Paget v. Department of Transportation

Opinion on Rehearing2

DAVIS, Judge:

¶ 1 We previously addressed this case in Paget v. Department of Transportation, 2013 UT App 161, 2013 WL 3226212. There, we affirmed the trial court’s determination that the Pagets’ expert testimony establishing the standard of care that the Utah Department of Transportation (UDOT) allegedly violated was inadmissible. Id. ¶ 15. However, we reversed the trial court’s summary judgment ruling in favor of UDOT because we determined that UDOT had failed to prove that its decision not to erect a median barrier was reasonable as a matter of law. Id. ¶22. After we issued that decision, UDOT filed a petition for rehearing in which it asserted that the Pagets could not establish a prima facie case of negligence without the excluded expert testimony and that UDOT was therefore entitled to judgment as a matter of law. We agree and now affirm the trial court’s summary judgment ruling in favor of UDOT. Accoi’dingly, this supplemental opinion supersedes Part II of our previously-issued opinion insofar as the two opinions conflict.

¶ 2 Although UDOT was unable to definitively establish that its actions were reasonable, we agree with UDOT that this is “not the only way UDOT can show it is entitled to judgment as a matter of law.” To avoid summary judgment, the Pagets were required to make out a prima facie ease of negligence against UDOT, including presenting evidence from which the jury could find that UDOT’s decision not to erect a median barrier fell below the applicable standard of care. The tidal court summarized its decision as follows: “[I]n compliance with [the trial court’s] ga-tekeeping responsibility to exclude unreliable expert testimony, [the Pagets’ expert’s] testimony is rejected by the Court. Based upon the undisputed material facts in this case, there is no evidence that UDOT’s design of 1-80 fell below a recognized standard of care.” We agree with the trial court that the Pagets cannot establish essential elements of their negligence claim without the testimony of their expert and that summary judgment was therefore appropriate. Cf. Jenkins v. Jordan Valley Water Conservancy Dist., 2013 UT 59, ¶¶ 2, 4, 321 P.3d 1049 (holding that “the question whether a pipeline needs to be replaced is outside the knowledge and experience of average lay persons” and that homeowners whose basement was flooded by a broken pipe “had an obligation to designate an expert to establish a basis for” their argument that the water conservancy district had a duty to replace the pipeline before the break occurred); Spafford v. Granite Credit Union, 2011 UT App 401, ¶ 34, 266 P.3d 866 (holding that a plaintiffs lack of expert testimony establishing “that the height of the curb [on which she was injured] or the slope of the asphalt violated any specific industry standards or otherwise constitute^] a deviation from accepted practice” prevented the plaintiff from establishing breach of duty or causation and that summary judgment in favor of the defendant was therefore appropriate (second alteration in original) (citation and internal quotation marks omitted)).

¶3 In their reply brief and in their response to UDOT’s petition for rehearing, the Pagets asserted for the first time that they could establish a prima facie ease without expert testimony because “laypersons could easily recognize the ‘obvious dangerous and unsafe’ condition created by the absence of a median barrier along the subject portion of 1-80.” (Quoting Peck v. Horrocks Eng’rs, Inc., 106 F.3d 949, 955 (10th Cir.1997) (apply*1182ing Utah law indicating that expert testimony is unnecessary to establish reasonable care where a condition is “so obviously dangerous and unsafe immediately prior [to the accident] that any person could recognize the danger” (citation and internal quotation marks omitted)).) This argument was not preserved in the trial court,3 but even if it had been, we are not convinced that the lack of a median barrier in this ease was so obviously dangerous that the Pagets could have established the standard of care without expert testimony. Cf. Jenkins, 2013 UT 59, ¶¶ 16-19, 321 P.3d 1049 (rejecting a plaintiffs assertion that the standard of care for replacing cast-iron pipe could be established without expert testimony, explaining that such an assessment is “inherently complex and case-specific, requiring the detail necessary to perform the cost-benefit calculus and the sophistication necessary to interpret it”).

¶4 In the absence of admissible evidence that UDOT’s design of 1-80 fell below a recognized standard of care, the Pagets cannot establish a prima facie ease of negligence against UDOT. Therefore, even though UDOT has not established that its design met the applicable standard of care as a matter of law, our determination that the trial court did not err in excluding the Pa-gets’ expert leads us to the conclusion that summary judgment in favor of UDOT was appropriate. Accordingly, we affirm the trial court’s summary judgment ruling.

. Our original opinion in this matter was issued on June 27, 2013. See Paget v. Department of Transp., 2013 UT App 161, 2013 WL 3226212.

We thereafter granted UDOT's petition for rehearing and heard arguments thereon. This opinion resolves the petition for rehearing. As explained in the lead opinion, while the substantive analysis of our original opinion remains unaltered, the result is changed from a remand to an affirmance.

. The dissent asserts that UDOT's sole theory in its motion for summary judgment was that the standards developed by the American Association of State Highway and Transportation Officials (AASHTO) established the standard of care. However, UDOT also argued that the Pagets’ claim would fail if their expert were disqualified and asserted, "[C]laims of engineering negligence must be supported with competent expert testimony; otherwise, the claim fails as a matter of law." The trial court implicitly accepted this argument as an alternative basis for summary judgment when it pointed out, after excluding the testimony of the Pagets’ expert, that there was "no evidence that UDOT’s design of 1-80 fell below a recognized standard of care.” Despite UDOT’s argument and the trial court’s ruling, the Pagets never argued to the trial court that they could establish the standard of care without expert testimony.