Doutre v. Box Elder Cty.

548 P.3d 914

2024 UT App 58

Alexis DOUTRE, Appellant,

v.BOX ELDER COUNTY, Brigham City, Union Pacific Railroad Company, and Utah Department of Transportation, Appellees.

No. 20220139-CA

Court of Appeals of Utah.

Filed April 18, 2024

Second District Court, Ogden Department, The Honorable Noel S. Hyde, No. 180906306

Troy L. Booher, Beth E. Kennedy, Salt Lake City, and Taylor P. Webb, Attorneys for Appellant

Susan Black Dunn, Salt Lake City, Attorney for Appellee Box Elder County

Matthew D. Church, Salt Lake City, and Adam D. Goff, Attorneys for Appellee Brigham City

Gina M. Rossi, Attorney for Appellee Union Pacific Railroad Company

Sean D. Reyes and Peggy E. Stone, Salt Lake City, Attorneys for Appellee Utah Department of Transportation

Judge David N. Mortensen authored this Opinion, in which Judges Ryan D. Tenney and John D. Luthy concurred.

Opinion

MORTENSEN, Judge:

¶1 Seeking a thrill in a friend’s Jeep, Alexis Doutre and her friends decided to jump railroad tracks at a crossing on a country road. This choice was ill-advised, as the Jeep crashed into a nearby utility pole, causing Doutre serious injury. Doutre sued various parties, including Box Elder County, Brigham City, Union Pacific Railroad Company, and the Utah Department of Transportation, alleging a number of claims, including (1) failure to investigate, remedy, or warn of unsafe conditions; (2) negligent design and maintenance; and (3) liability for maintaining an attractive nuisance. All of Doutre’s claims were dismissed on summary judgment. Doutre appeals, and we affirm.

BACKGROUND

¶2 On the outskirts of Brigham City, Utah, lies 1500 North, a dirt and gravel road. As the road approaches some railroad tracks, it rises rather steeply at about a 10% incline and creates a ramp that allows a vehicle traveling at sufficient speed to experience a "roller-coaster feeling" or even become airborne.

¶3 Stop signs stand on both sides of the tracks, and the tracks are marked with standard railroad crossing signs. There is also a low under-clearance sign on the west side of the tracks to warn westbound drivers. The posted speed limit is 35 miles per hour for eastbound traffic and 25 miles per hour for westbound traffic.

¶4 On a Friday night in late February 2017, Doutre and four friends, all between fifteen and seventeen years old, decided to jump this crossing. They were riding in a Jeep driven by one of the friends (Friend). There was one passenger in the front, with the other three, Doutre included, in the back. None of them were wearing seatbelts. Doutre had been involved in this activity before this incident. In fact, about a week earlier, she had driven her mother’s minivan out to jump this same crossing. However, Doutre did not tell her mother about the track jumping because she knew that her mother would have told her it was dangerous.

¶5 Friend first approached the tracks from the east, hitting the tracks at around 40 to 50 miles per hour—enough to get the tires "a little bit" off the ground. Friend then turned around and approached the tracks from the west, this time traveling at 60 miles per hour. The Jeep became airborne and landed on the other side of the tracks, where Friend lost control of the vehicle and crashed into a nearby utility pole. Doutre was seriously injured. There was some speculation that the Jeep’s wheel may have hit a pothole on landing, contributing to the loss of control.

¶6 Doutre filed a lawsuit, with claims divided among multiple parties, including Box Elder County (the County), Brigham City (the City), the Utah Department of Transportation (UDOT), and Union Pacific Railroad Company (Union Pacific).¹ Among her general allegations was that the railroad intersection "constituted a hazard" because its "steep grade," limited visibility, and the "condition of the road" made it "difficult for drivers to accurately assess the danger and properly maintain control of their vehicles." Doutre further alleged that the crossing lacked "adequate warning" to "alert drivers to [its] defective, unsafe and/or dangerous condition," that "multiple car wrecks and injuries had occurred at this location," and that "young drivers (minor children) were attracted" to the intersection. As relevant here, she asserted three claims for relief: (1) failure to investigate, remedy, or warn of unsafe conditions; (2) negligent design and maintenance; and (3) liability for maintaining an attractive nuisance. The district court dismissed all of Doutre’s claims on summary judgment. We recount Doutre’s claims, the responses, and the district court’s disposition of the claims by party.

¶7 The County: Doutre alleged that the County owned 1500 North until about 80 feet east of the tracks, where it became Wilson Lane and was owned by the City. She claimed that the County, as the owner of the portion of the road in question, failed to maintain the road in a safe condition, including eliminating the "steepness hazard" and the "potholes present in the dirt road." In a summary judgment motion, the County argued that under the Utah Governmental Immunity Act (UGIA), it was immune from suit because fixing the dangerous condition was a discretionary function, not a mandatory one. The County also argued that there was no evidence that a pothole caused the Jeep to swerve into the utility pole.

¶8 The court granted summary judgment. It first ruled that Doutre’s argument that the County "breached its duty to maintain the road" failed "in the specific instance of the existence of potholes or other surface damage to the road affecting the vehicle, or that any particular pothole existed contemporaneously with the accident." The court concluded that although Doutre had "put forth evidence from witnesses," which Doutre alleged demonstrated "an issue of material fact, … this evidence, even viewed in the light most favorable to [Doutre] on that issue," was "insufficient to rise to the level of creating a factual issue that [would] survive summary judgment." Regarding the incline of the slope approaching the tracks, the court determined that Doutre’s claims were barred by the UGIA because the County’s maintenance of the road was a discretionary function. See Utah Code § 63G-7-201(4)(a).

¶9 The City: Doutre alleged that the City, as the owner of the land where the Jeep crashed, was responsible for maintaining a seven-foot-wide clear zone on the side of the roadway. The City failed in this duty, she alleged, by allowing the utility pole to be so close to the road. Doutre also claimed that the City failed to regrade and resurface the road—something it had a contractual obligation with the County to do—which should have eliminated the pothole that allegedly caused Friend to lose control of the Jeep when it landed.

¶10 In its summary judgment motion, the City argued that Doutre had presented no evidence as to which pothole caused the Jeep to lose control on landing. Regarding the utility pole, the City acknowledged that it was within city limits but nevertheless alleged that the City had "nothing to do with" the pole. The pole was installed in 1984 outside of city limits, and it fell within city limits only after 2015 when the City annexed the land on which it sat: "[U]ltimate responsibility for the power pole, including its location, maintenance, and operation remains with Pa- cifiCorp. There is no relationship between the City and the power pole beyond its innocuous inclusion in land annexed by the City in 2015."

¶11 The court granted summary judgment in the City’s favor, ruling that Doutre’s claim "that there existed a pothole of sufficient substance to cause the vehicle to swerve into the pole" could not "be reasonably inferred from the known facts that [were] not in dispute," explaining that it required "not only a reasonable inference, but pure speculation to arrive at the [conclusion] that there was … a pothole within the limits of [the] City … that caused the car to swerve into the pole."

¶12 With regard to the City’s duty "to maintain the roadway based upon … an agreement" with the County, the court noted that the only available interpretation of the agreement, "established as undisputed" by the testimony of the City and the County, was "that the obligation for maintaining the roadway [was] the obligation of [the] County, at least until the … City limit." Thus, the court ruled that there were "insufficient facts … to suggest the extension of any general liability of maintenance for [the] City with respect to the … County roadway." Concerning the utility pole, the court ruled that even if the pole was too close to the road, there had "been no factual presentation to suggest that [the] City’s actions or inactions in connection with that pole, for which there is no history of any problem at any time … since its placement, constitute[d] a violation of the requirement of reasonable diligence."

¶13 UDOT: Doutre alleged that UDOT, which is responsible for ensuring the safety of railroad crossings, was required to make the crossing safe or, if it was unable to do so, to close it.

¶14 In its motion for summary judgment, UDOT argued that it had not breached any duty to Doutre because its responsibility, which it had fulfilled, was limited to ensuring that "appropriate signage relating to the railroad crossing was in place." UDOT also argued that it owed no duty to Doutre under the attractive nuisance doctrine because UDOT was not a "possessor of land." Lastly, UDOT argued that it was "immune from suit under discretionary function immunity for decisions relating to railroad crossing improvements" under the UGIA.

¶15 In granting summary judgment in UDOT’s favor, the court ruled that Doutre’s claim of attractive nuisance failed because "UDOT was not a possessor of land where the accident occurred." Moreover, the court ruled that UDOT’s role in "reviewing and regulating railroad crossings" was a "discretionary function protected by governmental immunity" under the test set forth in Little v. Utah...