The Estate of Rose Flygare, Marjorie Bell, Richard Pratt, and Jennifer Pratt, Appellants,
Ogden City and Black & McDonald LLC, Appellees.
District Court, Ogden Department The Honorable Ernest W.
Jones No. 140905780
B. Havas and Paul M. Simmons, Attorneys for Appellants
Stephen F. Noel and Kenneth Brown, Attorneys for Appellee
M. Plant and Daniel E. Young, Attorneys for Appellee Black
& McDonald LLC
Diana Hagen authored this Opinion, in which Judges David N.
Mortensen and Ryan M. Harris concurred.
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) 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), 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
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.
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.
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.
AND STANDARD OF REVIEW
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
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.
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 ...