Penunuri v. Sundance Partners Ltd.

2016 UT App 154

THE UTAH COURT OF APPEALS

LISA PENUNURI AND BARRY SIEGWART,
Appellants,
v.
SUNDANCE PARTNERS LTD., SUNDANCE HOLDINGS LLC, SUNDANCE
DEVELOPMENT CORPORATION, ROBERT REDFORD, REDFORD 1970
TRUST, AND ROCKY MOUNTAIN OUTFITTERS LC,
Appellees.

Opinion
No. 20140854-CA
Filed July 21, 2016

Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 080400019

Robert D. Strieper, Attorney for Appellants
H. Burt Ringwood and A. Joseph Sano, Attorneys
for Appellees

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE RUSSELL W.
BENCH concurred.1

VOROS, Judge:

¶1 Plaintiffs Lisa Penunuri and Barry Siegwart appeal the
district court’s entry of summary judgment in favor of Rocky
Mountain Outfitters LC and the other defendants (collectively,
Rocky Mountain). Penunuri suffered injuries when she fell from
her horse on a guided trail ride. On that ride, potentially
dangerous gaps formed between horses. Rather than addressing

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
 Penunuri v. Sundance Partners

these gaps immediately, the trail guide decided to deal with
them after the company had passed some hikers and reached a
clearing. But before they did, Penunuri fell off her horse.
Plaintiffs sued Rocky Mountain and related parties for ordinary
negligence and gross negligence.

¶2 The district court ruled that a release signed by Penunuri
barred the ordinary negligence claim. This court and the Utah
Supreme Court upheld that ruling in a prior appeal. On remand,
the district court rejected the gross negligence claim on summary
judgment. We agree with the district court that this set of facts
cannot as a matter of law support a claim of gross negligence.
Accordingly, we affirm.

BACKGROUND2

¶3 On August 1, 2007, Penunuri joined a guided horseback
trail ride operated by Rocky Mountain at Sundance Resort. Her
group consisted of a guide and four other riders: Penunuri’s two
friends, an eight-year-old child (Child), and Child’s mother
(Mother). Before beginning the ride, Penunuri and the other
riders received instruction from the guide and signed liability
releases. The guide worked as a horseback trail guide for Rocky
Mountain from summer 2004 to fall 2008. She was trained by
Rocky Mountain at the beginning of each season to guide
horseback trail rides. Rocky Mountain instructed guides to close
up large gaps between horses as they walked and to warn riders
about hazards on the trail.

2. When reviewing a district court’s rulings on a summary
judgment motion, we recite the facts and inferences in the light
most favorable to the nonmoving party. Poteet v. White, 2006 UT
63, ¶ 7, 147 P.3d 439.

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¶4 The riders left the stables riding single file. Throughout
the ride, the guide rode at the head of the group. For the first 45
minutes, Mother, Child, and Penunuri were the first three riders,
followed by Penunuri’s friends. After stopping at a meadow, the
order of the riders changed. Penunuri’s friends rode behind the
guide, while Mother, Child, and Penunuri brought up the rear.
Both Child and Penunuri struggled to keep their horses from
grazing. The grazing caused Child’s and Penunuri’s horses to lag
behind, creating gaps between the horses.

¶5 The guide tried to keep the group together by slowing
down. One of Penunuri’s friends asked the guide to stop and
wait for Child and Penunuri to catch up. The guide responded
that they would be stopping at a clearing about 100 feet away so
that she could take the reins of Child’s horse. To reach the
clearing, the horses had to climb a steep section of the trail
around a bend where hikers were present. Child’s horse again
stopped to graze, creating a gap of several feet between
Penunuri and the rest of the group. When Child’s and
Penunuri’s horses began moving again, Penunuri testified that
‚it was a rougher ride than [she] remember[ed] having had
before.‛ She testified that ‚with other grazing episodes my horse
would, you know, kind of giddyup a little faster than it had been
going, because *Child’s+ horse would start up and then mine
would start up, too, and then would slow down. And this
particular incident, it seemed even rougher than, you know, the
giddyup that I had gotten in other stops.‛ Her horse suddenly
accelerated and Penunuri fell off, suffering injuries.

¶6 Plaintiffs sued Rocky Mountain alleging ordinary
negligence, gross negligence, and vicarious liability. Plaintiffs
filed a motion for partial summary judgment and declaratory
relief. They argued that a release Penunuri had signed was
unenforceable under the Limitations on Liability for Equine and
Livestock Activities Act. The district court concluded that the
Act did not prevent a party from contracting away its liability

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for ordinary negligence. The court accordingly ruled the release
enforceable and dismissed all of Plaintiffs’ claims based on
ordinary negligence. This court and the Utah Supreme Court
affirmed the district court’s ruling. See Penunuri v. Sundance
Partners, Ltd., 2013 UT 22, 301 P.3d 984; Penunuri v. Sundance
Partners, Ltd., 2011 UT App 183, 257 P.3d 1049.

¶7 On remand, Plaintiffs pursued their gross negligence
claim. Rocky Mountain filed two motions for summary
judgment, the first to dismiss Plaintiffs’ gross negligence claim
and the second, in the alternative, to exclude Plaintiffs’ proposed
expert witness. The court granted both motions, dismissing the
gross negligence claim and ruling that Plaintiffs’ proposed
expert was ‚not qualified to render expert opinion testimony
concerning the standard of care applicable to commercial
horseback trail guiding.‛ The court also awarded Rocky
Mountain costs pursuant to rule 54 of the Utah Rules of Civil
Procedure. Plaintiffs appeal.

ISSUES ON APPEAL

¶8 First, Plaintiffs contend that the district court erred when
it granted summary judgment to Rocky Mountain in a gross
negligence case where the standard of care was not fixed by law.

¶9 Second, Plaintiffs contend that the district court erred
when it determined that no facts supported their claims of gross
negligence.

¶10 Third, Plaintiffs contend that the district court ‚erred
when it determined the outcome of the entire case based upon
one alleged, disputable fact.‛

¶11 Fourth, Plaintiffs contend that the district court erred
when it ‚granted *Rocky Mountain’s+ motion for summary

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judgment on causation based upon mischaracterization of
deposition testimony.‛

¶12 Fifth, Plaintiffs contend that the district court erred when
it granted Rocky Mountain’s alternative motion for summary
judgment and excluded testimony from Plaintiffs’ proposed
expert witness. Because our resolution of Plaintiffs’ first four
claims on appeal renders this claim moot, we do not consider its
merits.

¶13 Finally, Plaintiffs contend that the district court abused its
discretion when it awarded Rocky Mountain costs.

ANALYSIS

I. The District Court Properly Granted Rocky Mountain’s
Summary Judgment Motion Relating to Gross Negligence.

¶14 Plaintiffs’ first four contentions each challenge the district
court’s granting of Rocky Mountain’s first motion for summary
judgment. The district court granted the motion on the ground
that Plaintiffs ‚presented no evidence upon which reasonable
minds could conclude that [Rocky Mountain’s] guide . . .
exercised no care.‛

¶15 Summary judgment is appropriate ‚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). ‚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). ‚[B]ecause
negligence cases often require the drawing of inferences from the
facts, which is properly done by juries rather than judges,

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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).

¶16 ‚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.’‛ Pearce v.
Utah Athletic Found., 2008 UT 13, ¶ 24, 179 P.3d 760 (quoting
Berry v. Greater Park City Co., 2007 UT 87, ¶ 26, 171 P.3d 442).
Further, ‚gross negligence, which is associated with willful,
wanton, and reckless conduct, applies to conduct that is so far
from a proper state of mind that it is treated in many respects as
if harm was intended and usually is accompanied by a conscious
indifference to consequences.‛ Blaisdell v. Dentrix Dental Sys.,
Inc., 2012 UT 37, ¶ 16, 284 P.3d 616 (citation and internal
quotation marks omitted).

¶17 First, Plaintiffs contend that the district court erred when
it granted summary judgment to Rocky Mountain in a gross
negligence case where the standard of care was not fixed by law.
They argue that the ‚standard of care regarding how a guide
manages gaps in the train of horses is not fixed by law‛ and that
it was therefore ‚inappropriate for the *district+ court to grant
the summary judgment motion.‛

¶18 Plaintiffs rely on the Utah Supreme Court’s opinions in
Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, and Pearce
v. Utah Athletic Foundation, 2008 UT 13, 179 P.3d 760. The Berry
court stated a two-part guideline for summary judgment in
negligence cases:

[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.’‛

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Berry, 2007 UT 87, ¶ 27 (quoting White v. Deseelhorst, 879 P.2d
1371, 1374 (Utah 1994) (quoting Wycalis v. Guardian Title of Utah,
780 P.2d 821, 825 (Utah Ct. App. 1989))). Plaintiffs read this
passage to mean that summary judgment may never be granted
in negligence cases unless both the standard of care is ‚fixed by
law‛ and reasonable minds could not differ as to the defendant’s
negligence. And to be sure, the passage does describe the two
elements in the conjunctive.

¶19 But that is not how our supreme court has read Berry.
Utah courts grant summary judgment with some frequency in
negligence cases—usually against the plaintiff—where the
standard of care is not ‚fixed by law‛ in the sense that the
defendant violated a statute or precedent specific to the industry
or practice at issue. And our supreme court, citing Berry, did that
very thing in Blaisdell v. Dentrix Dental Systems, Inc., 2012 UT 37,
284 P.3d 616.

¶20 In Blaisdell, a dentist sued a software provider for gross
negligence. Id. ¶ 2. The court affirmed the district court’s grant of
summary judgment in favor of the defendant. The plaintiff
argued on appeal, quoting Berry, that ‚summary judgment is
inappropriate on the issue of gross negligence unless there is a
‘standard of care . . . fixed by law.’‛ Id. ¶ 14 (quoting Berry, 2007
UT 87, ¶ 30). But the court, also citing Berry, disposed of the
claim under the rule that summary judgment ‚is generally
inappropriate to resolve negligence claims and should be
employed only in the most clear-cut case.‛ Id. ¶ 15 (quoting
Berry, 2007 UT 87, ¶ 27). And despite the absence of any law
fixing the standard of care for providers of dental practice
management software, the supreme court affirmed on the
ground that reasonable minds could not differ as to whether the
defendant’s conduct in that case was grossly negligent (it
wasn’t). Id. ¶ 16. In other words, the supreme court read the
Berry test as if the two factors were disjunctive rather than
conjunctive elements.

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¶21 We conclude that the supreme court’s application of the
two-part test in Blaisdell represents the original and best reading
of that test. The two-part test came to Utah via Wycalis v.
Guardian Title of Utah, 780 P.2d 821 (Utah Ct. App. 1989). Wycalis
stated the test this way:

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.

Id. at 825 (quoting Elmer v. Vanderford, 445 P.2d 612, 614 (Wash.
1968)). But Elmer v. Vanderford, the source of the ‚fixed by law‛
formulation, states the test in the disjunctive. It identifies ‚two
classes of cases in which the question of negligence may be
determined by the court as a conclusion of law.‛ Elmer, 445 P.2d
at 614 (citation and internal quotation marks omitted). In the first
class of cases, ‚the standard of duty is fixed, and the measure of
duty defined, by law, and is the same under all circumstances.‛
Id. (citation and internal quotation marks omitted). In the
second, ‚the facts are undisputed and but one reasonable
inference can be drawn from them.‛ Id. (citation and internal
quotation marks omitted). In effect, this is an alternative
formulation of our rule 56. See Utah R. Civ. P. 56.

¶22 Thus, both as originally promulgated and as actually
employed by our supreme court, under the fixed-by-law
formulation a district court must grant summary judgment if,
based on undisputed facts and under the governing legal
standard, reasonable minds could not differ as to whether the
defendant acted negligently. In any event, we look to the
governing standard in rule 56: ‚The 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.‛ Id. And that is the case here.

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¶23 Consequently, we hold that Berry did not require the
district court to deny Rocky Mountain’s summary judgment
motion on the ground that the standard of care governing ‚how
a guide manages gaps in the train of horses‛ on commercial trail
rides is not fixed by law. The district court handled the gross
negligence claim here just as the supreme court handled the
gross negligence claim in Blaisdell.

¶24 Second, Plaintiffs contend that the district court ‚erred
when it determined there were no facts to support *Plaintiffs’+
gross negligence claim.‛ Specifically, Plaintiffs argue that the
court ‚chose to ignore *Rocky Mountain’s+ employee manual,‛
which instructed its guides to ‚keep gaps from forming, warn of
obstacles such as hills and hikers, and keep the saddle from
slipping.‛

¶25 The district court ruled that Plaintiffs ‚presented no
evidence upon which reasonable minds could conclude that
[Rocky Mountain’s+ guide . . . exercised no care.‛ It further ruled
that Plaintiffs did not present ‚any evidence to show that *the
guide] knew or had reason to know of facts that would have
created a high risk of physical harm to . . . Penunuri, but
deliberately proceeded to act, or failed to act, in conscious
disregard of, or indifference to, that risk.‛ And, the court
concluded, without any evidence of the guide’s gross
negligence—in other words, without any evidence that she acted
with ‚utter indifference‛ to Penunuri’s safety during the
horseback ride—‚reasonable minds could reach but one
conclusion‛: that the guide was not grossly negligent. See Pearce
v. Utah Athletic Found., 2008 UT 13, ¶ 24, 179 P.3d 760 (citation
and internal quotation marks omitted).

¶26 As previously explained, ‚*g+ross negligence requires
proof of conduct substantially more distant from the appropriate
standard of care than does ordinary negligence.‛ Berry v. Greater
Park City Co., 2007 UT 87, ¶ 26, 171 P.3d 442. It ‚is ‘the failure to

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observe even slight care; it is carelessness or recklessness to a
degree that shows utter indifference to the consequences that
may result.’‛ Pearce, 2008 UT 13, ¶ 24 (quoting Berry, 2007 UT 87,
¶ 26). Therefore, for Plaintiffs’ claim to survive Rocky
Mountain’s summary judgment motion, the facts had to be
capable of supporting a finding that Rocky Mountain’s guide
failed ‚to observe even slight care‛ and acted with ‚utter
indifference to the consequences that may result.‛ Id. (citation
and internal quotation marks omitted).

¶27 Plaintiffs argue that Rocky Mountain’s employee
manual’s warning about gaps as well as testimony from Rocky
Mountain employees about the potential problems when gaps
form ‚should have created a rebuttable presumption of
negligence.‛ Plaintiffs do not support this argument with legal
authority stating that internal training manuals may define a
standard of care.3 But even if that assertion were true, it is not
relevant. Plaintiffs cannot succeed by showing that the evidence
would support a finding of ordinary negligence; their claim alleges
gross negligence. And even they do not contend that the manual
demonstrates that the guide exercised no care and acted with
utter indifference to the consequences of her actions.

¶28 Furthermore, we agree with the district court that, even
resolving all inferences in Plaintiffs’ favor, the evidence could
not support a finding of gross negligence. On the contrary, the
facts indisputably show that the guide did observe, at the very
least, slight care: she gave Penunuri instructions on how to
mount the horse and how to stop the horse from grazing, she
had been ‚slowing down the whole ride‛ for Penunuri and
Child, and she planned to take the reins of Child’s horse once the
riders reached a suitable area to rearrange the order of the riders.
In addition, Plaintiffs’ own proposed expert ‚testified that there

3. We express no opinion on this unbriefed question.

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is no evidence in this case indicating that *Rocky Mountain’s+
guide . . . exercised no care or acted in willful disregard for the
care of others.‛4 In sum, the undisputed evidence before the
court could not sustain a jury finding of gross negligence.

¶29 Third, Plaintiffs contend that the district court ‚erred
when it determined the outcome of the entire case based upon
one alleged, disputable fact.‛ Plaintiffs argue that the district
court granted Rocky Mountain’s motion for summary judgment
based on the ‚guide’s testimony that she was slowing down the
entire ride.‛ Plaintiffs further argue that the guide’s ‚failure to
stop the moment she came upon the hikers to close the gaps that
had formed‛ breached the standard of care.

¶30 We do not read the district court’s ruling so narrowly.
True, the court prominently cited the guide’s testimony that she
‚had been slowing down the whole ride.‛ But the court also
cited the fact that the guide ‚was attempting to get the group to
a larger clearing‛ to take the reins of Child’s horse, as well as
Plaintiffs’ own proposed expert’s testimony that the guide had
not ‚exercised no care.‛

¶31 Moreover, we agree with the district court’s
characterization of the guide’s testimony as undisputed. The
guide testified, ‚I had been slowing down the whole ride.‛
Plaintiffs argue that this testimony ‚is fully contradicted by the
facts that the trial court disregarded.‛ Plaintiffs refer to
testimony that the guide ‚just march[ed] on at a normal speed‛
and did not stop when requested. But the page of the record
Plaintiffs cite in support of this assertion does not support it. The
witness testified as follows: ‚I told *the guide+ that we had to

4. Solely for purposes of analyzing the summary judgment
motion on gross negligence, we assume that the opinion
testimony of Plaintiffs’ proposed expert witness was admissible.

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wait up, to stop. And she said that we would stop at the clearing
farther on and that she would pony *Child+ in.‛ This testimony
does not contradict the guide’s testimony that she had been
slowing down the whole ride. Accordingly, the court’s summary
judgment does not rest on a single disputed fact.

¶32 In addition, Plaintiffs cite other testimony from which
they allege that a finder of fact could conclude that the guide
knew the potential danger of gaps between horses, knew that
gaps had formed in this company, and decided to close those
gaps only after the group got past the foot traffic and bends in
the trail. But, as explained above, this testimony would at most
support a claim for ordinary negligence. Even assuming the
truth of all the evidence on which Plaintiffs rely, it does not
support a claim of gross negligence.

¶33 Finally, Plaintiffs contend that the district court ‚erred
when it granted *Rocky Mountain’s+ motion for summary
judgment on causation based upon mischaracterization of
deposition testimony.‛ Plaintiffs’ proposed expert testified that
‚several things could have startled that horse and caused it to
start running‛; he also testified that if there had not been a gap
between the horses, ‚all of those causes could have been
minimalized.‛ He testified that ‚there should have been extra
care taken to get the horses together.‛ The court ruled that
summary judgment was appropriate because Plaintiffs
‚presented no evidence beyond speculation concerning
causation.‛

¶34 Plaintiffs argue that the court ignored the expert’s
testimony that the danger could have been lessened or
eliminated if the gaps had been closed between the horses. We
do not agree with Plaintiffs’ characterization of the district
court’s assessment of the causation evidence. But even if the
district court erroneously concluded that the evidence could not
support a finding of causation, the outcome of this case would

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be the same, because, as explained above, we agree with the
district court that evidence of gross negligence is lacking here.

¶35 For the foregoing reasons, the district court did not err in
granting Rocky Mountain’s summary judgment motion on the
gross negligence claim. And because we conclude that the
undisputed facts support summary judgment for Rocky
Mountain even assuming the admissibility of the testimony of
Plaintiffs’ proposed expert, we need not address Plaintiffs’
challenge to the district court’s exclusion of that witness.

II. The District Court Did Not Abuse Its Discretion When It
Awarded Deposition Costs to Rocky Mountain.

¶36 Plaintiffs contend that the district court ‚erred when it
determined that Rocky Mountain was entitled to the deposition
costs in the amount of $2,577.32, together with post-judgment
interest, when the same evidence could have been obtained
through less expensive means.‛ ‚In reviewing a district court’s
denial or award of costs, we apply a highly deferential
standard.‛ Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 84, 201
P.3d 966. In Giusti, the supreme court concluded that because the
trial court ‚applied the correct standard‛ and ‚gave a legitimate
reason for its decision,‛ it ‚did not abuse its discretion.‛ Id. ¶ 86.

¶37 Under rule 54(d) of the Utah Rules of Civil Procedure,
‚*u+nless a statute, these rules, or a court provides otherwise,
costs should be allowed to the prevailing party.‛ Utah R. Civ. P.
54(d)(1). ‚The general rule regarding the recovery of deposition
costs is that a party may recover deposition costs as long as the
trial 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.‛
Young v. State, 2000 UT 91, ¶ 6, 16 P.3d 549 (alteration in original)
(citation and internal quotation marks omitted). The district
court ‚must find that the depositions were essential because they
were used in a meaningful way at trial, or because the

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development of the case was of such a complex nature that the
information in the depositions could not be obtained through
less expensive means of discovery.‛ Id. ¶ 11.

¶38 Plaintiffs argue that the costs for the depositions of
Penunuri, Mother, and one of Penunuri’s friends (Friend) ‚were
not necessary and the information in the Motion for Summary
Judgment certainly could have been obtained through less
expensive means.‛ However, the district court did not decide
that the depositions were essential ‚because the development of
the case was of such a complex nature that the information in the
depositions could not be obtained through less expensive means
of discovery.‛ See id. In fact, the court stated, ‚I haven’t really
reached a conclusion as to whether or not this case was of such a
complex nature that . . . less expensive discovery could have
been obtained.‛

¶39 Instead, the court considered whether the depositions
were used ‚in a meaningful way‛ in resolving the case through
summary judgment.5 The court, in considering Penunuri’s
deposition, found that ‚her deposition was used in a very
meaningful way in establishing the undisputed facts for the
purpose of the motion for summary judgment.‛ The court
further stated, ‚I’m finding and ruling that whether or not it was
complex, this was discovery that had to be done with Ms.
Penunuri, through a deposition.‛ The court similarly found that
both Mother’s and Friend’s depositions were ‚used in a
significant way and a meaningful way . . . in the motion for
summary judgment.‛ The court additionally found that
depositions were required to obtain Mother’s and Friend’s
testimony, as ‚lesser means of discovery were either not

5. Plaintiffs do not argue that the district court could not analyze
whether the depositions were essential under the ‚used in a
meaningful way‛ prong.

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available or not accurate and . . . through their deposition[s],
they were able to clear up issues and facts.‛

¶40 The district court also found that Penunuri’s, Mother’s,
and Friend’s depositions ‚were taken in good faith‛ and that
they ‚appeared to be essential for the development and
presentation of the case because they were ‚used in a
meaningful way‛ in resolving the case. See id. ¶¶ 6, 11. Under
our deferential standard, this is enough. We therefore conclude
that the district court did not abuse its discretion in awarding
Rocky Mountain costs for the depositions of Penunuri, Mother,
and Friend.

CONCLUSION

¶41 The judgment of the district court is affirmed.

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