United States District Court, D. Utah
SCOTT K. MARLAND and JENNIFER D. MARLAND, as conservators for the minor child, J.S.M., Plaintiffs,
ASPLUNDH TREE EXPERT CO., a Pennsylvania corporation, Defendant.
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS'
MOTION FOR JUDGMENT AS A MATTER OF LAW
Stewart United States District Judge
matter is before the Court on Plaintiffs' Motion for
Judgment as a Matter of Law. Plaintiffs moved for judgment as
a matter law on Defendant's claims related to Bountiful
City Light and Power (“BCLP”) at the conclusion
of Defendant's case-in-chief on February 21, 2017. The
Court denied the Motion. This Order reflects the reasons for
Rule of Civil Procedure 50(a)(1) provides:
If a party has been fully heard on an issue during a jury
trial and the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the
party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against
the party on a claim or defense that, under the controlling
law, can be maintained or defeated only with a favorable
finding on that issue.
reviewing a Rule 50 Motion, the Court should review all of
the evidence in the record. However, all reasonable
inferences are drawn in favor of the nonmoving party and the
Court may “not make credibility determinations or weigh
the evidence.” Judgment as a matter of law is appropriate
“only if the evidence points but one way and is
susceptible to no reasonable inferences which may support the
opposing party's position.” A judgment as a matter of
law is appropriate “[i]f there is no legally sufficient
evidentiary basis . . . with respect to a claim or defense .
. . under the controlling law.”
matter, Plaintiffs have brought a negligence claim against
Defendant. Defendant seeks to apportion fault to BCLP arguing
that BCLP's negligence was the cause of the incident at
issue. “The essential elements a party asserting
negligence must prove are: (1) a duty of reasonable care owed
. . . to plaintiff; (2) a breach of that duty; (3) the
causation, both actually and proximately, of injury; and (4)
the suffering of damages by the
argue that Defendant did not meet its burden because it did
not present any expert testimony regarding BCLP's duty.
It is true that “testimony from relevant experts is
generally required” when the standard of care is
“usually not within the common knowledge of the lay
juror.” However, this rule applies only when the
applicable standard of care is not fixed by
Here, the Court has previously ruled that Utah law does fix
the standard of care in regard to utility companies like
BCLP. Expert testimony was therefore not
required to establish the standard of care owed to Plaintiffs
Court has determined that utility companies like BCLP owe
“the highest degree of care to prevent people to from
coming into contact with high-voltage
electricity.” Defendant has presented sufficient
evidence from which the jury could infer that BCLP breached
this high standard of care by failing to remove or adequately
trim the subject tree when BCLP was at or near Mr. Lyle
Henderson's property. Defendant presented testimony that
BCLP has trimmed trees on the property multiple times. Three
BCLP employees, Mr. Kent Gines, Mr. VerNaun Gines, and Mr.
Layne Hartvigson, testified that they had been to Mr.
Henderson's property to trim trees on one or more
occasions. Mr. Brent Thomas, another BCLP employee, testified
that the trees on Mr. Henderson's property caused lots of
problems for BCLP. Ms. Mary Waters, a tenant of Mr.
Henderson, further testified that BCLP regularly came to the
property to fix power outages. In addition, a tree services
document entered into evidence by Defendant shows that BCLP
was working across the street trimming trees in June of 2008.
In light of BCLP's heightened standard to the public, the
jury could infer that BCLP breached its duty by not removing
or properly trimming the subject tree at one of its visits to
or around Mr. Henderson's property.
CAUSATION AND DAMAGES
electrical engineering expert, Dr. Scott Kimbrough, testified
that the subject branch fell onto a power line, causing the
line to melt, sever, and subsequently fall onto the swing set
were J.S.M. was playing. Dr. Kimbrough further testified that
the fallen wire severely shocked J.S.M. Plaintiffs'
arborist expert, Mr. Jaak Gilmore, testified that if the
subject tree had been removed or trimmed properly, the branch
would not have grown out over the line, and thus would not
have caused the incident at issue.
medical expert, Dr. Judith Gooch, M.D., testified that
J.S.M.'s physical injuries were a result of his
electrocution. Plaintiffs' neuropsychology expert, Dr.
Sam Goldstein, as well as Dr. Gooch, testified that
J.S.M.'s cognitive/psychological injuries were caused by
his electrocution. Sufficient evidence has therefore been
presented to show ...