Wessel v. Erickson Landscaping Co.

• Decision Date: 09 August 1985
• Docket Number: No. 19219,19219
• Citation: 711 P.2d 250
• Parties: Evelyn Michaels WESSEL, Plaintiff and Appellant, v. ERICKSON LANDSCAPING COMPANY, a Utah corporation, Defendant and Respondent.
• Court: Utah Supreme Court

Page 250

711 P.2d 250

Evelyn Michaels WESSEL, Plaintiff and Appellant, v. ERICKSON LANDSCAPING COMPANY, a Utah corporation, Defendant

and Respondent.

No. 19219.

Supreme Court of Utah.

Aug. 9, 1985.

Keith F. Oehler, Salt Lake City, for plaintiff and appellant.

Scott W. Christensen, Salt Lake City, for defendant and respondent.

ZIMMERMAN, Justice.

Plaintiff Evelyn Wessel appeals from the trial court's order dismissing her action against defendant Erickson Landscaping Company for the negligent design and construction of several retaining walls in her front yard. We reverse and remand for reconsideration.

In March of 1978, plaintiff Wessel contracted with defendant Erickson to landscape her home in Salt Lake City. Erickson designed and built a series of terraces in her front yard, using railroad ties to construct the necessary retaining walls. On June 13, 1981, the retaining walls collapsed, causing a substantial portion of the yard to slide into the street. This suit for negligent design and construction of the retaining walls followed.

The matter was tried to the court. Wessel's principal witness was a structural engineer whose testimony was intended to establish that the retaining walls collapsed because they were negligently designed and constructed. At the conclusion of Wessel's case, Erickson's counsel moved the court to dismiss the action pursuant to Rule 41(b) of the Utah Rules of Civil Procedure. The court granted the motion from the bench, reasoning that a structural engineer was not qualified to opine as to the standard of care owed by a landscape architect. The court also ruled that there was no substantial evidence that Erickson's negligence, if any, proximately caused the collapse of the retaining walls. Later, conclusory findings of fact and conclusions of law were entered. ¹ The findings of fact shed no real light on the basis for the court's ruling. The conclusions of law summarily recite that Wessel "failed to produce any evidence" delineating the duty of care owed by Erickson, establishing that the duty of care was breached, or establishing that any damages suffered were proximately caused by Erickson's alleged negligence. The conclusions of law also recite that Wessel "failed to introduce sufficient evidence to prove that upon the facts and law ... [she] has any right to relief." On appeal, Wessel argues that the reasons given by the trial court for granting Erickson's motion are without merit.

Rule 41(b) permits a court trying a case without a jury to grant a motion to dismiss when it concludes "that upon the facts and the law the plaintiff has shown no right to relief." The trial court is not precluded from granting such a motion merely because the plaintiff has made out a prima facie case, as it is when ruling upon a Rule 50(a) motion for a directed verdict in a case tried to a jury. See, e.g., Utah State National Bank v. Livingston, 69 Utah 284, 290-91, 254 P. 781, 784 (1927); Cruz v. Montoya, Utah, 660 P.2d 723, 728 (1983). Rather, the rule expressly states that once the motion is made, "[t]he court as trier of the facts may then determine [the facts] and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence." Utah R.Civ.P. 41(b). The purpose of the rule is to permit the judge, as the fact finder, "to weigh the evidence, to draw inferences therefrom and, if it finds the evidence insufficient to make out a case for the plaintiff, to render a decision for the defendant on the merits." Winegar v. Slim Olson, Inc., 122 Utah 487, 491, 252 P.2d 205, 207 (1953); accord Lawrence v. Bamberger Railroad Co., 3 Utah 2d 247, 250, 282 P.2d 335, 337 (1955); Johnson v. Bell, Utah, 666 P.2d 308, 311 (1983); see 9 Wright & Miller, Federal Practice and Procedure § 2371, at 222-25 (1971); Annot., 55 A.L.R.3d 272 (1974).

Rule 41(b) further provides that if the trial court grants a motion to dismiss at the close of the plaintiff's case, it must enter findings of fact "as provided in Rule 52(a)." It has often been stated that when reviewing factual findings of a court sitting without a jury, this Court defers to the trial court and will not overturn its findings if they are adequately supported by the evidence. ² E.g., Scharf v. BMG Corp. In the present case, the trial court entered findings of fact. However, those findings dealt only with peripheral matters; none went to the question of whether Wessel proved the elements of her case. Thus, upon review the only basis for determining whether the motion was properly granted must be extracted from the conclusions of law and the statements made on the record by the trial judge. That evidence leads to the conclusion that the motion was granted because the trial court refused to consider the testimony of the structural engineer called by Wessel. The conclusions of law state that Wessel "failed to produce any evidence" of Erickson's duty of care, a breach of that duty, or proximate cause. Yet the engineer testified unequivocally on all three issues, and his testimony was neither contradicted nor impeached. We hold that the trial court erred as a matter of law in not considering the engineer's testimony.

Utah, 700 P.2d 1068, 1070 (1985). No such deference is given to conclusions of law that are reviewed for correctness. Id.

A trial court, whether acting as the trier of fact or presiding at a jury trial, is granted considerable discretion in determining whether an expert is qualified to give an opinion on a particular matter. See Maltby v. Cox Construction Co., Utah, 598 P.2d 336, 340 (1979), cert. denied, 444 U.S. 945, 100 S.Ct. 306, 62 L.Ed.2d 314 (1979); Waste Management, Inc. v. Deffenbaugh, 534 F.2d 126, 129-30 (8th Cir.1976). Ordinarily, the standard of care in a trade or profession must be determined by testimony of witnesses in the same trade or profession. Nothing, however, precludes the court's consideration of expert testimony from an individual in a trade different than that in issue when the standard of care is identical for both. Burton v. Youngblood, Utah, 711 P.2d 245 (1985). The critical factor in determining the competency of an expert is whether that expert has knowledge that can assist the trier of fact in resolving the issues before it. Utah R.Evid. 702; Perlmutter v. Flickinger, Colo.App., 520 P.2d 596, 597-98 (1974); Security National Bank v. City of Olathe, 225 Kan. 220, 222, 589 P.2d 589, 592 (1979). After reviewing the facts, we conclude that the trial court abused its discretion in refusing to consider the engineer's testimony on the ground that he was not a qualified and competent expert witness.

Erickson had a duty to landscape Wessel's yard with the care, skill, and diligence normally exercised by professional landscape architects in good standing. See Restatement (Second) Torts § 299A, at 73 (1965); see also Prosser, Law of Torts § 32, at 161-62 (4th ed. 1971). To prove that Erickson violated that duty and was liable to her, Wessel was required to establish (i) that Erickson did not meet the standard of care owed by a landscape architect in constructing and designing retaining walls, (ii) that as a consequence, the walls collapsed, and (iii) that the collapse of the walls caused her to incur damages. See, e.g., Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166, 168 (1984); Prosser, Law of Torts § 30, at 143 (4th ed. 1971).

Wessel's evidence on these issues was presented through the structural engineer. The engineer testified that he had designed numerous substantial retaining walls in the course of his professional employment and was therefore familiar with the standard of care required in constructing retaining walls. He also testified that the conduct of all persons building retaining walls is governed by the Uniform Building Code's requirements regarding The engineer then testified in some detail as to how the retaining walls built by Erickson failed to meet the design criteria set forth in the Code. Specifically, he cited three problems with the design of the walls. First, because the soil held up by the walls was uncompacted fill dirt, the walls became unstable as the soil settled and shifted. Second, the walls were not properly anchored in stable soil. Third, the walls were not designed to withstand hydraulic pressure that built up as a result of rain and lawn watering. Finally, there was testimony to establish that Erickson's negligence proximately caused Wessel harm. The engineer testified that the combination of the three factors described above caused the walls to fail.

the design and construction of retaining walls. Defense counsel did not attempt to refute this assertion. See Uniform Building Code § 2308(b) (1982 ed.). We take judicial notice of...