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Estate of Flygare v. Ogden City and Black & McDonald LLC

Court of Appeals of Utah

October 13, 2017

The Estate of Rose Flygare, Marjorie Bell, Richard Pratt, and Jennifer Pratt, Appellants,
Ogden City and Black & McDonald LLC, Appellees.

         Second District Court, Ogden Department The Honorable Ernest W. Jones No. 140905780

          Edward B. Havas and Paul M. Simmons, Attorneys for Appellants

          Stephen F. Noel and Kenneth Brown, Attorneys for Appellee Ogden City

          Terry M. Plant and Daniel E. Young, Attorneys for Appellee Black & McDonald LLC

          Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

          HAGEN, JUDGE.

         ¶1 After leaving an event at Peery's Egyptian Theater late in the evening on February 16, 2013, Rose Flygare, Marjorie Bell, and a minor child (collectively, Plaintiffs[1]) were hit by a truck and injured as they crossed at a designated crosswalk in Ogden, Utah. The marked crosswalk was equipped with streetlights, but they had been inoperative for several days prior to the accident. Plaintiffs sued Ogden City and the contractor responsible for maintaining the streetlights, Black & McDonald LLC, (collectively, Defendants[2]), alleging that the inadequate lighting caused or contributed to the accident. Plaintiffs appeal the district court's entry of summary judgment, which dismissed their negligence claims against Defendants. We affirm.


         ¶2 On January 7 and February 6, 2013, Ogden City contacted Black & McDonald to request that it inspect and repair several "day burners" in the 2200, 2300, and 2400 blocks of Washington Boulevard. A "day burner" is a streetlight that remains on during the day instead of automatically turning off at dawn. On February 7, 2013, a Black & McDonald employee was attempting to repair a day burner when he accidentally shorted out the wires and tripped a breaker, causing the streetlights in the vicinity to go out. Five days later, Black & McDonald notified Ogden City of the streetlights' circuitry problems, but Ogden City did not authorize repairs until February 17, 2013, the day after Plaintiffs were hit in the unlit crosswalk.

         ¶3 The crosswalk is located in the middle of the 2400 block of Washington Boulevard, a multilane road in an area of downtown Ogden that is home to arts and recreation centers, a convention center, businesses, and municipal buildings. At the time of the accident, the crosswalk did not have any cracks, potholes, raised sections, or other problems. The street was marked with white hash marks and white arrows. There were two identical signs-one in the median and one on the right-hand side of the road-depicting an arrow, a pedestrian, and a yield sign indicating a crosswalk. At the crosswalk's entrance, there was a yellow sign on the right-hand side of the road depicting a pedestrian and an arrow pointing to the crosswalk. The crosswalk did not have any flashing lights or Walk/Don't Walk signs.

         ¶4 Plaintiffs contend that, on the night of the accident, the driver of the truck was unable to see them in the crosswalk due to inadequate lighting. They sued Defendants, alleging negligence in failing to properly operate, maintain, and repair the streetlights. Defendants subsequently moved for summary judgment, asserting that they did not have a duty to illuminate the crosswalk. The district court agreed and granted summary judgment for Defendants on December 14, 2015. Plaintiffs filed a timely motion to alter or amend the judgment, claiming that the court had not fully considered the argument that Black & McDonald's affirmative negligent act of tripping the breaker-as opposed to its failure to maintain the streetlights-imposed liability on Defendants. On June 6, 2016, the court denied the motion and questioned whether Plaintiffs' motion was actually an improper request to reconsider. Plaintiffs filed a notice of appeal on June 24, 2016.


         ¶5 On appeal, Plaintiffs challenge the district court's ruling that Defendants had no duty to light the crosswalk where the accident occurred and were therefore entitled to summary judgment. Summary judgment is appropriate if "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). "This court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness, and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Forsberg v. Bovis Lend Lease, Inc., 2008 UT App 146, ¶ 7, 184 P.3d 610 (citation and internal quotation marks omitted).


         I. Jurisdiction

         ¶6 Before reaching the merits of this appeal, we must consider a threshold jurisdictional issue. Defendants argue that this appeal is untimely because it was filed nearly six months after the district court granted summary judgment. Plaintiffs claim that they timely filed their notice of appeal within thirty days after the denial of their motion to alter or amend the judgment. The question before us is whether Plaintiffs' post-judgment motion was a true motion to alter or amend the judgment, which extends the time for filing a notice of appeal, or an unauthorized motion to reconsider, which does not.

         ¶7 To be timely, a notice of appeal must be filed "within 30 days after the date of entry of the judgment or order appealed from." Utah R. App. P. 4(a). However, certain post-judgment motions, such as motions to alter or amend, toll the time for appeal. See id. R. 4(b). The prescribed thirty-day period does not begin to run until after the court enters an order on one of those rule-sanctioned motions. See B.A.M. Dev. v. Salt Lake County, 2012 UT 26, ¶ 10, 282 P.3d 41. On the other hand, because neither the Utah Rules of Appellate Procedure nor the Utah Rules of Civil ...

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