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Marland v. Asplundh Tree Expert Co.

United States District Court, D. Utah

December 14, 2016

SCOTT K. MARLAND and JENNIFER D. MARLAND, as conservators for the minor child, J.S.M., Plaintiffs,
v.
ASPLUNDH TREE EXPERT CO., a Pennsylvania corporation, Defendant.

          MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

          Ted Stewart United States District Judge.

         This matter is before the Court on Plaintiffs' Motion for Partial Summary Judgment. Plaintiffs seek judgment as a matter of law on the duty and breach elements of their negligence claim against Defendant. For the reasons discussed below, the Court will deny the Motion.

         I. BACKGROUND

         Since 1997, Defendant Asplundh Tree Expert Co. (“Asplundh”) has contracted with Bountiful City Light and Power (“BCLP”) to provide power line clearance services. Under that contract, Asplundh's “responsibility is limited to providing line clearance so as to prevent interruption of service by trees or tree limbs coming into contact with the lines or other electrical equipment.”[1]

         Under the agreement, Asplundh had the ability to both trim and remove trees. The agreement allowed for the removal of “dead or defective and fast-growing weed trees located so as to be a hazard to [BCLP's] lines” when “practical and permissible.”[2] However, any removal required written permission from the property owner and BCLP.[3]

         Pursuant to the arrangement between BCLP and Asplundh, BCLP directed where Asplundh would perform line clearance. Specifically, BCLP would provide Asplundh with an area in which to work called a feeder. Asplundh was then responsible for clearing the lines along that feeder. This would include determining what trees needed to be trimmed or removed, obtaining the necessary approvals, then doing the actual trimming or removing.

         On September 27, 2005, Asplundh trimmed two trees at the rental home of Lyle Henderson, located at 741 West 3200 South in Bountiful, Utah. One of those trees was a large Chinese or Siberian Elm (the “subject tree”).[4] Asplundh trimmed the subject tree, but did not remove it. There is no evidence that Asplundh recommended to BCLP that the subject tree be removed.

         On June 30, 2009, a limb from the subject tree fell onto a power line. The power line eventually failed and, while still energized, fell into a neighboring backyard and onto a swing set where Plaintiff J.S.M. was playing. J.S.M. sustained severe electrical burns and injuries as a result. After the incident, and upon receiving approval from Mr. Henderson, BCLP removed the subject tree.

         II. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[5] In considering whether a genuine dispute of material fact exists, the Court determines whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented.[6] The Court is required to construe all facts and reasonable inferences in the light most favorable to the nonmoving party.[7]

         III. DISCUSSION

“To establish a claim of negligence, the plaintiff must establish four essential elements: (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, (3) that the breach of duty was the proximate cause of the plaintiff's injury, and (4) that the plaintiff in fact suffered injuries or damages.”[8]

         Plaintiffs seek partial summary judgment as to the first two elements: duty and breach.

         The existence of a duty of care is a legal issue for the Court to decide.[9] If a duty of care is owed, the question becomes whether the required standard of care was breached. “[O]rdinarily, whether a defendant has breached the required standard of care is a question of fact for the jury.”[10] “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.”[11]

         A. DUTY

         Plaintiff asserts that Defendant's duty of care arises under Restatement (Second) of Torts § 324A, which has been adopted by the Utah Supreme Court.[12] Section 324A states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.[13]

         In this case, there is evidence that Asplundh has undertaken to render services to BCLP which Asplundh should recognize as necessary for the protection of a third person or his things. Asplundh rendered line clearance services to BCLP for consideration. Utah law imposes on utility companies like BCLP the highest degree of care to prevent people from coming in contact with high-voltage electricity.[14] Line clearance is necessary, not only to prevent interruption of service, but also to prevent injuries that might result should tree limbs come into contact with electrical wires.[15] Thus, Asplundh should have recognized that the services it provided were necessary for the protection of third parties and their property. As a result, Asplundh may be liable to third persons for physical harm resulting from its failure to exercise reasonable care if at least one of subsections (a), (b), or (c) are met.

         Subsection (a) “requires some change in conditions that increases the risk of harm to the plaintiff over the level that existed before the defendant became involved.”[16] “Subsection (b) comes into play as long as the party who owes the plaintiff a duty of care has delegated to the defendant any particular part of that duty.”[17] Subsection (c) applies when the harm is suffered because of reliance of the other or the third person upon the undertaking. “The reliance element of subsection (c) is ...


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