2020 UT App 5
THE UTAH COURT OF APPEALS
SCOTT HOWE,
Appellee,
v.
MOMENTUM LLC,
Appellant.
Opinion
No. 20190187-CA
Filed January 3, 2020
Third District Court, Salt Lake Department
The Honorable Patrick Corum
No. 160901585
Andrew D. Wright and A. Joseph Sano, Attorneys
for Appellant
Ralph C. Petty, Attorney for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
APPLEBY, Judge:
¶1 Scott Howe sued Momentum LLC under a theory of gross
negligence 1 for injuries he sustained while “bouldering.” 2
1. Howe also sued Momentum for ordinary negligence, but that
claim was dismissed on summary judgment because it “[wa]s
extinguished by the pre-injury release signed by [Howe]” and he
does not appeal the dismissal of his ordinary negligence claim.
2. According to Momentum, “bouldering” in the context of
indoor climbing refers to “free climbing, without ropes or
harnesses,” in which “climbers use small rock formations or
artificial rock walls for hand- and foot-holds.”
Howe v. Momentum, LLC
Momentum moved for summary judgment, which the district
court denied because the disputed facts were sufficient to raise a
jury question. The district court also ruled that Howe’s expert
(Expert) was qualified to testify on the industry standard of care.
The matter is before this court on an interlocutory appeal
challenging the court’s denial of the summary judgment motion
and its decision to permit Expert to testify. We affirm and
remand for further proceedings.
BACKGROUND 3
¶2 Momentum is an indoor-climbing facility with a separate
area for bouldering. The bouldering area’s concrete floor is
covered by approximately twelve inches of foam padding
overlain by thick vinyl, known as an “impact attenuation
surface.” In the years after Momentum’s 2007 opening, some of
the vinyl began to tear and separate. In late September 2011,
Momentum had “[a]t least one” tear repaired with a welded
vinyl patch.
¶3 But Momentum’s management team deemed these tear
patches a hazard for tripping, 4 so it placed modular
3. On appeal from a district court’s summary judgment ruling,
we recite “the facts and all reasonable inferences drawn
therefrom in the light most favorable to” Howe, the nonmoving
party. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600
(quotation simplified). Conflicting evidence is presented “only
as necessary to understand issues raised on appeal.” USA Power,
LLC v. PacifiCorp, 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (quotation
simplified).
4. In Howe’s view, the vinyl weld “proved effective and
alleviated the defective condition of the floor in the repaired
area.”
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one-inch-thick mats over certain areas of the bouldering area
floor that were showing signs of wear or damage. The mats are
not designed to be anchored to the underlying pad and they
would sometimes move when people landed on them. Because
the mats tended to move, Momentum staff “monitored the floor
regularly to try to keep the [mats] in place.” In addition to this
action, a Momentum employee altered the routes above those
areas by reconfiguring and reducing the number of foot- and
hand-holds to reduce customer use of the areas with worn and
damaged padding.
¶4 Over the years—and prior to Howe’s injury—
Momentum’s patrons had reported incidents, some of which
involved injuries, which alerted Momentum to the fact that
the padding in the bouldering area was worn and damaged
in some places. Before Howe was injured, five incidents
were reported before Momentum began using the mats
and another eight were reported thereafter. Each of these
injuries involved a climber dropping from the bouldering
wall or “slab area” to the floor below and, upon landing,
pushing a foot through the floor padding, making contact with
the concrete floor below, either rolling or twisting an ankle in the
process.
¶5 In March 2012, Howe was bouldering at Momentum.
After finishing his bouldering route, Howe dropped off the
wall to the floor below. As he made contact with the floor,
his “left foot impacted the mat on top of the padded
floor, causing the mat to move. As the mat moved, it exposed
the padded floor beneath. Concealed under the mat, the
cover of the pad was split in a straight line, exposing the
abutting edges of pads below.” When Howe’s “right foot
impacted the top of the two abutting pads, [his] foot
passed between the two abutting pads to the floor beneath.” As
a result of the contact with the concrete, Howe broke his right
ankle.
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¶6 Howe sued, asserting—among other things—that
Momentum was grossly negligent. He alleged that Momentum,
“with a knowing and reckless indifference and disregard for the
safety of [Howe] and other members of [Momentum], concealed,
or caused to be concealed, the defects in their floor padding by
placing mats over the defective area.”
¶7 Howe designated a liability Expert. Expert has a
bachelor’s degree in chemical engineering and petroleum
refining, as well as a master’s degree in metallurgical
and materials engineering. His professional experience
includes research and development engineering as well as
forensic engineering. Expert owns a forensic engineering
company that specializes in “metallurgical, materials, and
mechanical failure analysis”; “materials evaluation and testing”;
“product liability and analysis”; “fire and explosion cause and
origin”; “industrial, recreational, and construction accident
analysis”; and “chemical and mechanical systems failure
analysis.” Expert has been an expert witness in numerous cases,
one of which involved a mechanical failure that caused an
indoor climbing accident. He has also had professional
experience with evaluating impact attenuation surfaces in the ski
industry.
¶8 Expert opined that Momentum did not take appropriate
steps to protect climbers in the bouldering area. Indeed, Expert
concluded that
Momentum significantly elevated the risk of injury
to climbers in the bouldering area by (1) failing to
repair, restrict access, clearly mark, cordon off,
close walls, or close areas around and near the
areas where the vinyl padding cover was
damaged, and by (2) placing the [mats] over the
damaged areas of the padding cover, thus
concealing the hazard created by the damage.
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In Expert’s opinion, appropriate steps to remedy the problem
could have included using “warning signs, closing the sections
of the floor or wall near damaged areas,” removing the
hand- and foot-holds above the damaged padding, making
inaccessible the damaged padding areas, or repairing the
damaged padding. During deposition testimony, Expert
explained that “those are ways to prevent the public from
interacting with the obvious hazard created by the opening in
the pads.” This approach was based on his “engineering
background and experience in dealing with hazards.” In short,
his opinion is that “gluing and adhering . . . a large patch of
vinyl over the tear” would have been safer than using the mats.
¶9 Momentum moved for summary judgment, arguing the
undisputed facts established that it exercised at least slight care
to protect climbers using its facility, which meant Howe could
not demonstrate gross negligence. Momentum also moved to
exclude Expert, claiming he was unqualified to opine upon the
standard of care in the indoor-climbing industry. The district
court denied these motions, and Momentum successfully
petitioned this court for an interlocutory appeal.
ISSUES AND STANDARDS OF REVIEW
¶10 Momentum raises two issues on appeal. First, it claims the
district court erred when it denied Momentum’s motion for
summary judgment. Denials of summary judgment are
questions of law reviewed for correctness. Glenn v. Reese, 2009
UT 80, ¶ 6, 225 P.3d 185.
¶11 Second, Momentum claims the district court erred when it
denied Momentum’s motion to exclude Expert. A district court’s
determination regarding the admissibility of expert testimony is
reviewed for abuse of discretion. Gunn Hill Dairy Props., LLC v.
Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 16, 269
P.3d 980.
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Howe v. Momentum, LLC
ANALYSIS
I. Summary Judgment
¶12 Summary judgment shall be granted “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). In this case, the
district court denied Momentum’s motion for summary
judgment on Howe’s claim for gross negligence, based on its
finding that there were ”numerous genuine issues of disputed
material fact.”
¶13 In reviewing a district court’s summary judgment
decision, appellate courts “must evaluate all the evidence and all
reasonable inferences fairly drawn from the evidence in a light
most favorable to the party opposing summary judgment to
determine whether there is a material issue of fact to be tried.”
Horgan v. Industrial Design Corp., 657 P.2d 751, 752 (Utah 1982).
“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. Summary
judgment is proper where reasonable minds could reach only
one conclusion based on the applicable material facts.” Penunuri
v. Sundance Partners, Ltd., 2017 UT 54, ¶ 35, 423 P.3d 1150
(quotation simplified).
¶14 Citing Penunuri and Blaisdell v. Dentrix Dental Systems,
Inc., 2012 UT 37, 284 P.3d 616, Momentum argues that
“the undisputed material facts of this case show that [it]
exercised care, far more than even slight care, and was not
careless or reckless, let alone to a degree that shows utter
indifference,” and that therefore “the district court erred in
denying Momentum’s motion for summary judgment.”
(Quotation simplified.) Momentum points out that it
“[u]ndisputedly . . . took steps to protect climbers from being
injured by the wear and tear damage that had developed in its
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primary padding,” including using welded patches, “thinn[ing]
out” the climbing routes, and, “[a]fter determining that the . . .
patches created tripping hazards,” using the mats and
monitoring their positioning. In Momentum’s view, these steps
demonstrate that it took at least slight care and was not utterly
indifferent to the consequences that could result from a failure to
take care.
¶15 Howe acknowledges that Momentum took these
steps, but argues they were inadequate. He further asserts
that Momentum’s use of the pads to cover the defective
flooring concealed the risk and rendered the climbers
“defenseless against the dangerous conditions known
to Momentum,” and claims that his “inability to see
the dangerous flooring over which he was climbing contributed
to his injuries.” At oral argument before this court, Howe
argued this concealment “dramatically magnified” the risk of
harm.
¶16 We note the tension between our supreme court’s
recent articulation of the elements of gross negligence as
“the failure to observe even slight care,” Penunuri, 2017 UT 54,
¶ 35 (quotation simplified), and the language of a subsequent
paragraph suggesting that “the essential evidence needed
to survive a defendant’s motion for summary judgment on
a gross negligence claim” is “evidence that the defendant’s
conduct dramatically magnified the risk of harm to the
plaintiff,” id. ¶ 37. We can envision situations in which the
straightforward application of the elements identified in
paragraph 35 might dictate a grant of summary judgment in
favor of the defendant while the application of the elements
identified in paragraph 37 might dictate the denial of
summary judgment. But we need not explore this tension further
here because Momentum’s failure to take further action in the
face of eight additional incidents creates questions of fact about
whether it was grossly negligent, even assuming that paragraph
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35 sets forth the correct formulation of the elements of gross
negligence.
¶17 Although Momentum took certain steps to remedy the
problem created by the deterioration of the foam padding, injury
incidents continued to occur even after implementation of
Momentum’s injury-avoidance strategy. It is beyond question
that a plaintiff who can demonstrate that a defendant has taken
no action in response to injury incidents will have likely made
out at least a prima facie case of gross negligence, one sufficient
to withstand summary judgment. See id. ¶ 16 (“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 . . . .”). We
cannot see much of a distinction between that situation and the
case Howe brings here: a defendant takes some action in
response to injury incidents, and therefore arguably
demonstrates slight care in the beginning, but takes no
additional action after injury incidents continue to occur
following implementation of its original strategy. Stated another
way, we are not persuaded that a defendant who simply relies
on a repeatedly-failed strategy to avert injury from a known risk
is entitled to judgment as a matter of law on the “slight care”
question.
¶18 In this case, five incidents, some of which involved
injuries, motivated Momentum to take steps to address
the problem and ultimately to place mats over the cracked foam
padding. These acts arguably show that Momentum exercised
slight care in the beginning and was therefore not completely
indifferent to the consequences of allowing climbers to use the
bouldering area given the condition of the padding. But by the
time Howe was injured, eight more injuries had been reported to
Momentum, even after it had thinned the routes and put down
the extra pads. These eight additional climbers were injured in
roughly the same manner as Howe: when they dropped from the
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bouldering wall onto the floor below, the mat moved, their feet
were caught in the crack in the foam padding, and their ankles
were injured. Under these circumstances, the question of
whether Momentum’s continued use of the mats constituted
gross negligence presents a disputed issue of material fact.
¶19 Because a reasonable finder of fact could determine, on
this record, that Momentum was grossly negligent, the district
court’s denial of summary judgment was appropriate.
II. Expert Testimony
¶20 The Utah Rules of Evidence allow “a witness who is
qualified as an expert by knowledge, skill, experience, training,
or education” to “testify in the form of an opinion or otherwise if
the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue.” Utah R. Evid. 702(a). Furthermore,
“[s]cientific, technical, or other specialized knowledge may serve
as the basis for expert testimony only if there is a threshold
showing that the principles or methods that are underlying in
the testimony (1) are reliable, (2) are based upon sufficient facts
or data, and (3) have been reliably applied to the facts.” Id.
R. 702(b).
¶21 Momentum argues the district court abused its discretion
in denying its motion to exclude Expert. First, it contends
Expert’s experience as an engineer did not qualify him to testify
as to the applicable standard of care in the indoor-climbing
industry. Second, Momentum contends that, because Expert
did not evaluate or test vinyl floor padding or the mats used to
cover the damaged areas, Expert’s opinions did not meet the
reliability standard imposed by rule 702 of the Utah Rules of
Evidence.
¶22 But as Howe points out, Expert’s training as a
professional engineer with experience in “forensic engineering
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and accident analysis in recreational settings,” “slip and fall
accident analysis,” and “warnings, design, and standard of care
issues” qualifies him to assist the finder of fact in making a
determination of the standard of care in the indoor-climbing
industry.
¶23 Expert’s proposed testimony is that Momentum acted
with indifference toward the safety of its members when it
placed mats over the damaged padding; Expert opines that
Momentum could have and should have taken alternative steps
to mitigate the effects of the worn padding. As Howe points out,
and the district court agreed, this testimony “will be helpful to
the jury to understand the options Momentum had in addressing
the damaged vinyl” and to avoid speculation regarding its
options.
¶24 Further, as to reliability, Expert’s opinion is based “upon
[his] engineering education, experience, and training” and
“knowledge . . . gained from being a forensic engineer . . . and
studying padding and other types of accidents.” In determining
whether to allow an expert to offer an opinion, the district
court’s role is that of a “gatekeeper,” meant “to screen out
unreliable expert testimony.” Gunn Hill Dairy Props., LLC v. Los
Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 28, 269 P.3d
980 (quotation simplified). The court is afforded “broad
discretion” when making this determination, and we “will
reverse its decision only when it exceeds the bounds of
reasonability.” Id. ¶ 31 (quotation simplified). Here, the court’s
determination that Expert’s opinion was sufficiently reliable
does not “exceed[] the bounds of reasonability,” and we decline
to reverse it. See id. (quotation simplified). Expert’s opinion
meets the threshold showing of reliability and “will help the trier
of fact to understand the evidence or to determine a fact in
issue.” Utah R. Evid. 702(a). Therefore the district court did not
abuse its discretion in denying Momentum’s motion to exclude
his testimony.
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CONCLUSION
¶25 Because there are material facts in dispute, the district
court properly denied Momentum’s summary judgment motion.
Furthermore, the court did not abuse its discretion in denying
Momentum’s motion to exclude Expert. We affirm the district
court’s rulings on these points and remand for further
proceedings.
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