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Penunuri v. Sundance Partners, Ltd.

Supreme Court of Utah

August 25, 2017

LISA PENUNURI, and BARRY SIEGWART, Petitioners,
v.
SUNDANCE PARTNERS, LTD., SUNDANCE HOLDINGS, LLC, ROBERT REDFORD, ROBERT REDFORD 1970 TRUST, and ROCKY MOUNTAIN OUTFITTERS, L.C., Respondents.

         On Certiorari to the Utah Court of Appeals Fourth District, Provo The Honorable Claudia Laycock No. 080400019

          Robert D. Strieper, Salt Lake City, for petitioners

          H. Burt Ringwood, A. Joseph Sano, Salt Lake City, for respondents

          Douglas B. Cannon, Salt Lake City, for amicus Utah Association for Justice.

          Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Durham, Justice Himonas, and Justice Pearce joined.

          OPINION

          DURRANT, CHIEF JUSTICE

         Introduction

         ¶ 1 This case returns to us for a second round of certiorari review. In August 2007, Lisa Penunuri was injured when she fell off her horse during a guided horseback trail ride at Sundance Resort. She and her husband, Barry Siegwart, [1] asserted claims for negligence and gross negligence against Rocky Mountain Outfitters, L.C.-the company that provided the trail guide services-as well as various defendants associated with the resort (collectively, Sundance). In 2013, we affirmed the dismissal of Ms. Penunuri's ordinary negligence claims, leaving only her claims for gross negligence.[2]Now her gross negligence claims have met a similar fate. The district court granted summary judgment in favor of Sundance and awarded Sundance its costs, including certain deposition costs.

         ¶ 2 Ms. Penunuri appealed and the court of appeals affirmed the grant of summary judgment.[3] We granted certiorari on three questions: (1) whether the court of appeals erred in concluding that summary judgment may be granted on a gross negligence claim even though the standard of care is not "fixed by law, " (2) whether the court of appeals erred in affirming the district court's conclusion that reasonable minds could only conclude there was no gross negligence under the circumstances of this case, and (3) whether the court of appeals erred in affirming the district court's award of deposition costs to Sundance. We affirm the court of appeals on each issue.

         ¶ 3 As to the first of these issues, we recognize and clarify some potential inconsistency in our caselaw. In Berry v. Greater Park City Co., we stated that summary judgment dismissing a gross negligence claim is improper unless (1) the standard of care is "'fixed by law, ' and [(2)] reasonable minds could reach but one conclusion as to the defendant's negligence under the circumstances."[4] We conclude, upon review, that the first prong of this standard-the requirement that the standard of care be "fixed by law"-is incompatible with rule 56 of the Utah Rules of Civil Procedure. We accordingly repudiate this requirement and clarify that it is no longer an independent prerequisite to the grant of summary judgment dismissing a gross negligence claim. Summary judgment is appropriate where reasonable minds could reach but one conclusion regarding the defendant's gross negligence under the circumstances, whether or not the standard of care is fixed by law.

         ¶ 4 We further conclude that the court of appeals correctly determined that reasonable minds could only conclude there was no gross negligence given the undisputed facts of this case. Finally, we affirm the court of appeals' conclusion that the district court did not abuse its discretion in awarding deposition costs to Sundance.

         Background[5]

         ¶ 5 Ms. Penunuri and two of her friends took a guided horseback trail ride at Sundance Resort in August 2007. The ride was guided by Ashley Wright, an employee of Rocky Mountain Outfitters, L.C., the entity authorized to operate trail rides at Sundance. Also present on this ride was another woman, Kate Fort, and her eight-year-old daughter, Haley. Before participating in the ride, Ms. Penunuri signed a Horseback Riding Release (Release), which advised of the risks associated with horseback riding:

I, the undersigned, . . . understand that horseback riding . . . involve[s] SIGNIFICANT RISK OF SERIOUS PERSONAL INJURY, PROPERTY DAMAGE OR EVEN DEATH. The risks include NATURAL, MAN-MADE, ENVIRONMENTAL CONDITIONS AND INHERENT RISKS, including changing weather, mud, rocks, variations in steepness, terrain, natural and man-made obstacles, equipment failure and the negligence of others. "Inherent risk" with regard to equine or livestock activities means those dangers or conditions which are an integral part of equine or livestock activities, which may include: (a) the propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them; (b) the unpredictability of the animal's reaction to outside stimulation such as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (c) collisions with other animals or objects; or (d) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.

         Sundance also posted signs warning of the inherent risks associated with horseback riding. These signs were located in the building where guests sign the Release and near the horse arena.

         ¶ 6 The group set out in the following order: the guide in front, followed by Haley, Kate, Ms. Penunuri, and then her two friends. About 45 minutes into the ride, they reached a meadow and rearranged the order of riders. The guide stayed in the lead, but she was now followed by Ms. Penunuri's friends, then Kate, then Haley, and finally Ms. Penunuri bringing up the rear. The guide testified that, in an effort to keep the group together, she had been "slowing down the whole ride."[6]

         ¶ 7 Although the guide instructed the riders on how to keep the horses from grazing, Ms. Penunuri and eight-year-old Haley experienced difficulty keeping their horses from doing so, which caused them to lag behind the train of riders. The guide then informed the group that they would be stopping at a clearing in 100 feet so she could go back and take the reins of Haley's horse the rest of the way. As the guide was in the process of turning around to go back to Haley's horse, Ms. Penunuri fell off the back of her horse and was injured.

         ¶ 8 Ms. Penunuri and her husband, Barry Siegwart, asserted claims against Sundance for ordinary and gross negligence. The district court dismissed the ordinary negligence claims on the basis that Ms. Penunuri had released Sundance from liability for ordinary negligence, a result that was affirmed on appeal and certiorari.[7] On remand, Sundance filed two motions for summary judgment on the gross negligence claim. In the first, it argued there was insufficient evidence to permit a reasonable fact finder to conclude (1) that Sundance was grossly negligent, or (2) that Sundance's gross negligence caused Ms. Penunuri's injuries. In the second motion, Sundance argued that Ms. Penunuri's expert witness lacked the qualifications necessary to provide expert testimony on the standard of care, and that without that testimony Ms. Penunuri lacked sufficient evidence of gross negligence to take her case to the jury.

         ¶ 9 The district court agreed on all counts. It ruled that no reasonable fact finder could conclude that the guide had shown "conscious disregard of, or indifference to" the safety of her riders. The court also concluded that Ms. Penunuri presented "no evidence beyond speculation concerning causation." It further concluded that, under rule 702 of the Utah Rules of Evidence, Ms. Penunuri's expert witness was unqualified to render expert opinion testimony on the standard of care, so summary judgment was proper on this alternative ground as well. Because Sundance prevailed on summary judgment, the district court awarded Sundance the costs associated with its deposing Ms. Penunuri, her expert, and two of the other riders, on the basis that the depositions were used in Sundance's summary judgment motion and were "necessary" to the development of the case.

         ¶ 10 The court of appeals affirmed. In so doing, it concluded that the following rule from our caselaw is best interpreted as a disjunctive test: "[S]ummary 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."[8] The court of appeals then went on to assess whether reasonable minds could reach but one conclusion as to the defendant's gross negligence in this case, without regard to whether the standard of care for guided horseback trail rides has been "fixed by law."[9] It agreed with the district court that reasonable minds could only conclude there was no gross negligence on these facts.[10] Finally, it affirmed the district court's decision to award deposition costs to Sundance.[11]

         ¶ 11 Ms. Penunuri petitioned for a writ of certiorari, which we granted. We have jurisdiction under Utah Code section 78A-3-102(3)(a).

         Standard of Review

         ¶ 12 "When reviewing a case on certiorari, we review the court of appeals' decision for correctness. 'The correctness of the court of appeals' decision turns on whether that court correctly reviewed the [district] court's decision under the appropriate standard of review.'"[12] We address three issues in this case.

         ¶ 13 First, we must decide whether the court of appeals erred in concluding that the standard stated in Berry v. Greater Park City Co.[13]permits summary judgment solely on the ground that reasonable minds could not find for the plaintiff on a gross negligence claim, even where the standard of care is not fixed by law. The proper interpretation of our caselaw presents a question of law that an appellate court reviews for correctness.[14]

         ¶ 14 The second issue is whether the court of appeals erred in affirming the district court's conclusion that reasonable minds would necessarily conclude that there was no gross negligence under the circumstances of this case. Summary judgment is appropriate where "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."[15] Appellate courts review a district court's "'legal conclusions and ultimate grant or denial of summary judgment' for correctness, " viewing "the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party."[16]

         ¶ 15 The third issue is whether the court of appeals erred in affirming the district court's award of deposition costs to Sundance. A district court's decision to "award the prevailing party its costs will be reviewed under an abuse of discretion standard."[17] But the proper standard to apply when determining whether to award deposition costs is a legal question that we review for correctness.[18]

         Analysis

         ¶ 16 We first address the proper standard for granting summary judgment dismissing a gross negligence claim. The court of appeals concluded that the standard stated in Berry v. Greater Park City Co.[19]permits a court to grant summary judgment where reasonable minds could reach but one conclusion on a gross negligence claim, even where the standard of care is not fixed by law. Although this conclusion may appear at odds with some of our cases, we agree with the court of appeals that this is the proper approach. We accordingly repudiate those portions of our previous cases that are inconsistent with our decision today. We clarify that 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, regardless of whether the standard of care is fixed by law.

         ¶ 17 We then turn to the second issue-what reasonable minds would make of Ms. Penunuri's gross negligence claim. We affirm the court of appeals' conclusion that reasonable minds could only conclude that there has been no gross negligence on the facts of this case.

         ¶ 18 Finally, we assess whether the district court properly awarded certain deposition costs to Sundance. We conclude that the district court did not err in awarding these costs. In so doing, we clarify that a district court may award deposition costs so long as the depositions "were taken in good faith and appear to be essential for the development and presentation of the case."[20]

         I. The Proper Standard for Granting Summary Judgment Dismissing a Gross Negligence Claim

         ¶ 19 We first assess whether a district court may grant summary judgment dismissing a gross negligence claim where the standard of care is not "fixed by law." We begin by discussing three of our cases that are in apparent tension: Berry v. Greater Park City Co., [21] Pearce v. Utah Athletic Foundation, [22] and Blaisdell v. Dentrix Dental Systems, Inc.[23]

         ¶ 20 The first two, Berry and Pearce, apply a conjunctive test. In those cases, we held that summary judgment dismissing a negligence or gross negligence claim is improper unless both (1) the standard of care is "fixed by law" and (2) "reasonable minds could reach but one conclusion as to the defendant's negligence under the circumstances."[24] But in the third, Blaisdell, we implicitly treated these two prongs as disjunctive, affirming summary judgment because reasonable minds could reach only one conclusion-no gross negligence-even though the standard of care was not fixed by law.[25]

         ¶ 21 We now describe these cases in some detail, and in so doing, acknowledge the apparent inconsistency among them. We then clarify the correct standard, which does not include the prerequisite to granting summary judgment, described in Berry and Pearce, that the standard of care be "fixed by law."

         A. Our Cases Are Inconsistent Regarding the "Fixed by Law" Requirement

         ¶ 22 We begin with Berry v. Greater Park City Co.[26] In Berry, a skier who was paralyzed in a fall during a skiercross race sued the organizers of the race, asserting, among other claims, a claim for gross negligence.[27] The district court granted the organizers' motion for summary judgment.[28] On appeal, the organizers defended that grant of summary judgment, arguing that no reasonable fact finder could reach a conclusion of gross negligence on the facts of that case because "evidence that would be adequate to take an ordinary negligence case to a jury cannot withstand uncontroverted evidence that [the organizers] exercised enough care to avoid a finding of gross negligence."[29] We rejected this argument. Noting that the parties had not pointed us to "a location in the record where the appropriate standard of care applicable to the design and construction of skiercross courses appears, " we said that we were without a "necessary precondition" to be able to assess "the degree to which conduct deviates, if at all, from the standard of care."[30] We accordingly held that the district court erred in granting summary judgment.

         ¶ 23 In Pearce v. Utah Athletic Foundation, the plaintiff injured his back on a public bobsled ride.[31] The district court granted summary judgment to the owner and operator of the bobsled track on the plaintiff's gross negligence claim.[32] But we disagreed, concluding that summary judgment was improper because, like Berry, no standard of care for the pertinent activity was "fixed by law."[33] In other words, because the law did not establish "specific standards for designing, constructing, and testing a bobsled run for the public or for operating a public bobsled ride, " summary judgment on the plaintiff's gross negligence claim was improper.[34]

         ¶ 24 Berry and Pearce thus employed a conjunctive test, in that we required both prongs to be met for summary judgment to be proper. Without assessing whether reasonable minds could disagree about the defendant's negligence, we concluded that summary judgment was improper because the standard of care was not "fixed by law."

         ¶ 25 We took a different approach in Blaisdell v. Dentrix Dental Systems, where a software update irretrievably destroyed a dentist's electronically stored patient files and related information.[35] Although the dentist's employee had assured the software company's representative that the data was backed up, it had not been, and the update wiped the dentist's data.[36] The dentist sued the software company for, among other claims, gross negligence.[37] The district court granted summary judgment in favor of the software company, and Dr. Blaisdell appealed, arguing, among other things, that summary judgment on the gross negligence claim was inappropriate under Berry and Pearce because there was no standard of care fixed by law.[38]

         ¶ 26 But we rejected that argument and held that summary judgment was appropriate, despite the absence of any standard of care fixed by law. We distinguished Berry and Pearce on the grounds that those cases involved "activities where 'the finder of fact would likely need to hear testimony from expert witnesses before it could determine the operator's deviation from the standard.'"[39] Because "Dr. Blaisdell's claim [was] less complicated, " we determined we could assess the gross negligence question as a matter of law.[40] We concluded that "[i]t cannot be reasonably asserted that" the software company "show[ed] utter indifference" to the possibility that harm might follow from its conduct, and so we affirmed the grant of summary judgment.[41]

         ¶ 27 In sum, Berry and Pearce clearly articulated a "fixed by law" prerequisite to the grant of summary judgment. But Blaisdell determined that this prerequisite did not apply, so summary judgment was appropriate despite the absence of a standard of care fixed by law. We next explain why we now decide to repudiate the "fixed by law" requirement.

         B. We Abandon the Holdings of Berry and Pearce to the Extent They Suggest There Is an Independent Prerequisite that the Standard of Care Be "Fixed by Law" Before Summary Judgment May Be Granted

         ¶ 28 Rather than distinguishing Berry and Pearce, as we did in Blaisdell, we now repudiate their holdings indicating that there is a prerequisite that the standard of care be "fixed by law" before the court may grant summary judgment. We do so for two reasons. First, the cases that articulated this prerequisite are inconsistent with the precedent on which they rely. Second, treating "fixed by law" as a prerequisite to summary judgment is at odds with rule 56 of the Utah Rules of Civil Procedure.

         ¶ 29 As the court of appeals correctly recognized in its opinion in this case below, Berry's special rule for summary judgment on gross negligence claims cannot be found in the cases that it relied on.[42] The court of appeals accurately traced the history of this rule back to earlier sources that reveal that it was originally a disjunctive statement. Berry cited White v. Deseelhorst, [43] which cited Wycalis v. Guardian Title of Utah, [44] which cited Elmer v. Vanderford.[45] The Elmer court held that summary judgment on negligence is proper in "two classes of cases": first, where "the standard of duty is fixed, and the measure of duty defined, by ...


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