Kitchen v. Cal Gas Co., Inc.

Decision Date20 November 1991
Docket NumberNo. 910420-CA,910420-CA
Citation821 P.2d 458
PartiesJoseph KITCHEN and Richard Phillips, Plaintiffs and Appellants, v. CAL GAS COMPANY, INC., a California Corporation, Defendant and Appellee.
CourtUtah Court of Appeals

James R. Black and Susan B. Black (argued), Wayne L. Black & Associates, Salt Lake City, for plaintiffs and appellants.

Stewart M. Hanson, Jr., Fred R. Silvester, Charles P. Sampson and Paul M. Simmons (argued), Suitter, Axland, Armstrong & Hanson, Salt Lake City, for Cal Gas.



BILLINGS, Associate Presiding Judge:

Plaintiffs Joseph Kitchen and Richard Phillips appeal from a summary judgment in favor of defendant Cal Gas Company, Inc., in a negligence action stemming from a truck accident. Kitchen and Phillips assert there are disputed issues of material fact and, thus, the trial court erred in granting Cal Gas's motion for summary judgment. We affirm.


Kitchen and Phillips drove trucks for A.N.R. Freight Systems, Inc. (ANR). Kitchen and Phillips drove an ANR truck out of Los Angeles, California, heading for Salt Lake City, Utah, on February 5, 1986. They stopped at the port of entry east of Wendover, Utah, early in the morning on February 6th. At the weigh station, a Utah Highway Patrolman warned Kitchen and Phillips of black ice on Interstate Eighty beginning twelve to fourteen miles ahead, and continuing into Salt Lake City. As the truckers left the port of entry, Kitchen drove the ANR truck while Phillips climbed into the "sleeper" part of the truck's cab to rest. A Cal Gas truck passed them five minutes after the ANR truck left the port of entry. At the time, Kitchen was driving the ANR truck approximately twenty to twenty-five miles an hour on the wet, but not icy, interstate highway. Kitchen testified the Cal Gas truck passed "in a hurry," but he did not attempt to estimate the Cal Gas truck's speed.

Kitchen first encountered black ice approximately fifteen miles later. Kitchen proceeded slowly, continuing to drive approximately twenty to twenty-five miles an hour on the icy road. A Toyota pickup truck passed the ANR truck in the left lane of the two eastbound lanes of traffic four miles after Kitchen first encountered black ice and approximately forty-five minutes after being passed by the Cal Gas truck. The Toyota turned on its high-beam headlights as it passed Kitchen. According to Kitchen, the Toyota's headlights illuminated a "shadow" lying across the road approximately a quarter mile ahead. When Kitchen saw the "shadow" ahead, he took his foot off the throttle, causing the ANR truck to slow. Almost immediately, the ANR truck was struck from behind by another large truck owned by C.R. England & Sons, Inc. The ANR truck overturned on its side, and both Kitchen and Phillips were injured. After Kitchen and Phillips were pulled from the ANR truck, they recognized the "shadow" as the Cal Gas truck that passed them earlier. The Cal Gas truck was overturned approximately 200 feet ahead of the ANR truck and was blocking the left lane and part of the right lane of the eastbound traffic.

Kitchen and Phillips subsequently brought this action against both C.R. England and Cal Gas, alleging that their truck drivers' negligence caused Kitchen's and Phillips's injuries. Prior to trial, Kitchen and Phillips reached a settlement with C.R. England. Thereafter, Cal Gas filed a motion for summary judgment claiming that, even if the Cal Gas driver had operated the Cal Gas truck negligently, such negligence could not have been the proximate cause of Kitchen's and Phillips's injuries. The trial court denied this motion. Cal Gas subsequently filed a motion for summary judgment claiming there was no evidence that the Cal Gas driver was negligent. The trial court granted Cal Gas summary judgment, concluding, as a matter of law, that on the undisputed facts before the court, Cal Gas was not negligent.


On appeal, Kitchen and Phillips assert the trial court erred in granting summary judgment on the issue of Cal Gas's negligence. Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R.Civ.P. 56 (1991). We review a trial court's grant of summary judgment under a "correctness" standard. Daniels v. Deseret Fed. Sav. & Loan Assoc., 771 P.2d 1100, 1101-02 (Utah App.), cert. denied, 783 P.2d 53 (Utah 1989). We accord no deference to the trial court's conclusion that the facts are not in dispute nor the court's legal conclusions based on those facts. See Wycalis v. Guardian Title, 780 P.2d 821, 824 (Utah App.1989), cert. denied, 789 P.2d 33 (Utah 1990). When determining if summary judgment is proper, we view all relevant facts, including all inferences arising from the facts, in the light most favorable to the party opposing the motion. See Barlow Soc. v. Commercial Sec. Bank, 723 P.2d 398, 399 (Utah 1986).


In this case, Kitchen and Phillips argue summary judgment was improper because there are disputed issues of fact as to whether the Cal Gas driver's negligence caused their truck to overturn and block traffic. The Cal Gas driver died shortly after the accident of causes unrelated to the accident. Kitchen and Phillips offer no direct evidence as to what caused the Cal Gas truck to overturn because of the driver's death and the lack of other witnesses. However, they assert a jury could infer the Cal Gas driver was negligent in driving at an excessive speed given the road conditions. Kitchen and Phillips claim this inference reasonably flows from Kitchen's testimony that the Cal Gas truck passed them "in a hurry" some forty-five minutes before the accident 1 and also from the undisputed facts concerning the poor road conditions existing on the morning of the accident.

Conversely, Cal Gas argues summary judgment was proper because there is no fact, or any reasonable inference drawn from the facts, that establish the Cal Gas driver was negligent. Cal Gas contends the mere fact that the Cal Gas truck passed the ANR truck forty-five minutes prior to the accident cannot support any inferences about the Cal Gas driver's conduct just prior to the accident, particularly given the substantially different road conditions existing where the accident occurred. Additionally, Cal Gas points out that Kitchen and Phillips have offered no expert testimony as to the cause of the Cal Gas truck overturning. The trial judge agreed with Cal Gas, concluding: "on the undisputed facts viewed most favorably to the plaintiffs, no facts establish the Cal Gas driver was negligent; therefore, any such finding by a jury could only be based on speculation."

In a negligence action, the plaintiff has the burden of establishing four elements: "that the defendant owed the plaintiff a duty; that defendant breached the duty (negligence); that the breach of the duty was the proximate cause of plaintiff's injury; and that there was in fact injury." Steffensen v. Smith's Management Corp., 820 P.2d 482, 485 (Utah App.1991). The issue of negligence, or breach of a legal duty, is normally a question of fact for the jury. See Harris v. Utah Transit Auth., 671 P.2d 217, 220 (Utah 1983). Accordingly, summary judgment is generally improper on the issue of negligence and only in clear-cut cases, with the exercise of great caution, should a court take the issue of negligence from the province of the jury. See Williams v. Melby, 699 P.2d 723, 725 (Utah 1985); Bowen v. Riverton City, 656 P.2d 434, 436 (Utah 1982). However, a party may not merely rely on bald assertions of negligence to overcome a motion for summary judgment. "Naked assertions of negligence, unsupported by any facts whatsoever ... [fall] far short of raising a material issue of fact on the issue of negligence." Massey v. Utah Power & Light, 609 P.2d 937, 938-39 (Utah 1980). 2 To have a negligence case submitted to the jury, "[a] plaintiff must submit sufficient evidence to establish a prima facie case against the defendant." Lindsay v. Gibbons and Reed, 27 Utah 2d 419, 497 P.2d 28, 30 (1972).

Initially, we recognize the Cal Gas driver (and, through vicarious liability, Cal Gas) owed Kitchen and Phillips a duty to act as a reasonable and prudent truck driver would have acted under the circumstances. See Meese v. Brigham Young Univ., 639 P.2d 720, 723 (Utah 1981). We must decide whether there is sufficient evidence of the Cal Gas driver's breach of this duty to raise an issue of material fact, thereby requiring us to overturn the trial court's summary judgment on the issue of negligence.

Utah courts have long held that "[t]he mere happening of [an] accident of course does not prove that the defendants were negligent." Horsley v. Robinson, 112 Utah 227, 186 P.2d 592, 596 (1947). Rather, a plaintiff must offer some proof of negligence to prevail at trial. See Massey, 609 P.2d at 938-39. Utah courts have articulated this burden of proof principle as a rebuttable presumption: Where a driver is unavailable to testify as to his or her actions and where there is no other evidence of the driver's actions, the driver is presumed to have been exercising due care. DeMille v. Erickson, 23 Utah 2d 278, 462 P.2d 159, 161 (1969), cert. denied, 397 U.S. 1079, 90 S.Ct. 1531, 25 L.Ed.2d 814 (1970).

DeMille was a wrongful death action arising from a head-on automobile collision in which there were no survivors and no eyewitnesses. Id. 462 P.2d at 160. The only relevant evidence was that the decedent, on whose behalf plaintiff was suing, had been driving several feet over the center line in the road when the accident occurred. At the close of evidence, both parties moved for a directed verdict. The court ruled the decedent was negligent as a matter of law for driving on the...

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