Fishbaugh v. Utah Power & Light, a Div. of Pacificorp, 970092

Citation969 P.2d 403
Decision Date02 October 1998
Docket NumberNo. 970092,970092
CourtSupreme Court of Utah
Parties353 Utah Adv. Rep. 20 Vince FISHBAUGH, Plaintiff, Appellant, and Cross-Appellee, v. UTAH POWER & LIGHT, A DIVISION OF PACIFICORP, a Utah corporation, Salt Lake City Corporation, Ronald S. Gibson, and Unisys, a foreign corporation, Defendants, Appellees, and Cross-Appellants.

L. Rich Humpherys, Phillip S. Ferguson, Salt Lake City, for appellant.

David A. Westerby, Alexander Dushku, Salt Lake City, for appellees.

RUSSON, Justice:

Vince Fishbaugh appeals from the district court's entry of summary judgment, dismissing his negligence claim against Salt Lake City (the "City") and Utah Power & Light ("UP & L"). Fishbaugh was injured when he was struck by a car in a crosswalk. He claimed that the City and UP & L were at fault for failing to maintain the streetlights. The district court held that the City and UP & L owed Fishbaugh a duty to maintain the lights but granted summary judgment on the ground that there was no evidence that either

the City or UP & L was negligent. Fishbaugh also appeals the district court's denial of his motion to amend his complaint. The City and UP & L cross-appeal the court's ruling that they owed Fishbaugh a duty to maintain the lights. We affirm the grant of summary judgment.

BACKGROUND

On September 21, 1993, at approximately 9:00 p.m., Fishbaugh was walking westward on a mid-block crosswalk located at 350 South West Temple Street in Salt Lake City, Utah, when he was struck by a car driven by Ronald Gibson. 1 At the time of the accident, the twenty-eight streetlights between 300 and 400 South on West Temple Street were not working due to a short in the photocell responsible for sensing low light and triggering the streetlights. Salt Lake City police officer Rose Jones arrived at the scene of the accident and, upon noticing the problem with the streetlights, notified police dispatch to communicate the outage to UP & L. After some delay, the police dispatcher reported back to Jones that UP & L knew of the outage and would correct the problem. In her investigating officer's report, Jones indicated that "Utah Power & Light stated that the lights were out prior to the time of the collision." Ronald Gibson, the driver of the car, testified at his deposition that he "might have heard a police officer make a comment to [the] effect" that UP & L had stated that the lights were out prior to the collision. Gibson could not remember which officer made the comment and was only eighty percent sure that he actually heard an officer make such a comment.

The City owns the twenty-eight streetlights at issue and had contracted with UP & L for their maintenance and repair. Pursuant to the contract, UP & L agreed to assume all liability and indemnify the City against all loss for liability caused by UP & L's negligence in carrying out the contract. Four days before the accident, a UP & L employee made a routine nighttime patrol of the streets in Salt Lake City and found that two of the twenty-eight streetlights were not operating. It is unknown whether these two lights were repaired prior to the accident.

In May 1994, Fishbaugh filed a complaint against Gibson and UP & L, alleging that Gibson negligently operated his vehicle and that UP & L had "failed to properly maintain or operate" the streetlights. In September 1994, Fishbaugh filed a notice of claim against the City. Fishbaugh asserted that the City had been negligent in failing to correct the lighting problem, which it knew about prior to the accident, that the street's signing and lighting were defective, and that the street was unsafe and in a dangerous condition. In February 1995, Fishbaugh amended his complaint, adding the City as a defendant, but alleged only that the City was negligent in "discharg[ing] its duties regarding the exterior lighting system." Fishbaugh also added Unisys, Gibson's employer, as a defendant.

After discovery, the City and UP & L each moved for summary judgment on the basis that they did not owe a duty to maintain the streetlights and that even if they owed a duty, neither the City nor UP & L had notice of the outage prior to the accident and thus could not be held negligent. Fishbaugh opposed the motions for summary judgment, arguing, among other things, that the deposition testimony of Officer Jones and Gibson concerning the statements made by the dispatchers and the unknown police officer showed that the City and UP & L had notice of the outage prior to the accident. UP & L then moved to strike both Jones's and Gibson's testimony as inadmissible hearsay, which motion the court granted.

In July 1996, having already continued the trial once, the court continued the trial again. In setting a firm trial date of November 4, 1996, the district court stated that it did "not intend to continue the trial date again." On September 20, 1996, forty-four days before trial, Fishbaugh moved to amend his complaint to "expressly include an additional factual allegation of negligence against [the City] regarding improper signing at the On October 21, 1996, the court ruled on the motions for summary judgment, stating that "having installed and operated the streetlights, [the City] owed a nondelegable duty in tort to pedestrians to maintain the streetlights in a reasonably safe manner" and that UP & L by virtue of its contract with the City "also owed to pedestrians a duty in tort to maintain the streetlights." Notwithstanding, the court granted the City's and UP & L's motions for summary judgment on the ground that there was no evidence that either the City or UP & L "was negligent in any manner." In doing so, the court specifically found that there was no evidence that either the City or UP & L "knew, or reasonably should have known, that all of the streetlights were not operating at any time when [UP & L] had a reasonable opportunity to remedy the outage." In November 1996, the case went to trial against only defendants Gibson and Unisys, and the jury returned a verdict in favor of Fishbaugh.

                crosswalk."   The City opposed this motion as untimely and highly prejudicial given the impending trial date, and the court denied the motion
                

On appeal, Fishbaugh alleges that the district court erred in ruling that there was no evidence to establish that either the City or UP & L was negligent. Fishbaugh argues that the testimony of Officer Jones and Gibson--that the dispatchers and an unidentified police officer had stated that UP & L knew of the outage prior to the accident--establishes that UP & L had notice of the streetlight outage before the accident and that the court erred in excluding these statements as inadmissible hearsay. Fishbaugh argues that the statements were admissions of a party-opponent or, alternatively, that they qualified under the so-called "catchall exceptions" and the public record and report exception to the hearsay rule. Fishbaugh also alleges that the district court erred in denying his motion to amend his complaint to include a claim for improper signing at the crosswalk.

On cross-appeal, the City alleges that the district court erred in ruling that the City owed a duty in tort to pedestrians to maintain the streetlights. UP & L alleges that the district court erred in ruling that UP & L owed such a duty by virtue of its contract with the City to maintain and repair the streetlights.

Thus, the issues before us are whether the district court erred in (1) ruling that the City and UP & L owed a duty to maintain the streetlights, (2) granting summary judgment on the ground that there was no evidence of negligence, and (3) denying Fishbaugh's motion to amend his complaint.

STANDARDS OF REVIEW

The applicable standards of review for the above-listed issues are as follows: First, the issue of "whether a 'duty' exists is a question of law" which we review for correctness. Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986). Second, summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). When reviewing a grant of summary judgment, "we evaluate the evidence and all reasonable inferences fairly drawn from that evidence in a light most favorable to the party opposing summary judgment." Bowen v. Riverton City, 656 P.2d 434, 436 (Utah 1982). Summary judgment can be appropriate in negligence cases but only in "the most clear cut case." Id. Third, "[t]he standard of review of a denial to amend pleadings is abuse of discretion." Kasco Servs. Corp. v. Benson, 831 P.2d 86, 92 (Utah 1992).

ANALYSIS

As a general rule, a municipality possesses no duty to light its streets. The rule has been stated as follows:

A municipality has no common-law duty to light its streets. It may, if it chooses, leave them unlighted, and cannot be made liable in damages to a traveler who is injured solely because of its failure to light them, since power to light does not imply the obligation to do so.

19 Eugene McQuillin, The Law of Municipal Corporations, § 54.101 (3d ed.1994); see also Thompson v. City of New York, 78 N.Y.2d 682, 578 N.Y.S.2d 507, 585 N.E.2d 819, 820 Because a municipality has no common law duty to light its streets, it has no duty to maintain such lights that it has nevertheless elected to install. 39 Am.Jur.2d, supra, § 406 ("[T]he fact that established lights are defective is not, of itself, negligence which will render a municipality liable for injuries to a traveler on the highway, if, notwithstanding such defect, the highway is reasonably safe ...."); see also McQuillin, supra, § 54.101 ("Neither the absence of lights nor the use of defective lights is, in itself, negligence."). However, a municipality does have the clear duty to maintain its streets reasonably safe for travel. See Braithwaite v. West Valley City Corp., 860 P.2d 336 (Utah 1993); Bowen v. Riverton City, 656 P.2d 434 (Utah 1982); Scott v. Provo City...

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