Colosimo v. Gateway Community Church

2016 UT App 195THE UTAH COURT OF APPEALS
LAWRENCE COLOSIMO AND SARAH JEAN COLOSIMO,
Appellants,
v.
GATEWAY COMMUNITY CHURCH,
Appellee.
Opinion
No. 20140852-CA
Filed September 15, 2016
Third District Court, West Jordan Department
The Honorable Barry G. Lawrence
No. 120414704
Richard D. Burbidge, Jefferson W. Gross, and Aida
Neimarlija, Attorneys for Appellants
Troy L. Booher, Beth E. Kennedy, Mark Dalton
Dunn, Trystan B. Smith, and Todd A. Turnblom,
Attorneys for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGE
STEPHEN L. ROTH and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1
TOOMEY, Judge:
¶1 In this opinion we must decide whether the district court
correctly granted summary judgment to Gateway Community
Church (Gateway) in determining Gateway owed no duty to a
trespasser, either imposed by a city ordinance or under common
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
Colosimo v. Gateway Community Church
law, and whether the court abused its discretion in its rulings on
the parties’ motions to strike certain testimony. We affirm.
BACKGROUND
¶2 In June 2012, sixteen-year-old A.C. and two of his cousins
climbed a ladder onto the roof of a building owned by Gateway.
The ladder ‚had a locked box at the bottom to prevent
unauthorized individuals from accessing the ladder and roof,‛
and the boys climbed over it by stepping on a nearby box. It is
undisputed that the boys climbed onto the roof of the building
without permission. Teenagers are known to have gone onto
Gateway’s roof on two other occasions, once in 2004 and again in
2010.
¶3 While climbing up and exploring, the boys felt electricity
on a ‚panel on the top of the roof.‛ Climbing back down, A.C.’s
foot was caught between the ladder and the electrified metal
flashing of the roof. A.C. ‚was in contact with the hot metal
flashing for a period of up to ten seconds and received over 200
volts of electricity.‛ He lost consciousness and was taken to the
emergency room. He died ten days later from electrocution-
related injuries.
¶4 Gateway moved into the building in 1999 and purchased
it in 2003. Attached to the building is an electric sign that reads
‚Welcome to Gateway.‛ Its installation date is unknown, but
sometime in 2003 or 2004 Gateway had an acrylic faceplate with
its new logo installed in the existing sign cabinet.2
2. The work order for the sign is dated August 7, 2003, and
Gateway’s pastor testified that the new faceplate was installed in
2004.
20140852-CA 2 2016 UT App 195Colosimo v. Gateway Community Church
¶5 After the accident, A.C.’s parents had the sign inspected
by an electrical engineer. Gateway also inspected the sign,
assisted by a drywaller who often helped with inspections, a
journeyman mechanic, an apprentice electrician, a Draper City
building inspector, an officer from the Draper City police
department, and a fire marshal. Ultimately, the inspections
revealed that the sign was defectively wired, and, among other
things, the wiring used was intended for interior use instead of
waterproof conduit appropriate for outdoor use. In addition, the
wiring was not grounded and the output lead wires were routed
‚under the sharp edge of one of the elements of the metal frame
of the sign,‛ and were in metal-to-metal contact with the
building’s flashing.
¶6 Draper City adopted several ordinances (together, the
Sign Ordinances) that require ‚a sign permit prior to the
erection, installation, or use of any sign.‛ Draper City, Utah,
Ordinance 205, § 9-14-060 (1996), http://sirepub.draper.ut.us/
sirepub/cache/25/gf3msmwz0eb4nzbnmaofo3if/692530826201609
3213861.PDF [https://perma.cc/4UG3-PBMS]. To ‚protect the
safety and welfare of the people of the City,‛ the Sign
Ordinances prohibit any sign that ‚constitutes a hazard to safety
or health by reason of inadequate installation, maintenance or
dilapidation.‛ Id. § 9-14-090(a)(9)(i). All signs must be
‚maintained in good and safe structural condition, [and] in
compliance with all building and electrical codes‛ at all times. Id.
§ 9-14-070(c)(1)(iii). The Sign Ordinances also provide that any
‚person, firm or corporation‛ that violates the Sign Ordinances
is ‚guilty of a Class B misdemeanor,‛ Draper City, Utah,
Ordinance 505, § 9-26-070(d) (2003), http://sirepub.draper.
ut.us/sirepub/cache/25/gf3msmwz0eb4nzbnzbnma3if/323208262
016094012556.PDF [https://perma.cc/D4T5-ZZMG], and indicate
that ‚*t+he provisions of *the+ ordinance[s] shall not be construed
to relieve or limit in any way, the responsibility or liability of
any person, firm, or corporation which erects or owns any sign,
20140852-CA 3 2016 UT App 195Colosimo v. Gateway Community Church
for personal injury or property damage[] caused by the sign,‛ id.§ 9-26-070(g).
¶7 Lawrence and Sarah Jean Colosimo, A.C.’s parents and
heirs, brought a wrongful death and survival action against
Gateway for negligence. During discovery the Colosimos
deposed Gateway’s pastor and a journeyman mechanic who
occasionally assisted Gateway with its routine inspections. The
pastor testified about his involvement with Gateway and the
inspections and maintenance of the building. The Colosimos also
had their electrical engineer expert witness provide a declaration
describing the problems with the sign, concluding it was not
safely installed, and stating that its defects would have been
‚plainly visible‛ to a professional electrician. The Colosimos
filed a motion to strike the pastor’s declaration and the
mechanic’s testimony, and Gateway moved to strike the
electrical engineer’s declaration.
¶8 After discovery was completed, Gateway moved for
summary judgment, which the district court granted, concluding
Gateway owed no duty to A.C. because he was a trespasser. The
district court also denied the Colosimos’ and Gateway’s motions
to strike, ‚as being immaterial to the Court’s ruling with one
exception[:] *t+he portions of the *Colosimos’ expert witness’s]
Declaration concluding *Gateway+ was ‘on notice’ of the
condition‛ was stricken as ‚an inappropriate legal conclusion.‛
The Colosimos timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶9 The Colosimos challenge the district court’s ruling and
order granting Gateway’s motion for summary judgment on two
grounds. They ‚contend that Gateway owed a duty to [A.C.]
prescribed by the [Sign Ordinances] and, alternatively a duty
under common law as set forth in Restatement (Second) of Torts
[s]ections 333–339 (1965).‛ ‚Summary judgment is appropriate
20140852-CA 4 2016 UT App 195Colosimo v. Gateway Community Church
where ‘there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.’‛
Massey v. Griffiths, 2007 UT 10, ¶ 8, 152 P.3d 312 (omission in
original) (quoting an earlier version of rule 56 of the Utah Rules
of Civil Procedure). ‚An appellate court reviews a trial court’s
legal conclusions and ultimate grant or denial of summary
judgment for correctness, and views the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party.‛ Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600(citations and internal quotation marks omitted).3
¶10 The Colosimos also argue the district court erred in
refusing to strike the pastor’s declaration and the mechanic’s
testimony and in granting Gateway’s motion to strike a portion
of their expert witness’s declaration. ‚We review the district
court’s evidentiary rulings under an abuse of discretion
standard,‛ Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT
App 134, ¶ 17, 351 P.3d 832 (citation and internal quotation
marks omitted), and ‚deference . . . is the hallmark of abuse-of-
discretion review,‛ General Elec. Co. v. Joiner, 522 U.S. 136, 143
(1997).
ANALYSIS
I. Duty
¶11 To ‚prevail on a negligence claim, a plaintiff must
establish . . . that the defendant owed the plaintiff a duty . . .
3. The parties also dispute their relative burdens under Orvis v.
Johnson, 2008 UT 2, 177 P.3d 600, to demonstrate there is no
genuine issue of material fact in order for summary judgment to
be appropriate. But because it is undisputed that A.C. was
trespassing at the time of the accident and this fact is dispositive,
we do not address this issue further.
20140852-CA 5 2016 UT App 195Colosimo v. Gateway Community Church
*and+ that the defendant breached that duty.‛ Hunsaker v. State,
870 P.2d 893, 897 (Utah 1993). The district court granted
summary judgment because it determined Gateway did not owe
a duty to A.C. under either the Sign Ordinances or common law.
We first address the Colosimos’ common law arguments and
then consider whether Gateway owed a duty under the Sign
Ordinances.
A. Gateway Did Not Owe A.C. a Duty Under Common Law
¶12 The Colosimos argue Gateway owed A.C. a duty under
common law. We note that ‚because negligence cases often
require the drawing of inferences from the facts, which is
properly done by juries rather than judges, summary judgment
is appropriate in negligence cases only in the clearest instances.‛
Castellanos v. Tommy John, LLC, 2014 UT App 48, ¶ 7, 321 P.3d 218(citation and internal quotation marks omitted). But, ‚without a
duty, there can be no negligence as a matter of law, and
summary judgment is appropriate.‛ Tallman v. City of Hurricane,
1999 UT 55, ¶ 5, 985 P.2d 892 (citation and internal quotation
marks omitted).
¶13 As a general rule, ‚‘a possessor of land is not liable to
trespassers for physical harm caused by his failure to exercise
reasonable care.’‛ Whipple v. American Fork Irrigation Co., 910 P.2d
1218, 1220 (Utah 1996) (quoting Restatement (Second) of Torts
§ 333 (Am. Law Inst. 1965)). ‚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.‛ Restatement (Second) of Torts § 329 (Am. Law Inst.
1965). A.C. was on the roof without permission, and therefore he
was trespassing when he was electrocuted.
¶14 Even so, the Restatement (Second) of Torts recognizes
some exceptions to the general rule, and the Colosimos argue
that these apply. Specifically, sections 334, 335, and 339 impose
liability when ‚a possessor of land‛ ‚knows, or from facts within
20140852-CA 6 2016 UT App 195Colosimo v. Gateway Community Church
his knowledge should know,‛ that ‚trespassers constantly
intrude‛ or ‚children are likely to trespass,‛ and the possessor
‚fails to exercise reasonable care‛ in carrying on an activity or
maintaining ‚an artificial condition‛ involving a ‚risk of . . .
serious bodily harm.‛ See Restatement (Second) of Torts §§ 334,
335, 339.4
¶15 The Colosimos contend ‚the court erred when it found as
a matter of law that Gateway’s actual knowledge of two
instances of trespass over a decade was insufficient to put
Gateway on notice of habitual trespassers.‛ (Emphasis omitted.)
They rely on our supreme court’s decision in Lopez v. Union
Pacific Railroad Co., 932 P.2d 601 (Utah 1997), to support their
argument that two instances are sufficient to establish habitual
trespassing.
¶16 In Lopez, the plaintiff worked in an ‚industrial area
serviced by several sets of railroad spur tracks belonging to the
occupants of the adjacent businesses.‛ Id. at 602. He was injured
one night as he crossed the railroad tracks to reach a parking lot.
Id. at 602–03. The Colosimos point to the fact that the railroad
company ‚on two separate occasions . . . noted that employees
[of neighboring businesses] were crossing between the rail cars
4. ‚The exceptions stated in sections 334 to 339 deal generally
with activities and artificial conditions highly dangerous to
constant trespassers on a limited area or to known trespassers,
controllable forces dangerous to known trespassers, and artificial
conditions highly dangerous to trespassing children.‛ Whipple v.
American Fork Irrigation Co., 910 P.2d 1218, 1220 (Utah 1996). The
Colosimos do not address the exceptions separately and because
all of the sections upon which they rely have the common
requirement that the possessor of land know or should know
that trespassers are likely to intrude, we likewise do not analyze
the exceptions separately.
20140852-CA 7 2016 UT App 195Colosimo v. Gateway Community Church
while cars were being switched and indicated that [this] practice
must be stopped.‛ Id. at 605. But Lopez involved more than two
instances of trespassing. Rather, the ‚*p+laintiff produced
evidence that workers habitually crossed over the cuts of rail cars
to reach parking lots,‛ and management was aware of the
practice. Id. at 602, 605 (emphasis added). And although the
company made note of the trespassing ‚on two separate
occasions,‛ that does not mean the trespassing occurred only
twice: it was a ‚practice‛ and not an isolated couple of instances.
Id. at 605. Thus, we agree with the district court that ‚*t+hose
facts are different from [the facts of this case] under which there
were two isolated incidents of people accessing the roof over a
14-year period.‛ Two incidents of trespassing over so many
years do not rise to the level of constant intruding and are not
enough to put Gateway on notice that ‚children are likely to
trespass‛ as expressed in the exceptions outlined in the
Restatement. See Restatement (Second) of Torts §§ 334, 335, 339.
¶17 Because A.C. was a trespasser and we conclude no
exceptions apply to the general rule that ‚a possessor of land is
not liable to trespassers for physical harm caused by his failure
to exercise reasonable care,‛ Whipple, 910 P.2d at 1220 (citation
and internal quotation marks omitted), ‚there can be no
negligence as a matter of law, and summary judgment is
appropriate‛ on this issue, see Tallman v. City of Hurricane, 1999
UT 55, ¶ 5, 985 P.2d 892 (citation and internal quotation marks
omitted). We therefore affirm the district court’s determination
that Gateway did not owe A.C. a duty under common law.
B. Gateway Did Not Owe A.C. a Duty Under the Sign
Ordinances.
¶18 The Colosimos also contend Gateway ‚owed a duty to
[A.C.] prescribed by the . . . Sign Ordinance[s],‛ and the ‚court
erroneously determined that a necessary predicate for a duty
under an ordinance toward a trespasser is a showing of a duty
under common law.‛ (Emphasis omitted.)
20140852-CA 8 2016 UT App 195Colosimo v. Gateway Community Church
¶19 ‚When the State has granted general welfare power to
local governments, those governments have independent
authority . . . to pass ordinances which are reasonably and
appropriately related to the objectives of that power, i.e.,
providing for the public safety, health, morals, and welfare.‛
State v. Hutchinson, 624 P.2d 1116, 1126 (Utah 1980). Further,
‚courts will not interfere with the legislative choice . . . unless it
is arbitrary, or is directly prohibited by, or is inconsistent with
the policy of, the state or federal laws . . . .‛ Id.; see also Walker v.
Union Pacific R.R., 844 P.2d 335, 339 (Utah Ct. App. 1992) (‚Utah
permits local governments to legislate by ordinance those
subjects already covered by state legislation, provided . . . the
ordinance in no way conflicts with existing state law.‛ (citation
and internal quotation marks omitted)).
¶20 ‚As a general rule, violation of a standard of safety set by
a statute or ordinance is prima facie evidence of negligence.‛
Hall v. Warren, 632 P.2d 848, 850 (Utah 1981). In this case, the
Colosimos assert a duty under the Sign Ordinances that would
skirt the common law defense that a possessor of land does not
owe a duty to a trespasser. In general, ‚[s]tatutes which impose
duties or burdens or establish rights or provide benefits not
recognized by the common law have frequently been held
subject to strict, or restrictive, interpretation.‛ 3 Norman J. Singer
& J.D. Shambie Singer, Sutherland Statutes and Statutory
Construction § 61:1 (7th ed. 2007). ‚*W+here a statute creates a
new and onerous obligation not recognized at common law, it
must be shown that such meaning is very plain in order to have
the rule apply.‛ Id. And ‚legislation creating liability where no
liability existed at common law should be construed most
favorably to the person or entity subjected to the liability, and
against the claimant for damages.‛ Id.
¶21 The Utah Legislature has stated that this rule of statutory
construction ‚does not apply to the Utah Code.‛ See Utah Code
Ann. § 68-3-2(1) (LexisNexis 2014). But some Utah cases have
20140852-CA 9 2016 UT App 195Colosimo v. Gateway Community Church
continued to adhere to the rule in interpreting ordinances. See,
e.g., Brown v. Sandy City Board of Adjustment, 957 P.2d 207, 210–11
(Utah Ct. App. 1998) (explaining that ‚because zoning
ordinances are in derogation of a property owner’s common-law
right to unrestricted use of his or her property, provisions
therein restricting property uses should be strictly construed‛
(citation and internal quotation marks omitted)); Patterson v.
Utah County Board of Adjustment, 893 P.2d 602, 606 (Utah Ct.
App. 1995) (same).
¶22 Although ‚violation of a standard of safety set by a
statute or ordinance‛ may be evidence of negligence, Hall, 632
P.2d at 850, where ‚[t]he ordinance does not purport to extend
or modify the common-law rule of the nonliability of landowner
to trespassers . . . the duty . . . should be determined in
accordance with the common law governing the relationship of
*plaintiff+ and defendant.‛ Wells v. Henry W. Kuhs Realty Co., 269
S.W.2d 761, 767 (Mo. 1954). Thus, ‚defendant’s conduct (even
though made negligent by ordinance) [is] actionable negligence
as to those persons who were rightfully on defendant’s premises
(or as to those who came within an exception to the general rule
of nonliability of landowners to trespassers . . . ).‛ Id. (emphasis
omitted).
¶23 An ordinance ‚dealing not at all with defenses, would
presumably be interpreted as intended to be fitted into the
common law background, imposing merely a prima facie
liability, but leaving the courts free to apply familiar common
law rules . . . .‛ Apanovich v. Wright, 226 F.2d 656, 659 (1st Cir.
1955). Case law has followed this general framework and
violations of city ordinances have been held to be subject to
common law defenses.
¶24 Indeed, the case the Colosimos rely on to assert a duty
under the Sign Ordinances itself recognizes common law
defenses as ‚justification or excuse‛ for the defendant’s conduct.
See Hall, 632 P.2d at 850–51 (citing the defenses in Restatement
20140852-CA 10 2016 UT App 195Colosimo v. Gateway Community Church
(Second) of Torts 2a, section 288A). And in a case factually
similar to the circumstances here, Burnett v. Fort Worth Light
& Power Co., 112 S.W. 1040 (Tex. 1908), a twelve-year-old boy
went to the roof of a building ‚through a trap-door, and was
there instantly killed by coming in contact with a live guy wire,
which had become charged with electricity through the failure of
the [company] to comply with one or more [of] the . . .
ordinances of the city.‛ Id. at 1040. The parents of the boy
brought suit against the power company ‚to recover damages on
account of [its] failure to observe *the+ ordinances.‛ Id. The
Supreme Court of Texas held that the plaintiffs were not entitled
to recover ‚since the deceased boy was clearly a trespasser upon
the roof of the building where *the company’s+ wires were
strung.‛ Id. at 1042. The court explained that
[t]he civil action is maintainable when, and only
when, the person complaining is of a class entitled
to take advantage of the law, is a sufferer from the
disobedience, is not himself a partaker in the
wrong of which he complains, or is not otherwise
precluded by the principles of the common law
from his proper standing in court.
Id. (citation and internal quotation marks omitted).
¶25 The Utah Supreme Court has similarly held that the estate
of a deceased trespasser was not entitled to recover despite the
defendant’s violation of a city ordinance. See Daley v. Salt Lake
& U.R. Co., 247 P. 293 (Utah 1926). In Daley, the deceased was
standing on the ‚private premises and right of way of *the+
defendant‛ railroad company when he was ‚struck and killed by
an electric car operated by‛ the company. Id. at 294. At the time
of the accident, the train car was traveling at twenty-five or
thirty-six miles per hour in violation of a city ordinance that
restricted the speed of the cars to twelve miles per hour. Id. The
supreme court determined that, despite the fact the railroad
company was violating the city ordinance at the time of the
20140852-CA 11 2016 UT App 195Colosimo v. Gateway Community Church
accident, the plaintiff was precluded ‚from recovering any
judgment at all‛ because the ‚deceased was wrongfully on the
private right of way of defendant at a place where he could not
have reasonably been expected to be, and that he was therefore a
trespasser.‛ Id.¶26 In this case, the ordinances at issue state that ‚*t+he
provisions of [the] ordinance[s] shall not be construed to relieve
or limit in any way, the responsibility or liability of any person,
firm, or corporation which erects or owns any sign, for personal
injury or property damage[] caused by the sign.‛ Draper City,
Utah, Ordinance 505, § 9-26-070(g) (2003), http://sirepub.draper.
ut.us/sirepub/cache/25/gf3msmwz0eb4nzbnzbnma3if/323208262
016094012556.PDF [https://perma.cc/D4T5-ZZMG]. Because the
Colosimos would ‚impose duties or burdens or establish rights
or provide benefits not recognized by the common law‛ under
the Sign Ordinances, those ordinances should be strictly
construed. See 3 Norman J. Singer & J.D. Shambie Singer,
Sutherland Statutes and Statutory Construction § 61:1 (7th ed. 2007).
The ordinances do not explicitly ‚extend or modify the common-
law rule of the nonliability of landowner to trespassers,‛ Wells,
269 S.W.2d at 767, nor do they address any defenses available to
those who might violate the ordinance. See Apanovich, 226 F.2d at
659. Thus, the duty ‚should be determined in accordance with
the common law governing the relationship of [plaintiff] and
defendant,‛ Wells, 269 S.W.2d at 767, and the court is ‚free to
apply familiar common law rules,‛ Apanovich, 226 F.2d at 659.
Here, it is undisputed that A.C. was trespassing on Gateway’s
roof at the time of the accident. We therefore conclude that the
district court did not err in determining that, although ‚Gateway
was . . . negligent in maintaining its property, and that would
potentially have legal consequences for Gateway had [A.C.] been
an invitee or licensee,‛ Gateway did not owe A.C. a duty under
the Sign Ordinances because he was a trespasser.
20140852-CA 12 2016 UT App 195Colosimo v. Gateway Community Church
II. Motions to Strike
A. The District Court Did Not Abuse its Discretion in
Denying the Colosimos’ Motion to Strike.
¶27 The Colosimos argue the district court abused its
discretion by denying their motion to strike, thereby ‚accept*ing+
certain evidence from witnesses lacking personal knowledge on
the key issues related to the [s]ign installation and notice of
electrical problems.‛ Specifically, they object to portions of the
pastor’s declaration and the mechanic’s testimony ‚*b+ecause
neither . . . had any personal knowledge of the facts at issue‛ as
required by Utah Rule of Evidence 602 and rule 56(e) of the Utah
Rules of Civil Procedure.5 ‚We review a district court’s decision
on a motion to strike . . . for an abuse of discretion.‛ Portfolio
Recovery Assocs., LLC v. Migliore, 2013 UT App 255, ¶ 4, 314 P.3d
1069. ‚To constitute an abuse of discretion, the ruling must have
been harmful error.‛ State v. Dibello, 780 P.2d 1221, 1228 (Utah
1989).
¶28 Rule 602 states that ‚*a+ witness may testify to a matter
only if evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter.‛ Utah R.
Evid. 602. Rule 56(e) of the Utah Rules of Civil Procedure further
specifies that affidavits supporting or opposing summary
judgment ‚shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show
5. In their motion to strike the Colosimos address the testimonies
of the pastor, the mechanic, and the Draper City police officer. In
its order, the district court only mentions the pastor’s declaration
and indicates that the testimony to which the Colosimos object
was immaterial to its decision. On appeal the Colosimos object to
the pastor’s declaration and the mechanic’s testimony, but not
the police officer’s.
20140852-CA 13 2016 UT App 195Colosimo v. Gateway Community Church
affirmatively that the affiant is competent to testify to the
matters stated therein.‛ Utah R. Civ. P. 56(e) (2014).6
¶29 The Colosimos argue that because the pastor joined
Gateway in 2007 he did not have sufficient personal knowledge
to testify about the purchase, manufacture, design, or installation
of the sign or the electrical issues prior to that. The portions of
the pastor’s declaration to which the Colosimos object state: ‚To
the best of my knowledge, in 2004, the Church arranged for the
acrylic face of the above exterior sign to be replaced to reflect the
words, ‘Welcome to Gateway’‛; ‚As far as I am aware, the
Church did not purchase, manufacture, design, or install the
oval exterior sign‛; and, ‚To the best of my knowledge, the oval
exterior sign was affixed to the property prior to the Church’s
purchase of the property.‛ The Colosimos point to the pastor’s
deposition testimony as evidence that he did not have any
personal knowledge of ‚facts relevant to the *s+ign before he
joined Gateway in 2007.‛ The Colosimos similarly argue that the
mechanic’s testimony is inadmissible for lack of personal
knowledge because he did not join Gateway until 2008.7
¶30 But in its order granting summary judgment, the court
denied the Colosimos’ motion to strike as ‚immaterial‛ to its
ruling. Because the testimony ‚played no role in the district
court’s decision on summary judgment, the *Colosimos+ cannot
show that they were prejudiced by the district court’s denial of
6. The requirements of rule 56(e) have been moved to subsection
56(c)(4). Because the motions to strike and the briefs on appeal
refer to 56(e), we cite to the Utah Rules of Civil Procedure as
amended in 2014.
7. The Colosimos’ brief states that the mechanic joined Gateway
in 2009. His testimony, however, is that he joined Gateway in
2008 and became a member of its board in 2009.
20140852-CA 14 2016 UT App 195Colosimo v. Gateway Community Church
their motion to strike [and] . . . we will not reverse the district
court on this basis.‛ See Mitchell v. ReconTrust Co., 2016 UT App
88, ¶ 42, 373 P.3d 189, petition for cert. filed, July 29, 2016 (No.
20160635); see also GNS P’ship v. Fullmer, 873 P.2d 1157, 1165
(Utah Ct. App. 1994) (holding that plaintiff was not prejudiced
by the trial court’s admission of portions of an affidavit because
it ‚had no bearing on the court’s ultimate ruling‛). We thus
conclude the Colosimos have not shown harmful error in the
district court’s denial of their motion to strike.
B. The District Court Did Not Abuse its Discretion in
Granting Gateway’s Motion to Strike Portions of the
Colosimos’ Expert Witness’s Declaration.
¶31 The Colosimos also argue the court abused its discretion
in striking a portion of their electrical engineer expert’s
declaration. Paragraphs nineteen and twenty of the expert’s
declaration state that ‚Gateway had notice of the hazardous
electrical condition throughout its operation of the sign,‛ and
‚Gateway Church also likely had . . . notice that there were
electrical problems with electricity and the sign.‛ The court
struck these statements as ‚inappropriate legal conclusion*s+.‛
The Colosimos assert that their expert’s statements are
admissible ‚factual inferences and opinions, not legal
conclusions.‛ (Emphasis omitted.)
¶32 The Colosimos rely on Eskelson v. Davis Hospital & Medical
Center, 2010 UT 59, 242 P.3d 762, and rule 704 of the Utah Rules
of Evidence. Our supreme court in Eskelson stated that ‚an
expert can rely on his own interpretation of facts that have a
foundation in the evidence, even if those facts are in dispute.‛ Id.
¶ 16. Rule 704 of the Utah Rules of Evidence also states that ‚*a+n
opinion is not objectionable just because it embraces an ultimate
issue.‛ Utah R. Evid. 704. ‚Nevertheless, opinions that . . . give
legal conclusions continue to be impermissible under rule 704.‛
State v. Davis, 2007 UT App 13, ¶ 15, 155 P.3d 909 (citation and
internal quotation marks omitted).
20140852-CA 15 2016 UT App 195Colosimo v. Gateway Community Church
¶33 There is no ‚bright line between *opinions+ that embrace
an ultimate issue and those that provide an impermissible legal
conclusion.‛ State v. Tenney, 913 P.2d 750, 756 (Utah Ct. App.
1996). But legal conclusions ‚tend to blur the separate and
distinct responsibilities of the judge, jury, and witness.‛
Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1347 (Utah 1993).
Statements that ‚tell the jury what result to reach,‛ id., or ‚tie
their opinions to the requirements of Utah law‛ are not
permitted, Tenney, 913 P.2d at 756.
¶34 The Colosimos’ expert’s statements that Gateway had
notice of the electrical problems and condition imply that
Gateway knew or should have known of the hazard and thus
impermissibly ‚tie‛ into the ‚requirements of Utah law.‛ See id.at 756–57. Accordingly, we determine the court did not abuse its
discretion in striking these portions of the expert’s declaration.
But the court struck only those paragraphs that conclude
Gateway had notice. His statements ‚as to everything except his
final conclusion‛ were allowed and would enable a fact-finder to
‚draw*+ its own conclusions from the evidence presented.‛
Davidson v. Prince, 813 P.2d 1225, 1231–32 (Utah Ct. App. 1991).
We therefore conclude the district court did not abuse its
discretion in granting in part Gateway’s motion to strike.
CONCLUSION
¶35 In sum, we determine the district court did not err in
concluding that Gateway owed no duty to A.C. under common
law or under the Sign Ordinances. We also conclude the court
did not abuse its discretion in striking portions of the Colosimos’
expert’s declaration as a legal conclusion. In addition, we
conclude the Colosimos were not harmed by the district court’s
denial of their motion to strike. We therefore affirm.
20140852-CA 16 2016 UT App 195