Kerr v. City of Salt Lake

Decision Date17 December 2013
Docket NumberNo. 20110909.,20110909.
Citation750 Utah Adv. Rep. 31,322 P.3d 669
PartiesAlexander KERR, Appellee, v. CITY OF SALT LAKE, Appellant.
CourtUtah Supreme Court


Stephen K. Christiansen, Brady Brammer, Salt Lake City, for appellee.

J. Wesley Robinson, Margaret D. Plane, Salt Lake City, for appellant.

Justice DURHAM, opinion of the Court:


¶ 1 Alexander Kerr injured himself when he tripped on a sidewalk defect in Salt Lake City. He sued the city and obtained a judgment in his favor. Salt Lake City now appeals, alleging: (1) the city is entitled to discretionary function immunity, (2) Mr. Kerr did not present evidence that the city had adequate notice of the sidewalk defect during summary judgment proceedings or at trial, and (3) the trial court erroneously excluded opinion testimony regarding the level of danger posed by the sidewalk defect. We find no reversible error and affirm the judgment.


¶ 2 Mr. Kerr tripped on an uneven section of sidewalk maintained by Salt Lake City and fell to the ground, shattering his kneecap. The condition that caused Mr. Kerr to fall was a raised segment of sidewalk that created a ledge across the width of the sidewalk that ranged from three-quarters of an inch to one inch in height.

¶ 3 The accident occurred next to the Metropolitan Inn. Sok Joo Hwang purchased the Metropolitan Inn one and a half years before the accident. At the time of the acquisition, Mr. Hwang noticed the sidewalk displacement already existed in approximately the same condition as on the date of the accident. Because laundry carts pushed by Metropolitan Inn employees were getting caught on the raised section of sidewalk, Mr. Hwang instructed his front desk employee to call Salt Lake City officials to request that the city repair the sidewalk.

¶ 4 Salt Lake City received the employee's call informing it of the sidewalk displacement eight days before Mr. Kerr's accident. Under Salt Lake City's policies, when the city learns of a sidewalk defect it dispatches a city employee to evaluate the condition. If the employee determines the defect consists of a displacement less than one and a half inches, the city may use a horizontal saw to cut away the protruding section of concrete to allow for a smoother transition from one section of concrete to the next. Salt Lake City performs this service at no cost to the adjacent landowner. Alternatively, the city may inform an adjacent business of the replacement cost of a defective section of sidewalk, and replace the sidewalk if the business elects to pay for it. Finally, if a city employee determines that a sidewalk defect is dangerous to the public, the city will barricade and replace the sidewalk.

¶ 5 On an undetermined date within seven days of receiving notice of the sidewalk defect, a city employee inspected the sidewalk. Seven days after the Metropolitan Inn employee called Salt Lake City, the city generated an estimate of the cost to replace the defective section of sidewalk. The estimate informed the Metropolitan Inn that the city would perform this service if the business paid $546 to the city—the full cost of the sidewalk replacement. The day after Salt Lake City created the estimate, Mr. Kerr tripped on the sidewalk displacement and injured himself.

¶ 6 Mr. Kerr sued Salt Lake City, alleging the city negligently failed to maintain the sidewalk. Salt Lake City moved for summary judgment at the close of discovery, arguing that it was entitled to discretionary function immunity and that Mr. Kerr's claim failed as a matter of law because he had not produced evidence that the city had adequate notice of the sidewalk defect to repair it. The trial court denied the motion for summary judgment and the case was set for trial.

¶ 7 Before trial, the court granted Salt Lake City's motion in limine to prohibit Mr. Kerr's expert witness from giving his opinion that the sidewalk displacement was hazardous. After the plaintiff's case in chief, Salt Lake City moved for a directed verdict, renewing its argument that Mr. Kerr had not produced evidence that the city had adequate notice to remedy the sidewalk defect. The trial court found that, as a matter of law, Salt Lake City did not have an adequate amount of time after receiving notice of the defect to repair the sidewalk, granted the motion for a directed verdict, and dismissed the jury.

¶ 8 Mr. Kerr moved for a new trial based on legal error, arguing the trial court improperly directed a verdict in favor of Salt Lake City. The court granted a new trial, ruling that it had erred by granting a directed verdict because whether the city had sufficient notice to remedy the sidewalk displacement was a jury question.

¶ 9 Before the retrial, the trial court affirmed its prior ruling prohibiting Mr. Kerr's expert witness from testifying that the sidewalk was hazardous. Based on this ruling, Mr. Kerr moved to prohibit both Mr. Hwang and Lynn Jarman, Salt Lake City's Capital Project Planning Manager, from giving their opinions on whether the displacement was hazardous. The trial court granted Mr. Kerr's motion in limine. At the close of Mr. Kerr's case in chief, Salt Lake City again moved for a directed verdict on the same grounds asserted in the first trial. The trial court denied the motion.

¶ 10 After the trial, a jury returned a verdict for Mr. Kerr. Salt Lake City appealed from the resulting judgment.


¶ 11 Salt Lake City first argues that the trial court erred when it denied the city's motion for summary judgment because the city is entitled to discretionary function immunity. We review for correctness a trial court's denial of summary judgment when the court bases its ruling on a purely legal determination. Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 15, 215 P.3d 152. De novo review is appropriate here because “a party's entitlement to discretionary function immunity is a question of law,” provided that the trial court has sufficient facts before it to evaluate the question of immunity. Laney v. Fairview City, 2002 UT 79, ¶ 16, 57 P.3d 1007.1 The facts before the trial court were sufficient to allow it to rule on the immunity question. See infra, ¶ 25.

A. Structure of the Utah Governmental Immunity Act

¶ 12 The Utah Governmental Immunity Act requires a three-step analysis to determine if a governmental entity is immune from liability. Van de Grift v. State, 2013 UT 11, ¶ 8, 299 P.3d 1043. We first consider whether the Act affords immunity to the governmental conduct. SeeUtah Code § 63G–7–201(1). If the Act does afford immunity, we next examine whether the Act waives immunity in the particular circumstance at issue. See id.§ 63G–7–301(1)(4). Finally, if a waiver does apply, we determine whether the governmental action qualifies as an exception to the waiver of immunity. See id.§ 63G–7–301(5).

¶ 13 The parties agree that Salt Lake City is immune for “any injury that results from the exercise of a governmental function.” Id. § 63G–7–201(1). They also agree that immunity is waived in circumstances where there is a “defective, unsafe, or dangerous condition of any ... sidewalk.” Id.§ 63G–7–301(3)(a)(i). The parties disagree, however, over whether Salt Lake City's decision not to remedy the sidewalk displacement that caused Mr. Kerr's injuries qualifies as a discretionary function, which would restore Salt Lake City's immunity. See id.§ 63G–7–301(5)(a).

¶ 14 The discretionary function exception allows the government to retain immunity for high-level policy decisions “regulated by the political process.” Johnson v. Utah Dep't of Transp., 2006 UT 15, ¶ 20, 133 P.3d 402 (internal quotation marks omitted). Otherwise the threat of lawsuits “would make public administration all but impossible.” Id. (internal quotation marks omitted). This exception, however, must be read narrowly in order to prevent it from swallowing a general waiver of governmental immunity. Id. ¶ 19.

¶ 15 Salt Lake City argues that because it maintains approximately eight hundred miles of sidewalk with a limited budget, its decision not to remedy the defective section of sidewalk that caused Mr. Kerr to trip and fall should be deemed a discretionary function. But since any repair decision necessarily involves the allocation of limited funds, the inevitable extension of the city's argument is that all maintenance decisions are discretionary functions. Thus, the broad interpretation of the discretionary function exception advocated by Salt Lake City would completely negate the explicit waiver of liability for the “dangerous condition of any ... sidewalk.” Utah Code § 63G–7–301(3)(a)(i).

¶ 16 When interpreting statutes, we must give effect to every provision of a statute and avoid an interpretation that will render portions of a statute inoperative.” Thayer v. Washington Cnty. Sch. Dist., 2012 UT 31, ¶ 12, 285 P.3d 1142 (internal quotation marks omitted). If we restore immunity to Salt Lake City through the discretionary function exception, we would render the specific waiver of immunity for the “defective, unsafe, or dangerous condition of any ... sidewalk” inoperative. Utah Code § 63G–7–301(3)(a)(i). Because all cities must decide how to allocate scarce public funds to maintain sidewalks, Salt Lake City's interpretation of the discretionary function exception would completely negate the explicit waiver of governmental immunity for defective or dangerous sidewalks. For this reason alone, we must reject Salt Lake City's broad governmental immunity claim. See Johnson, 2006 UT 15, ¶ 36, 133 P.3d 402, (holding that discretionary function immunity may not be interpreted to create “blanket immunity for governmental negligence in every case where the government saves money”).

B. The Discretionary Function Exception

¶ 17 An independent analysis of the discretionary function exception also demonstrates that Salt Lake City did not carry its burden to show that it qualifies for discretionary function immunity. Se...

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