Doutre v. Box Elder County ( 2024 )

2024 UT App 58THE UTAH COURT OF APPEALS
ALEXIS DOUTRE,
Appellant,
v.
BOX ELDER COUNTY, BRIGHAM CITY, UNION PACIFIC RAILROAD
COMPANY, AND UTAH DEPARTMENT OF TRANSPORTATION,
Appellees.
Opinion
No. 20220139-CA
Filed April 18, 2024
Second District Court, Ogden Department
The Honorable Noel S. Hyde
No. 180906306
Troy L. Booher, Beth E. Kennedy, and Taylor P.
Webb, Attorneys for Appellant
Susan Black Dunn, Attorney for Appellee
Box Elder County
Matthew D. Church and Adam D. Goff,
Attorneys for Appellee Brigham City
Gina M. Rossi, Attorney for Appellee Union Pacific
Railroad Company
Sean D. Reyes and Peggy E. Stone, Attorneys for
Appellee Utah Department of Transportation
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.
MORTENSEN, Judge:
¶1 Seeking a thrill in a friend’s Jeep, Alexis Doutre and her
friends decided to jump railroad tracks at a crossing on a country
road. This choice was ill-advised, as the Jeep crashed into a nearby
utility pole, causing Doutre serious injury. Doutre sued various
Doutre v. Box Elder County
parties, including Box Elder County, Brigham City, Union Pacific
Railroad Company, and the Utah Department of Transportation,
alleging a number of claims, including (1) failure to investigate,
remedy, or warn of unsafe conditions; (2) negligent design and
maintenance; and (3) liability for maintaining an attractive
nuisance. All of Doutre’s claims were dismissed on summary
judgment. Doutre appeals, and we affirm.
BACKGROUND
¶2 On the outskirts of Brigham City, Utah, lies 1500 North, a
dirt and gravel road. As the road approaches some railroad tracks,
it rises rather steeply at about a 10% incline and creates a ramp
that allows a vehicle traveling at sufficient speed to experience a
“roller-coaster feeling” or even become airborne.
¶3 Stop signs stand on both sides of the tracks, and the tracks
are marked with standard railroad crossing signs. There is also a
low under-clearance sign on the west side of the tracks to warn
westbound drivers. The posted speed limit is 35 miles per hour
for eastbound traffic and 25 miles per hour for westbound traffic.
¶4 On a Friday night in late February 2017, Doutre and four
friends, all between fifteen and seventeen years old, decided to
jump this crossing. They were riding in a Jeep driven by one of
the friends (Friend). There was one passenger in the front, with
the other three, Doutre included, in the back. None of them were
wearing seatbelts. Doutre had been involved in this activity before
this incident. In fact, about a week earlier, she had driven her
mother’s minivan out to jump this same crossing. However,
Doutre did not tell her mother about the track jumping because
she knew that her mother would have told her it was dangerous.
¶5 Friend first approached the tracks from the east, hitting the
tracks at around 40 to 50 miles per hour—enough to get the tires
“a little bit” off the ground. Friend then turned around and
20220139-CA 2 2024 UT App 58Doutre v. Box Elder County
approached the tracks from the west, this time traveling at 60
miles per hour. The Jeep became airborne and landed on the other
side of the tracks, where Friend lost control of the vehicle and
crashed into a nearby utility pole. Doutre was seriously injured.
There was some speculation that the Jeep’s wheel may have hit a
pothole on landing, contributing to the loss of control.
¶6 Doutre filed a lawsuit, with claims divided among
multiple parties, including Box Elder County (the County),
Brigham City (the City), the Utah Department of Transportation
(UDOT), and Union Pacific Railroad Company (Union Pacific). 1
Among her general allegations was that the railroad intersection
“constituted a hazard” because its “steep grade,” limited
visibility, and the “condition of the road” made it “difficult for
drivers to accurately assess the danger and properly maintain
control of their vehicles.” Doutre further alleged that the crossing
lacked “adequate warning” to “alert drivers to [its] defective,
unsafe and/or dangerous condition,” that “multiple car wrecks
and injuries had occurred at this location,” and that “young
drivers (minor children) were attracted” to the intersection. As
relevant here, she asserted three claims for relief: (1) failure to
investigate, remedy, or warn of unsafe conditions; (2) negligent
design and maintenance; and (3) liability for maintaining an
attractive nuisance. The district court dismissed all of Doutre’s
claims on summary judgment. We recount Doutre’s claims, the
responses, and the district court’s disposition of the claims by
party.
¶7 The County: Doutre alleged that the County owned 1500
North until about 80 feet east of the tracks, where it became
Wilson Lane and was owned by the City. She claimed that the
County, as the owner of the portion of the road in question, failed
to maintain the road in a safe condition, including eliminating the
1. Doutre also sued Friend, Friend’s mother, and PacifiCorp (the
owner of the utility pole). These defendants settled with Doutre.
20220139-CA 3 2024 UT App 58Doutre v. Box Elder County
“steepness hazard” and the “potholes present in the dirt road.” In
a summary judgment motion, the County argued that under the
Utah Governmental Immunity Act (UGIA), it was immune from
suit because fixing the dangerous condition was a discretionary
function, not a mandatory one. The County also argued that there
was no evidence that a pothole caused the Jeep to swerve into the
utility pole.
¶8 The court granted summary judgment. It first ruled that
Doutre’s argument that the County “breached its duty to maintain
the road” failed “in the specific instance of the existence of
potholes or other surface damage to the road affecting the vehicle,
or that any particular pothole existed contemporaneously with
the accident.” The court concluded that although Doutre had “put
forth evidence from witnesses,” which Doutre alleged
demonstrated “an issue of material fact, . . . this evidence, even
viewed in the light most favorable to [Doutre] on that issue,” was
“insufficient to rise to the level of creating a factual issue that
[would] survive summary judgment.” Regarding the incline of
the slope approaching the tracks, the court determined that
Doutre’s claims were barred by the UGIA because the County’s
maintenance of the road was a discretionary function. See Utah
Code § 63G-7-201(4)(a).
¶9 The City: Doutre alleged that the City, as the owner of the
land where the Jeep crashed, was responsible for maintaining a
seven-foot-wide clear zone on the side of the roadway. The City
failed in this duty, she alleged, by allowing the utility pole to be
so close to the road. Doutre also claimed that the City failed to
regrade and resurface the road—something it had a contractual
obligation with the County to do—which should have eliminated
the pothole that allegedly caused Friend to lose control of the Jeep
when it landed.
¶10 In its summary judgment motion, the City argued that
Doutre had presented no evidence as to which pothole caused the
20220139-CA 4 2024 UT App 58Doutre v. Box Elder County
Jeep to lose control on landing. Regarding the utility pole, the City
acknowledged that it was within city limits but nevertheless
alleged that the City had “nothing to do with” the pole. The pole
was installed in 1984 outside of city limits, and it fell within city
limits only after 2015 when the City annexed the land on which it
sat: “[U]ltimate responsibility for the power pole, including its
location, maintenance, and operation remains with PacifiCorp.
There is no relationship between the City and the power pole
beyond its innocuous inclusion in land annexed by the City in
2015.”
¶11 The court granted summary judgment in the City’s favor,
ruling that Doutre’s claim “that there existed a pothole of
sufficient substance to cause the vehicle to swerve into the pole”
could not “be reasonably inferred from the known facts that
[were] not in dispute,” explaining that it required “not only a
reasonable inference, but pure speculation to arrive at the
[conclusion] that there was . . . a pothole within the limits of [the]
City . . . that caused the car to swerve into the pole.”
¶12 With regard to the City’s duty “to maintain the roadway
based upon . . . an agreement” with the County, the court noted
that the only available interpretation of the agreement,
“established as undisputed” by the testimony of the City and the
County, was “that the obligation for maintaining the roadway
[was] the obligation of [the] County, at least until the . . . City
limit.” Thus, the court ruled that there were “insufficient facts . . .
to suggest the extension of any general liability of maintenance for
[the] City with respect to the . . . County roadway.” Concerning
the utility pole, the court ruled that even if the pole was too close
to the road, there had “been no factual presentation to suggest
that [the] City’s actions or inactions in connection with that pole,
for which there is no history of any problem at any time . . . since
its placement, constitute[d] a violation of the requirement of
reasonable diligence.”
20220139-CA 5 2024 UT App 58Doutre v. Box Elder County
¶13 UDOT: Doutre alleged that UDOT, which is responsible
for ensuring the safety of railroad crossings, was required to make
the crossing safe or, if it was unable to do so, to close it.
¶14 In its motion for summary judgment, UDOT argued that it
had not breached any duty to Doutre because its responsibility,
which it had fulfilled, was limited to ensuring that “appropriate
signage relating to the railroad crossing was in place.” UDOT also
argued that it owed no duty to Doutre under the attractive
nuisance doctrine because UDOT was not a “possessor of land.”
Lastly, UDOT argued that it was “immune from suit under
discretionary function immunity for decisions relating to railroad
crossing improvements” under the UGIA.
¶15 In granting summary judgment in UDOT’s favor, the court
ruled that Doutre’s claim of attractive nuisance failed because
“UDOT was not a possessor of land where the accident occurred.”
Moreover, the court ruled that UDOT’s role in “reviewing and
regulating railroad crossings” was a “discretionary function
protected by governmental immunity” under the test set forth in
Little v. Utah State Division of Family Services, 667 P.2d 49 (Utah
1983).
¶16 Union Pacific: Doutre claimed that Union Pacific was
negligent in failing to maintain the railroad crossing, including
the sufficiency of the crossing signals and the incline of the road.
In its motion for summary judgment, Union Pacific argued that
there was no breach of duty in this case because Doutre assumed
the risk when she engaged “in a dangerous activity which caused
her injury” and it “is axiomatic that where a driver ignores traffic
control devices, at the urging or acquiescence of their passengers,
that they are at risk of being in an accident.” Moreover, Union
Pacific asserted that the attractive nuisance doctrine did not apply
because Doutre could not “be considered a child in this context.”
In this respect, Union Pacific argued, “It is a well-established
principle of tort law that a minor participating in an adult activity,
20220139-CA 6 2024 UT App 58Doutre v. Box Elder County
such as operating a motor vehicle, is held to the same standard of
care as an adult. . . . The undisputed facts show that [Doutre] was
a licensed driver who previously engaged in the same activity that
led to the subject accident.”
¶17 In granting summary judgment in favor of Union Pacific,
the court ruled that Doutre had presented insufficient evidence
“to establish that the railroad crossing was unreasonably
dangerous” and it was therefore not liable for Doutre’s negligence
claim. Concerning the attractive nuisance claim, the court ruled
that Doutre had “not produced sufficient evidence . . . to support
a finding that the railroad had actual notice that kids were
jumping the tracks,” and, therefore, Union Pacific could not “be
held liable under that doctrine.”
¶18 Doutre filed a motion to reconsider, in which she presented
evidence allegedly showing that the crossing was unreasonably
dangerous. She argued that she had “produced evidence of
[Union Pacific’s] constructive knowledge, at the very least, that it
knew about the dangerous condition, and that it knew the
condition created an unreasonable risk of death or harm to
children.”
¶19 The court denied the motion, explaining that the duty of
Union Pacific regarding the crossing “is only to eliminate those
circumstances where there are more than ordinarily hazardous
conditions” and that it was not persuaded “the arguments
presented in this case . . . established the existence of . . .
circumstances involving a more than ordinarily hazardous
condition.” More specifically, the court ruled that Union Pacific’s
“obligation to ameliorate hazardous conditions within the right-
of-way [did] not extend to the requirement to make physical
modifications to public roadways that also occupy the right-of-
way.” The court went on to state,
And the [court] has not been presented with any
factual evidence or any legal argument to support
20220139-CA 7 2024 UT App 58Doutre v. Box Elder County
the theory that a railroad has the duty, or even the
legal right to make structural modifications to
public roadways that happen to co-exist in its right-
of-way. And that argument has not been effectively
made by [Doutre]. And even though there is a
general duty to eliminate hazardous conditions
within the railroad’s right-of-way, there has been a
lack of either a factual showing or a legal argument
presented that would suggest the right or duty of
[Union Pacific] to make such structural changes to
public roads.
¶20 Doutre appeals.
ISSUES AND STANDARDS OF REVIEW
¶21 First, Doutre contends that “the district court failed to
apply the summary judgment standard and construe the evidence
in the light most favorable” to Doutre when it ruled that there was
insufficient evidence of negligence for dangerous conditions that
caused the accident, specifically the slope of the road and the
presence of potholes.
¶22 Second, Doutre argues that the court erred in ruling—on
summary judgment and on the motion to reconsider—that the
attractive nuisance doctrine did not apply to Doutre’s claims
against UDOT and Union Pacific.
¶23 Third, Doutre claims that the court erred in ruling on
summary judgment that the City did not breach its duty by
allowing the utility pole to remain so close to the road.
¶24 A “court shall grant summary judgment if the moving
party shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.” Utah R. Civ. P. 56(a). And we review a court’s grant of
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summary judgment for correctness, giving the district court’s
decision no deference. Stafford v. Sandy Paydirt LLC, 2022 UT App
76, ¶ 7, 514 P.3d 157.
¶25 We review a district court’s decision not to contemplate the
merits of a motion to reconsider its previous summary judgment
decision for abuse of discretion. See Koerber v. Mismash, 2015 UT
App 237, ¶ 15, 359 P.3d 701 (“We review a district court’s decision
to deny a motion to reconsider a summary judgment decision for
an abuse of discretion.”). However, when a district court decides
to address a motion to reconsider on its merits and revisits the
substance of a previous summary judgment decision, we review
the court’s subsequent merits decision for correctness. See
Radakovich v. Cornaby, 2006 UT App 454, ¶ 3, 147 P.3d 1195 (“In
reviewing [motions to reconsider], we accord no deference to the
trial court’s conclusions of law but review them for correctness.”
(cleaned up)). 2
ANALYSIS
I. The Condition of the Crossing
¶26 Doutre first claims that the district court improperly
applied the summary judgment standard. More specifically,
Doutre challenges the court’s ruling that (1) Union Pacific could
not be liable because Doutre had presented no evidence that the
crossing was more than “ordinarily hazardous,” (2) the County
could not be liable because Doutre could not establish that a
pothole contributed to her injuries, and (3) the City could not be
liable because Doutre had not presented evidence that the city
was responsible to fix the potholes. Doutre argues that she
2. Doutre filed several other motions for summary judgment,
which were denied. She does not challenge their denial, and thus
any factual disputes or assertions of additional facts raised therein
are irrelevant for our purposes.
20220139-CA 9 2024 UT App 58Doutre v. Box Elder County
“presented more than sufficient evidence to survive summary
judgment on each of these claims.” And she asserts that “the
potholes were not the only basis” for the County’s liability; in
addition to the potholes, Doutre contends that the road’s
excessive steepness created a “dangerous ramp.”
¶27 Even if we assume, without deciding, (1) that the road was
more than ordinarily hazardous due to its steepness and (2) that
there were potholes present, we see no error in the district court’s
summary judgment ruling in favor of the County, the City, and
Union Pacific on these claims. We address the steepness of the
road and the potholes as they apply to the relevant defendants in
turn.
A. The Incline of the Road
1. Union Pacific
¶28 With regard to Union Pacific’s responsibility to ameliorate
the steepness of the road as it approached the crossing, we agree
with the district court’s assessment that no evidence was
presented, nor legal argument made, to establish that Union
Pacific had a legal duty—or even the right—to modify a public
roadway.
¶29 Doutre argues that Union Pacific mistakenly asserts that
the “court ruled that Union Pacific had no right or ability to fix the
hazard.” She contends that “the court made no such ruling” and
instead ruled “only that there was no evidence that Union Pacific
had the right or ability to fix the hazard.” But as confirmed by the
express statement of the court when denying Doutre’s motion to
reconsider, Doutre is the one who is mistaken:
The ruling of the Court is that [Union Pacific’s]
obligation to ameliorate hazardous conditions
within the right-of-way does not extend to the
requirement to make physical modifications to public
20220139-CA 10 2024 UT App 58Doutre v. Box Elder County
roadways that also occupy the right-of-way. The
purpose of the provision requiring a railroad to
eliminate hazardous conditions within its right-of-
way deals with, most specifically, circumstances
other than public roadways.
(Emphasis added.)
¶30 The court then went on to explain that Doutre had not
presented “any factual evidence or any legal argument to support”
a contrary conclusion, namely, “the theory that a railroad has the
duty, or even the legal right to make structural modifications to
public roadways that happen to co-exist in its right-of-way.”
(Emphasis added.) The argument, the court stated, had “not been
effectively made by” Doutre. In sum, the court said that whether
Union Pacific had “any legal ability to make structural changes to
the roadway” was simply “not present in the evidence or in the
legal presentation.” (Emphasis added.)
¶31 Even on appeal, Doutre does not address the district
court’s well-reasoned ruling. Instead, she limits her arguments to
asserting that she presented sufficient evidence of the dangerous
design of the crossing to survive summary judgment. Even if this
premise is accurate, it does not relieve her of the duty to address
the court’s legal reasoning and conclusion that Union Pacific had
no duty or legal right to make structural modifications to the
public roadway. It is well settled that appellants who fail to
“address the district court’s reasoning” also fail to carry their
“burden of persuasion on appeal.” Federated Cap. Corp. v. Shaw,
2018 UT App 120, ¶ 20, 428 P.3d 12. “Accordingly, we conclude
that [Doutre] has not demonstrated that the district court
erroneously granted” summary judgment in favor of Union
Pacific on this point. Id.; see also Bad Ass Coffee Co. of Haw. v. Royal
Aloha Int’l LLC, 2020 UT App 122, ¶ 48, 473 P.3d 624 (explaining
that an appellant who “does not acknowledge the district court’s
reasoning” and “explain why the court was wrong” fails to carry
20220139-CA 11 2024 UT App 58Doutre v. Box Elder County
its burden to show that the court erred with respect to a
challenged decision).
2. The County
¶32 In granting summary judgment in favor of the County, the
court ruled “that the specific maintenance and both determination
and continuation of a particular grade or incline to a railroad
crossing is not simply the maintenance of a roadway, but that it
does require the exercise of a discretionary function.” In reaching
this determination that addressing the “grade or incline” of the
road at the crossing was a “discretionary function,” the court
relied on the four-part test provided in Little v. Utah State Division
of Family Services, 667 P.2d 49 (Utah 1983).
¶33 The UGIA broadly grants immunity “from suit for any
injury that results from the exercise of a governmental function.”
Utah Code § 63G-7-201(1). And a governmental function is
defined as “each activity, undertaking, or operation of a
governmental entity.” Id. § 63G-7-102(5)(a). Governmental
entities “retain immunity from suit unless that immunity has been
expressly waived” by the UGIA. Id. § 63G-7-101(3). One such
express waiver is for “any injury caused by . . . a defective, unsafe,
or dangerous condition of any highway, road, . . . or other
structure located on them.” Id. § 63G-7-301(2)(h)(i). However,
notwithstanding this express waiver for roads, immunity is
nevertheless retained—under an exception to the waiver—for the
exercise of discretionary functions:
A governmental entity, its officers, and its
employees are immune from suit, and immunity is
not waived, 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 or in connection with, or results from . . . the
exercise or performance, or the failure to exercise or
20220139-CA 12 2024 UT App 58Doutre v. Box Elder County
perform, a discretionary function, whether or not
the discretion is abused . . . .
Id. § 63G-7-201(4)(a).
¶34 In Little, on which the district court relied, the Utah
Supreme Court adopted a four-part test for determining whether
a governmental function is discretionary and thus subject to
governmental immunity:
To be purely discretionary, an act by the state must
be affirmed under four preliminary questions:
(1) Does the challenged act, omission, or decision
necessarily involve a basic governmental policy,
program, or objective?
(2) Is the questioned act, omission, or decision
essential to the realization or accomplishment of
that policy, program, or objective as opposed to one
which would not change the course or direction of
the policy, program, or objective?
(3) Does the act, omission, or decision require the
exercise of basic policy evaluation, judgment, and
expertise on the part of the governmental agency
involved?
(4) Does the governmental agency involved possess
the requisite constitutional, statutory, or lawful
authority and duty to do or make the challenged act,
omission, or decision?
667 P.2d at 51 (cleaned up).
¶35 In applying this test, Utah courts have focused on whether
the function requires evaluation and judgment to implement
20220139-CA 13 2024 UT App 58Doutre v. Box Elder County
policies. While acknowledging that “‘discretionary function’ is
not susceptible to precise definition in all legal contexts,” our
supreme court has “held that discretionary functions are those
requiring evaluation of basic governmental policy matters and do
not include acts and decisions at the operational level—those
everyday, routine matters not requiring evaluation of broad
policy factors.” Nelson ex rel. Stuckman v. Salt Lake City, 919 P.2d
568, 575 (Utah 1996) (cleaned up). In other words, “[d]iscretionary
immunity is a distinct, more limited form of immunity and should
be applied only when a plaintiff is challenging a governmental
decision that involves a basic policy-making function.” Id. And
“the relevant question asks whether the discretionary act
occurred at the operational level or required evaluation of broad
policy factors.” Faucheaux v. Provo City, 2015 UT App 3, ¶ 36, 343
P.3d 288 (cleaned up), cert. denied, 352 P.3d 106 (Utah 2015).
¶36 For example, in Duncan v. Union Pacific Railroad Co., 842
P.2d 832 (Utah 1992), our supreme court concluded “that UDOT’s
decision to defer improving the adequacy of warning devices at a
[railroad] crossing” was a discretionary decision rather than an
operational one. Id. at 835. The court observed that UDOT utilized
“a surveillance team to evaluate the level of the hazards to
motorists at hundreds of crossings where active warning devices
are not in place.” Id. Based on this evaluation, UDOT assigned
priority “to those crossings where the greatest hazards” existed,
upgrading “the warning devices at those crossings with the
highest priority until the limited available funds [had] been
exhausted.” Id. Upgrading crossings “with a lower priority”
would wait for future funding. Id. Indeed, the Duncan court’s
reasoning echoed the reasoning of this court, which it was
affirming: “Highway maintenance and improvement are
predominately fiscal matters. Every highway could probably be
made safer by further expenditures, but we will not hold UDOT
(and implicitly, the legislature) negligent for having to strike a
difficult balance between the need for greater safety and the
burden of funding improvements.” Duncan v. Union Pac. R.R. Co.,
20220139-CA 14 2024 UT App 58Doutre v. Box Elder County
790 P.2d 595, 601 (Utah Ct. App. 1990) (cleaned up), aff’d, 842 P.2d
832 (Utah 1992); see also Gleave v. Denver & Rio Grande W.R.R. Co.,
749 P.2d 660, 669 (Utah Ct. App. 1988) (determining that the
obligation of UDOT to “install different safety signals or devices
at the subject crossing was a purely discretionary function”), cert.
denied, 765 P.2d 1278 (Utah 1988).
¶37 Doutre argues that the County “failed to satisfy its burden
to show” that addressing the incline of the road “was in fact the
subject of intense scrutiny and review” necessary to establish that
the function was discretionary. (Quoting Trujillo v. Utah Dep’t of
Transp., 1999 UT App 227, ¶ 31, 986 P.2d 752.) But Doutre does not
give fair reading to the County’s undisputed facts. In its motion
for summary judgment, the County explicitly argued that
improvement to the road was a discretionary function:
The ability to grade or alter the road is dependent
on [the] County’s ability to pay for such a venture.
The crossing . . . does not qualify for State or Federal
funds for the purpose of improvement projects.
Therefore, it is entirely dependent on County funds.
As shown in the Statement of Undisputed Facts, the
Box Elder County Commission [(Commission)]
designates its limited funds to provide grading of its
gravel roads and to maintain the warning signs
along 1500 North. This decision requires the
exercise of basic policy judgment and the . . .
Commission clearly has the lawful authority and
duty to make the decision.
¶38 And in its motion for summary judgment, the County
referenced specific evidence to support this position that
addressing the incline of the road was discretionary. Citing
evidence produced during discovery, the County stated that the
crossing in question was not assigned priority by UDOT and it
therefore did “not qualify for State or Federal funds for the
20220139-CA 15 2024 UT App 58Doutre v. Box Elder County
purpose of improvement.” Moreover, the statement of facts
indicated that UDOT had funding to improve only about four
crossings a year from among the top twenty-five prioritized
crossings and that the crossing in question was ranked 426 on the
list. In terms of its own resources committed to road maintenance,
the County stated that budget figures are presented to the county
auditor, after which they are forwarded to the Commission. Then
the superintendent of the road department meets with the
Commission to discuss the proposed budget—which is about $5
million annually—before the “Commission reviews, considers
and adopts or rejects items and/or expenditures by line-item.”
Moreover, “specific requests for allocation of funds must also be
presented for approval by the Commission.” If the roads
department exceeds “its budget, the Commission [has] to
advertise a public meeting to open the County’s budget, or
increase taxes.” The County also averred that its budget for the
road department had a line item for the “[m]aintenance and
grading” of dirt and gravel roads. It is obvious that the County
was not referring to the incline of the road by its use of the word
“grading” but to the annual surface smoothing of unpaved roads
“after the frost is out of the ground.” 3 Thus, the County’s
undisputed facts establish that modifying the road to address its
steep incline was not a normally budgeted item and that,
depending on the expense of the project, modifying the incline
would require special approval of the Commission and possibly
3. “Grading involves the reshaping of the traveling surface
through removal of all potholes and/or washboards and the re-
establishment of the crown of the unpaved road. Grading is
performed by a motor grader that cuts the surface of the unpaved
road to the bottom of the potholes and/or washboards and then
spreads the material across the surface of the roadway.” Fed.
Highway Admin., U.S. Dep’t of Transp., Gravel Roads Construction
& Maintenance Guide 133 (2015) https://www.fhwa.dot.gov/
construction/pubs/ots15002.pdf [https://perma.cc/RES7-XYUG].
20220139-CA 16 2024 UT App 58Doutre v. Box Elder County
a public meeting to open the budget for the allocation of such
funds.
¶39 This is the very type of governmental function that our
caselaw identifies as discretionary. Finding funding to modify the
incline of the road would likely require the County to go through
a process of evaluation, judgment, and policy implementation.
Reconstructing the road—given the County’s budget constraints
and processes—would certainly not be an act or decision
belonging to “the operational level” and involving “everyday,
routine matters not requiring evaluation of broad policy factors.”
Nelson ex rel. Stuckman, 919 P.2d at 575 (cleaned up). The road
could potentially have been made safer by additional
expenditures. But finding money to do that is a classic example of
a fiscal matter that falls squarely within the confines of a
governmental discretionary function. See Duncan, 790 P.2d at 601.
Accordingly, we see no error in the district court’s conclusion on
summary judgment that the County enjoyed governmental
immunity for liability related to the incline of the road. 4
4. To be clear, our analysis as to the exercise of a discretionary
function is limited to the County’s involvement in addressing the
incline of the road. As explained below, we resolve the issue of
the potholes in a different fashion.
Doutre also suggests that the County had a duty to remove
the utility pole, while acknowledging that at the time of the
accident the land was no longer on county property. But apart
from mentioning this alleged duty in passing at several points in
her opening brief, she develops scant argument specifically
addressing this issue as it relates to the County. Doutre appears
to have recognized this problem by the time she filed her reply
brief, where she again mentions the County’s duty several times
in passing and asserts, “The County does not respond to the
argument that it was required to remove the utility pole.” In fact,
(continued…)
20220139-CA 17 2024 UT App 58Doutre v. Box Elder County
B. The Potholes
¶40 Doutre presented little evidence that the road’s potholes
caused the crash that resulted in her injuries. Indeed, the evidence
presented was that potholes were not shown to be an identifiable
factor in the crash. Nor could a reasonable inference be made that
any pothole was a factor in the crash. Thus, establishing a nexus
between the potholes and the crash would require speculation.
¶41 An officer who investigated the crash testified that he did
not “recall any snow or ice on the road” and that he did not
“specifically remember potholes, short of [the] rough road.”
When asked if potholes contributed to the crash, the officer stated,
“I couldn’t say whether the potholes affected it specifically. . . . I
wasn’t there to see how the vehicle landed and the course it took
and if the pothole maybe altered the steering. I’d have to speculate
on that.”
¶42 The passengers and driver offered nothing but speculation
on the connection between the potholes and the crash. One of the
passengers in the Jeep equivocated when offering his “opinion”
about the effect of potholes on the crash, testifying that he
“thought” the Jeep “might have hit a pothole” but he did not
know which wheel hit it. Nevertheless, he speculated that “the
it seems likely that the County didn’t respond to the argument
because the argument was so obliquely raised, making it rather
difficult to discern. Thus, we do not see this as a deficiency on the
part of the County but on the part of Doutre. Because Doutre’s
potential arguments regarding the County’s duty to address the
utility pole are inadequately briefed, we decline to address this
issue further, apart from observing that moving the utility pole
would likely fall under the discretionary function rubric
discussed above. See State v. Thomas, 961 P.2d 299, 304 (Utah 1998)
(“It is well established that a reviewing court will not address
arguments that are not adequately briefed.”).
20220139-CA 18 2024 UT App 58Doutre v. Box Elder County
front [of the Jeep] probably hit some potholes because . . . there’s
a lot of potholes going up to that railroad.” However, he clarified
that he did not have “any concerns” about the potholes “[o]ther
than they’re a little bumpy.” And the other passengers did not
identify a pothole as causing the crash. One said that while the
road was wet and had potholes, the Jeep simply “drifted off” the
road after “[o]ne wheel hit first and caused” them to “swerve”
into the utility pole. Another stated that the accident happened
because there was “a lot of loose gravel” where they landed and
they “were just going too fast.” And while Friend testified that the
road had potholes, she did not offer any testimony that she hit one
of them.
¶43 Doutre’s experts were equally equivocal about the nexus
between the potholes and the accident. One of her experts testified
in his deposition, “[F]rom reading the testimony of the passengers
in the vehicle, . . . apparently . . . there are lots of potholes on this
roadway.” This expert went on to observe, “It was mentioned by
several of the parties in the car that the Jeep hit a pothole. And
after hitting the pothole, it seemed to veer off to the right in which
case it hit the utility pole.” This expert also stated that a “pothole
is more than just a problem, an imperfection in the roadway, it’s
also a hazard.” He then speculated, “And that pothole and the
maintainability of this roadway could have directly . . . resulted
in that car hitting that utility pole.” But, importantly, when the
expert was asked if he had “anything other than the testimony
that there might have been a pothole” or that “the Jeep ever struck
a pothole,” he avoided giving a direct answer. This expert was
further asked if he saw any photographs of “any actual potholes
that were hit” by the Jeep. He responded that “it could have been
in there but it was almost impossible to see” because the “pictures
were so dark.”
¶44 Another expert wrote—without any supporting analysis as
required by the Utah Rules of Evidence—that “[p]otholes in the
road were what likely caused the vehicle to veer to the right and
20220139-CA 19 2024 UT App 58Doutre v. Box Elder County
strike the power pole” and that it was “the speed, high grade,
uneven roadbed, and fixed object in the clear zone that led to this
injury accident.” See Utah R. Evid. 702(b) (“Scientific, technical, or
other specialized knowledge may serve as the basis for expert
testimony only if there is a threshold showing that the principles
or methods that are underlying in the testimony (1) are reliable,
(2) are based upon sufficient facts or data, and (3) have been
reliably applied to the facts.”). This expert did not identify the
location of the purported accident-causing pothole, and thus he
did not identify where—on city versus county property—the
pothole existed such that a jury could evaluate which party might
potentially be liable for its existence.
¶45 While Doutre certainly presented evidence that the road
had potholes near the crossing, she presented scant evidence—
apart from isolated speculation based on the vague memories of
one passenger and her experts’ parroting of the passenger
speculation—that the potholes caused the crash. Moreover, as the
County points out, “Doutre presented no evidence regarding any
specific information about the potholes, including . . . location,
diameter, depth, substance (mud, dirt, gravel, snow, or ice). There
was no evidence regarding skid marks, landing marks, or other
debris at or near potholes.”
¶46 And Doutre needed more than mere speculation. We have
repeatedly noted that while “entitled to all favorable inferences,”
a non-moving party “is not entitled to build a case on the
gossamer threads of whimsy, speculation and conjecture.” Ladd v.
Bowers Trucking, Inc., 2011 UT App 355, ¶ 7, 264 P.3d 752 (cleaned
up); accord Kranendonk v. Gregory & Swapp, PLLC, 2014 UT App 36,
¶ 15, 320 P.3d 689, cert. denied, 329 P.3d 36 (Utah 2014). “In essence,
the parties must submit admissible evidence to present an issue
of material fact,” and “unsubstantiated conclusions and opinions
are inadmissible.” JENCO LC v. Perkins Coie LLP, 2016 UT App
140, ¶ 15, 378 P.3d 131 (cleaned up). Another way of expressing
this dynamic is there must be a “genuine issue of material fact” in
20220139-CA 20 2024 UT App 58Doutre v. Box Elder County
play for a non-moving party to survive summary judgment. See
Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 20, 390 P.3d 314(cleaned up). “The word ‘genuine’ indicates that a district court is
not required to draw every possible inference of fact, no matter
how remote or improbable, in favor of the nonmoving party.
Instead, it is required to draw all reasonable inferences in favor of
the nonmoving party.” Id. ¶ 21 (cleaned up).
¶47 Thus, we perceive no error in the district court’s conclusion
that Doutre’s “articulation of speculation or possibility [did] not
rise to the level of creating a factual issue that [would] survive
summary judgment.” We agree with the court’s assessment that
Doutre presented insufficient evidence of the “existence of any
particular pothole or that the vehicle actually was affected by any
particular pothole, nor [was] there any evidence
contemporaneous with the accident that any particular pothole
existed.” The most that Doutre’s expert was able to say in this
respect is that a pothole “could have been in there.” But such
vague and unidentifiable conjecture about what “could have”
caused the accident is not enough to survive summary judgment,
for when “the proximate cause of an injury is left to speculation,
the claim fails as a matter of law.” Clark v. Farmers Ins. Exch., 893
P.2d 598, 601 (Utah Ct. App. 1995) (cleaned up) (holding that
summary judgment was appropriate where experts could not
identify the mechanism of causation). The evidence Doutre
presented shows that there were potholes along the stretch of
road where the Jeep landed, but this evidence merely suggests
that the driver could have hit a pothole on landing and that the
pothole could have caused the car to veer to the right. General
statements that the road may have had potholes around the tracks
or that the road was bumpy with loose gravel simply don’t create
a factual dispute about potholes causing the accident. Rather, that
is nothing more than speculation compounding speculation, and
Doutre needs more than that to meet her burden to establish a
prima facie case that the County or the City were negligent in
20220139-CA 21 2024 UT App 58Doutre v. Box Elder County
failing to address the pothole problem that allegedly led to her
injuries.
II. Attractive Nuisance
¶48 Doutre next claims that the district court erred in ruling
that UDOT and Union Pacific were not liable for the railroad
crossing under the attractive nuisance doctrine. 5
¶49 The Utah Supreme Court “expressly adopted” section 339
of the Restatement (Second) of Torts “as the complete statement
of the attractive nuisance doctrine in our jurisprudence.” Colosimo
v. Gateway Cmty. Church, 2018 UT 26, ¶ 27, 424 P.3d 866 (cleaned
up). That section provides,
A possessor of land is subject to liability for physical
harm to children trespassing thereon caused by an
artificial condition upon the land if
(a) the place where the condition exists is one
upon which the possessor knows or has
reason to know that children are likely to
trespass, and
5. With respect to UDOT, Doutre also argues that the district court
erred in concluding that it was immune from suit under the
UGIA. But because Doutre argues—at least insofar as we can
divine from her briefing—that UDOT’s liability arose only with
regard to maintaining an attractive nuisance and because we
conclude that no duty arose under the attractive nuisance
doctrine, we need not address governmental immunity claims
with respect to UDOT. However, if we were to consider that issue
substantively, UDOT’s responsibility to eliminate the steepness of
the road’s incline would, like the County’s, certainly be an
exercise of a discretionary function and thus protected by
governmental immunity.
20220139-CA 22 2024 UT App 58Doutre v. Box Elder County
(b) the condition is one of which the
possessor knows or has reason to know and
which he realizes or should realize will
involve an unreasonable risk of death or
serious bodily harm to such children, and
(c) the children because of their youth do not
discover the condition or realize the risk
involved in intermeddling with it or in
coming within the area made dangerous by
it, and
(d) the utility to the possessor of maintaining
the condition and the burden of eliminating
the danger are slight as compared with the
risk to children involved, and
(e) the possessor fails to exercise reasonable
care to eliminate the danger or otherwise to
protect the children.
Restatement (Second) of Torts § 339 (Am. L. Inst. 1965). 6
6. It might be difficult to see how Doutre—or the other
occupants—were trespassers since they were using a public road.
See Restatement (Second) of Torts § 329 (“A trespasser is a person
who enters or remains upon land in the possession of another
without a privilege to do so created by the possessor’s consent or
otherwise.”). But under the attractive nuisance doctrine, a
possessor of land is still subject to liability even if the child is on
the land as a licensee or an invitee. See id. § 343B (“In any case
where a possessor of land would be subject to liability to a child
for physical harm caused by a condition on the land if the child
were a trespasser, the possessor is subject to liability if the child is
a licensee or an invitee.”).
20220139-CA 23 2024 UT App 58Doutre v. Box Elder County
¶50 Doutre’s attractive nuisance claims fail as a matter of law
owing to a fact about which there is no dispute: Doutre and Friend
were licensed drivers. And when minors take part in adult
activities, like driving, they are held to an adult standard of care.
Indeed, it is a “well-established principle of tort law that a minor
participating in an adult activity, such as operating a motor
vehicle, is held to the same standard of care as an adult.”
Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah Ct. App. 1995).
Thus, Doutre was required to conform her “conduct to the
standard of care required of the ordinary, prudent adult driver.”
Id. at 1045.
¶51 Doutre argues in response, “This authority is inapplicable
because [Doutre] was not driving. Instead, she was riding in a car
after consenting to track jumping. This is precisely the sort of
circumstance in which the attractive nuisance doctrine is designed
to apply. The doctrine protects minors ‘from their childish lack of
attention and judgment.’” (Quoting Restatement (Second) of Torts
§ 339 cmt. i.) 7 But even though Doutre was not driving, she is not
excused from being aware of the knowledge she has as a driver.
Put simply, Doutre does not qualify as someone who, because of
her youth, does not “realize the risk involved” with jumping
railroad tracks or coming into contact with a gravel road after
having jumped those tracks. See Restatement (Second) of Torts
7. We can only imagine the landslide of litigation that would
descend upon us if teen drivers and passengers were excused,
because of their youth, from the standard of care applicable to all
drivers. Any open stretch of road, particularly every downhill
grade in mountainous Utah, could be deemed an attractive
nuisance because it might entice minor drivers to speed and so
create an “unreasonable risk of death.” See Restatement (Second)
of Torts § 339(b) (Am. L. Inst. 1965). Under Doutre’s logic, there
would scarcely be an aspect of road construction that would not
be an inchoate attractive nuisance claim. And we are simply
unwilling to sign on to such an approach.
20220139-CA 24 2024 UT App 58Doutre v. Box Elder County
§ 339(c). She was a licensed driver and was hence presumed to
exercise the prudence of an adult driver. Moreover, Doutre
admitted that she was very much aware of the potential danger of
jumping the tracks when she had consciously avoided telling her
mother about taking the family minivan to participate in the
activity. Accordingly, the attractive nuisance doctrine is a poor fit
for Doutre’s conduct as a licensed driver, and the district court
did not err in granting summary judgment in favor of UDOT and
Union Pacific on Doutre’s attractive nuisance claims. 8
III. The Utility Pole
¶52 Doutre asserts that the district court erred in ruling that the
City had no duty to move the utility pole. Specifically, she argues
that under the Utah Administrative Code, the City was required
8. The district court concluded that the attractive nuisance
doctrine did not apply to UDOT and Union Pacific for other
reasons. For UDOT, the district court determined that the doctrine
was inapplicable because the entity was not a possessor of land.
And for Union Pacific, the court ruled that the doctrine did not
apply because the railroad did not have notice of the danger. We
also determine that the doctrine does not apply as a matter of law
but because of the licensed-driver status of Doutre and Friend. It
is well-established that “an appellate court may affirm the
judgment appealed from if it is sustainable on any legal ground
or theory apparent on the record.” Bailey v. Bayles, 2002 UT 58,
¶ 20, 52 P.3d 1158.
As an aside, we have reservations about the applicability
of the attractive nuisance doctrine to Doutre as a minor passenger.
It seems odd to piggy-back an injured minor’s negligence claim
for attractive nuisance on another person’s participation in a
dangerous activity. Nevertheless, we have analyzed this issue—
as the parties have proceeded on appeal—under the assumption
that the doctrine applies.
20220139-CA 25 2024 UT App 58Doutre v. Box Elder County
to ensure that the pole was at least seven feet from the edge of the
road. 9
¶53 We perceive no error in the district court’s determination
that even if the pole was too close to the road, Doutre had failed
to produce evidence the City violated the reasonable diligence
standard in allowing it to remain in place.
¶54 In an old case, our supreme court clarified that a
municipality must exercise reasonable diligence to ensure that
poles on the margins of streets are reasonably safe: “If a mere
stranger . . . erected a large pole 60 or 70 feet in height in the
margin of the street” such that it was “a menace to others, it would
have been the duty of the city to exercise reasonable diligence to
discover it, and to exercise ordinary care to remove it or to make
it reasonably safe.” Morris v. Salt Lake City, 101 P. 373, 377–78
(Utah 1909). Thus, after it had annexed the property, the City had
a duty to “exercise reasonable diligence” to discover the presence
of the pole and take steps “to make it reasonably safe.” Id. at 378.
¶55 Here, the pole had been installed by the power company in
1984 on unincorporated property of the County. The property on
which the pole stood was annexed by the City in 2015, meaning
that the pole was within the City’s jurisdiction for only about
eighteen months before the accident. The record contained no
9. “The horizontal location of utility facilities and appurtenances
within the right of way shall conform to the current edition of the
AASHTO Roadside Design Guide.” See Utah Admin. Code R930-
7-8(1)(a)(iv). “AASHTO is the American Association of State
Highway and Transportation Officials, which publishes
guidelines to highway agencies to promote adequate highway
design and highway safety.” Johnson v. State, 275 So. 3d 879, 889
n.3 (La. Ct. App. 2019). According to one of Doutre’s experts,
under AASHTO standards, “the clear zone for this type of road is
seven feet.”
20220139-CA 26 2024 UT App 58Doutre v. Box Elder County
evidence that the City was made aware of any dangerous
condition regarding the pole. The district court summarized the
facts as showing that (1) the pole had been in place for “nearly 40
years”; (2) by the “best estimate” of Doutre’s counsel, the pole was
“one-foot in deviation from a stated standard”; (3) there was “no
indication of any information ever being provided” to the City
“with respect either to that deviation or any concerns about the
location of the pole or any prior history of problems with respect
to that pole”; and (4) there had been “no factual presentation to
suggest” that the City’s “actions or inactions in connection with
that pole . . . constitute violation of the requirement of reasonable
diligence.” The district court concluded that, “based upon the
facts, even when viewed in [a] light most favorable to [Doutre’s]
position,” the “legal standard [was] not maintained.”
¶56 We agree with the district court’s conclusion. Given these
facts, this is a case where reasonable minds cannot differ that the
City did not fail to act with reasonable diligence in discovering a
problem with the pole’s location. See generally Davis v. Wal-Mart
Stores Inc., 2022 UT App 87, ¶ 27, 514 P.3d 1209 (“[S]ummary
judgment is appropriate when reasonable minds cannot differ
about whether the defendant’s actions violated the duty of
reasonable care.”), cert. denied, 526 P.3d 827 (Utah 2022). The pole
fell within the City’s jurisdiction only eighteen months before the
accident, and there was no evidence that the City was ever made
aware of safety problems with the placement of the pole being too
close to the road generally or that it did not satisfy AASHTO
standards specifically. See supra note 9. In other words, there is no
evidence in the record that the pole’s location was obviously
problematic or even abnormally out of place. Doutre’s argument
seems to suggest that when this area was annexed by the City, the
City had a duty to explore the entirety of the expanse, measuring
tape in hand, and verify compliance with all applicable standards.
Such a high expectation exceeds the reasonable diligence that the
law actually imposes on municipalities. Accordingly, we find no
error in the district court’s conclusion on summary judgment that
20220139-CA 27 2024 UT App 58Doutre v. Box Elder County
Doutre failed to show, as a matter of law, that the City failed to
exercise reasonable diligence.
CONCLUSION
¶57 For the foregoing reasons, we hold that the district court’s
grant of summary judgment was sound in each particular issue
on appeal.
¶58 Affirmed.
20220139-CA 28 2024 UT App 58