Thurston v. WORKERS COMPENSATION FUND

• Decision Date: 26 December 2003
• Docket Number: No. 20020852-CA.,20020852-CA.
• Citation: 83 P.3d 391,2003 UT App 438
• Parties: Warren THURSTON and Frances Thurston, Plaintiffs and Appellants, v. WORKERS COMPENSATION FUND OF UTAH, Community Nursing Services, Heal & Co., and Does 1-10, Defendants and Appellees.
• Court: Utah Court of Appeals

83 P.3d 391

2003 UT App 438

Warren THURSTON and Frances Thurston, Plaintiffs and Appellants, v. WORKERS COMPENSATION FUND OF UTAH, Community Nursing Services, Heal & Co., and Does 1-10, Defendants and Appellees.

No. 20020852-CA.

Court of Appeals of Utah.

December 26, 2003.

Alisha Giles, Aric Cramer, and Victoria Cramer, Cramer Cramer & Adaier LLC, Bountiful, for Appellants.

James R. Black, Black and Associates, Michael P. Zaccheo, Holly B. Platter, Richards Brandt Miller & Nelson, and Gregory J. Sanders, Kipp & Christian, Salt Lake City, for Appellees.

Before JACKSON, P.J., ORME and THORNE, Jr., JJ.

OPINION

ORME, Judge:

¶ 1 Warren and Frances Thurston are the parents and lawful heirs of Roger Thurston and the plaintiffs in this wrongful death action. The trial court entered summary judgment in favor of all three defendants and dismissed Plaintiffs' causes of action, based in tort and contract, due to the lack of sufficient evidence that would allow a jury to determine that any negligence of Defendants was the proximate cause of Roger Thurston's death. We affirm on the merits.¹

BACKGROUND

¶ 2 Roger Thurston was injured in a mining accident on May 3, 1983, which rendered him severely disabled. The majority of his body was burned, and he eventually had to have both arms amputated and became almost completely deaf. Workers Compensation Fund (WCF), the insurance carrier for Thurston's employer, paid nearly $2 million in medical and compensation benefits until Thurston's death in 1998.

¶ 3 After Thurston was discharged following his initial hospitalization, WCF retained Community Nursing Services (CNS) to provide him with home health care. According to the original complaint, twenty-four-hour home nursing care was provided by CNS, and in the second amended complaint, Plaintiffs allege that WCF hired CNS "[o]n or around December 18, 1986." According to the referring doctor's orders, CNS home health aides² were directed to ensure a safe environment for Thurston and assist him in meal preparation and household management four times a week, for a total of 48 hours per week. Starting on January 29, 1998, the visits of the health aides occurred only when requested by Thurston, and the last visit was on May 14, 1998.

¶ 4 Heal & Company (H & C) was retained by WCF to supervise Thurston's personal health care plan, occasionally assess his needs, and prepare a health care cost projection. H & C's services were completed in April 1998.

¶ 5 On June 25, 1998, Thurston was found dead at his home. According to the medical examiner's report, Thurston was found nude in the driver's seat of his vehicle with his seat belt fastened, the ignition on, the battery dead, and the garage door closed. The medical examiner found the immediate cause of death to be carbon monoxide intoxication. Due to the unusual circumstances of the death, Thurston's disabilities, and his blood alcohol level of .22, the medical examiner found the manner of Thurston's death could not be determined. The examiner opined there was at least a "possibility that the decedent may have been assisted in his suicide or have been placed in the vehicle by another person(s) without his understanding and consent."

¶ 6 On March 23, 2000, Plaintiffs commenced this action. In their second amended complaint, Plaintiffs asserted several causes of action, both tort and contract, and sought over six million dollars in damages. All of their claims revolve around the general allegation that Thurston committed suicide as a result of the "totally inadequate" care he received from Defendants. Plaintiffs allege in their brief that "Thurston's health aides frequently neglected their duties and provided [him] with insufficient care, if any at all." Plaintiffs allege that Thurston was depressed during the last month of his life and that Defendants were negligent in not recommending and/or performing a psychological evaluation. Plaintiffs state that "[t]his negligence, among other acts, by Defendants caused Mr. Thurston's depression and alcohol/drug problem to become so severe as to cause him to die." Other specific acts Plaintiffs allege are that CNS employees deprived Thurston of care and were aware of his problems with drugs and alcohol but did not report those problems to their supervisors; that WCF fired CNS upon discovering the inadequate level of care being provided but failed to find a replacement;³ and that H & C closed Thurston's file without first contacting him or conducting an evaluation. ¶ 7 The parties became involved in a discovery dispute after CNS and WCF asserted that information sought by Plaintiffs' interrogatories was protected by the peer review and attorney work-product privileges, respectively. Plaintiffs responded by filing a motion for in camera review, after which WCF filed a motion for protective order. The trial court denied Plaintiffs' request for in camera review and stated that "plaintiffs' Motion is premature in that no Rule 37 Motion to Compel has been filed [pursuant to the Utah Rules of Civil Procedure,] ... the disputed Interrogatories did not seek specific documents, ... [and] the information requested is vague." The court suggested Plaintiffs refine their interrogatories, meet and confer with opposing counsel if the dispute was not thereby resolved, and file a motion to compel if the meeting did not culminate in a resolution. The court then granted WCF's motion for protective order "based upon the plaintiffs' failure to follow appropriate procedural rules." Instead of pursuing the avenues for recourse left open by the trial court, Plaintiffs sought and were denied leave to take an interlocutory appeal from the trial court's discovery order.

¶ 8 Over a year later, the trial court granted summary judgment in favor of Defendants because "each and every of plaintiffs' claims includes, as a necessary element, the allegation that the various defendants' conduct was a proximate cause of the death of Roger Thurston" and

the only admissible evidence submitted to the court was the Utah State Medical Examiner's Report, which ... by its own terms, is inconclusive as to the manner of death and does not exclude possible mechanisms such as accident, assisted suicide, suicide, or even homicide. Thus, plaintiffs have provided to the court no admissible evidence establishing either the cause in fact of Roger Thurston's death, or the causal connection between defendants' actions and Mr. Thurston's death.

Plaintiffs appeal the summary judgment against them.

ISSUES AND STANDARDS OF REVIEW

¶ 9 In this appeal, Plaintiffs argue that the trial court erred in granting summary judgment to Defendants. Plaintiffs contend that although the evidence pertaining to the manner of Thurston's death is inconclusive, all explanations of the cause of death involve the negligence of Defendants, and a jury could find, without speculation, that Defendants proximately caused Thurston's death.

¶ 10 Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). "`When reviewing a court's decision to grant summary judgment, we examine the court's legal conclusions for correctness.'" Young v. Salt Lake City Sch. Dist., 2002 UT 64,¶ 10, 52 P.3d 1230 (citation omitted). "As we analyze the issues, we are mindful 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."'" Trujillo v. Utah Dep't of Transp., 1999 UT App 227, ¶ 12, 986 P.2d 752 (quoting Nelson v. Salt Lake City, 919 P.2d 568, 571 (Utah 1996)) (other citation omitted).

¶ 11 Plaintiffs also argue that the trial court erred in denying their motion for in camera review because there is no requirement that a motion be made, pursuant to rule 37 of the Utah Rules of Civil Procedure, prior to in camera review and that the trial court had sufficient information to review the documents claimed to be privileged. "Generally, the trial court is granted broad latitude in handling discovery matters," R & R Energies v. Mother Earth Indus., Inc., 936 P.2d 1068, 1079 (Utah 1997), "and we will `not find abuse of discretion absent an erroneous conclusion of law or where there is no evidentiary basis for the trial court's rulings.'" Id. (quoting Askew v. Hardman, 918 P.2d 469, 472 (Utah 1996)).

ANALYSIS

I. Proximate Cause

¶ 12 The Utah Supreme Court has held:

To prevail on a negligence claim, a plaintiff must establish four essential elements: (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, (3) that the breach of duty was the proximate cause of the plaintiff's injury, and (4) that the plaintiff in fact suffered injuries or damages.

Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993). The third element is the key issue in this case. Even if we assume that each Defendant breached a duty to Roger Thurston — as CNS expressly conceded for purposes of the summary judgment motion — Plaintiffs still must present sufficient evidence that would allow a jury to conclude that such breach was a proximate cause of Roger Thurston's death.

¶ 13 Plaintiffs argue that the issue of proximate cause is only properly taken from the jury "where (1) there is no evidence to establish a causal connection, thus leaving causation to jury speculation, or (2) where reasonable persons could not differ on the inferences to be derived from the evidence on proximate causation." Steffensen v. Smith's Mgmt. Corp., 820 P.2d 482, 487 (Utah Ct.App.1991), aff'd, 862 P.2d 1342 (Utah 1993). Defendants argue, and the trial court agreed, that although "[p]roximate cause is ordinarily a question of fact for the jury," Rose v. Provo City, 2003 UT App 77, ¶ 10, 67 P.3d 1017, summary judgment is appropriate in this case because, "where `the...