. Booher, Beth E. Kennedy, Salt Lake City, Mark Dalton Dunn, Trystan B. Smith, and Todd A. Turnblom, Attorneys for Appellee

Judge Kate A. Toomey authored this Opinion, in which Judge Stephen L. Roth and Senior Judge Pamela T. Greenwood concurred.¹

Opinion

TOOMEY

, Judge:

¶1 In this opinion we must decide whether the district court correctly granted summary judgment to Gateway Community Church (Gateway) in determining Gateway owed no duty to a trespasser, either imposed by a city ordinance or under common law, and whether the court abused its discretion in its rulings on the parties' motions to strike certain testimony. We affirm.

BACKGROUND

¶2 In June 2012, sixteen-year-old A.C. and two of his cousins climbed a ladder onto the roof of a building owned by Gateway. The ladder “had a locked box at the bottom to prevent unauthorized individuals from accessing the ladder and roof,” and the boys climbed over it by stepping on a nearby box. It is undisputed that the boys climbed onto the roof of the building without permission. Teenagers are known to have gone onto Gateway's roof on two other occasions, once in 2004 and again in 2010.

¶3 While climbing up and exploring, the boys felt electricity on a “panel on the top of the roof.” Climbing back down, A.C.'s foot was caught between the ladder and the electrified metal flashing of the roof. A.C. “was in contact with the hot metal flashing for a period of up to ten seconds and received over 200 volts of electricity.” He lost consciousness and was taken to the emergency room. He died ten days later from electrocution-related injuries.

¶4 Gateway moved into the building in 1999 and purchased it in 2003. Attached to the building is an electric sign that reads “Welcome to Gateway.” Its installation date is unknown, but sometime in 2003 or 2004 Gateway had an acrylic faceplate with its new logo installed in the existing sign cabinet.²

¶5 After the accident, A.C.'s parents had the sign inspected by an electrical engineer. Gateway also inspected the sign, assisted by a drywaller who often helped with inspections, a journeyman mechanic, an apprentice electrician, a Draper City building inspector, an officer from the Draper City police department, and a fire marshal. Ultimately, the inspections revealed that the sign was defectively wired, and, among other things, the wiring used was intended for interior use instead of waterproof conduit appropriate for outdoor use. In addition, the wiring was not grounded and the output lead wires were routed “under the sharp edge of one of the elements of the metal frame of the sign,” and were in metal-to-metal contact with the building's flashing.

¶6 Draper City adopted several ordinances (together, the Sign Ordinances) that require “a sign permit prior to the erection, installation, or use of any sign.” Draper City, Utah, Ordinance 205, § 9–14–060 (1996), http://sirepub.draper.ut.us/sirepub/cache/25/gf3msmwz0eb4nzbnmaofo3if/692530826201609 3213861.PDF [https://perma.cc/4UG3-PBMS]. To “protect the safety and welfare of the people of the City,” the Sign Ordinances prohibit any sign that “constitutes a hazard to safety or health by reason of inadequate installation, maintenance or dilapidation.” Id. § 9–14–090(a)(9)(i). All signs must be “maintained in good and safe structural condition, [and] in compliance with all building and electrical codes” at all times. Id. § 9–14–070(c)(1)(iii). The Sign Ordinances also provide that any “person, firm or corporation” that violates the Sign Ordinances is “guilty of a Class B misdemeanor,” Draper City, Utah, Ordinance 505, § 9–26–070(d) (2003), http://sirepub.draper.ut.us/sirepub/cache/25/gf3msmwz0eb4nzbnzbnma3if/323208262 016094012556.PDF [https://perma.cc/D4T5-ZZMG], and indicate that “[t]he provisions of [t]he ordinance[s] shall not be construed to relieve or limit in any way, the responsibility or liability of any person, firm, or corporation which erects or owns any sign, for personal injury or property damage[ ] caused by the sign,” id. § 9–26–070(g).

¶7 Lawrence and Sarah Jean Colosimo, A.C.'s parents and heirs, brought a wrongful death and survival action against Gateway for negligence. During discovery the Colosimos deposed Gateway's pastor and a journeyman mechanic who occasionally assisted Gateway with its routine inspections. The pastor testified about his involvement with Gateway and the inspections and maintenance of the building. The Colosimos also had their electrical engineer expert witness provide a declaration describing the problems with the sign, concluding it was not safely installed, and stating that its defects would have been “plainly visible” to a professional electrician. The Colosimos filed a motion to strike the pastor's declaration and the mechanic's testimony, and Gateway moved to strike the electrical engineer's declaration.

¶8 After discovery was completed, Gateway moved for summary judgment, which the district court granted, concluding Gateway owed no duty to A.C. because he was a trespasser. The district court also denied the Colosimos' and Gateway's motions to strike, “as being immaterial to the Court's ruling with one exception[:] [t]he portions of the [Colosimos' expert witness's] Declaration concluding [Gateway] was ‘on notice’ of the condition” was stricken as “an inappropriate legal conclusion.” The Colosimos timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶9 The Colosimos challenge the district court's ruling and order granting Gateway's motion for summary judgment on two grounds. They “contend that Gateway owed a duty to [A.C.] prescribed by the [Sign Ordinances] and, alternatively a duty under common law as set forth in Restatement (Second) of Torts [s]ections 333–339 (1965).” “Summary judgment is appropriate where ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Massey v. Griffiths , 2007 UT 10, ¶ 8, 152 P.3d 312

(omission in original) (quoting an earlier version of rule 56 of the Utah Rules of Civil Procedure ). “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 , 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted).³

¶10 The Colosimos also argue the district court erred in refusing to strike the pastor's declaration and the mechanic's testimony and in granting Gateway's motion to strike a portion of their expert witness's declaration. “We review the district court's evidentiary rulings under an abuse of discretion standard,” Anderson v. Larry H. Miller Commc'ns Corp. , 2015 UT App 134, ¶ 17, 351 P.3d 832

(citation and internal quotation marks omitted), and “deference ... is the hallmark of abuse-of-discretion review,” General Elec. Co. v. Joiner , 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

ANALYSIS

I. Duty

¶11 To “prevail on a negligence claim, a plaintiff must establish ... that the defendant owed the plaintiff a duty ... [and] that the defendant breached that duty.” Hunsaker v. State , 870 P.2d 893, 897 (Utah 1993)

. The district court granted summary judgment because it determined Gateway did not owe a duty to A.C. under either the Sign Ordinances or common law. We first address the Colosimos' common law arguments and then consider whether Gateway owed a duty under the Sign Ordinances.

A. Gateway Did Not Owe A.C. a Duty Under Common Law

¶12 The Colosimos argue Gateway owed A.C. a duty under common law. We note that “because negligence cases often require the drawing of inferences from the facts, which is properly done by juries rather than judges, summary judgment is appropriate in negligence cases only in the clearest instances.” Castellanos v. Tommy John, LLC , 2014 UT App 48, ¶ 7, 321 P.3d 218

(citation and internal quotation marks omitted). But, “without a duty, there can be no negligence as a matter of law, and summary judgment is appropriate.” Tallman v. City of Hurricane , 1999 UT 55, ¶ 5, 985 P.2d 892 (citation and internal quotation marks omitted).

¶13 As a general rule, “ ‘a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care.’ ” Whipple v. American Fork Irrigation Co. , 910 P.2d 1218, 1220 (Utah 1996)

(quoting Restatement (Second) of Torts § 333 (Am. Law Inst. 1965) ). “A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.” Restatement (Second) of Torts § 329 (Am. Law Inst. 1965). A.C. was on the roof without permission, and therefore he was trespassing when he was electrocuted.

¶14 Even so, the Restatement (Second) of Torts recognizes some exceptions to the general rule, and the Colosimos argue that these apply. Specifically, sections 334, 335, and 339 impose liability when “a possessor of land” ‚knows, or from facts within his knowledge should know,” that “trespassers constantly intrude” or “children are likely to trespass,” and the possessor ‚fails to exercise reasonable care” in carrying on an activity or maintaining “an artificial condition” involving a “risk of ... serious bodily harm.” See Restatement (Second) of Torts §§ 334

, 335, 339.⁴

¶15 The Colosimos contend “the court erred when it found as a matter of law that Gateway's actual knowledge of two instances of trespass over a decade was insufficient to put Gateway on notice of habitual trespassers.” (Emphasis omitted.) They rely on our supreme court's decision in Lopez v. Union Pacific Railroad Co. , 932 P.2d...