Estate of Flygare v. Ogden City

2017 UT App 189

THE UTAH COURT OF APPEALS

THE ESTATE OF ROSE FLYGARE, MARJORIE BELL, RICHARD PRATT,
AND JENNIFER PRATT,
Appellants,
v.
OGDEN CITY AND BLACK & MCDONALD LLC,
Appellees.

Opinion
No. 20160546-CA
Filed October 13, 2017

Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 140905780

Edward B. Havas and Paul M. Simmons, Attorneys
for Appellants
Stephen F. Noel and Kenneth Brown, Attorneys for
Appellee Ogden City
Terry M. Plant and Daniel E. Young, Attorneys for
Appellee Black & McDonald LLC

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

HAGEN, Judge:

¶1 After leaving an event at Peery’s Egyptian Theater late in
the evening on February 16, 2013, Rose Flygare, Marjorie Bell,
and a minor child (collectively, Plaintiffs 1) were hit by a truck

1. Rose Flygare died during the pendency of this case and her
estate was substituted as a plaintiff. Richard and Jennifer Pratt
brought this action on behalf of the minor child. For ease of
(continued…)
 Estate of Flygare v. Ogden City

and injured as they crossed at a designated crosswalk in Ogden,
Utah. The marked crosswalk was equipped with streetlights, but
they had been inoperative for several days prior to the accident.
Plaintiffs sued Ogden City and the contractor responsible for
maintaining the streetlights, Black & McDonald LLC,
(collectively, Defendants 2), alleging that the inadequate lighting
caused or contributed to the accident. Plaintiffs appeal the
district court’s entry of summary judgment, which dismissed
their negligence claims against Defendants. We affirm.

BACKGROUND

¶2 On January 7 and February 6, 2013, Ogden City contacted
Black & McDonald to request that it inspect and repair several
“day burners” in the 2200, 2300, and 2400 blocks of Washington
Boulevard. A “day burner” is a streetlight that remains on
during the day instead of automatically turning off at dawn. On
February 7, 2013, a Black & McDonald employee was attempting
to repair a day burner when he accidentally shorted out the
wires and tripped a breaker, causing the streetlights in the
vicinity to go out. Five days later, Black & McDonald notified
Ogden City of the streetlights’ circuitry problems, but Ogden
City did not authorize repairs until February 17, 2013, the day
after Plaintiffs were hit in the unlit crosswalk.

¶3 The crosswalk is located in the middle of the 2400 block of
Washington Boulevard, a multilane road in an area of

(…continued)
reference, however, we use “Plaintiffs” to refer to either the three
pedestrians who were injured or their representatives.

2. Pacificorp dba Rocky Mountain Power was a defendant in the
proceedings below but was dismissed and is not a party to this
appeal.

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downtown Ogden that is home to arts and recreation centers, a
convention center, businesses, and municipal buildings. At the
time of the accident, the crosswalk did not have any cracks,
potholes, raised sections, or other problems. The street was
marked with white hash marks and white arrows. There were
two identical signs—one in the median and one on the right-
hand side of the road—depicting an arrow, a pedestrian, and a
yield sign indicating a crosswalk. At the crosswalk’s entrance,
there was a yellow sign on the right-hand side of the road
depicting a pedestrian and an arrow pointing to the crosswalk.
The crosswalk did not have any flashing lights or Walk/Don’t
Walk signs.

¶4 Plaintiffs contend that, on the night of the accident, the
driver of the truck was unable to see them in the crosswalk due
to inadequate lighting. They sued Defendants, alleging
negligence in failing to properly operate, maintain, and repair
the streetlights. Defendants subsequently moved for summary
judgment, asserting that they did not have a duty to illuminate
the crosswalk. The district court agreed and granted summary
judgment for Defendants on December 14, 2015. Plaintiffs filed a
timely motion to alter or amend the judgment, claiming that the
court had not fully considered the argument that Black &
McDonald’s affirmative negligent act of tripping the breaker–as
opposed to its failure to maintain the streetlights–imposed
liability on Defendants. On June 6, 2016, the court denied the
motion and questioned whether Plaintiffs’ motion was actually
an improper request to reconsider. Plaintiffs filed a notice of
appeal on June 24, 2016.

ISSUE AND STANDARD OF REVIEW

¶5 On appeal, Plaintiffs challenge the district court’s ruling
that Defendants had no duty to light the crosswalk where the
accident occurred and were therefore entitled to summary
judgment. Summary judgment is appropriate if “there is no

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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).
“This 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.” Forsberg v. Bovis
Lend Lease, Inc., 2008 UT App 146, ¶ 7, 184 P.3d 610 (citation and
internal quotation marks omitted).

ANALYSIS

I. Jurisdiction

¶6 Before reaching the merits of this appeal, we must
consider a threshold jurisdictional issue. Defendants argue that
this appeal is untimely because it was filed nearly six months
after the district court granted summary judgment. Plaintiffs
claim that they timely filed their notice of appeal within thirty
days after the denial of their motion to alter or amend the
judgment. The question before us is whether Plaintiffs’ post-
judgment motion was a true motion to alter or amend the
judgment, which extends the time for filing a notice of appeal, or
an unauthorized motion to reconsider, which does not.

¶7 To be timely, a notice of appeal must be filed “within 30
days after the date of entry of the judgment or order appealed
from.” Utah R. App. P. 4(a). However, certain post-judgment
motions, such as motions to alter or amend, toll the time for
appeal. See id. R. 4(b). The prescribed thirty-day period does not
begin to run until after the court enters an order on one of those
rule-sanctioned motions. See B.A.M. Dev. v. Salt Lake County, 2012
UT 26, ¶ 10, 282 P.3d 41. On the other hand, because neither the
Utah Rules of Appellate Procedure nor the Utah Rules of Civil
Procedure recognize motions to reconsider, such motions do not
toll the time for appeal. See Gillett v. Price, 2006 UT 24, ¶¶ 5–6,
135 P.3d 861.

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¶8 Defendants argue that Plaintiffs’ motion to alter or amend
the judgment was, in substance, an unauthorized motion to
reconsider that did not toll the time for appeal. In B.A.M.
Development, the Utah Supreme Court rejected a similar
argument. See 2012 UT 26, ¶ 13. In that case, the defendant
argued that the time for filing a notice of appeal was not tolled
by a motion to alter or amend the judgment under Utah Rule of
Civil Procedure 59(e) because the motion “was in substance a
motion to reconsider—in that it was essentially a ‘rehash’ of
arguments made during trial.” Id. ¶ 12. The supreme court
declined to construe the rule 59 motion as a motion to
reconsider, holding that “[r]ule 4(b) is triggered by the filing of a
motion that is properly styled as one of the motions enumerated
in the rule and that plausibly requests the relevant relief.” Id.
¶ 13. Even though the arguments made in the motion “were
unconvincing and repetitive, neither rule 4(b) nor rule 59 require
that a posttrial motion make winning arguments to be
procedurally proper.” Id. ¶ 14.

¶9 This court recently applied that holding in a case where
the district court expressly found that a rule 59 motion was, in
substance, a motion to reconsider. See Lindstrom v. Custom Floor
Covering, Inc., 2017 UT App 141, ¶ 6, ___ P.3d ___. This court
examined whether the motion (1) “was ‘properly styled’ as a
rule 59(e) motion” and (2) “‘plausibly request[ed] the relevant
relief.’” Id. ¶ 12 (quoting B.A.M. Dev., 2012 UT 26, ¶¶ 13–14).
Because both requirements were met, this court held that “the
deadline to file a notice of appeal was tolled until that motion
was resolved.” Id.

¶10 Similarly, the post-judgment motion in the present case
was both properly styled and plausibly requested the relevant
relief. Defendants do not contest that Plaintiffs “styled” their
motion as a rule 59(e) motion. See Utah R. Civ. P. 59(e). The
motion was captioned as a motion to alter or amend and cited
rule 59(e). In addition, it explicitly requested “relevant relief”—

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that the district court alter or amend its order of December 14,
2015. See B.A.M. Dev., 2012 UT 26, ¶ 13. Thus, despite “making
the same arguments,” the motion was procedurally proper and
tolled the time for appeal. See Lindstrom, 2017 UT App 141, ¶ 12.
We therefore have jurisdiction to consider the merits of this
appeal.

II. Duty

¶11 Plaintiffs contend the district court “erred in concluding
that the defendants had no duty to light or maintain Washington
Boulevard at its busiest place.” “One essential element of a
negligence action is a duty of reasonable care[.]” Beach v.
University of Utah, 726 P.2d 413, 415 (Utah 1986). “Without a
duty, there can be no negligence as a matter of law, and
summary judgment is appropriate.” Rocky Mountain Thrift Stores
Inc. v. Salt Lake City Corp., 887 P.2d 848, 852 (Utah 1994). Thus,
for their negligence claim to survive summary judgment,
Plaintiffs must show that Defendants owed them a duty. See
Young v. Salt Lake City School Dist., 2002 UT 64, ¶ 12, 52 P.3d
1230. Whether a duty exists is a question of law that we review
for correctness. See Fishbaugh v. Utah Power & Light, 969 P.2d 403,
405 (Utah 1998).

¶12 The legal analysis regarding the existence of a duty is the
same for both Defendants. Municipalities, such as Ogden City,
have a nondelegable duty to maintain their streets in a
reasonably safe condition for travel. See Bowen v. Riverton City,
656 P.2d 434, 437 (Utah 1982). Ogden City would be liable if the
negligence of its independent contractor, Black & McDonald,
violated this nondelegable duty. See Castellanos v. Tommy John,
LLC, 2014 UT App 48, ¶ 23, 321 P.3d 218. As for Black
& McDonald, as a general matter, “an independent contractor
responsible for municipal light repairs owes no duty of care to
the general public.” Vergara v. Tides Constr. Corp., 721 N.Y.S.2d
103, 103 (N.Y. App. Div. 2001). A contractor may be held liable in

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certain limited circumstances, however, such as where
streetlights are necessary “to obviate a dangerous condition,”
where the actions of the contractor “create a risk greater than the
risk created by the total absence of a streetlight,” or where the
public has “relied on the operation of the streetlight [forgoing]
other protective actions.” See White v. Southern Cal. Edison Co., 30
Cal. Rptr. 2d 431, 437 (Ct. App. 1994). As explained below, a
municipality would have a duty to light the street under those
same circumstances. Because the undisputed facts in this case do
not give rise to such a duty, summary judgment was appropriate
as to both Defendants.

A. No Duty to Light Otherwise Safe Streets

¶13 The Utah Supreme Court has previously considered
whether municipalities have a duty to install and maintain
streetlights and held that a city has no duty to light an otherwise
safe street. See Fishbaugh, 969 P.2d at 403. In Fishbaugh, a car hit a
pedestrian as he crossed a mid-block crosswalk at 350 South
West Temple in Salt Lake City, Utah. See id. at 404. At the time of
the accident, streetlights in the area were not working due to a
short in the photocell. Id.

¶14 The supreme court recognized the general rule that “a
municipality possesses no duty to light its streets.” Id. at 405
(citation and internal quotation marks omitted). “Because a
municipality has no common law duty to light its streets, it has
no duty to maintain such lights that it has nevertheless elected to
install.” Id. at 406.

¶15 On the other hand, a city “does have the clear duty to
maintain its streets reasonably safe for travel” and “to warn of
dangerous conditions on its streets.” Id. Streetlights are one
medium municipalities can use to provide adequate warning. Id.
As a result, a municipality may have the duty to provide
streetlights if such lighting is necessary to warn travelers of
“defects, obstructions, and unsafe places in its streets.” Id.

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(citation and internal quotation marks omitted). In other words,
a city’s “duty to install and maintain streetlights is dependent
upon the existence of a hazardous condition.” Id. at 407.

¶16 Ultimately, the Fishbaugh court did not reach the question
of whether a hazardous condition existed. The court held that,
“even assuming [the existence of] a hazardous condition
requiring lighting and a duty to maintain the lights,” summary
judgment was appropriate because there was “no evidence that
either the City or [the utility] was negligent.” Id.

¶17 Plaintiffs argue that, “[b]ecause Fishbaugh was decided on
the grounds that there was no evidence of negligence,” it should
not control this court’s determination of whether Defendants
had a duty to light the crosswalk at issue in the present case.
While it is true that the Fishbaugh court did not ultimately decide
whether there was a hazardous condition that would have given
rise to a duty to light that particular street, it clearly established
that there was no duty to light an otherwise safe street. See id.
Moreover, even if the discussion in Fishbaugh could be construed
as dicta, as Plaintiffs claim, the common law no-duty rule is
well-established. See Herndon v. Salt Lake City, 95 P. 646, 652
(Utah 1908) (“As to the duty of the city to light its streets
generally it may be said that no such duty exists at common
law.”).

¶18 Alternatively, Plaintiffs argue that this common law rule
is archaic and should be abandoned. However, we are not at
liberty to abandon a legal doctrine adopted by the Utah Supreme
Court. See Ortega v. Ridgewood Estates LLC, 2016 UT App 131,
¶ 30, 379 P.3d 18 (noting that “we are bound by vertical stare
decisis to ‘follow strictly’ the decisions rendered by the Utah
Supreme Court” (citation omitted)).

¶19 Since a municipality does not have a duty to light an
otherwise safe street, the question of whether Defendants owed

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Plaintiffs a duty depends on whether there was a peculiar or
hazardous condition making lighting necessary.

B. No Dispute of Material Fact Regarding the Absence of
Any Peculiar or Hazardous Condition

¶20 In the present case, there is no genuine issue of material
fact as to whether a peculiar or hazardous condition existed that
would require lighting to render the street safe for travel. The
condition of the crosswalk at the time of the accident is
undisputed. There were no “defects, obstructions, and unsafe
places,” that would have given rise to a duty to light the area. See
Fishbaugh, 969 P.2d at 406 (citation and internal quotation
omitted). Plaintiffs concede that the crosswalk “did not have any
cracks, potholes, raised sections or other problems impeding”
their ability to cross.

¶21 Although there is no dispute regarding the crosswalk’s
condition, Plaintiffs nonetheless argue that a question of material
fact remains as to whether the location of the crosswalk itself
was hazardous. Specifically, Plaintiffs contend that “[w]hether
the heavy traffic, the width of the street, and the design, which
funneled pedestrian traffic across Washington Boulevard just
south of the Egyptian Theater, where an inoperative streetlight
was, made Washington Boulevard in the middle of the 2400
block hazardous is a question for the jury to decide.” In essence,
the “hazardous condition” Plaintiffs identify is the placement of
a mid-block crosswalk on a wide, heavily trafficked street.

¶22 If creating a crosswalk was sufficient to render an
otherwise safe street hazardous, the exception would swallow
the no-duty rule. As applied, a municipality would be required
to assume the duty to install streetlights and ensure that they
remained functional at all times whenever it established a
crosswalk for the convenience of pedestrians. However, a
crosswalk is “not dangerous in the abstract” and “does not
constitute a peculiar condition rendering lighting necessary.”

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Plattner v. City of Riverside, 82 Cal. Rptr. 2d 211, 213 (Ct. App.
1999). Nor does the width of the street or volume of traffic
constitute a defect or unusual condition that would give rise to a
duty to light the area. See Thompson v. City of New York, 585
N.E.2d 819, 821 (N.Y. 1991) (holding that the plaintiff could not
establish a hazardous condition on the basis of a burnt-out
streetlight merely because the affected roadway “is large and at
times busy—a condition which exists at many city
intersections”). The mere placement of a crosswalk on a busy but
otherwise safe street does not create a hazardous condition and
therefore is insufficient to create a genuine issue of material fact.

¶23 The district court correctly granted summary judgment
because there was “no material dispute as to the condition of the
crosswalk at the time of the accident,” and because there was
“[n]o peculiar or dangerous condition at the crosswalk [that]
rendered it hazardous and in need of lighting.” In the absence of
any disputed issues of fact, the district court correctly ruled as a
matter of law that Defendants did not have a duty to light the
street.

C. No Broader “Assumed Duty”

¶24 Alternatively, Plaintiffs argue that, by installing
streetlights along Washington Boulevard, Defendants undertook
a broader duty to render services to pedestrians that it
recognized were necessary to “prevent accidents and increase
public safety.” In Fishbaugh, the Utah Supreme Court rejected a
similar argument that the city, “by simply undertaking to install
the streetlights,” assumed a broader duty to exercise reasonable
care in their maintenance. 969 P.2d at 406. As in this case, the
plaintiff in Fishbaugh based his argument on the Restatement
(Second) of Torts section 323, which provides:

One who undertakes, gratuitously or for
consideration, to render services to another which
he should recognize as necessary for the protection

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of the other’s person or things, is subject to liability
to the other for physical harm resulting from his
failure to exercise reasonable care to perform his
undertaking, if

(a) his failure to exercise such care increases the
risk of such harm, or

(b) the harm is suffered because of the other’s
reliance upon the undertaking.

Restatement (Second) of Torts § 323 (Am. Law Inst. 1965).

¶25 The supreme court explained that liability under this
section “is generally limited to instances where the failure to
exercise reasonable care in the undertaking has placed the
injured party in a worse position than he would have been in
had the undertaking not occurred, or where the injured party
relies on the undertaking.” Fishbaugh, 969 P.2d at 407. In other
words, where a city undertakes to illuminate an otherwise safe
street, it must exercise reasonable care to avoid creating a danger
that otherwise would not have existed, “such as where a
streetlight is angled in such a way as to blind a driver or a
pedestrian, or where a light post is neglected to such a degree
that the structure itself creates a hazard.” Id. Because there was
no suggestion of reliance on the operation of the streetlight and
the “lack of lighting did not put [the plaintiff] in a worse position
than if the streetlights had never been installed,” the court held
that the city did not have a broader duty to maintain the lights.
Id.

¶26 As in Fishbaugh, Plaintiffs cannot establish either that (1)
Defendants’ alleged failure to exercise reasonable care placed
them in a worse position, or (2) they detrimentally relied on the
streetlights.

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¶27 First, the alleged failure to exercise reasonable care in
repairing the streetlights did not increase the risk of harm to
Plaintiffs. As we have explained, Defendants had no duty to
light the street in the first instance. The failed repairs did not
place Plaintiffs in a worse position than if the streetlights had
never been installed. This is not a case where the alleged
negligence created a danger that did not otherwise exist. For
instance, if a defendant “negligently failed to repair a known
defect in a light pole that fell on a pedestrian . . . [or] if a motorist
were blinded by a misplaced street light,” the streetlights would
become an “instrument of harm” placing pedestrians and
drivers in a worse position than if the lights had never been
installed. Turbe v. Government of the Virgin Islands, 938 F.2d 427,
433 (3d Cir. 1991). Here, the alleged negligence did not increase
the risk of harm but merely resulted in the natural darkness that
would have existed if Defendants had elected not to light the
street in the first place.

¶28 Plaintiffs attempt to draw a distinction between a
defendant “merely failing to repair a streetlight that goes out
through no fault of [the defendant] and actually causing the
streetlight to go out through [the defendant’s] negligence.” In
other words, Plaintiffs argue that Defendants placed them in a
worse position when they affirmatively caused “the lights that
would have otherwise illuminated the crosswalk to go out.”

¶29 “When protective services are performed negligently, the
risk of harm to the beneficiary will always be greater than when
those services are performed competently.” Id. at 432. If we were
to accept Plaintiffs’ argument, “a defendant would potentially be
liable every time he discontinued services necessary for the
protection of others without providing notice.” Id. Whether
Defendants chose not to install streetlights, decided to turn them
off to conserve resources, neglected to maintain them, or
accidentally caused them to go out, the end result is the natural
darkness of night that the Defendants had no duty to eliminate.

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 Estate of Flygare v. Ogden City

Restatement section 323(a) “applies only when the defendant’s
actions increased the risk of harm to the plaintiff relative to the
risk that would have existed had the defendant never provided
the services.” Id.

¶30 An unsuccessful attempt to maintain streetlights is not
fundamentally different from a complete failure to maintain
them or from the decision not to install them in the first place.
While one involves an affirmative act and the other involves an
omission, Plaintiffs are merely deprived of a benefit that
Defendants had no duty to provide. There is a distinction
“between launching an instrument of harm and simply failing to
be an instrument of good.” Blake v. Public Service Co. of N.M.,
2004-NMCA-002, ¶ 14, 82 P.3d 960, 964. Here, the allegedly
negligent repairs only withheld an instrument of good. 3

¶31 Second, there is no evidence of detrimental reliance in this
case. To show reliance, Plaintiffs must demonstrate that they “in
some manner relied on the operation of the streetlight [forgoing]
other protective actions, e.g., a pedestrian chooses a particular
route home in reliance on the available street lighting when the
pedestrian would have chosen a different route or a different
means of transportation in the absence of lighting.” White, 30
Cal. Rptr. 2d at 437. “This exception to the general rule of

3. Because the alleged negligence occurred during actual
maintenance of the streetlights, this case is controlled by
Fishbaugh’s holding that a municipality has no duty to install or
maintain streetlights on an otherwise safe street. See Fishbaugh v.
Utah Power & Light, 969 P.2d 403, 407 (Utah 1998). We are not
confronted with, and therefore offer no opinion on, the question
of whether a municipal actor that negligently disables a
streetlight during actions that cannot be fairly categorized as
installation or maintenance could be held liable for injuries
caused by those actions.

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nonliability anticipates a pedestrian who has taken a particular
route based on the belief the route is lighted and does not
discover otherwise until it is too late to take a different route.”
Plattner, 82 Cal. Rptr. 2d at 214. In this case, Plaintiffs could
plainly see that the streetlights were not operating and had every
opportunity to select a safer route, such as crossing at the
intersection. In forgoing such protective action, Plaintiffs were
not relying on the crosswalk to be properly lit because it was
obvious that the streetlights were not operating before they
entered the crosswalk.

¶32 Defendants’ alleged negligence did not increase the risk
of harm relative to the risk that would have naturally existed,
and Plaintiffs cannot establish detrimental reliance on the
presence of functioning streetlights. Therefore, the district court
correctly held that Defendants had no assumed duty under
section 323 of the Restatement.

CONCLUSION

¶33 We conclude that Defendants did not have a duty to
provide lighting in the area of the crosswalk. The street did not
contain any peculiar or hazardous condition necessitating
lighting, the faulty repairs did not increase the risk of harm to
the Plaintiffs, and the Plaintiffs did not reasonably rely on the
streetlights to safely cross the street. Because Defendants owed
no duty as a matter of law, the district court correctly granted
summary judgment.

¶34 Affirmed.

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