True v. Utah Department of Transportation ( 2018 )

2018 UT App 86THE UTAH COURT OF APPEALS
THOMAS K. TRUE AND MELISSA L. TRUE,
Appellants,
v.
UTAH DEPARTMENT OF TRANSPORTATION,
Appellee.
Opinion
No. 20160704-CA
Filed May 10, 2018
Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 110903926
Francis J. Martin, Attorney for Appellants
Sean D. Reyes and J. Clifford Petersen, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGE
DIANA HAGEN concurred. JUDGE RYAN M. HARRIS concurred in
the result, with opinion.
POHLMAN, Judge:
¶1 Appellants Thomas K. True and Melissa L. True appeal
the district court’s grant of summary judgment in favor of the
Utah Department of Transportation (UDOT), dismissing on the
basis of governmental immunity their claim that injuries they
sustained in a traffic accident resulted from UDOT’s negligence.
We affirm.
True v. Utah Department of Transportation
BACKGROUND
The Accident
¶2 In June 2009, a construction project was underway in
Ogden, Utah, to install a water main line under a certain
intersection. Because the project involved “digging or
excavating” on a state highway, the project’s general contractor
had been required by law to obtain a permit from UDOT before
beginning construction. The contractor had duly submitted the
permit application before starting construction, which included
submission of a traffic control plan. UDOT approved the traffic
control plan and then issued the contractor the appropriate
permit.
¶3 The permit “granted [the contractor] permission to
encroach on [the] state highway” and “identified the what, when
and where of [the contractor’s] authorization.” It also required
the contractor to notify a UDOT permit inspector twenty-four
hours before starting the work and generally provided that “[a]n
inspector may be required at permittee’s expense, with 48 hours
notice.” Failure to comply with the “regulations, specifications,
or instructions pertinent to [the] permit” could result in UDOT
either suspending or “stopping all or any part of the work.”
¶4 UDOT assigned a transportation technician to perform
inspections of the project, as provided in the permit. The
technician “regularly inspected the job site and supported [the
contractor] in its efforts to implement and comply with the
traffic control plan.” The technician’s duties included inspecting
the traffic control at the site, making sure that it conformed to
the traffic control plan, and generally monitoring the
construction’s effect on the highway. However, the technician
was not present at the project site every day.
¶5 On June 19, 2009, the Trues were riding a motorcycle
together in Ogden. As they rode through the intersection
20160704-CA 2 2018 UT App 86True v. Utah Department of Transportation
undergoing construction, they were struck by a truck turning left
into the intersection. Both Trues were injured, and they brought
a negligence action against UDOT, the contractor, and the truck
driver. 1 The Trues asserted that UDOT was negligent on three
grounds: (1) “approving an unsafe traffic control plan”; (2)
“failing to maintain a safe intersection”; and (3) “failing to
properly monitor the traffic control to ensure it was being
carried out in accordance with the plan.” In particular, the Trues
asserted that UDOT was negligent in “allowing the removal of a
no-left-turn sign days before the collision took place, contrary to
the traffic control plan,” and that, had the sign remained in
place, the truck driver would have been prevented from turning
left into their path.
The Motion for Summary Judgment
¶6 UDOT moved for summary judgment. For purposes of its
motion, UDOT conceded that the Trues’ injuries were
“proximately caused by a negligent act or omission” sufficient to
waive its immunity, but it argued that it nonetheless retained
immunity from suit through the permit exception to the waiver
of immunity provided in section 63G-7-301(5)(c) 2 of the
Governmental Immunity Act of Utah (the Act). Specifically,
UDOT contended that it retained immunity because the Trues’
injuries “arose out of, in connection with, or resulted from” the
issuance of the permit to the contractor. At the time UDOT filed
and argued its motion, the Utah Supreme Court had interpreted
the “arose out of, in connection with, or resulted from” language
as establishing a “but-for” causation standard. Accordingly,
1. The contractor and the truck driver have been dismissed from
the case.
2. Although the Governmental Immunity Act of Utah has since
been amended, we cite its provisions as they existed in 2009.
20160704-CA 3 2018 UT App 86True v. Utah Department of Transportation
UDOT argued that all of the Trues’ allegations were connected
to the issuance of the permit and that “but for” the permit’s
issuance, no accident or injury would have occurred.
¶7 The Trues argued, in contrast, that their claims of
negligence “arose not from issuance of the permit, but from
UDOT’s own negligence in failing to ensure that the intersection
was safe during construction.” They contended that UDOT “had
a duty to maintain the intersection in a safe condition
independently from the issuance of the permit for the
construction work” and that UDOT had breached that duty by
approving the unsafe traffic control plan, failing to maintain a
safe intersection, and failing to properly monitor the traffic
control situation at the intersection. They also argued that
UDOT’s negligent actions could not “be characterized as formal,
official acts,” as required for the permit exception to apply.
¶8 The district court orally granted UDOT’s summary
judgment motion during the hearing on the motion, and it
directed counsel for UDOT to prepare an order. The court
determined that issuing the permit to the contractor constituted
a formal, official act and stated that UDOT would retain
immunity for actions “related to[] [or] arising out of the issuance
of the permit.” The court further concluded that the specific
actions complained of by the Trues—approving the traffic
control plan, failing to maintain a safe intersection, and failing to
properly inspect the intersection—arose from, were related to,
and “came as a result of UDOT issuing the Permit.”
Consequently, the court determined that but for the issuance of
the permit, the injuries would not have occurred, and that
UDOT therefore retained immunity.
The Issuance of Barneck
¶9 The district court held the summary judgment hearing on
June 11, 2015. One day later, the Utah Supreme Court issued its
decision in Barneck v. Utah Department of Transportation, 2015 UT
20160704-CA 4 2018 UT App 86True v. Utah Department of Transportation
50, 353 P.3d 140. In that decision, the supreme court repudiated
the “but-for” causation standard that had previously been
applied to determine whether an injury “arises out of, in
connection with, or results from” the exceptions listed in Utah
Code section 63G-7-301(5), including the permit exception. Id.
¶ 2. In its place, the court adopted a proximate cause standard
for determining whether an injury was sufficiently related to an
enumerated exception. Id. ¶¶ 2, 38, 44.
¶10 On June 16, 2015, counsel for UDOT sent the court a letter
advising the court of Barneck. 3 UDOT’s counsel explained his
belief that the court’s oral ruling was still correct even under the
new causation standard, but he requested an opportunity to
brief the issue if the court chose to revisit its summary judgment
decision. UDOT’s counsel copied the Trues’ counsel on the letter.
The Trues did not respond to the letter or otherwise ask the
court to reevaluate its summary judgment decision in light of the
new causation standard established in Barneck. UDOT filed its
proposed order on July 27, 2015, which the Trues approved as to
form, and the district court entered its written order granting
summary judgment on July 29, 2015, approximately fifty days
after the court issued its oral ruling during the hearing. The case
remained pending for nearly another year, during which time
the Trues settled their claims against the other defendants. The
district court entered final judgment as to all parties and claims
on July 20, 2016.
3. Both parties include the letter in the addenda of their briefing
and rely on it to support their respective arguments regarding
preservation. However, the letter was not included in the record,
and neither party has cited authority justifying our consideration
of it on appeal. Nevertheless, because both sides cite the letter in
their briefing, we construe their reliance as a stipulation that the
record can be supplemented with the inclusion of the letter, and
we therefore consider it to be part of the record on appeal.
20160704-CA 5 2018 UT App 86True v. Utah Department of Transportation
¶11 The Trues timely appealed the district court’s July 29,
2015 summary judgment order in favor of UDOT.
ISSUE AND STANDARD OF REVIEW
¶12 The Trues argue on appeal that the district court
improperly granted UDOT’s motion for summary judgment,
challenging the district court’s determination that UDOT
retained immunity under the permit exception to immunity
waiver. Specifically, they contend that UDOT’s issuance of the
construction permit did not proximately cause the accident and
their injuries; therefore, UDOT did not have immunity under the
permit exception.
¶13 “We review the district court’s decision granting
summary judgment de novo, affording it no deference,” and in
doing so, “we determine whether UDOT has established that
there are no genuine issues of material fact and that it is entitled
to judgment as a matter of law.” Barneck v. Utah Dep’t of Transp.,
2015 UT 50, ¶ 8, 353 P.3d 140; see also Utah R. Civ. P. 56(a).
ANALYSIS
¶14 The district court determined that the Trues’ injuries
“arose out of, related to, or resulted from UDOT’s issuance of the
Permit.” It did so by applying the pre-Barneck but-for causation
standard. On appeal, the Trues argue for the first time that
UDOT was not immune from suit under the permit exception of
the Act because UDOT’s issuance of the permit did not
proximately cause the accident and their injuries. In particular,
they contend that, through its negligent actions, UDOT waived
its immunity, and that no waiver exception applied to effectively
reinstate its immunity.
¶15 “We typically apply a three-part test to determine
whether a governmental entity enjoys immunity under the Act
20160704-CA 6 2018 UT App 86True v. Utah Department of Transportation
for the challenged activity.” Winkler v. Lemieux, 2014 UT App
141, ¶ 5, 329 P.3d 849.
First, courts must ascertain whether the activity
was a governmental function and thereby entitled
to blanket immunity under the Act. Second, if the
activity constituted a governmental function,
courts must then look to see whether the State has
waived immunity under another section of the Act.
Finally, courts must determine whether there is an
exception to the waiver of immunity that retains
immunity against suit for the cause of action in the
particular case.
Wagner v. State, 2005 UT 54, ¶ 12, 122 P.3d 599.
¶16 Both parties concede that the first two prongs are met in
this case and that only the third prong—“whether there is an
exception to the waiver of immunity that retains immunity
against suit”—is at issue. Id. The Act provides that immunity to
suit will be reinstated for “any injury proximately caused by a
negligent act or omission of an employee committed within the
scope of employment, if the injury arises out of, in connection
with, or results from,” among other things, “the issuance, denial,
suspension, or revocation of, or by the failure or refusal to issue,
deny, suspend, or revoke, any permit, license, certificate,
approval, order, or similar authorization.” Utah Code Ann.
§ 63G-7-301(5)(c) (LexisNexis 2008).
¶17 The parties disagree about whether the permit exception
under subsection (5)(c) applies. The Trues argue that the permit
exception does not apply for two reasons: (1) the issuance of the
construction permit did not proximately cause their injuries
under the causation standard announced in Barneck, and
(2) UDOT’s negligent actions “cannot be characterized as formal,
official acts,” as required under the supreme court’s statutory
interpretation of the permit exception in Thayer v. Washington
20160704-CA 7 2018 UT App 86True v. Utah Department of Transportation
County School District, 2012 UT 31, 285 P.3d 1142. We address
each contention below.
I. Proximate Causation under Barneck
¶18 During the summary judgment proceedings, the parties
disagreed about whether the issuance of the permit caused the
Trues’ injuries. The causation standard then in effect and relied
upon by the parties for determining whether a waiver exception
applied was “but-for” causation, as articulated in cases such as
Blackner v. State Department of Transportation, 2002 UT 44, 48 P.3d
949. See Hoyer v. State, 2009 UT 38, ¶ 32, 212 P.3d 547 (explaining
that “the test for whether an exception to the waiver of
immunity for negligence applies is whether ‘but for’ the
excepted act, the harm would not have occurred”). Under that
standard, UDOT simply had to demonstrate “some causal nexus”
between the issuance of the permit and the harm that followed.
See Blackner, 2002 UT 44, ¶ 15; see also Moss v. Pete Suazo Utah
Athletic Comm’n, 2007 UT 99, ¶¶ 14–19, 175 P.3d 1042(interpreting the permit waiver exception to conclude that the
challenged governmental action need not be “directly tied to a
licensing decision,” because the statutory language is “broad”
and “certainly is not restricted to those decisions that constitute
licensing decisions per se”). Accordingly, the district court’s oral
ruling and written order on summary judgment incorporated
and applied the “but-for” causation standard to determine that
UDOT had established its entitlement to immunity under the
permit exception to waiver.
¶19 On appeal, the Trues do not ask us to reverse the district
court’s summary judgment ruling on the basis that its but-for
causation determination was erroneous. Rather, they ask us to
reverse the court’s ruling based on the new proximate causation
standard announced in Barneck. As discussed above, Barneck
repudiated the “but-for” causation standard applicable to waiver
exceptions and replaced it with a narrower proximate causation
standard. Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 2, 353
20160704-CA 8 2018 UT App 86True v. Utah Department of Transportation
P.3d 140. Specifically, Barneck held that “an immunity-invoking
condition . . . must be a proximate cause of the plaintiff’s injuries
in order to sustain the reinstatement of immunity.” Id. ¶ 38; see
also id. ¶¶ 42–44 (explaining that “a but-for connection” “would
allow the statutory exceptions to nullify the immunity waivers,”
which is illogical “in the context of a statute aimed at waiving
governmental immunity for negligence”). Relying on Barneck,
the Trues contend that the issuance of the construction permit
did not proximately cause their injuries, because “[i]ssuing the
construction permit did not foreseeably heighten the ‘scope of
the risk’ of [their] accident,” as required to establish proximate
causation. (Quoting Barneck, 2015 UT 50, ¶ 48.) Instead, they
allege that “UDOT’s own negligence in approving an unsafe
traffic control plan and then failing to make sure the plan was
being carried out correctly” caused their injuries.
¶20 In response, UDOT argues that we should decline to
reach the Trues’ Barneck causation argument because the Trues
failed to preserve it in the district court and have not otherwise
cited an exception to our preservation requirement. UDOT
concedes that Barneck changed the causation standard applicable
to whether immunity could be reinstated pursuant to a waiver
exception and that all of the “litigation preceding [the district
court’s verbal summary judgment] ruling, including the
summary judgment briefing and the extensive discovery
conducted[,] . . . proceeded under what was then the governing
pre-Barneck standard.” However, UDOT contends that, despite
having ample opportunity to raise the new causation standard as
a basis for revisiting the summary judgment motion, the Trues
failed to do so. Accordingly, UDOT contends that the Trues
should not be permitted to now argue that reversal is
appropriate under Barneck.
¶21 After conceding in their opening brief that the proximate
causation issue was not raised below, the Trues counter in their
reply brief that we should reach their causation argument
20160704-CA 9 2018 UT App 86True v. Utah Department of Transportation
because “[t]he basic issue of whether Defendant UDOT has
immunity based on the permit exception was preserved for
review.” The Trues also argue that the district court’s silence in
response to UDOT’s letter advising the court of the change in the
law “led [them] to believe that Barneck would not have changed
[the district court’s] decision.”
¶22 We agree with UDOT that, even though the overarching
issue of causation was before the district court, the Trues did not
preserve the distinct legal theory now advanced on appeal.
Further, because the Trues have not argued an exception to our
preservation requirement to persuade us to reach their causation
argument, we decline to reach the issue now. Cf. Marcroft v. Labor
Comm’n, 2015 UT App 174, ¶ 4, 356 P.3d 164 (explaining that “we
have consistently refused to consider arguments of plain error
raised for the first time in an appellant’s reply brief, even if the
plain error argument is in response to a dispute over
preservation raised for the first time in the appellee’s brief”
(quotation simplified)).
A. The Preservation Requirement
¶23 Our preservation requirement is well-settled: we require
parties to have raised and argued before the district court the
issue that they raise and argue before us on appeal, and if a
party does not, “it has failed to preserve the issue.” State v.
Johnson, 2017 UT 76, ¶ 15. As our supreme court recently
explained, “[o]ur appellate system has developed along the
adversarial model, which is founded on the premise that parties
are in the best position to select and argue the issues most
advantageous to themselves, while allowing an impartial
tribunal to determine the merits of those arguments.” Id. ¶ 8.
Parties, not the courts, have the duty “to identify legal issues and
bring arguments . . . to adjudicate their respective rights and
obligations.” Id. ¶ 14. It is through fulfilling this duty in a district
court that parties also fulfill their duty to preserve arguments for
20160704-CA 10 2018 UT App 86True v. Utah Department of Transportation
appeal. See Baumann v. Kroger Co., 2017 UT 80, ¶ 25 (explaining
the importance of the preservation requirement).
¶24 As a result, it is incumbent on parties to preserve in the
district court the issues they wish to assert on appeal or “risk
losing the opportunity to have the [appellate] court address that
issue.” See Johnson, 2017 UT 76, ¶¶ 14–15. For an issue to be
preserved, a party must raise it before the district court
specifically, in a timely manner, and with support by evidence
and relevant legal authority, Donjuan v. McDermott, 2011 UT 72,
¶ 20, 266 P.3d 839, such that the issue has been “presented to the
trial court in such a way that the trial court has an opportunity to
rule on [it],” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801 (quotation simplified). See also In re Baby Girl T., 2012
UT 78, ¶ 34, 298 P.3d 1251 (explaining that, to be preserved, an
issue “must at least be raised to a level of consciousness such
that the trial judge can consider it” (quotation simplified)).
¶25 Our preservation requirement serves several important
policies. To begin with, requiring parties to raise issues before a
district court “allows an issue to be fully factually, procedurally,
and legally developed” before it reaches an appellate court,
which is necessary to facilitate a reviewing court’s analysis of
“both the application of a legal rule or principle to a concrete
and well-developed dispute and, nearly as important, the effect
of the district court’s ruling on the overall course of the
proceedings below.” Baumann, 2017 UT 80, ¶ 25. Without the
benefit of a fully developed record illustrating both the district
court’s thinking and the factual development bearing on the
issue at hand, an appellate court is necessarily handicapped in
reaching a well-considered decision. See id. ¶¶ 25–26.
¶26 The preservation requirement also serves important
policies of judicial economy and fairness. See Johnson, 2017 UT
76, ¶¶ 8, 13. See generally State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346 (identifying policies underlying the preservation rule).
In terms of judicial economy, “requiring a party to advise a trial
20160704-CA 11 2018 UT App 86True v. Utah Department of Transportation
court of potential errors” gives the trial court “the opportunity to
correct [the potential errors] before they blossom into appellate
issues.” Scott v. Scott, 2017 UT 66, ¶ 15; see also Patterson v.
Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828 (explaining that
“requiring a party to raise an issue or argument in the trial court
gives the trial court an opportunity to address the claimed error,
and if appropriate, correct it” (quotation simplified)). Among
other benefits, “this avoids unnecessary appeals and retrials.”
Patterson, 2011 UT 68, ¶ 15 (quotation simplified).
¶27 In addition, “notions of fairness dictate that a party
should be given an opportunity to address the alleged error in
the trial court.” Kell v. State, 2012 UT 25, ¶ 12, 285 P.3d 1133(quotation simplified). “Having been given such a chance, the
party opposing a claim of error might have countered the
argument” in the district court. Id. (quotation simplified).
Moreover, our preservation requirement “discourages a party
from strategically ignoring errors in hopes of enhancing [his or]
her chances of prevailing on appeal.” Scott, 2017 UT 66, ¶ 15; see
also Salt Lake City Corp. v. Jordan River Restoration Network, 2012
UT 84, ¶ 28, 299 P.3d 990 (explaining that the preservation rule
“prevents a party from avoiding an issue at trial for strategic
reasons only to raise the issue on appeal if the strategy fails”
(quotation simplified)).
¶28 Furthermore, while we do “exercise wide discretion when
deciding whether to entertain or reject matters that are first
raised on appeal,” Patterson, 2011 UT 68, ¶ 13, our supreme court
has recently reiterated that “we have limited our discretion [to
entertain unpreserved issues] by creating exceptions to the
general preservation rule,” State v. Johnson, 2017 UT 76, ¶ 13.
Such limitations on our discretion are “an effort to serve the
policy considerations of judicial economy and fairness to the
parties, to preserve the adversarial model, and to provide clear
guidelines to litigants.” Id.; see also Patterson, 2011 UT 68, ¶ 13
(“We have exercised this discretion to recognize some limited
20160704-CA 12 2018 UT App 86True v. Utah Department of Transportation
exceptions to our general preservation rule.”); cf. State v. King,
2006 UT 3, ¶ 14, 131 P.3d 202 (“The rule that points not argued
will not be considered is more than just a prudential rule of
convenience; its observance, at least in the vast majority of cases,
distinguishes our adversary system of justice from the
inquisitorial one.” (quotation simplified)).
¶29 Accordingly, if a party has not preserved an issue
asserted on appeal, “the party [asserting the issue on appeal]
must establish the applicability of one of [the preservation]
exceptions to persuade an appellate court to reach that issue.”
Johnson, 2017 UT 76, ¶¶ 15, 17, 19 (“When a party fails to raise
and argue an issue in the trial court, it has failed to preserve the
issue, and an appellate court will not typically reach that issue
absent a valid exception to preservation.”); see also Baumann v.
Kroger Co., 2017 UT 80, ¶ 25 (explaining that the appellant carries
the burden of persuasion on an unpreserved issue, and that if
the appellant does not undertake an analysis of the issue under
the established exceptions to preservation, the appellant “will
have necessarily failed to explain why we should reach the issue
of which she complains”).
¶30 The exceptions to preservation are plain error, exceptional
circumstances, and, on some occasions, ineffective assistance of
counsel. In re adoption of K.A.S., 2016 UT 55, ¶ 19, 390 P.3d 278. If
a party fails to argue and establish the applicability of a
preservation exception, the appellate court will not reach the
unpreserved issue. See Baumann, 2017 UT 80, ¶ 25; Johnson, 2017
UT 76, ¶¶ 17, 19; State v. Rhinehart, 2007 UT 61, ¶ 21, 167 P.3d
1046 (stating that “presentation of the merits of an issue [alone]
cannot access an exception to the preservation doctrine”; instead,
to persuade an appellate court to reach the merits of an
unpreserved issue, an appellant should present the issue
“through the lens of one or all of [the preservation] exceptions”).
20160704-CA 13 2018 UT App 86True v. Utah Department of Transportation
B. Applying the Preservation Requirement
¶31 Applying these principles, we conclude that the Trues
failed to preserve their Barneck proximate causation issue, and
because they have failed to establish that a preservation
exception applies, we decline to address the argument on its
merits.
¶32 On appeal, the Trues contend that we ought to reverse the
district court’s decision because it was incorrect under the
proximate causation standard announced in Barneck. To that
end, the Trues have specifically defined the issue on appeal as
whether “UDOT’s act of issuing a construction permit
proximately cause[d] [their] accident and injuries, thereby
reinstating UDOT’s immunity from suit under the permit
exception.” But the Trues did not raise before the district court
the issue of whether UDOT retained immunity under the Barneck
proximate causation standard, nor did they at any time
otherwise suggest to the court that its summary judgment
decision was erroneous in light of Barneck. The district court also
did not sua sponte raise, address, and rule on the issue. See Fort
Pierce Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare,
2016 UT 28, ¶ 13, 379 P.3d 1218 (stating that a district court’s
“decision to take up the question conclusively overcame any
objection that the issue was not preserved for appeal”). Our
supreme court has directed us to “view issues narrowly.” See
Johnson, 2017 UT 76, ¶ 14 n.2. Although “new arguments, when
brought under a properly preserved issue or theory, do not
require an exception to preservation,” an argument based upon
an “entirely distinct legal theory” is a “new claim or issue” and
must be separately preserved. Id. Whether UDOT’s issuance of a
construction permit proximately caused the Trues’ injuries is not
merely a new argument to support the issue raised below, but an
“entirely distinct legal theory.” See id. And, despite the
concurrence’s suggestion that it is proper to do so, we decline to
redefine more broadly the issue for appeal identified by the
20160704-CA 14 2018 UT App 86True v. Utah Department of Transportation
Trues to reach the conclusion that they have preserved the
issue. 4
4. While the concurrence makes some good points, in our
adversarial system, it is the parties, not the courts, who maintain
the duty to identify an issue and then make arguments about
that issue both below and on appeal. See State v. Johnson, 2017 UT
76, ¶¶ 8–15; see also State v. King, 2006 UT 3, ¶ 14, 131 P.3d 202.
We cannot discern how recrafting the issue identified by an
appellant to reach the merits of what was an unaddressed issue
below serves the policies undergirding our preservation
requirement. For example, because the issue of UDOT’s
retention of immunity under a proximate causation standard
was not addressed below, we have neither the district court’s
reasoning and analysis nor the associated factual development
related to that issue to assist in our review. See Baumann v. Kroger
Co., 2017 UT 80, ¶¶ 25–26. It also cannot serve the interests of
judicial economy and fairness to suggest to parties that they may
forgo raising and arguing a distinct issue below in the hopes that
the appellate court will resolve the issue that could have been
raised below but instead went ignored by the party with the
burden to raise it. See Scott v. Scott, 2017 UT 66, ¶ 15; Patterson v.
Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828.
Moreover, we note that, as a practical matter, a proximate
causation analysis is “highly fact-sensitive” and “generally
cannot be resolved as a matter of law.” See Breton v. Clyde Snow
& Sessions, 2013 UT App 65, ¶ 10, 299 P.3d 13 (quotation
simplified). As UDOT contends, by failing to raise the proximate
causation issue below, the Trues denied UDOT an opportunity
to adequately address the applicability of Barneck, which might
have included conducting further discovery and presenting
additional evidence to support arguments about whether a
waiver exception could still be invoked under the proximate
causation standard. See Kell v. State, 2012 UT 25, ¶ 12, 285 P.3d
1133 (explaining that fairness dictates that the opposing party
(continued…)
20160704-CA 15 2018 UT App 86True v. Utah Department of Transportation
¶33 Quite simply, the issue of whether UDOT retained
immunity under the distinct proximate causation theory
announced in Barneck was not raised or at all developed in the
district court, and it was thereby not preserved. See State v.
Johnson, 2017 UT 76, ¶ 15. As a result, because the issue has been
raised for the first time on appeal, it is incumbent on the Trues to
identify and establish an exception to our preservation doctrine
to persuade us to reach the issue on its merits. Baumann, 2017 UT
80, ¶ 25.
¶34 The Trues have not carried their burden. In their opening
brief, while they acknowledge that “the issue of proximate
cause” was not preserved, they fail to offer any reasoned
explanation for their failure to raise the issue of UDOT’s
retention of immunity under Barneck’s proximate causation
standard. They acknowledge that Barneck essentially amounted
to an intervening change in the law and that the district court
did not apply it, but they provide no argument suggesting why
we nevertheless ought to reach the merits.
¶35 Indeed, the Trues fail to raise any exception to the
preservation doctrine. See Baumann v. Kroger Co., 2017 UT 80,
(…continued)
should have the opportunity to “address the alleged error in the
trial court” (quotation simplified)); Patterson, 2011 UT 68, ¶ 15
(“The policy of judicial economy is most directly frustrated
when an appellant asserts unpreserved claims that require
factual predicates.”).
In short, while we can appreciate both the concurrence’s
desire to reach the merits of the Barneck issue here as well as its
view that we should “err in close cases . . . on the side of
allowing parties to bring claims and on the side of adjudicating
claims on their merits,” see infra ¶ 61, we are unable to embrace
that view or join the concurrence in its resolution of the
preservation question.
20160704-CA 16 2018 UT App 86True v. Utah Department of Transportation
¶ 25 (explaining that an appellant cannot carry his or her burden
of persuasion with regard to an unpreserved issue if he or she
does not engage in an analysis of the preservation exceptions). It
is certainly possible, for example, that an intervening change of
law might create exceptional circumstances that could justify
addressing an issue uniquely affected by that intervening
change, see, e.g., Johnson, 2017 UT 76, ¶¶ 31, 33 (observing that “a
rare procedural anomaly” to establish the exceptional
circumstances exception to preservation “exists where a change
in law or the settled interpretation of law colors the failure to
have raised an issue at trial” (quotation simplified)); In re T.M.,
2003 UT App 191, ¶ 16, 73 P.3d 959 (reaching the merits of an
unpreserved issue based on a change in the intervening law
because the appellants raised and argued the exceptional
circumstances exception to preservation).
¶36 But the Trues must do more than simply note the
intervening change of law to satisfy their burden. See Baumann,
2017 UT 80, ¶ 25; see also Johnson, 2017 UT 76, ¶¶ 29, 37 (stating
that a party seeking to establish that exceptional circumstances
justify reaching an unpreserved issue must “show[] that a rare
procedural anomaly has occurred,” at which point “additional
factors must be considered to determine whether an appellate
court should reach an unpreserved issue,” and that these
additional factors include whether failure to consider it would
result in manifest injustice, whether a significant constitutional
right is at stake, and judicial economy). We are not persuaded
that the circumstances present in their case sufficiently justify
their failure to have raised below the immunity issue that was
essentially created by the decision in Barneck. 5
5. We also part ways with the concurrence about the need to
draw bright lines around the circumstances which may or may
not require a party to, for example, file a motion to reconsider to
(continued…)
20160704-CA 17 2018 UT App 86True v. Utah Department of Transportation
(…continued)
preserve an issue involving an intervening change of the law.
For one thing, there is a bright line rule in play here: an issue that
a party has not raised below is not preserved for appeal. Johnson,
2017 UT 76, ¶ 15. And this bright line is well-settled. Thus,
parties are already well-advised that they have the duty to raise
the issues below that they might wish to appeal. All else being
equal, if Barneck would have entitled the Trues to relief from the
summary judgment decision in the district court, then that is
where they should have first raised the issue.
We are also less concerned than the concurrence about
setting a precise temporal line before final judgment enters at
which a party still retains the duty to raise an intervening change
of law issue or risk waiving it. This is because our preservation
doctrine appears to provide an avenue for relief to parties
wishing to raise on appeal an unpreserved argument based upon
an intervening change of the law—the exceptional circumstances
exception. See generally id. ¶¶ 29–38; In re T.M., 2003 UT App 191,
¶¶ 15–16, 73 P.3d 959.
Further, while the duty to preserve is a bright line, the
unique circumstances that may be sufficient to establish an
exception to the preservation requirement must be assessed on a
case-by-case basis. Cf. Johnson, 2017 UT 76, ¶ 38 (explaining that
the “precise contours” of the exceptional circumstances
exception requires “case-by-case assessment”). The difficult line-
drawing question is not whether a party has raised below an
issue based on an intervening change in law or even whether a
party should have raised it below. Rather, it is whether the
circumstances in play justify the party’s failure to raise below the
issue based upon that change in law. And, as we have explained,
it is the appealing party’s burden to persuade us that the
circumstances present justify reaching the merits of any
unpreserved issue. Baumann, 2017 UT 80, ¶ 25.
20160704-CA 18 2018 UT App 86True v. Utah Department of Transportation
¶37 Moreover, the justification proffered in the Trues’ reply
brief for their failure to raise the issue is unavailing. They blame
their failure on the district court itself, contending that its failure
to respond to UDOT’s letter, which allegedly alerted the court to
Barneck’s issuance, “led [them] to believe that Barneck would not
have changed [the court’s] decision,” because if it had,
presumably, the court “would have responded and invited
further briefing on the issue.” But their position essentially turns
on its head our well-settled preservation requirement by shifting
onto the court itself the burden of alerting the parties to potential
errors. If the Trues believed that the district court erred in light
of Barneck, it was their duty to use the procedural tools available
to them to alert the district court. The court had no obligation to
address the alleged error sua sponte. See Patterson v. Patterson,
2011 UT 68, ¶ 16, 266 P.3d 828.
¶38 In any event, we question whether, in light of the
particular circumstances here, the Trues could have established
the presence of circumstances sufficient to persuade us to reach
the merits. For one thing, the timing in the case as well as the
Trues’ apparent awareness of Barneck suggest that the Trues
consciously declined to first raise before the district court the
theory for relief that they now attempt to raise on appeal. The
change in the applicable law announced in Barneck occurred one
day after the district court orally announced its summary
judgment decision, and approximately fifty days elapsed
between the time Barneck was decided and when the district
court entered the written summary judgment order. The Trues
were apparently aware of Barneck within days of its issuance, yet
they did not ask the district court to revisit its summary
judgment decision. Instead, the Trues approved the proposed
summary judgment order filed by UDOT, memorializing the
court’s oral ruling, including its reliance on the pre-Barneck
standard.
20160704-CA 19 2018 UT App 86True v. Utah Department of Transportation
¶39 In addition, the Trues had available to them a procedural
mechanism to ask the district court to revisit its summary
judgment ruling in light of Barneck, of which they failed to take
advantage. Although the district court entered its summary
judgment order in July 2015, the Trues did not resolve their case
against all defendants until one year later, in July 2016. See
generally Loffredo v. Holt, 2001 UT 97, ¶¶ 10–12, 37 P.3d 1070(explaining what kind of order constitutes a final judgment).
Pursuant to Utah Rule of Civil Procedure 54(b), the order was
not final and could have been revised at any time before the
entry of final judgment. See Utah R. Civ. P. 54(b) (“[A]ny order
or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all
the parties does not end the action as to any of the claims or
parties, and may be changed at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities
of all the parties.”). Motions to “reconsider or revise nonfinal
judgments . . . are sanctioned by our rules,” Gillett v. Price, 2006
UT 24, ¶ 10, 135 P.3d 861, and have been recognized as “a proper
vehicle” to ask the court to reconsider a summary judgment
decision, including where “there has been a change in the
governing law,” Trembly v. Mrs. Fields Cookies, 884 P.2d 1306,
1311 (Utah Ct. App. 1994) (identifying factors that may weigh in
favor of reconsidering a prior ruling under rule 54(b)). Yet at no
time during the intervening months did the Trues raise an
objection or ask the district court to revisit the summary
judgment decision in light of the new Barneck causation
standard. And it was their burden, as the party aggrieved by the
court’s summary judgment ruling, to do so, if they felt a change
in the law rendered the decision erroneous. 6 Cf. Patterson, 2011
6. The concurrence expresses concern that our decision might
encourage litigants to file flurries of motions to reconsider with
the district court in an effort to ensure that they preserve any
issue relating to an intervening change in the law—significant or
(continued…)
20160704-CA 20 2018 UT App 86True v. Utah Department of Transportation
UT 68, ¶ 16 (explaining that it is a party’s burden to detect and
assert error, not the court’s).
¶40 In sum, the Trues have not preserved the issue of whether
UDOT retained permit-exception immunity under the proximate
causation standard announced in Barneck. The Trues have also
failed to establish—indeed, have not attempted to establish—an
exception to our preservation requirement. Accordingly, we
decline to reach the merits of the Barneck causation issue.
¶41 In reaching this conclusion, we recognize that parties
have “no obligation to ‘preserve’ . . . citation to legal authority,”
Torian v. Craig, 2012 UT 63, ¶ 20, 289 P.3d 479, and that parties
are generally allowed “to supplement an argument with new
cases . . . that they did not raise in the district court,” Patterson,
2011 UT 68, ¶ 18 n.7. We further acknowledge that where there
is an intervening change in the law after a notice of appeal is
filed, an appellant should cite any relevant law that has some
bearing on a party’s case.
(…continued)
not. While we appreciate the desire to forestall an inundation of
potentially unnecessary filings with district courts, from an
institutional standpoint we think the less desirable result is one
that encourages parties to file appeals based on issues that they
could have raised but instead entirely forewent below. Indeed,
as explained above, our rules specifically sanction filing such
motions to reconsider on nonfinal orders, see Gillett v. Price, 2006
UT 24, ¶ 10, 135 P.3d 861; they do not, for example, sanction
parties’ strategic refusal to raise potentially dispositive issues
before a district court in the hopes that an appellate court will
later come to the rescue, see Scott, 2017 UT 66, ¶ 15. We therefore
err on the side of what we perceive to be the lesser institutional
evil.
20160704-CA 21 2018 UT App 86True v. Utah Department of Transportation
¶42 But it is crucially significant in this case that the Barneck
proximate causation standard forms the core of the Trues’ claim
of error. The Trues are not merely supplementing the but-for
causation arguments they presented to the district court; they are
employing Barneck to argue for reversal based upon an entirely
different analytical framework. See State v. Johnson, 2017 UT 76,
¶ 14 n.2 (explaining that raising an “entirely distinct legal
theory” renders the matter a “new claim or issue,” not merely a
new argument about an issue, and that a new issue requires an
exception to preservation if it was not preserved). As a result, it
was incumbent upon the Trues either to preserve the Barneck
proximate causation issue or to establish an exception to the lack
of its preservation on appeal. That they have done neither
effectively resolves the matter.
II. UDOT’s Actions as Formal, Official Acts
¶43 The Trues also argue that the permit exception does not
apply because “UDOT’s negligent actions cannot be
characterized as formal, official acts,” as required under our
supreme court’s decision in Thayer v. Washington County School
District, 2012 UT 31, 285 P.3d 1142. The Trues assert that Thayer
stands for the proposition that, in addition to causation, “two
elements . . . must be satisfied” for the permit exception to apply.
First, Thayer states that the governmental entity must have the
legal authority, derived through “legislative or executive
enactment,” to issue, deny, suspend, or revoke permits (and
thereby “give legal authority” to the entity requesting the
permit). See id. ¶¶ 17–18 (quotation simplified). Second, Thayer
states that the actions complained of must be “formal” and
“official” in nature. See id. ¶¶ 11, 13–15 (explaining that the
language of the permit exception “can be separated into two
categories of terms: those relating to the governmental action,”
such as “issuance, denial, suspension, or revocation,” and “those
relating to the object of that action,” such as “permit, license,
certificate, [or] approval,” and concluding that the permit
20160704-CA 22 2018 UT App 86True v. Utah Department of Transportation
exception “applies only to formal, official, regulatory
authorizations by a governmental entity empowered to issue,
deny, suspend, or revoke” permits (quotation simplified)).
¶44 Here, the district court determined that the issuance of the
permit was itself a formal and official action, that UDOT was
immune “with respect to any injury” caused by issuing the
permit, and that all of the specific actions alleged by the Trues as
negligent and ultimately harmful—“approving an unsafe traffic
control plan, failing to maintain a safe intersection, and . . .
failing to properly monitor the traffic control [at the site] to
ensure it was being carried out in accordance with the plan”—
were caused by the issuance of the formal, official permit.
¶45 The Trues “concede that UDOT had the statutory
authority to approve the traffic control plan, monitor traffic
control, restrict access to roads at the construction site, and
supervise others at the site.” They also apparently do not
challenge the district court’s determination that the issuance of
the permit itself was a formal, official action. But they contend
that UDOT’s decisions “regarding traffic safety at the construction
site cannot be characterized as formal, official authorizations,”
because there was “no formal official action taken . . . when
UDOT failed to maintain the intersection in a safe condition and
failed to adequately supervise others at the scene by allowing
the removal of the no-left-turn sign.” (Emphasis added.) As a
result, the Trues assert that the permit exception does not apply,
and UDOT therefore does not retain immunity. They request
reversal on that basis.
¶46 However, apart from contending that UDOT took no
formal, official actions related to the worksite’s safety and
inspection itself, the Trues have not explained why, given the
district court’s overall determination that all of the complained-
of actions arose from a formal, official permit issuance, it is
appropriate for us to nonetheless separately analyze the
formality of certain allegedly negligent worksite actions. Under
20160704-CA 23 2018 UT App 86True v. Utah Department of Transportation
the law in effect at the time of the summary judgment hearing,
this conclusion aligned with precedent on the issue of causation
and the extent to which the issuance of a license or permit, and
other actions flowing from issuing a permit, may be properly
characterized as causing certain harm. See Moss v. Pete Suazo
Utah Athletic Comm’n, 2007 UT 99, ¶¶ 14–19, 175 P.3d 1042(explaining that the language of the permit exception is “not
restricted to those decisions that constitute licensing decisions
per se,” and concluding that a government entity’s violation of
its own rules “not directly tied to a licensing decision” was
nonetheless covered by the licensing exception because the
violations ultimately related to and derived from the entity’s
licensing authority); Gillman v. Department of Fin. Insts., 782 P.2d
506, 511–12 (Utah 1989) (rejecting the argument that failing to
take certain steps to ensure compliance with conditions of an
issued license constituted negligence distinct from any
negligence arising from the ministerial act of issuing the license
itself, and concluding that a government entity’s failure to
subsequently “ensure that [the licensee] complied with the
conditions” attached to the license arose out of a licensing
decision, as “broadly defined” by the licensing exception to
waiver); see also Thayer, 2012 UT 31, ¶¶ 18–20 (explaining that
requiring a government entity’s action to be formal and official
pursuant to its official regulatory authority is “consistent with
[the] case law” established by Moss and Gillman, because in those
cases “the [government] entity was empowered with the
regulatory authority to issue the authorization in question”).
¶47 As a result, to persuade us that reversal is appropriate on
the grounds that the failure to specifically maintain the
intersection in a safe condition and to adequately supervise
others at the scene are not formal, official actions, the Trues must
do more than simply convince us that the nature of those
individual omissions is not formal or official, as required by
actions covered by the permit exception under Thayer. Rather,
the Trues must first persuade us that these actions did not arise
20160704-CA 24 2018 UT App 86True v. Utah Department of Transportation
from the issuance of the permit—the action the Trues do not
challenge as formal and official. Only then may we separately
evaluate the identified omissions to determine whether reversal
is appropriate on the basis that those omissions are not formal,
official actions in and of themselves.
¶48 As explained above, the Trues have not succeeded in
challenging the district court’s causation analysis, with the result
that the court’s causation conclusion—and its conclusion that all
of the alleged negligence arose from the issuance of the permit—
stands. We therefore have no occasion to analytically reach the
question of whether the two omissions identified by the Trues—
failure to maintain the intersection in a safe condition and failure
to adequately supervise others at the scene—themselves lacked
the requisite formality. Those omissions remain formal and
official by virtue of their causal relationship to the formal,
official permit. See Thayer, 2012 UT 31, ¶¶ 18–20; cf. Moss, 2007
UT 99, ¶¶ 14–19; Gillman, 782 P.2d at 511–12.
CONCLUSION
¶49 We conclude that the Trues have failed to preserve their
challenge to the district court’s causation analysis, and we
decline to reach the issue on that basis. We also conclude that the
Trues have failed to persuade us that UDOT’s failure to maintain
a safe intersection or adequately supervise the construction site
lacked the requisite formal, official nature sufficient to establish
the permit exception under Utah Code section 63G-7-301(5)(c).
Accordingly, we affirm.
HARRIS, Judge (concurring):
¶50 I share my colleagues’ view that the district court
correctly entered summary judgment in UDOT’s favor, and
20160704-CA 25 2018 UT App 86True v. Utah Department of Transportation
therefore agree that the district court’s judgment should be
affirmed. However, I reach that conclusion for different reasons.
In my view, the Trues properly preserved for appellate review
the issue of whether UDOT is immune from suit pursuant to the
Utah Governmental Immunity Act’s (the Act) “permit
exception,” and we ought to reach the merits of that issue. On
the merits, however, UDOT has the better of the arguments. I
would therefore affirm on the merits, rather than on the basis
that the issue is unpreserved.
I
¶51 As the majority opinion recognizes, “[o]ur preservation
requirement is self-imposed and is therefore one of prudence
rather than jurisdiction.” Patterson v. Patterson, 2011 UT 68, ¶ 13,
266 P.3d 828. As a result, appellate courts have “wide discretion”
when determining whether to consider a matter preserved for
appellate review. Id. In exercising this discretion, we must
“balance the need for procedural regularity with the demands of
fairness.” State v. Johnson, 2017 UT 76, ¶ 12 (quotation
simplified). In my view, under the circumstances of this case, we
should not exercise that discretion to close the appellate
courthouse door to the Trues.
¶52 UDOT filed its motion for summary judgment regarding
governmental immunity in March 2015. At that time, Barneck
had not yet been decided and, as the majority acknowledges,
supra ¶ 18, “a but-for causal connection [was] sufficient to trigger
a statutory reinstatement of immunity under an exception
provision” of the Act. Barneck v. Utah Dep’t of Transp., 2015 UT
50, ¶ 39, 353 P.3d 140 (citing, among other cases, Hoyer v. State,
2009 UT 38, ¶ 32, 212 P.3d 547). Because the governing case law,
at the time, called for analysis of whether a “but-for causal
connection” existed, the parties briefed the issue with that rule in
mind. The parties appeared for oral argument on June 11, 2015,
and presented the issue to the district court in the same way they
had argued it in the briefs. Everyone here involved—apparently
20160704-CA 26 2018 UT App 86True v. Utah Department of Transportation
even including UDOT and the majority—appears to agree that
the issue was initially properly and comprehensively raised,
briefed, and argued, under the law as it existed at that time.
¶53 As the majority notes, the district court ruled from the
bench at the conclusion of the argument, and granted UDOT’s
motion, determining that the “permit exception” (and the
“inspection exception”) applied because there was a sufficiently
strong causal relationship between UDOT’s grant of the permit
(and its inspections thereunder) and the Trues’ injuries.
¶54 On June 12, 2015, the very next day after oral argument,
our supreme court issued its opinion in Barneck, ratcheting up
the level of causal connection required in order for the Act’s
exception provisions (such as the permit exception) to apply. The
district court did not sign its summary judgment order
dismissing the claims against UDOT until July 29, 2015, and
because the Trues possessed claims against other parties in the
case that were not finally adjudicated until July 20, 2016, some
thirteen months elapsed between the issuance of Barneck and the
issuance of a final appealable order in the case.
¶55 The majority appears to fault the Trues for failing, during
that thirteen-month period, to bring the matter back to the
attention of the district court by way of a motion for
reconsideration. See supra ¶¶ 36, 39 & n.5. Indeed, the majority’s
ruling in this case would seem to establish a requirement that, if
the law changes between the time a district court issues an oral
ruling and the time the court’s order memorializing that ruling
becomes final, it is incumbent upon the party affected by the
change in the law to bring a motion to reconsider during that
intervening period, and if the party fails to do so, it will not be
considered to have done enough to preserve the entire changed
legal issue for appellate review. In my view, such a rule is
problematic, for a number of reasons.
20160704-CA 27 2018 UT App 86True v. Utah Department of Transportation
¶56 First, “issues” are what must be preserved, not arguments
in support of an issue or citations to legal authority supporting
an issue. 7 See Gressman v. State, 2013 UT 63, ¶ 45, 323 P.3d 998(stating that “[i]ssues must be preserved, not arguments for or
against a particular ruling on an issue raised below”); Utah R.
App. P. 24(a)(5)(B) (requiring appellate briefs to contain “citation
to the record showing that the issue was preserved for review”
(emphasis added)); see also Bagley v. Bagley, 2016 UT 48, ¶ 26, 387
P.3d 1000 (stating that parties are allowed to “offer[] a[] [new]
argument in support of a particular issue already preserved on
appeal”); Torian v. Craig, 2012 UT 63, ¶ 20, 289 P.3d 479 (stating
that “a litigant has no obligation to ‘preserve’ his citation to legal
authority,” and that “if the foundation of a claim or argument is
presented in a manner that allows the district court to rule on it,
a party challenging the lower court’s resolution of that matter is
free to marshal any legal authority that may be relevant to its
consideration on appeal” (quotation simplified)). I would define
7. I acknowledge that our supreme court, in Patterson, expressly
refused to “draw a distinction between ‘issues’ and ‘arguments’
when determining whether to apply our preservation rule,” and
stated that the terms “issue,” “argument,” “claim,” and “matter”
were more or less interchangeable. See Patterson v. Patterson, 2011
UT 68, ¶ 14, 266 P.3d 828. Yet less than two years later, the
supreme court drew just such a distinction in Gressman, when it
stated that “[i]ssues must be preserved, not arguments for or
against a particular ruling on an issue raised below,” Gressman v.
State, 2013 UT 63, ¶ 45, 323 P.3d 998, and then the court repeated
that same quotation from Gressman just last year in State v.
Garcia, 2017 UT 53, ¶ 51. In determining what to make of these
seemingly inconsistent statements from our supreme court, I am
compelled to favor the more recent statements over the older
ones. See, e.g., State v. Aleh, 2015 UT App 195, ¶ 18 n.2, 357 P.3d
12 (analyzing apparently inconsistent Utah Supreme Court
cases, and relying on the more recent cases).
20160704-CA 28 2018 UT App 86True v. Utah Department of Transportation
the “issue” more broadly than does the majority: in my view, the
relevant “issue” is whether UDOT is immune from suit under
the Act’s “permit exception.” That issue was squarely and
robustly raised before the district court, and the district court
made a ruling on that issue. 8 With the issue thus defined, it
necessarily follows that the Trues properly preserved the issue in
the district court. In my view, it also necessarily follows that the
causation principles discussed in Barneck were not “‘an entirely
distinct legal theory,’” see supra ¶ 32 (quoting Johnson, 2017 UT
76, ¶ 14 n.2), but, rather, were simply arguments that could have
been offered in support of the issue raised. Indeed, this
conclusion is practically compelled by the majority’s proposed
solution to the perceived problem: to require the Trues (and
similarly situated parties) to file a motion to reconsider in the
event that the law changes in the time between the district
court’s oral ruling and the entry of final judgment. One does not
re-consider an issue that has not already been considered.
¶57 Second, appellate courts are certainly capable of
grappling with the implications of a change in the governing law
that occurs after the district court has made its ruling. That is,
there exist no insurmountable practical problems with allowing
parties to proceed on appeal even where the governing law has
changed since the issue was presented to the district court. For
8. The majority asserts that I am “recrafting the issue” in order
“to reach the merits.” See supra ¶ 32 & n.4. In response, I simply
point out that the summary judgment motion granted by the
district court was titled “UDOT’s Motion for Summary
Judgment No. 2 Re: Permit Immunity,” and that UDOT devoted
its entire memorandum to arguing that it was immune from suit
under the Act’s “permit exception.” Neither I nor the majority is
doing any “recrafting”; rather, we simply have a disagreement
about how broadly one should define the “issue” presented for
the district court’s consideration.
20160704-CA 29 2018 UT App 86True v. Utah Department of Transportation
instance, if the change in the law occurs after the notice of appeal
is filed, appeals proceed normally, and there has never been any
suggestion, in such a case, that the matter should be returned to
the district court so that the district court could consider the
matter anew in light of the change in the governing law. See, e.g.,
Patterson, 2011 UT 68, ¶ 18 & n.7 (observing that appellate courts
“routinely consider new authority relevant to issues that have
properly been preserved,” and stating that “we have always
allowed parties to supplement an argument with new cases or
relevant legislative history that they did not raise in the district
court”). Indeed, our rules of appellate procedure specifically
contemplate situations where a party to an appeal may, for
various reasons, need to bring new authority to the appellate
court’s attention after briefing or oral argument but before an
appellate court has issued its decision. See Utah R. App. P. 24(j)
(“When authority of central importance to an issue comes to the
attention of a party after briefing or oral argument but before
decision, that party may file a notice of supplemental
authority.”). In this case, if Barneck had been issued after the
filing of a notice of appeal (rather than while the case was still
pending before the district court), I suspect that UDOT would
not even have argued that the issue was unpreserved. But there
is no practical reason—at least not one related to the capability of
appellate courts to consider such an issue—that counsels in favor
of treating the Trues’ situation any differently.
¶58 Third, I see line-drawing problems with the majority’s
resolution of the preservation issue, which problems may not be
present here but will undoubtedly be present in future cases.
There are, to be sure, aspects of this case that could give a person
reason to question the Trues’ decision not to bring the matter
back to the attention of the district court after Barneck. After all,
under the unique circumstances of this case, they had thirteen
months to do so, and thirteen months is a long time. Moreover,
the change in the law articulated by Barneck was a fairly clear
20160704-CA 30 2018 UT App 86True v. Utah Department of Transportation
one. But these factors present in the Trues’ situation will not
always be so clearly present in other cases.
¶59 The first line-drawing problem I perceive is a temporal
one. A party who is given thirteen months to bring the matter
back to the district court for reconsideration is certainly capable,
as a practical matter, of doing so. But what about a party who is
given two months? One month? Two weeks? One week? One
day? At some point, a party will not have enough time to bring a
motion to reconsider, let alone have that motion adjudicated,
before final judgment enters. 9 I see no way to draw a temporal
line that makes any principled sense, and I do not think we
should engage in the effort. I would much rather fall back to a
clear line that is defensible on something other than an ad hoc
basis.
¶60 The second line-drawing problem I perceive is a legal one,
involving the definition of what would be considered a “change
in the law” momentous enough to require the filing of a motion
to reconsider, as distinguished from minor statutory or common-
law tweaks that have little effect on the litigation of a case and
would not, even under the majority’s analysis, present a
preservation problem. Diligent attorneys who might not be
certain where that line might lie will have no choice but to pre-
9. In cases where a party may not have enough time to file a
motion to reconsider before final judgment enters, the majority’s
requirement would compel parties to file a post-judgment
motion to reconsider, motions that our supreme court has
referred to as “the cheatgrass of the litigation landscape.”
Shipman v. Evans, 2004 UT 44, ¶ 18 n.5, 100 P.3d 1151, abrogated
on other grounds by Utahns for Better Dental Health-Davis, Inc. v.
Davis County Clerk, 2007 UT 97, ¶ 6, 175 P.3d 1036. We ought not
be imposing requirements that may encourage the additional
filing of such motions.
20160704-CA 31 2018 UT App 86True v. Utah Department of Transportation
emptively file motions for reconsideration, because failure to do
so might result in loss of the right to appeal an issue. We should
not create requirements that incentivize the filing of additional
motions to reconsider.
¶61 When applying our prudential, discretionary doctrine of
preservation, we should err in close cases—if err we must—on
the side of allowing parties to bring claims and on the side of
adjudicating claims on their merits. Accordingly, I think it an
unwise exercise of our discretion to require parties to file
motions to reconsider in order to preserve issues that have been
squarely presented to the district court under the law in effect at
the time those issues were briefed, argued, and decided. I do not
think that the Trues had an obligation to file any such motion,
and in my view the Trues did everything they needed to do in
order to preserve the issue for appellate review. I would
therefore reach the merits of the question presented.
II
¶62 On the merits of the governmental immunity question, in
my view the district court correctly ruled that UDOT is immune
from the Trues’ lawsuit based on the Act’s immunity-invoking
exceptions.
A
¶63 The Act, as formulated in 2009, 10 stated as a general
proposition that “each governmental entity and each employee
10. The parties agree that the 2009 version of the Act governs the
outcome of this case. In 2015, the legislature amended and
recodified the relevant provisions of the Act. Governmental
Immunity Act Amendments, ch. 342, § 3, 2015 Utah Laws 1868,
1868–71. We are not asked to determine whether the outcome of
(continued…)
20160704-CA 32 2018 UT App 86True v. Utah Department of Transportation
of a governmental entity are immune from suit for any injury
that results from the exercise of a governmental function.” Utah
Code Ann. § 63G-7-201(1) (LexisNexis 2008). However, the Act
waives governmental immunity in certain circumstances, and
some of the waivers contain exceptions. Thus, in cases where a
governmental entity asserts that it is immune from suit pursuant
to the Act, we apply a three-part test to determine whether
immunity exists. Thayer v. Washington County School Dist., 2012
UT 31, ¶ 8, 285 P.3d 1142. First, we examine “whether the
activity undertaken is a governmental function.” Id. (quotation
simplified). Second, we determine “whether governmental
immunity was waived for the particular activity.” Id. (quotation
simplified). Finally, we look to see whether immunity has been
reinstated through a statutory exception to the immunity waiver.
Id.¶64 As the majority recognizes, supra ¶ 16, both parties
acknowledge that the first two steps are met here, because the
activity undertaken is a governmental function, and because the
Trues accuse UDOT of negligent conduct, a category of conduct
for which governmental immunity is generally waived. See Utah
Code Ann. § 63G-7-301(4) (LexisNexis 2008) (stating that
“[i]mmunity from suit . . . is waived as to any injury proximately
caused by a negligent act”). The operative question in the case,
then, is whether immunity has been reinstated by way of a
statutory exception to the immunity waiver for negligent
conduct.
¶65 UDOT asserts that the permit exception applies here,
pursuant to which immunity from suit is not waived—or, is
reinstated—“if the injury arises out of, in connection with, or
(…continued)
this case would have been different under the current version of
the Act.
20160704-CA 33 2018 UT App 86True v. Utah Department of Transportation
results from . . . the issuance, denial, suspension, or revocation of
. . . any permit, license, certificate, approval, order, or similar
authorization.” Id. § 63G-7-301(5)(c). 11 As the majority notes, the
causal link language (“arises out of, in connection with, or
results from”) in the statute was, until the issuance of Barneck,
construed as requiring only but-for causation. See, e.g., Hoyer v.
State, 2009 UT 38, ¶ 32, 212 P.3d 547. In Barneck, however, our
supreme court “repudiated the language of some of [its] prior
decisions” and held that “an immunity-invoking condition”
(such as the issuance of a permit or license) “must be a proximate
cause of the plaintiff’s injuries in order to sustain the
reinstatement of immunity.” See Barneck, 2015 UT 50, ¶ 38.
Accordingly, after Barneck, the dispositive question in the case is
whether UDOT’s conduct associated with its issuance of the
permit, and with its inspections conducted thereunder, was a
proximate cause of the Trues’ injuries. In my view, that
dispositive question must be answered in the affirmative.
¶66 UDOT’s involvement in this matter began in May 2009
when it issued a formal permit allowing the project contractor to
begin road work on the state highway in question. Indeed, the
Trues conceded, at the district court, that there was no evidence
that the state highway was unsafe before the construction project
11. As discussed more fully below, the district court also ruled
that a second immunity-invoking exception—the “inspection
exception”—applied to at least some of the Trues’ claims. Under
that exception, UDOT is immune from suit if the Trues’ injuries
were proximately caused by UDOT’s “failure to make an
inspection or by making an inadequate or negligent inspection.”
See Utah Code Ann. § 63G-7-301(5)(d) (LexisNexis 2008). Under
either exception, however, UDOT is immune from suit only if
the Trues’ injuries were proximately caused by the immunity-
invoking condition. See id. § 63G-7-301(5); see also Barneck v. Utah
Dep’t of Transp., 2015 UT 50, ¶ 38, 353 P.3d 140.
20160704-CA 34 2018 UT App 86True v. Utah Department of Transportation
began. By issuing the permit, UDOT allowed the work to
proceed, but it imposed a number of conditions and
requirements upon the contractor, including the following: (a)
that, before beginning any work, the contractor “shall notify”
UDOT’s permit inspector; (b) that commencement of the work
“is understood to indicate that the [contractor] will comply with
all [of UDOT’s] instruction and regulations”; and (c) that UDOT
may inspect the work at any time, with 48 hours’ notice.
¶67 The Trues complain that UDOT was negligent by
“approving an unsafe traffic control plan and then subsequently
failing to make sure the plan was carried out.” But UDOT
correctly points out that its involvement in approving (or not
approving) any traffic control plan for the project, or in
following up by way of inspection to make sure that any such
traffic control plan was in fact followed, was involvement that
stemmed entirely from UDOT’s permit and, specifically, from
the authority it retained, pursuant to the terms of the permit, to
inspect the work and to require the contractor to comply with
UDOT’s “instruction and regulations.” UDOT’s only
involvement with this project was because of its permit.
Everything UDOT did on this project was because of its role as
permittor and inspector of the project. If a UDOT permit had not
been required, UDOT would have had no involvement with this
project whatsoever, and would not have been in a position to
approve any traffic control plans.
¶68 The district court, on these facts, correctly determined that
there was at least a “but-for” causal relationship between
UDOT’s permit and the Trues’ injuries, and therefore the
“permit exception” applied to render UDOT immune from suit.
The Trues do not directly challenge this determination on
appeal; instead, they rely upon the new “proximate cause”
standard articulated by Barneck, and argue that proximate cause
is not present here. Because it decided the matter prior to
Barneck, the district court was not asked to consider whether a
20160704-CA 35 2018 UT App 86True v. Utah Department of Transportation
causal link stronger than “but-for” causation existed on these
facts. But I have no trouble reaching this conclusion on the
undisputed facts set forth in the record.
¶69 This court has defined “[p]roximate cause” as “‘that cause
which, in a natural and continuous sequence, unbroken by any
new cause, produced the injury, and without which the injury
would not have occurred.’” Dee v. Johnson, 2012 UT App 237, ¶ 4,
286 P.3d 22 (quoting Bunker v. Union Pac. R.R., 114 P. 764, 775
(Utah 1911)). There are two components of “proximate cause”:
but-for causation, and foreseeability. Id. ¶ 5. (stating
that “foreseeability is an element of proximate cause” (quotation
simplified)); see also Model Utah Jury Instructions 2d (MUJI)
CV209 (2016), https://www.utcourts.gov/resources/muji/inc_list.
asp?action=showRule&id=2#209 [https://perma.cc/KV6J-LF4Q]
(stating that the first element of “cause” is that “the person’s act
or failure to act produced the harm directly or set in motion
events that produced the harm in a natural and continuous
sequence,” and that the second element of “cause” is that “the
person’s act or failure to act could be foreseen by a reasonable
person to produce a harm of the same general nature”).
¶70 The first element of proximate cause is unquestionably
present here. As the district court determined, there is at least a
“but-for” causal link between UDOT’s issuance of the permit
and the Trues’ injuries. If UDOT had not issued the permit, the
project would never have taken place, traffic would never have
been diverted or controlled to facilitate the project, and the
Trues’ injuries would not have happened. As noted, the Trues do
not mount any kind of serious argument that “but-for” causation
is not present here.
¶71 But it is no less clear that foreseeability, and therefore
proximate causation, is also present. UDOT’s approval of any
specific traffic control plan was given pursuant to its authority
under the issued permit. In addition, UDOT’s authority to
inspect the premises to make sure that any traffic control plan it
20160704-CA 36 2018 UT App 86True v. Utah Department of Transportation
approved was actually being followed was also authority that it
possessed by virtue of its permit. It is certainly foreseeable, as a
matter of law, that UDOT’s actions in approving and monitoring
traffic control plans pursuant to that permitting and inspection
authority, if carried out negligently, might injure motorists
whose traffic was affected by the control plan. Thus, in my view,
both elements of proximate cause are present here, and the
causal link between UDOT’s permitting and inspection actions
and the Trues’ injuries is therefore strong enough to constitute
“proximate cause,” and not just “but-for” causation. See
Holmstrom v. C.R. England, Inc., 2000 UT App 239, ¶ 36, 8 P.3d
281 (stating that a cause is a “proximate cause” if it “played a
substantial role in causing the [plaintiff’s] injuries”).
B
¶72 The Trues final argument is that the “permit exception”
cannot apply here because UDOT’s actions were not formal
governmental actions. The Trues correctly assert that, in order
for the “permit exception” to apply, two requirements must be
met: authority and formality. See Winkler v. Lemieux, 2014 UT
App 141, ¶ 9, 329 P.3d 849 (noting that there are two
requirements for invocation of the “permit exception”:
“authority and formality”). The Trues “concede that UDOT had
the statutory authority to approve the traffic control plan,
monitor traffic control, restrict access to roads at the construction
site, and supervise others at the site.” They argue, however, that
UDOT’s actions were not sufficiently formal to meet the
formality requirement. Their arguments are unpersuasive.
¶73 With regard to UDOT’s decision to issue the permit in the
first place, there is no question that the formality requirement is
met. In this case, a permit from UDOT was required by statute
before the contractor could “dig or excavate” on the state
highway in question, see Utah Code Ann. § 72-7-102 (LexisNexis
2008), and UDOT had an institutional procedure for
consideration and approval of requests for such permits. There is
20160704-CA 37 2018 UT App 86True v. Utah Department of Transportation
no dispute, on the facts of this case, that UDOT considered and
issued the permit pursuant to that formal procedure, or that the
permit is a formal document bearing the signatures of UDOT
officials. At a minimum, UDOT’s issuance of the permit was a
formal, official act.
¶74 The Trues argue, however, that UDOT’s decisions after
issuance of the permit—such as, for instance, approving and
monitoring specific traffic control plans—were not formal
enough to satisfy the formality requirement, but these
arguments are unconvincing. In this case, the traffic control plan
was created by a consultant, and was a three-page written
document with maps and charts that called for the specific
placement of signs, barrels, and other traffic control devices.
Moreover, UDOT’s approval of the plan was an act carried out
pursuant to authority granted to UDOT by the terms of a formal
written permit. In my view, UDOT’s actions in approving this
particular traffic control plan differ from governmental actions
deemed potentially too informal to qualify for immunity
pursuant to the “permit exception.” See, e.g., Thayer, 2012 UT 31,
¶¶ 4, 28 (determining that school administrators’ approval of the
use of a firearm in a school play was insufficiently formal);
Winkler, 2014 UT App 141, ¶ 9 (stating that the record was
“insufficient to support a legal conclusion that [a] flagger’s
[traffic] signal” was sufficiently formal).
¶75 Moreover, I do not need to grapple with the question of
whether UDOT’s alleged failure to monitor implementation of
the approved traffic control plan was sufficiently formal,
because the district court determined that UDOT enjoys
immunity—on a ground other than the “permit exception”—
from the Trues’ claims that it failed to properly monitor traffic
control plans for the construction site, and the Trues have failed
to appeal that portion of the district court’s ruling.
¶76 Under the Act, UDOT is also immune from suit if the
Trues’ injuries were proximately caused by UDOT’s “failure to
20160704-CA 38 2018 UT App 86True v. Utah Department of Transportation
make an inspection or making an inadequate or negligent
inspection.” See Utah Code Ann. § 63G-7-301(5)(d) (LexisNexis
2008). In addition to ruling that the “permit exception” applied
to grant UDOT immunity from suit for claims related to the
permit, the district court also determined that this “inspection
exception” likewise applied to also grant UDOT immunity from
suit for any “failure to properly monitor the traffic control to
ensure it was being carried out in accordance with the traffic
control plan.” As the State correctly points out, the Trues do not
challenge the district court’s separate ruling that UDOT is
immune from suit, pursuant to the “inspection exception,” for
claims regarding alleged failure to monitor traffic control. The
Trues’ failure to challenge the district court’s independent
ground for decision is fatal to their appeal of the district court’s
decision in this regard. See State v. Roberts, 2015 UT 24, ¶ 38, 345
P.3d 1226 (stating that an appellate court “will not reverse a
ruling of the trial court that rests on independent alternative
grounds where the appellant challenges only one of those
grounds” (quotation simplified)). Accordingly, there is no
further occasion to consider whether UDOT’s alleged failure to
properly monitor the implementation of traffic control plans at
the construction site was sufficiently formal to meet the
formality requirement of the “permit exception.”
III
¶77 The district court’s decision to grant UDOT’s summary
judgment motion on the basis of governmental immunity was
correct, and should be affirmed. I do not reach that conclusion
because I perceive any problem with preservation; indeed, in my
view, the Trues did everything they needed to do in order to
preserve the overarching issue for appellate review. On the
merits of that issue, however, UDOT prevails as a matter of law.
On that basis, I would affirm, and I therefore concur in the result
reached by the majority opinion.
20160704-CA 39 2018 UT App 86