Stockton v. Holyoak

Filing 28

MEMORANDUM DECISION AND ORDER granting 18 Motion for Summary Judgment. Signed by Magistrate Judge Brooke C. Wells on 8/21/2018. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
REBECCA STOCKTON,
Plaintiff,

MEMORANDUM DECISION AND ORDER
GRANTING MOTION FOR SUMMARY
JUDGMENT

v.
Case No. 2:17-cv-94 BCW
DON HOLYOAK,
Magistrate Judge Brooke Wells
Defendant.

This matter is before the court on Defendant Don Holyoak’s Motion for Summary
Judgment. 1 At the hearing held on Defendant’s motion, Plaintiff Rebecca Stockton was
represented by Peter Mifflin. Ryan Morley appeared on behalf of Defendant. Based on the
briefing, relevant law and the facts of this matter, the court issues the following decision
GRANTING Defendant’s Motion for Summary Judgment.
BACKGROUND 2
Plaintiff Rebecca Stockton brings this diversity action seeking damages for injuries she
sustained in a collision between her car and one of Defendant Don Holyoak’s cows. Mr.
Holyoak obtained a grazing permit from the Bureau of Land Management for an area roughly
between mileposts 132 and 140 on both sides of Utah Highway SR-191. 3 In late October 2014,
Mr. Holyoak transported a heard of approximately 450 mother cows to this grazing area.

1

ECF No. 18.

2

The following facts are taken from Plaintiff’s Complaint and the parties’ pleadings. They are undisputed unless
otherwise noted.

3

Mtn. p. 3.

Defendant claims this grazing area is “open range” as defined by Utah Code Ann. § 47-2-2 4 and
that Grand County has designated the grazing area as a “fence-out” area. 5 Plaintiff contests
Defendant’s claim that the grazing area is open range and asserts it is closed rather than open.
The court addresses this dispute in further detail below.
Mr. Holyoak inspected the fences, fence posts and gates in the grazing area at the time
the cattle arrived and subsequently every two to three days. The fences are 4-line barbed wire
with steel posts. Because the grazing area is on BLM land, it is open to public use and Mr.
Holyoak is prohibited from locking the gates. 6
On approximately November 15, 2014, Ms. Stockton was driving her car northbound on
SR-191. Near mile marker 135, she encountered a cow in the road that belonged to Defendant.
The accident occurred around 8:20 p.m. in conditions that made it somewhat difficult to see due
to the lack of daylight. The cow was killed and Ms. Stockton “suffered severe damages and
personal injuries, including … pain and suffering, emotional distress and mental anguish,
scarring and disfigurement, and other non-economic damages ….” 7 Mr. Holyoak testifies that he
last inspected the fences, fence posts and gates between mileposts 132 to 140 around 4:00 p.m.
on the day of the accident. Everything was in good condition and no cows were outside of the
fenced area at that time.
Defendant was called following the accident and arrived at the scene about 8:30 p.m.
After arriving, the local county deputy and Defendant inspected the fences, fence posts and gates

4

“The term ‘open range’ means all land not privately owned, and includes all roads, outside of private inclosures,
used by the public, whether the same have been formally dedicated to the public or not.” Utah Code Ann. § 47-2-2.

5

Defendant cites to part of the Grand County Ordinances that are attached as Exhibit 3 to the Appendix to
Defendant’s motion. ECF No. 19.

6

Ms. Stockton contests this fact, but offers nothing to contradict it other than arguing that it contradicts Defendant’s
own statement of facts. The court disagrees.
7

Complaint ¶ 11.

2

between mileposts 132 to 140. They found a cut in the fence about 3/4 of a mile north of the
accident site. There is no verifiable evidence in the record regarding how the fence was cut and
Defendant alleges “that someone had cut the fence with wire cutters.” 8 Ms. Stockton objects to
this allegation arguing it is inadmissible due to a lack of foundation. Regardless of how the
fence was cut, or who exactly did it, the court accepts the fact that there was a cut in the fence as
there is nothing in the record to contradict this fact.
Ms. Holyoak brings three claims for relief. First, a common law claim for negligence.
Second, a closely related claim of negligence under the Utah Code. 9 And finally, a claim for Res
Ipsa Loquitur asserting the crash “is the type of incident that would not normally occur but for
Defendant’s negligence.” 10
LEGAL STANDARDS
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 11 A dispute is genuine only if “a reasonable jury could
find in favor of the nonmoving party on the issue.” 12 “In making this determination, ‘we view
the evidence and draw reasonable inferences therefrom in the light most favorable to the
nonmoving party.’” 13

8

Mtn. p. 5.

9

See Utah Code Ann §41-6a-407.

10

Complaint ¶ 26.

11

Fed. R. Civ. P. 56(a).

12

Macon v. United Parcel Serv., Inc., 743 F.3d 708, 712 (10th Cir. 2014).

13

Id. (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000)).

3

The movant bears the initial burden of demonstrating the absence of a genuine dispute of
material fact. 14 This burden can be met in one of two ways: by putting evidence into the record
which affirmatively disproves an element of the non-moving party's case, or by directing the
court's attention to the fact that the non-moving party lacks evidence on an element of its claim,
“since a complete failure of proof concerning an essential element of the non-moving party's case
necessarily renders all other facts immaterial.” 15 Once the movant has met this burden, the
burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine
issue for trial.” 16 To do so, the nonmoving party “must do more than simply show that there is
some metaphysical doubt as to the material facts.” 17 When the nonmoving party bears the
burden of proof at trial on a dispositive issue, that party must “go beyond the pleadings” and
“designate specific facts” so as to “make a showing sufficient to establish the existence of an
essential element to that party's case.” 18 If the party who bears the burden of proof at trial fails to
make a sufficient showing to establish an essential element of their case, then summary judgment
should be entered against them. 19
DISCUSSION
“[L]iability for accidents caused by livestock straying on a highway in Utah must be
predicated on negligence or willfulness by the owner or person in possession or control of the

14

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

15

Id. 323-25; see e.g., Johnson v. City of Bountiful, 996 F.Supp. 1100, 1102 (D. Utah 1998).

16

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

17

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

18

Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

19

See id.; see also, Houweling's Nurseries Oxnard, Inc. v. Robertson, 276 F. Supp. 3d 1239, 1245–46, 2017 WL
4004422 (D. Utah 2017).

4

animal.” 20 There is, however, “no presumption that the collision was due to negligence on
behalf of the owner or the person in possession of the domestic animal or livestock.” 21
I.

The claims of negligence fail as a matter of law
Plaintiff brings two claims for negligence. One under common law and the other under

Utah Code Ann §41-6a-407. “In Utah, a negligence claim requires the plaintiff to establish four
elements: that the defendant owed the plaintiff a duty; that defendant breached the duty
(negligence); that the breach of the duty was the proximate cause of plaintiff's injury; and that
there was in fact injury.” 22 Utah Code Ann. §41-6a-407 provides in part that:
A person who owns or is in possession or control of any livestock may not
willfully or negligently permit any of the livestock to stray or remain
unaccompanied on a highway, if both sides of the highway are separated from
adjoining property by a fence, wall, hedge, sidewalk, curb, lawn, or building. 23
There is a dispute between the parties as to whether the grazing area is “open range”
versus “closed range.” Plaintiff asserts the “controlling issue is not local concepts of ‘open
20
Bagley v. Bagley, 49 F. App'x 232, 234, 2002 WL 31323374, at *2 (10th Cir. 2002); see Utah Code Ann § 41-6a407 (2005)

“(1)(a) A person who owns or is in possession or control of any livestock may not willfully or
negligently permit any of the livestock to stray or remain unaccompanied on a highway, if both
sides of the highway are separated from adjoining property by a fence, wall, hedge, sidewalk,
curb, lawn, or building.
(b) Subsection (1)(a) does not apply to range stock drifting onto any highway moving to or from
their accustomed ranges.
(2)(a) A person may not drive any livestock upon, over, or across any highway during the period
from half an hour after sunset to half an hour before sunrise.
(b) Subsection (2)(a) does not apply if the person has a sufficient number of herders with warning
lights on continual duty to open the road to permit the passage of vehicles.
(3) A violation of Subsection (1) or (2) is an infraction.
(4) In any civil action brought for damages caused by collision with any domestic animal or
livestock on a highway, there is no presumption that the collision was due to negligence on behalf
of the owner or the person in possession of the domestic animal or livestock.”
21

Utah Code Ann § 41-6a-407. This section was renumbered from § 41-6-38 in 2005.

22

Steffensen v. Smith's Mgmt. Corp., 820 P.2d 482, 486 (Utah Ct. App. 1991), aff'd, 862 P.2d 1342, 1993 WL
433966 (Utah 1993) (citing Reeves v. Gentile, 813 P.2d 111, 116 (Utah 1991)); see also Gerbich v. Numed Inc., 977
P.2d 1205, 1207 (Utah 1999).
23

Utah Code Ann. §41-6a-407.

5

range’ versus ‘closed range’” and instead the focus should be whether “both sides of the highway
are separated from adjoining property by a fence, wall, hedge, sidewalk, curb, lawn, or
building.” 24 Defendant argues the motion for summary judgment does not depend on this
determination. The court agrees that a determination of open range versus closed range is
unnecessary to its decision, because whether there are fences on both side or not, Plaintiff must
still establish a prima facie case for negligence under the terms of the statute and common law.
Importantly, both the statute and case law provide that “[t]he mere fact that the animals escaped
from the enclosure is not sufficient evidence, standing alone, to justify the submission of
defendant's negligence to the jury.” 25
Defendant argues Ms. Stockton has failed to offer any direct or independent evidence
supporting her claim that he was negligent in allowing the cow to stray from the fenced grazing
area. The court agrees. The evidence here indicates the cow made it onto the road and there was
a cut in the fence about 3/4 of a mile from the accident. Plaintiff contests Mr. Holyoak’s
testimony that the fence had been cut with wire cutters arguing it is speculative and inadmissible.
However, Plaintiff fails to offer any evidentiary support that there was not a hole in the fence or
that Mr. Holyoak was responsible for the hole. Instead, Ms. Stockton argues that Mr. Holyoak
owed her a duty to keep cows off the highway and that “defendant in this case made a conscious
decision to graze his cows on public lands.” 26 Thus, the fact that the cow was on the road and
that Defendant used public lands makes him negligent. This argument is flawed. It would turn a
negligence standard into strict liability for having a cow wander on the road and making the
decision to graze cattle on public lands. Mr. Holyoak testified that he examined the fences on a

24

Op p. 3 (quoting Utah Code Ann. §41-6a-407(1)(a)).

25

Rhiness v. Dansie, 24 Utah 2d 375, 377, 472 P.2d 428, 430 (1970).

26

Op. p. 5.

6

regular basis and had even done so hours before the accident. Plaintiff does not refute this
testimony. Thus, even if Mr. Holyoak owed Plaintiff a duty, there is nothing to indicate in the
record that he violated this duty. In sum, the court is left with evidence that the cow somehow
escaped. Under Utah law, however, [t]he mere fact that the animals escaped from the enclosure
is not sufficient evidence, standing alone, to justify the submission of defendant's negligence to
the jury.” 27
In addition, Plaintiff fails to meet other prima facie elements to prove negligence. For
example, there is no evidence indicating that Defendant’s supposed breach of his duty of care
was the proximate cause of Plaintiff’s injury. Proximate cause is “that cause which, in natural
and continuous sequence, (unbroken by an efficient intervening cause), produces the injury and
without which the result would not have occurred. It is the efficient cause—the one that
necessarily sets in operation the factors that accomplish the injury.” 28 Usually, proximate cause
is reserved for the jury. 29 The issue of proximate cause, however, “should be taken from the jury
only where: (1) there is no evidence to establish a causal connection, thus leaving causation to
jury speculation, or (2) where reasonable persons could not differ on the inferences to be derived
from the evidence on proximate causation.” 30
Here, the accident arose from Plaintiff hitting a cow on the road and it is self-evident that
cows are a danger on state highways. There is no evidence, however, that Defendant’s supposed
negligence was the proximate cause thatled to the injury. Rather, causation is left to speculation

27

Rhiness v. Dansie, 24 Utah 2d 375, 377, 472 P.2d 428, 430 (1970).

28

State v. Lawson, 688 P.2d 479, 482 n.2 (Utah 1984).

29

See Godesky v. Provo City Corp., 690 P.2d 541, 544 (Utah 1984).

30

Steffensen v. Smith's Mgmt. Corp., 820 P.2d 482, 487, 1991 WL 223073 (Utah Ct. App. 1991), aff'd, 862 P.2d
1342, 1993 WL 433966 (Utah 1993) (citing Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 789 P.2d
1040, 1047 (1990) (en banc)).

7

because it is uncertain exactly how the cow escaped. Thus, it should not be left to a jury to
speculate regarding what caused the cow to escape. 31
Plaintiff fails to establish a prima facie case for negligence. Therefore, summary
judgment is appropriate on these causes of action.
II.

The claim of Res Ipsa Loquitur fails as a matter of law
In Utah, the doctrine of res ipsa loquitur, permits the trier of fact to infer negligence on a

defendant’s part from the circumstances surrounding the injury, even though a plaintiff “is
unable to produce evidence pinpointing a given act or omission on the part of defendant which
breached a legally imposed standard of care.” 32 To be entitled to a res ipsa loquitur instruction,
a “plaintiff must produce sufficient evidence to permit the jury to find the following three
prerequisites to an inference of negligence:
’(1) the event causing the damage is of a type that ordinarily would not happen
except for someone's negligence; (2) the damage must have been caused by an
agency or instrumentality within the exclusive control of the defendant; and (3)
the plaintiff's own use of the agency or instrumentality was not primarily
responsible for the injury.’” 33
Here, Mr. Holyoak has provided unrefuted and unchallenged evidence that he
exercised due care by regularly inspecting the fences, posts and gates. Ms. Stockton’s
argument that if Defendant took better care of his cattle then somehow the accident
would not have occurred is unsupported by any evidence. Moreover, once again,
Plaintiff cannot simply rely on a cow being outside a fenced grazing area as the only

31

See e.g., Mitchell et al. v. Pearson Enterprises, 697 P.2d 240, 245 (Utah 1985) (“Demonstrating material issues of
fact with respect to defendants’ negligence is not sufficient to preclude summary judgment if there is no evidence
that establishes a direct causal connection between that alleged negligence and the injury.”).
32

Anderton v. Montgomery, 607 P.2d 828, 833 (Utah 1980).

33

Vanderwater v. Hatch, 835 F.2d 239, 241 (10th Cir. 1987) (quoting Ballow v. Monroe, 699 P.2d 719, 721 (Utah
1985)).

8

evidence of negligence. That argument has already been regularly rejected. 34 Further,
Utah case law “gives at least some indication that a res ipsa loquitur instruction would
not be appropriate.” 35 Thus, Plaintiff fails to meet the required showing for a res ipsa
loquitur instruction and summary judgement will be granted.
CONCLUSION AND ORDER
As set forth above, Plaintiff has failed to establish a prima facie case for negligence and
there is no genuine dispute as to any material fact suggesting otherwise. Defendant is entitled to
summary judgment. Therefore, it is ORDERED that Defendant’s Motion for Summary
Judgment is GRANTED. This case is closed.

DATED this 21 August 2018.

Brooke C. Wells
United States Magistrate Judge

34

See e.g., Bagley, 49 F. App'x 232, 234; Vanderwater, 835 F.2d at 241; Rhines, 24 Utah 2d at 377.

35

Vanderwater, 835 F.2d at 243.

9