Penunuri v. Sundance Partners

This opinion is subject to revision before final
publication in the Pacific Reporter

2017 UT 54

IN THE

SUPREME COURT OF THE STATE OF UTAH

LISA PENUNURI,
and BARRY SIEGWART,
Petitioners,
v.
SUNDANCE PARTNERS, LTD.,
SUNDANCE HOLDINGS, LLC,
ROBERT REDFORD, ROBERT REDFORD 1970 TRUST,
and ROCKY MOUNTAIN OUTFITTERS, L.C.,
Respondents.

No. 20160683
Filed August 25, 2017

On Certiorari to the Utah Court of Appeals

Fourth District, Provo
The Honorable Claudia Laycock
No. 080400019

Attorneys:
Robert D. Strieper, Salt Lake City, for petitioners
H. Burt Ringwood, A. Joseph Sano, Salt Lake City, for respondents
Douglas B. Cannon, Salt Lake City, for amicus
Utah Association for Justice

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE HIMONAS, and
JUSTICE PEARCE joined.

CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 This case returns to us for a second round of certiorari
review. In August 2007, Lisa Penunuri was injured when she fell off
her horse during a guided horseback trail ride at Sundance Resort.
 PENUNURI v. SUNDANCE PARTNERS
Opinion of the Court
She and her husband, Barry Siegwart,1 asserted claims for negligence
and gross negligence against Rocky Mountain Outfitters, L.C.—the
company that provided the trail guide services—as well as various
defendants associated with the resort (collectively, Sundance). In
2013, we affirmed the dismissal of Ms. Penunuri’s ordinary
negligence claims, leaving only her claims for gross negligence.2
Now her gross negligence claims have met a similar fate. The district
court granted summary judgment in favor of Sundance and awarded
Sundance its costs, including certain deposition costs.
¶ 2 Ms. Penunuri appealed and the court of appeals affirmed
the grant of summary judgment.3 We granted certiorari on three
questions: (1) whether the court of appeals erred in concluding that
summary judgment may be granted on a gross negligence claim
even though the standard of care is not “fixed by law,” (2) whether
the court of appeals erred in affirming the district court’s conclusion
that reasonable minds could only conclude there was no gross
negligence under the circumstances of this case, and (3) whether the
court of appeals erred in affirming the district court’s award of
deposition costs to Sundance. We affirm the court of appeals on each
issue.
¶ 3 As to the first of these issues, we recognize and clarify some
potential inconsistency in our caselaw. In Berry v. Greater Park City
Co., we stated that summary judgment dismissing a gross negligence
claim is improper unless (1) the standard of care is “‘fixed by law,’
and [(2)] reasonable minds could reach but one conclusion as to the
defendant’s negligence under the circumstances.”4 We conclude,
upon review, that the first prong of this standard—the requirement
that the standard of care be “fixed by law”—is incompatible with
rule 56 of the Utah Rules of Civil Procedure. We accordingly
repudiate this requirement and clarify that it is no longer an
independent prerequisite to the grant of summary judgment
dismissing a gross negligence claim. Summary judgment is

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1 Because Ms. Penunuri and Mr. Siegwart have presented a single
set of arguments on appeal, we refer to both plaintiffs collectively as
simply “Ms. Penunuri.”
2 Penunuri v. Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984.
3 Penunuri v. Sundance Partners, Ltd., 2016 UT App 154, 380 P.3d 3.
42007 UT 87, ¶ 27, 171 P.3d 442 (quoting White v. Deseelhorst, 879
P.2d 1371, 1374 (Utah 1994)).

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Opinion of the Court

appropriate where reasonable minds could reach but one conclusion
regarding the defendant’s gross negligence under the circumstances,
whether or not the standard of care is fixed by law.
¶ 4 We further conclude that the court of appeals correctly
determined that reasonable minds could only conclude there was no
gross negligence given the undisputed facts of this case. Finally, we
affirm the court of appeals’ conclusion that the district court did not
abuse its discretion in awarding deposition costs to Sundance.
Background5
¶ 5 Ms. Penunuri and two of her friends took a guided
horseback trail ride at Sundance Resort in August 2007. The ride was
guided by Ashley Wright, an employee of Rocky Mountain
Outfitters, L.C., the entity authorized to operate trail rides at
Sundance. Also present on this ride was another woman, Kate Fort,
and her eight-year-old daughter, Haley. Before participating in the
ride, Ms. Penunuri signed a Horseback Riding Release (Release),
which advised of the risks associated with horseback riding:
I, the undersigned, . . . understand that horseback
riding . . . involve[s] SIGNIFICANT RISK OF SERIOUS
PERSONAL INJURY, PROPERTY DAMAGE OR
EVEN DEATH. The risks include NATURAL, MAN-
MADE, ENVIRONMENTAL CONDITIONS AND
INHERENT RISKS, including changing weather, mud,
rocks, variations in steepness, terrain, natural and man-
made obstacles, equipment failure and the negligence
of others. “Inherent risk” with regard to equine or
livestock activities means those dangers or conditions
which are an integral part of equine or livestock
activities, which may include: (a) the propensity of the
animal to behave in ways that may result in injury,
harm, or death to persons on or around them; (b) the
unpredictability of the animal’s reaction to outside
stimulation such as sounds, sudden movement, and

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5 Because we are reviewing a district court’s ruling on a motion
for summary judgment, we present the facts and all reasonable
inferences from them “in the light most favorable” to Ms. Penunuri,
the non-moving party. Estate Landscape & Snow Removal Specialists,
Inc. v. Mountain States Tel. & Tel. Co., 844 P.2d 322, 324 & n.1 (Utah
1992).

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Opinion of the Court
unfamiliar objects, persons, or other animals; (c)
collisions with other animals or objects; or (d) the
potential of a participant to act in a negligent manner
that may contribute to injury to the participant or
others, such as failing to maintain control over the
animal or not acting within his or her ability.
Sundance also posted signs warning of the inherent risks associated
with horseback riding. These signs were located in the building
where guests sign the Release and near the horse arena.
¶ 6 The group set out in the following order: the guide in front,
followed by Haley, Kate, Ms. Penunuri, and then her two friends.
About 45 minutes into the ride, they reached a meadow and
rearranged the order of riders. The guide stayed in the lead, but she
was now followed by Ms. Penunuri’s friends, then Kate, then Haley,
and finally Ms. Penunuri bringing up the rear. The guide testified
that, in an effort to keep the group together, she had been “slowing
down the whole ride.”6
¶ 7 Although the guide instructed the riders on how to keep the
horses from grazing, Ms. Penunuri and eight-year-old Haley
experienced difficulty keeping their horses from doing so, which
caused them to lag behind the train of riders. The guide then
informed the group that they would be stopping at a clearing in 100
feet so she could go back and take the reins of Haley’s horse the rest
of the way. As the guide was in the process of turning around to go
back to Haley’s horse, Ms. Penunuri fell off the back of her horse and
was injured.
¶ 8 Ms. Penunuri and her husband, Barry Siegwart, asserted
claims against Sundance for ordinary and gross negligence. The
district court dismissed the ordinary negligence claims on the basis
that Ms. Penunuri had released Sundance from liability for ordinary

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6 Ms. Penunuri takes issue with this fact. She asserts that it “was
not presented as an undisputed fact, but was made in response to
one of Ms. Penunuri’s undisputed facts.” But we agree with the
court of appeals that the guide did in fact testify as stated and that
Ms. Penunuri has identified nothing in the record that would
dispute the truth of that testimony. See Penunuri v. Sundance Partners,
Ltd., 2016 UT App 154, ¶ 31, 380 P.3d 3. So we treat this testimony as
undisputed, as did the court of appeals and the district court.

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Opinion of the Court

negligence, a result that was affirmed on appeal and certiorari.7 On
remand, Sundance filed two motions for summary judgment on the
gross negligence claim. In the first, it argued there was insufficient
evidence to permit a reasonable fact finder to conclude (1) that
Sundance was grossly negligent, or (2) that Sundance’s gross
negligence caused Ms. Penunuri’s injuries. In the second motion,
Sundance argued that Ms. Penunuri’s expert witness lacked the
qualifications necessary to provide expert testimony on the standard
of care, and that without that testimony Ms. Penunuri lacked
sufficient evidence of gross negligence to take her case to the jury.
¶ 9 The district court agreed on all counts. It ruled that no
reasonable fact finder could conclude that the guide had shown
“conscious disregard of, or indifference to” the safety of her riders.
The court also concluded that Ms. Penunuri presented “no evidence
beyond speculation concerning causation.” It further concluded that,
under rule 702 of the Utah Rules of Evidence, Ms. Penunuri’s expert
witness was unqualified to render expert opinion testimony on the
standard of care, so summary judgment was proper on this
alternative ground as well. Because Sundance prevailed on summary
judgment, the district court awarded Sundance the costs associated
with its deposing Ms. Penunuri, her expert, and two of the other
riders, on the basis that the depositions were used in Sundance’s
summary judgment motion and were “necessary” to the
development of the case.
¶ 10 The court of appeals affirmed. In so doing, it concluded that
the following rule from our caselaw is best interpreted as a
disjunctive test: “[S]ummary judgment is inappropriate unless the
applicable standard of care is ‘fixed by law,’ and reasonable minds
could reach but one conclusion as to the defendant’s negligence
under the circumstances.”8 The court of appeals then went on to
assess whether reasonable minds could reach but one conclusion as
to the defendant’s gross negligence in this case, without regard to
whether the standard of care for guided horseback trail rides has
been “fixed by law.”9 It agreed with the district court that reasonable

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7Penunuri v. Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984;
Penunuri v. Sundance Partners, Ltd., 2011 UT App 183, 257 P.3d 1049.
8 Penunuri, 2016 UT App 154, ¶¶ 20–21 (quoting Wycalis v.
Guardian Title of Utah, 780 P.2d 821, 825 (Utah Ct. App. 1989)).
9 Id. ¶¶ 24–35.

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Opinion of the Court
minds could only conclude there was no gross negligence on these
facts.10 Finally, it affirmed the district court’s decision to award
deposition costs to Sundance.11
¶ 11 Ms. Penunuri petitioned for a writ of certiorari, which we
granted. We have jurisdiction under Utah Code section 78A-3-
102(3)(a).
Standard of Review
¶ 12 “When reviewing a case on certiorari, we review the court of
appeals’ decision for correctness. ‘The correctness of the court of
appeals’ decision turns on whether that court correctly reviewed the
[district] court’s decision under the appropriate standard of
review.’”12 We address three issues in this case.
¶ 13 First, we must decide whether the court of appeals erred in
concluding that the standard stated in Berry v. Greater Park City Co.13
permits summary judgment solely on the ground that reasonable
minds could not find for the plaintiff on a gross negligence claim,
even where the standard of care is not fixed by law. The proper
interpretation of our caselaw presents a question of law that an
appellate court reviews for correctness.14

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10 Id. ¶ 28. The court of appeals reached this conclusion even
assuming, “[s]olely for purposes of analyzing the summary
judgment motion on gross negligence,” that the “opinion testimony
of [Ms. Penunuri’s] proposed expert witness was admissible.” Id.
¶ 28 n.4. It accordingly did not reach the alternative ground
regarding the expert witness’s credentials. See id. ¶ 35. The court of
appeals intimated that it agreed with the district court on the merits
of the causation issue, but ultimately concluded that, even if the
district court erred in concluding “that the evidence could not
support a finding of causation, the outcome of this case would be the
same, because . . . evidence of gross negligence [was] lacking.” Id.
¶ 34.
11 Id. ¶¶ 36–40.
12 View Condo. Owners Ass’n v. MSICO, L.L.C., 2005 UT 91, ¶ 17,
127 P.3d 697 (citations omitted).
13 2007 UT 87, 171 P.3d 442.
14 State ex rel. Office of Recovery Servs. v. Streight ex rel. Jensen, 2004
UT 88, ¶ 6, 108 P.3d 690 (“We consider the [lower] court’s
interpretation of binding case law as presenting a question of law
(Continued)
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Opinion of the Court

¶ 14 The second issue is whether the court of appeals erred in
affirming the district court’s conclusion that reasonable minds would
necessarily conclude that there was no gross negligence under the
circumstances of this case. Summary judgment is appropriate where
“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.”15 Appellate courts review a district court’s “‘legal
conclusions and ultimate grant or denial of summary judgment’ for
correctness,” viewing “the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”16
¶ 15 The third issue is whether the court of appeals erred in
affirming the district court’s award of deposition costs to Sundance.
A district court’s decision to “award the prevailing party its costs
will be reviewed under an abuse of discretion standard.”17 But the
proper standard to apply when determining whether to award
deposition costs is a legal question that we review for correctness.18
Analysis
¶ 16 We first address the proper standard for granting summary
judgment dismissing a gross negligence claim. The court of appeals

and review [that] interpretation . . . for correctness.” (citation
omitted) (internal quotation marks omitted)).
15 UTAH R. CIV. P. 56(a) (2016). At the time Sundance filed its
motions for summary judgment, the operative provision of rule 56
was contained in subpart (c), which provided that summary
judgment “shall be rendered if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law.” UTAH R. CIV. P. 56(c) (2013). Because the 2015
amendments to rule 56 were adopted simply “to adopt the style of
the Federal Rule of Civil Procedure 56 without changing the
substantive Utah law” of summary judgment, we refer to the most
recent version throughout this opinion. UTAH R. CIV. P. 56 (2016)
advisory committee’s note to 2015 amendment.
16 Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations omitted).
17Jensen v. Sawyers, 2005 UT 81, ¶ 140, 130 P.3d 325 (citation
omitted).
18 See Frampton v. Wilson, 605 P.2d 771, 774 (Utah 1980).

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Opinion of the Court
concluded that the standard stated in Berry v. Greater Park City Co.19
permits a court to grant summary judgment where reasonable minds
could reach but one conclusion on a gross negligence claim, even
where the standard of care is not fixed by law. Although this
conclusion may appear at odds with some of our cases, we agree
with the court of appeals that this is the proper approach. We
accordingly repudiate those portions of our previous cases that are
inconsistent with our decision today. We clarify that summary
judgment dismissing a gross negligence claim is appropriate where
reasonable minds could only conclude that the defendant was not
grossly negligent under the circumstances, regardless of whether the
standard of care is fixed by law.
¶ 17 We then turn to the second issue—what reasonable minds
would make of Ms. Penunuri’s gross negligence claim. We affirm the
court of appeals’ conclusion that reasonable minds could only
conclude that there has been no gross negligence on the facts of this
case.
¶ 18 Finally, we assess whether the district court properly
awarded certain deposition costs to Sundance. We conclude that the
district court did not err in awarding these costs. In so doing, we
clarify that a district court may award deposition costs so long as the
depositions “were taken in good faith and appear to be essential for
the development and presentation of the case.”20
I. The Proper Standard for Granting Summary Judgment
Dismissing a Gross Negligence Claim
¶ 19 We first assess whether a district court may grant summary
judgment dismissing a gross negligence claim where the standard of
care is not “fixed by law.” We begin by discussing three of our cases
that are in apparent tension: Berry v. Greater Park City Co.,21 Pearce v.
Utah Athletic Foundation,22 and Blaisdell v. Dentrix Dental Systems,
Inc.23
¶ 20 The first two, Berry and Pearce, apply a conjunctive test. In
those cases, we held that summary judgment dismissing a
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19 2007 UT 87, 171 P.3d 442.
20 Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 80, 201 P.3d 966.
21 2007 UT 87, 171 P.3d 442.
22 2008 UT 13, 179 P.3d 760.
23 2012 UT 37, 284 P.3d 616.

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negligence or gross negligence claim is improper unless both (1) the
standard of care is “fixed by law” and (2) “reasonable minds could
reach but one conclusion as to the defendant’s negligence under the
circumstances.”24 But in the third, Blaisdell, we implicitly treated
these two prongs as disjunctive, affirming summary judgment
because reasonable minds could reach only one conclusion—no
gross negligence—even though the standard of care was not fixed by
law.25
¶ 21 We now describe these cases in some detail, and in so doing,
acknowledge the apparent inconsistency among them. We then
clarify the correct standard, which does not include the prerequisite
to granting summary judgment, described in Berry and Pearce, that
the standard of care be “fixed by law.”
A. Our Cases Are Inconsistent Regarding the “Fixed by Law” Requirement
¶ 22 We begin with Berry v. Greater Park City Co.26 In Berry, a skier
who was paralyzed in a fall during a skiercross race sued the
organizers of the race, asserting, among other claims, a claim for
gross negligence.27 The district court granted the organizers’ motion
for summary judgment.28 On appeal, the organizers defended that
grant of summary judgment, arguing that no reasonable fact finder
could reach a conclusion of gross negligence on the facts of that case
because “evidence that would be adequate to take an ordinary
negligence case to a jury cannot withstand uncontroverted evidence
that [the organizers] exercised enough care to avoid a finding of
gross negligence.”29 We rejected this argument. Noting that the
parties had not pointed us to “a location in the record where the
appropriate standard of care applicable to the design and
construction of skiercross courses appears,” we said that we were
without a “necessary precondition” to be able to assess “the degree
to which conduct deviates, if at all, from the standard of care.”30 We

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24 Berry, 2007 UT 87, ¶¶ 27–30; Pearce, 2008 UT 13, ¶ 26 & n.2.
25 2012 UT 37, ¶¶ 14, 17.
26 2007 UT 87.
27 Id. ¶ 1.
28 Id.
29 Id. ¶ 29.
30 Id. ¶ 30.

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accordingly held that the district court erred in granting summary
judgment.
¶ 23 In Pearce v. Utah Athletic Foundation, the plaintiff injured his
back on a public bobsled ride.31 The district court granted summary
judgment to the owner and operator of the bobsled track on the
plaintiff’s gross negligence claim.32 But we disagreed, concluding
that summary judgment was improper because, like Berry, no
standard of care for the pertinent activity was “fixed by law.” 33 In
other words, because the law did not establish “specific standards
for designing, constructing, and testing a bobsled run for the public
or for operating a public bobsled ride,” summary judgment on the
plaintiff’s gross negligence claim was improper.34
¶ 24 Berry and Pearce thus employed a conjunctive test, in that we
required both prongs to be met for summary judgment to be proper.
Without assessing whether reasonable minds could disagree about
the defendant’s negligence, we concluded that summary judgment
was improper because the standard of care was not “fixed by law.”
¶ 25 We took a different approach in Blaisdell v. Dentrix Dental
Systems, where a software update irretrievably destroyed a dentist’s
electronically stored patient files and related information.35 Although
the dentist’s employee had assured the software company’s
representative that the data was backed up, it had not been, and the
update wiped the dentist’s data.36 The dentist sued the software
company for, among other claims, gross negligence.37 The district
court granted summary judgment in favor of the software company,
and Dr. Blaisdell appealed, arguing, among other things, that
summary judgment on the gross negligence claim was inappropriate
under Berry and Pearce because there was no standard of care fixed
by law.38

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31 2008 UT 13, ¶ 1.
32 Id.
33 Id. ¶ 26.
34 Id. ¶ 26 n.2.
35 2012 UT 37.
36 Id. ¶¶ 3–4.
37 Id. ¶ 14.
38 Id.

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¶ 26 But we rejected that argument and held that summary
judgment was appropriate, despite the absence of any standard of
care fixed by law. We distinguished Berry and Pearce on the grounds
that those cases involved “activities where ‘the finder of fact would
likely need to hear testimony from expert witnesses before it could
determine the operator’s deviation from the standard.’”39 Because
“Dr. Blaisdell’s claim [was] less complicated,” we determined we
could assess the gross negligence question as a matter of law.40 We
concluded that “[i]t cannot be reasonably asserted that” the software
company “show[ed] utter indifference” to the possibility that harm
might follow from its conduct, and so we affirmed the grant of
summary judgment.41
¶ 27 In sum, Berry and Pearce clearly articulated a “fixed by law”
prerequisite to the grant of summary judgment. But Blaisdell
determined that this prerequisite did not apply, so summary
judgment was appropriate despite the absence of a standard of care
fixed by law. We next explain why we now decide to repudiate the
“fixed by law” requirement.
B. We Abandon the Holdings of Berry and Pearce to the Extent They
Suggest There Is an Independent Prerequisite that the Standard of Care Be
“Fixed by Law” Before Summary Judgment May Be Granted
¶ 28 Rather than distinguishing Berry and Pearce, as we did in
Blaisdell, we now repudiate their holdings indicating that there is a
prerequisite that the standard of care be “fixed by law” before the
court may grant summary judgment. We do so for two reasons. First,
the cases that articulated this prerequisite are inconsistent with the
precedent on which they rely. Second, treating “fixed by law” as a
prerequisite to summary judgment is at odds with rule 56 of the
Utah Rules of Civil Procedure.
¶ 29 As the court of appeals correctly recognized in its opinion in
this case below, Berry’s special rule for summary judgment on gross
negligence claims cannot be found in the cases that it relied on.42 The
court of appeals accurately traced the history of this rule back to

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39 Id. (citation omitted).
40 Id. ¶ 15.
41 Id. ¶ 17 (alteration in original).
42Penunuri v. Sundance Partners, Ltd., 2016 UT App 154, ¶ 21, 380
P.3d 3.

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earlier sources that reveal that it was originally a disjunctive
statement. Berry cited White v. Deseelhorst,43 which cited Wycalis v.
Guardian Title of Utah,44 which cited Elmer v. Vanderford.45 The Elmer
court held that summary judgment on negligence is proper in “two
classes of cases”: first, where “the standard of duty is fixed, and the
measure of duty defined, by law, and is the same under all
circumstances” and second, “where the facts are undisputed and but
one reasonable inference can be drawn from them.”46
¶ 30 Despite these cited authorities’ descriptions of “two classes
of cases,” the Wycalis court conflated the two classes of cases into two
requirements.47 We carried forward this conjunctive test in White,
Berry, and Pearce. In the latter two cases specifically, we held that,
unless the standard of care is “fixed by law,” it matters not whether
the district court is of the view that reasonable minds could reach
but one conclusion as to the defendant’s negligence under the
circumstances.48 Thus, our cases that have treated the “fixed by law”
requirement as an independent prerequisite to summary judgment
are inconsistent with the precedent on which they purported to rely.
¶ 31 Even more concerning, an independent “fixed by law”
requirement is inconsistent with rule 56 of the Utah Rules of Civil
Procedure. Under that rule, 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.”49 A movant is entitled to judgment as a matter of law
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43 See Berry, 2007 UT 87, ¶ 27 (citing White v. Deseelhorst, 879 P.2d
1371 (Utah 1994)).
44 See White, 879 P.2d at 1374 (citing Wycalis v. Guardian Title of
Utah, 780 P.2d 821 (Utah Ct. App. 1989)).
45See Wycalis, 780 P.2d at 825 (citing Elmer v. Vanderford, 445 P.2d
612 (Wash. 1968)).
46 Elmer, 445 P.2d at 614 (quoting McQuillan v. City of Seattle, 38
P. 1119, 1120 (Wash. 1895)).
47Wycalis, 780 P.2d at 825 (“Accordingly, summary judgment is
inappropriate unless the applicable standard of care is ‘fixed by law,’
and reasonable minds could reach but one conclusion as to the
defendant’s negligence under the circumstances.” (citations
omitted)).
48 See Berry, 2007 UT 87, ¶ 30; Pearce, 2008 UT 13, ¶ 26 & n.2.
49 UTAH R. CIV. P. 56(a).

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when “no reasonable fact finder could” find in favor of the
nonmoving party.50 In other words, one function of summary
judgment is to cut off evidence-deficient cases from going to trial.
But the “fixed by law” requirement would carve out an exception
and allow some of these cases to reach the jury.
¶ 32 Ms. Penunuri defends the “fixed by law” requirement,
arguing that our caselaw creates two scenarios for gross negligence
claims: First, if a plaintiff cannot produce evidence sufficient to
survive summary judgment on even ordinary negligence, then
summary judgment is appropriate regardless of whether the
standard of care is fixed by law. But if the plaintiff has sufficient
evidence to survive summary judgment on ordinary negligence, then
she gets to the jury on the question of gross negligence, unless the
standard of care is “fixed by law” and reasonable minds could reach
but one conclusion as to the defendant’s negligence.
¶ 33 The problem with this standard is that it would allow
plaintiffs to get to the jury even when no reasonable jury could reach
a conclusion of gross negligence. That is, even assuming the plaintiff
would survive summary judgment on ordinary negligence, if the
district court is convinced that no reasonable jury could conclude
that gross negligence had occurred, a trial on the gross negligence
claim would be futile and a waste of judicial resources. We see no
reason to force the district court to let the evidence-deficient case go
to the jury, where the only verdict it could render would be an
unreasonable one. This result is flatly inconsistent with rule 56,
under which a court must grant summary judgment “if ‘reasonable
minds cannot differ’ as to the inferences to be drawn from the
undisputed facts.”51
¶ 34 In sum, consistent with Blaisdell, summary judgment may be
appropriate on a gross negligence claim even if the standard of care
is not fixed by law. The question for the district court is whether
reasonable minds could not differ as to whether the defendant was
grossly negligent under the circumstances. If they could not differ,
then summary judgment is appropriate, whether or not the standard

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50IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 15,
196 P.3d 588.
51 Colvin v. Giguere, 2014 UT 23, ¶ 12, 330 P.3d 83 (quoting TSC
Indus., Inc. v. Northway, Inc., 426 U.S. 438, 450 (1976)).

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Opinion of the Court
of care is fixed by law. We now proceed to apply that standard to the
facts of this case.
II. The District Court Correctly Determined that No Reasonable Fact
Finder Could Conclude that the Trail Guide Was
Grossly Negligent
¶ 35 Applying the above standard, we now assess whether the
district court properly granted summary judgment in favor of
Sundance on Ms. Penunuri’s gross negligence claim. In Utah, gross
negligence is “the failure to observe even slight care; it is
carelessness or recklessness to a degree that shows utter indifference
to the consequences that may result.”52 Summary judgment is proper
where “reasonable minds could reach only one conclusion based on
the applicable material facts.”53 As discussed in the previous section,
the combination of this substantive and procedural law is that the
standard for granting summary judgment dismissing a gross
negligence claim is whether, based on the undisputed material facts,
reasonable minds could reach but one conclusion as to whether the
defendant “observe[d] even slight care” and did not demonstrate
“carelessness or recklessness to a degree that shows utter
indifference to the consequences that may result.”54
¶ 36 The district court granted summary judgment in favor of
Sundance, concluding that
[p]laintiffs have presented no evidence upon which
reasonable minds could conclude that [Sundance’s]
guide . . . exercised no care. Nor have [p]laintiffs
presented any evidence to show that [the guide] knew
or had reason to know of facts that would have created
a high degree of risk of physical harm to
[Ms.] Penunuri, but deliberately proceeded to act, or
failed to act, in conscious disregard of, or indifference
to, that risk.55

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52 Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 14, 284 P.3d
616 (citation omitted).
53 Raab v. Utah Ry. Co., 2009 UT 61, ¶ 50, 221 P.3d 219; UTAH R.
CIV. P. 56(a).
54 Blaisdell, 2012 UT 37, ¶ 14 (citation omitted).
55 Citing Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66,
¶ 42, 221 P.3d 256.

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Opinion of the Court

The court of appeals affirmed this conclusion, noting that “[e]ven
assuming the truth of all the evidence on which [p]laintiffs rely, it
does not support a claim of gross negligence.”56 We agree.57
¶ 37 The district court correctly recognized that Ms. Penunuri
has not presented the essential evidence needed to survive a
defendant’s motion for summary judgment on a gross negligence
claim: evidence that the defendant’s conduct dramatically magnified
the risk of harm to the plaintiff. To be sure, she has attempted to
make this showing. She argues that “the guide had yearly training
for six years in a row where she was taught and knew that large gaps
[between the horses] . . . on the trail will cause horses to suddenly
accelerate.” She further argues that all of the witnesses familiar with
guided horseback trail rides testified that gaps between the horses
should ideally be less than four horse-lengths, or 32 feet. For
purposes of its summary judgment motion, Sundance does not
dispute that the gap between Ms. Penunuri and the next rider had
increased to over 100 feet. Ms. Penunuri further asserts that, once the
gaps between the riders’ horses had increased to over 100 feet, the
guide should have attempted to close the gaps by stopping and
waiting for the riders to catch up, rather than by continuing on to the
clearing in order to turn around so that she could go back to take the
reins of the slowest horse. She also contends that the presence of
additional “dangers” on this portion of the trail—a steep, upward
bend and hikers in the brush on the side—made it particularly
inappropriate for the guide to continue on to the clearing. In her
view, given the guide’s decision to press on to the clearing despite
the gaps and these dangers, a reasonable fact finder could conclude
that the guide acted with utter indifference to the consequences of
her conduct and failed to show even slight care.
¶ 38 But there is no evidence from which a reasonable fact finder
could reach such a conclusion. Instead, the undisputed evidence
supports, at most, that the guide breached the standard of care by
_____________________________________________________________
56Penunuri v. Sundance Partners, Ltd., 2016 UT App 154, ¶ 32, 380
P.3d 3.
57 For purposes of this section, we assume, as did the court of
appeals, that Ms. Penunuri’s expert was qualified, and we even take
his testimony into account in assessing whether a reasonable fact
finder could conclude that the trail guide failed to show even slight
care or acted with utter indifference to the consequences of her
conduct.

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 PENUNURI v. SUNDANCE PARTNERS
Opinion of the Court
proceeding onward to the clearing when the gaps in the horses had
increased to over four horse-lengths. We can accept, for purposes of
argument, that a jury would agree with Ms. Penunuri that the
standard of care under the circumstances requires a guide to keep
the gaps between horses within four horse-lengths. But a plaintiff
asserting gross negligence must show more than a breach of the
standard of care to survive an opponent’s motion for summary
judgment.58 Instead, the plaintiff must point to evidence that the
defendant’s conduct exposed the plaintiff to a significantly elevated
level of risk.59 Ms. Penunuri has failed to point to evidence of the
_____________________________________________________________
See supra Part I; UTAH R. CIV. P. 56(a); see also Penunuri, 2016 UT
58

App 154, ¶ 32 (noting that Ms. Penunuri’s evidence “would at most
support a claim for ordinary negligence”).
59 We note that our cases have sometimes referred to gross
negligence as encompassing a “conscious indifference” to the risk of
harm to others, which could be taken to imply that a plaintiff must
prove that a defendant acted with a certain mental state with respect
to the risk created. See, e.g., Blaisdell v. Dentrix Dental Sys., Inc., 2012
UT 37, ¶ 16, 284 P.3d 616 (quoting Orthopedic & Sports Injury Clinic v.
Wang Labs., Inc., 922 F.2d 220, 223 n.3 (5th Cir. 1991)). But we have
also suggested that gross negligence can be shown even without a
“knowing” state of mind. See, e.g., Daniels, 2009 UT 66, ¶ 44 (“While
all gross negligence claimants can automatically claim recklessness,
only some may be able to show that a tortfeasor actually knew of the
danger of his or her action or inaction, as opposed to should have
known of the danger.”). Some jurisdictions have explicitly
recognized that their law of gross negligence “consists of both
objective and subjective elements,” in that plaintiffs must prove “that
1) when viewed objectively from the defendant’s standpoint at the
time of the event, the act or omission involved an extreme degree of
risk, considering the probability and magnitude of the potential
harm to others and 2) the defendant had actual, subjective awareness
of the risk involved, but nevertheless proceeded with conscious
indifference to the rights, safety, or welfare of others.” U-Haul Int’l,
Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); see 57A AM. JUR. 2d
Negligence § 237 (“Some jurisdictions take the position that
knowledge of the peril by the defendant is an essential element of
gross negligence. Thus, gross negligence must be predicated on a
showing of chargeable knowledge or awareness of the imminent
danger spoken of.”). But in other jurisdictions, “gross negligence
does not require an actual or constructive consciousness of the
danger involved as an essential ingredient of the act or omission.”
(Continued)
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Opinion of the Court

differential between the risk associated with the guide’s decision to
proceed to the clearing, on the one hand, and the risk associated with
taking some other action, such as stopping and waiting for the gaps
to close, on the other. Without such evidence, there is nothing that
would sustain a jury’s finding that the guide’s decision to proceed to
the clearing significantly increased the risk of harm to the riders.
Instead, the jury could only speculate on the key question of how
much more dangerous it was for the guide (1) to allow the gaps to
temporarily increase before permanently resolving them by ponying
up the horse rather than (2) for the guide to have taken some other
course of action—e.g., stopping and waiting for the gaps to close
themselves. Ms. Penunuri needed to present evidence that the
danger of a horse’s sudden acceleration increases proportionally
with the size of the gaps between the horses; otherwise, there is no
indication that it is more dangerous for the guide to proceed ahead
and temporarily increase the gaps than it is to sit and wait while
gaps of more than 32 feet remain.60 Rather than demonstrating that

57A AM. JUR. 2d Negligence § 234. In the parties’ briefing before the
district court, Ms. Penunuri appears to have conceded that in Utah
gross negligence requires proof of a certain mental state with respect
to the risk, and she did not argue that she had no obligation to prove
that the guide acted with a particular mental state. Instead, in her
memorandum in opposition to the defendant’s motion for summary
judgment, she stated: “Defendant Rocky Mountain Outfitters’
employee manual established the ‘knowingly’ element to Plaintiff’s
claims of gross negligence against the Defendants,” and “[i]n this
case a jury certainly could find that [the guide] acted with
knowledge and with total disregard for the safety of Ms.
Penunuri . . . .”
In any event, because we conclude that Ms. Penunuri has not
presented sufficient evidence for a reasonable jury to conclude that
the guide’s conduct involved a significantly elevated level of risk of
harm to others, we need not revisit what subjective mental state, if
any, need be proven with respect to that level of risk.
60 Ms. Penunuri attempted to make this point by arguing that one
of Rocky Mountain’s guides, Braydon Whiteley, “testified that a gap
of three to four horse lengths (32 feet) may likely cause [Rocky
Mountain’s] horse to run unexpectedly and a gap of ten horse
lengths (80 feet) will cause [Rocky Mountain’s] horses to accelerate
unexpectedly.” But Mr. Whiteley did not so testify. In fact, he
testified as follows:
(Continued)
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 PENUNURI v. SUNDANCE PARTNERS
Opinion of the Court
the level of risk increases proportionally with gap size beyond 32
feet, Ms. Penunuri seems to concede in her brief that it is no more
dangerous to have a gap of 125 feet than one of 32 feet, where she
argues: “A guide must keep the gaps in between the horses from 8 to
32 feet and anything beyond 32 feet will likely cause a horse to
suddenly accelerate to catch up to the [herd].” Accordingly,
Ms. Penunuri has failed to show that the guide’s decision to proceed
ahead to the clearing significantly increased the level of risk to her
riders.
¶ 39 The presence of additional dangers on the trail does not
alter this conclusion. The consensus among all witnesses was that a
horse could accelerate unexpectedly where gaps between the horses
had increased to over 32 feet. The guide, at the moment of deciding
to proceed forward,61 had to weigh the relative risks of allowing the

Q: . . . So anything beyond three to four horses will cause that
horse to run unexpectedly? Or can cause a horse to trot
unexpectedly?
A: Yeah.
Q: That’s a yes?
A: Yes.
Q: Is it likely a horse will trot unexpectedly if it was ten horse
lengths?
A: Yeah.

So rather than testify that a gap of 80 feet “will cause” a horse to
accelerate unexpectedly, Mr. Whiteley in fact testified that it “likely
would trot unexpectedly.” But this testimony still does not indicate
that it is significantly more dangerous to temporarily increase gaps
between the horses to 125 feet in order to permanently reduce those
gaps than it is to have outstanding gaps of more than 32 feet.
61 Ms. Penunuri also argues that the court of appeals reached its
conclusion by erroneously focusing on actions that the guide took
prior to her decision to proceed to the clearing. As she puts it, the
court of appeals decision implies that “a defendant merely has to
demonstrate that it showed slight care at sometime [sic] in the
relationship between the defendant and the plaintiff,” even if the
moment at which the defendant showed slight care is “unrelated to
the actual negligence” at issue in the lawsuit. To demonstrate this
point, Ms. Penunuri invokes a hypothetical involving a surgeon
who, after taking a multitude of precautions preparing for and
performing surgery, leaves a medical instrument inside a plaintiff
(Continued)
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Opinion of the Court

currently existing gaps to remain against the risks of proceeding past
the dangers in order to reach the clearing, clear the trail of other
riders, and return back to take the reins of the slowest horse. Ms.
Penunuri has not presented anything beyond speculation that the
decision to go ahead at that point was so dangerous relative to the
existing risk of having gaps in the train of horses as to evince “utter
disregard” for the safety of the riders. And our summary judgment
standard does not permit a plaintiff to reach the jury when it would
be forced to resort to speculation.
¶ 40 We accordingly affirm the court of appeals’ conclusion that
no reasonable fact finder could find gross negligence under the
undisputed facts of this case.
III. The District Court Did Not Abuse Its Discretion in Awarding
Deposition Costs to Sundance
¶ 41 Finally, we address Ms. Penunuri’s challenge to the district
court’s decision to award deposition costs to Sundance. Rule 54(d)(1)
of the Utah Rules of Civil Procedure provides that, “[u]nless a
statute, these rules, or a court order provides otherwise, costs should
be allowed to the prevailing party.” In Frampton v. Wilson, we said
the costs associated with taking certain depositions may be taxed as
costs, “subject to the limitation that the trial court is persuaded that
they were taken in good faith and, in the light of the circumstances,
appeared to be essential for the development and presentation of the
case.”62
¶ 42 Ms. Penunuri relies on a later case, Young v. State.63
Although Young recognized the “general rule” from Frampton that

and fails to immediately retrieve it. She argues that the earlier
precautions, while certainly slight care, should not protect the
surgeon from a lapse of even slight care in the challenged moment of
decision. We agree with Ms. Penunuri that predicate acts of
precaution do not necessarily immunize a defendant from a
subsequent act of gross negligence. We accordingly assess the
guide’s conduct throughout the events in question, including the
challenged moment of decision that Ms. Penunuri emphasizes.
62 605 P.2d 771, 774 (Utah 1980).
63 2000 UT 91, 16 P.3d 549.

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Opinion of the Court
we have just quoted,64 Ms. Penunuri reads it to add some further
caveats, relying on a subsequent portion of the case where we said
deposition costs can be recovered if the trial court
determines that the deposition was essential to the
case, either because the deposition was used in some
meaningful way at trial or because the development of
the case was of such a complex nature that the
information provided by the deposition could not have
been obtained through less expensive means of
discovery.65
Ms. Penunuri argues that this limitation restricts the scope of the
standard we articulated in Frampton. But in Giusti v. Sterling
Wentworth Corp.,66 a case decided nine years after Young, we referred
to the rule from Frampton, without reference to Young’s purported
limitations. In Giusti, we said that
“Costs” as used in rule 54 refers to fees that are paid to
the court, fees that are paid to witnesses, costs that are
authorized by statute, and costs incurred in taking
depositions, subject to the limitation that they were
taken in good faith and appear to be essential for the
development and presentation of the case.67
We then held that the district court “applied the correct standard”
when it followed the rule, in keeping with Frampton, that “there are
two requirements for awarding deposition costs: the trial court must
be persuaded that (1) the depositions were taken in good faith, and
(2) they must appear to be essential to the development of the
case.”68
¶ 43 Today we clarify that Giusti articulates the correct approach.
So long as the district court is “persuaded that [the depositions] were
taken in good faith and, in the light of the circumstances, appeared
to be essential for the development and presentation of the case,” the

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64Id. ¶ 6 (quoting Highland Constr. Co. v. Union Pac. R.R. Co., 683
P.2d 1042, 1051 (Utah 1984) (quoting Frampton, 605 P.2d at 774)).
65 Young, 2000 UT 91, ¶ 7.
66 2009 UT 2, 201 P.3d 966.
67 Id. ¶ 80 (citing Frampton, 605 P.2d at 773).
68 Id. ¶¶ 84, 86.

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Opinion of the Court

court has discretion to award those costs to the prevailing party.69
The district court need not conclude that the depositions were in fact
essential to the case for one of the two reasons articulated in Young.
Properly viewed, the quoted portion of Young simply articulated
some of the ways in which depositions might be essential to a case—
we do not view it as having articulated the only ways in which
depositions can be essential to a case.
¶ 44 Here, the district court included a detailed explanation of
why the depositions were “taken in good faith” and “appeared to be
essential for the development of the case.” The district court
carefully described the role each deposition played in Sundance’s
summary judgment motions, expressly concluding that the
depositions “were used in a meaningful way in” these motions and
“were necessary to development of this complex case.” This was not
an abuse of discretion under the standard we articulated in
Frampton, upheld in Giusti, and reaffirm today.
Conclusion
¶ 45 We clarify that—consistent with rule 56—summary
judgment dismissing a gross negligence claim may be granted where
reasonable minds could not conclude that the defendant
demonstrated carelessness or recklessness to a degree that shows
utter indifference to the consequences. We repudiate the holdings of
our prior cases that treated the requirement that the standard of care
be “fixed by law” as a prerequisite to summary judgment. The
undisputed facts of this case would not permit a reasonable fact
finder to reach a determination of gross negligence. Finally, the
district court had discretion to award Sundance its deposition costs
where the court concluded they were taken in good faith and, in
light of the circumstances, appeared to be essential for the
development and presentation of the case.

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69 Frampton, 605 P.2d at 774.

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