Ockey v. Club Jam

2014 UT App 126
_________________________________________________________
THE UTAH COURT OF APPEALS
TERESA OCKEY,
Plaintiff and Appellant,
v.
CLUB JAM AND JAM IN THE MARMALADE, LLC,
Defendants and Appellees.
Memorandum Decision
No. 20130024-CA
Filed June 5, 2014
Third District Court, Salt Lake Department
The Honorable Kate A. Toomey
No. 120900336
Richard F. Mortensen, Attorney for Appellant
Fred R. Silvester and Matthew H. Wood,
Attorneys for Appellees
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1
ROTH, Judge:
¶1 Teresa Ockey sued Club Jam and Jam in the Marmalade,
LLC (the Club) for personal injuries she sustained after a ladder
she was using inside the Club collapsed unexpectedly. The
district court granted the Club’s motion for summary judgment,
and Ockey appealed. Ockey asserts that the ladder the Club
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).

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produced for her expert to inspect was not the ladder she used
the day of her injury. And she argues that ‚a reasonable
inference from the fact that Club Jam produced the wrong ladder
. . . requires the trial court to reject‛ the Club owner’s deposition
testimony, which was integral to the court’s decision. We vacate
the court’s summary judgment and remand for further
proceedings.
¶2 In September 2010, Ockey was invited to display some of
her artwork on a column inside the Club.2 When Ockey arrived,
Todd Crofts, the Club manager, set up a ladder near the column
for Ockey to use. After climbing the ladder twice without
incident, Ockey ‚felt [the ladder] become unstable‛ and
the ‚back right *leg+ seemed to come up, . . . went forward[,]
and then twisted.‛ Ockey fell and sustained injuries, including
a broken ankle that required surgery. After the fall, she
experienced residual pain in her ankle, back, and neck. Within
days of the accident, Ockey’s friends, Tara Payne and Jason
Stone, went to the Club to finish hanging her art. According to
Payne, Crofts told her that the ‚ladder has been nothing but
trouble.‛ And Margo Smith, another friend who was with Ockey
the day of her injury, claimed that Crofts told her that the ladder
was ‚jinxed.‛ Ockey filed a negligence action against the Club,
alleging premises liability and res ipsa loquitur.
¶3 During discovery, Ockey described the ladder in a
deposition as a folding ladder, ‚six feet tall, . . . aluminum,‛ that
had ‚some yellow on it,‛ looked old, and had clearly ‚been used
a lot.‛ Before climbing the ladder, Ockey claimed, she
repositioned it ‚maybe a foot to 18 inches‛ away from the
2. In reviewing a district court’s grant of summary judgment, we
view ‚the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party‛ and recite the
facts accordingly. Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600
(citation and internal quotation marks omitted).

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20130024-CA 3 2014 UT App 126
column, allowing her to face the column directly and hang her
art over the top of the ladder. Crofts’s deposition testimony
described the ladder differently. He testified that the ladder was
‚a yellow aluminum and fiberglass ladder‛ that was ‚eight feet
tall,‛ not six feet tall as Ockey had claimed. Crofts also offered a
different account of Ockey’s accident, claiming that she
positioned the ladder alongside the column so she would have
to turn sideways to hang the pictures. Brian Morris, the Club’s
owner, testified in a deposition that he believed the ladder was
nine feet tall. He also stated that the Club used the ladder daily
before and after the injury and that there had been only one
other injury involving the ladder—Morris cut his hand on a
ceiling fan while using the ladder some time before Ockey’s
injury. Four days after Morris’s deposition, Ockey visited the
Club with an expert to inspect the ladder following a request
under rule 34 of the Utah Rules of Civil Procedure. The ladder
produced for inspection was eight feet tall and matched Crofts’s
description. Ockey insisted that the eight-foot ladder was not the
one she used the day of her injury, and her expert confirmed that
the ladder produced by the Club could not have been positioned
in the way Ockey had described.
¶4 The Club moved for summary judgment, arguing that
any dangers posed by the ladder ‚were open and obvious‛ and
that the Club ‚had no reason to anticipate the accident‛ because
the owners were ‚not aware of any other incidents in which the
ladder itself caused harm to anyone.‛ In response, Ockey argued
that the ladder she fell from was not the same ladder she and
her expert inspected at the Club, casting doubt on Morris’s
testimony that no one aside from himself and Ockey had been
injured while using the ladder. Ockey also contended that if the
Club had ‚destroyed or conceal*ed+ the ladder,‛ she would be
‚entitled to sanctions that include a default judgment and
attorney fees.‛
¶5 Ockey submitted with her response an affidavit from her
expert, F. David Pierce, which stated that it was ‚impossible for

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the Ladder [he] inspected to have been the one Ms. Ockey was
using when she fell‛ because ‚the Ladder was too wide for her
to reach the column to hammer nails into it while standing on
the steps.‛ Ockey also pointed to testimony from her two friends
who used the ladder within days of her injury to finish hanging
her art. They both testified that the ladder was six-feet tall, not
eight- or nine-feet tall as the Club owner and manager claimed.
Finally, Ockey highlighted other testimony that she argued
showed the ladder was involved in other injuries, including
Payne’s assertion that Crofts told her that the ‚ladder has been
nothing but trouble‛ and Smith’s statement that after the
accident, Crofts had described the ladder as ‚jinxed.‛ Crofts
claimed that he was referring to Morris’s ceiling-fan injury, not
any other incidents. Ockey’s response did not identify any
specific injuries involving the ladder other than Morris’s and her
own.
¶6 The district court granted the Club’s motion for summary
judgment. The court appeared to rely heavily on Morris’s
description of the frequent use of the ladder and the Club’s
sparse history of personal injuries: ‚*I+ntegral to this Court’s
decision [is] that the ladder in question had been used without
incident countless times prior to and after Ms. Ockey’s accident
and that it had no obvious defects.‛ As a result, the court stated,
whether the ladder produced for inspection was the same ladder
Ockey used the day of her injury ‚is not important and does not
create a genuine issue of material fact. Even if the original ladder
contained a hidden defect, there is simply no evidence that Club
Jam knew or should have known of the defect, as evidenced by
the frequent use of the ladder.‛ The court also awarded the Club
costs in the amount of $3,326.40.
¶7 Ockey appeals. She argues that the district court should
not have granted the Club’s motion for summary judgment. We
review a district court’s decision to grant summary judgment for
correctness. Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55,
¶ 12, 192 P.3d 858. ‚Summary judgment is appropriate when

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the ‘pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’‛ Id.
(quoting Utah R. Civ. P. 56(c)). The parties’ factual disputes at
summary judgment all hinged on whether the ladder the Club
produced at inspection was the same ladder Ockey used the day
of her injury. The central question presented to us on appeal,
then, is whether the identity of the ladder is material to Ockey’s
negligence claim. We conclude that it is.3
¶8 For Ockey’s negligence claim to survive summary
judgment, she needed to establish that there was a dispute of
material fact about whether the Club breached a duty it owed to
Ockey and whether that breach caused her injuries. See Torrie v.
Weber County, 2013 UT 48, ¶ 9, 309 P.3d 216 (noting that a
plaintiff cannot prevail on a negligence claim without
establishing that the defendant breached a duty owed to the
plaintiff); Overstock, 2008 UT 55, ¶ 12. Ockey claims that a hidden
defect in the ladder caused her fall. She therefore needed to
show that the Club failed to warn her even though (1) it could
have discovered the defect through the exercise of reasonable
care, (2) the Club should have realized the defect posed an
unreasonable risk of harm to her, and (3) she could not have
‚‘discover[ed] or realize[d] the danger’‛ on her own. See Jensen v.
Gardner, 2012 UT App 146, ¶ 4, 279 P.3d 844 (quoting
Restatement (Second) of Torts § 343 (1965)). As we have
discussed, the district court ruled that even though the parties
disputed the identity of the ladder produced at inspection, that
3. Ockey also contends that the court’s award of costs against her
was an abuse of discretion. Because we conclude that the Club
was not entitled to summary judgment, the Club is also not
entitled to court costs under rule 54(d). See Utah R. Civ. P. 54(d)
(‚*C+osts shall be allowed as of course to the prevailing party
unless the court otherwise directs . . . .‛ (emphasis added)).

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fact was not material because the Club’s sparse injury history
was insufficient to put the Club on notice that any ladder it had
used contained a hidden defect, if indeed one existed. This
conclusion relied on Morris’s assertions that his employees used
the ladder ‚daily‛ before and after the accident without any
difficulty and that Ockey’s accident was one of just two personal
injuries at the Club over the past five years—Ockey’s and one
other unrelated to the ladder’s condition.
¶9 When reviewing a district court’s decision granting
summary judgment, we view ‚the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party‛—in this case, Ockey. See Orvis v. Johnson,
2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation
marks omitted). Construing the facts in her favor, we must
assume that the ladder the Club produced at inspection was
not the ladder Ockey used the day of the accident. This fact
leads to several possible inferences; here are three that
we consider to be reasonable: (1) the Club intentionally
destroyed or concealed the ladder in order to avoid liability;
(2) the Club innocently lost or destroyed the ladder under
circumstances independent of Ockey’s lawsuit; and (3) the Club
did not intentionally destroy or lose the ladder, but it is mistaken
about which ladder Ockey used the day of the accident. We
conclude that because these inferences raise questions of fact
material to Ockey’s negligence claim, summary judgment was
not appropriate.
¶10 The dispute over the identity of the ladder is material to
Ockey’s negligence claim in at least two respects. First, viewed in
the light most favorable to Ockey, it raises questions about the
reliability of Morris’s testimony regarding the number of injuries
that resulted from the ladder’s use. Perhaps the ladder the Club
produced at inspection was involved in just one other injury, but
another ladder at the Club was involved in others. Or perhaps
Morris concealed the real ladder and is not being truthful about
the identity of the ladder, the number of injuries associated with

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it, or its condition. Cf. Model Utah Jury Instructions CV 123 (2d
ed. 2014) (‚If you believe any witness has intentionally testified
falsely about any important matter, you may disregard the entire
testimony of that witness, or you may disregard only the
intentionally false testimony.‛). In any event, disputing the
identity of the ladder implicitly disputes Morris’s account of the
Club’s safety record, which is material to the question of
whether the Club had notice that the ladder Ockey used was
defective and therefore breached a duty when it failed to warn
her of its condition.
¶11 Second, rule 37 of the Utah Rules of Civil Procedure
empowers district courts to impose sanctions for spoliation—
when a party ‚destroys, conceals, alters, tampers with or fails
to preserve‛ evidence. Utah R. Civ. P. 37(i). Among other
things, the court may ‚strike all or part of *the party’s+
pleadings, . . . render judgment by default on all or part of the
action,‛ award attorney fees, or ‚instruct the jury regarding an
adverse inference.‛ Id. R. 37(e)(2)(D), (E), (F). District courts have
‚broad discretion‛ to determine if a party’s conduct justifies the
imposition of sanctions and, if so, which sanction is appropriate
to the circumstances. Gorostieta v. Parkinson, 2000 UT 99, ¶ 31, 17
P.3d 1110; see also Coxey v. Fraternal Order of the Eagles, 2005 UT
App 185, ¶¶ 2–6, 112 P.3d 1244. And unlike other discovery
violations, a party who destroys or conceals relevant evidence
need not do so willfully or in bad faith to trigger the penalties
outlined in rule 37. Daynight, LLC v. Mobilight, Inc., 2011 UT App
28, ¶ 2, 248 P.3d 1010 (noting that ‚the destruction and
permanent deprivation of evidence‛ differs qualitatively from
other discovery violations, so spoliation ‚does not require a
finding of willfulness, bad faith, fault, or persistent dilatory
tactics‛ to warrant sanctions under rule 37 (internal quotation
marks omitted)).
¶12 In opposing the Club’s motion for summary judgment,
Ockey specifically requested the imposition of sanctions,
including ‚a default judgment and . . . attorney fees,‛ if the court

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determined the Club had destroyed or concealed the ladder. She
cited rule 37 and argued that if the Club ‚spoliated the Ladder,
the plain language of [the rule] . . . would allow the trial court to
strike all of *the Club+’s pleadings.‛ The court never reached the
issue of spoliation because it believed it had adequately resolved
the case on other grounds. See supra ¶ 6. But if Ockey was
entitled to a sanction under rule 37, the consequences could have
made summary judgment inappropriate.
¶13 Other jurisdictions have recognized that a sanction for
spoliating relevant evidence can create an issue of fact and
preclude summary judgment. See, e.g., Kitchens v. Brusman, 694
S.E.2d 667, 704 (Ga. Ct. App. 2010) (‚Proof of spoliation raises a
rebuttable presumption against the spoliator that the evidence
favored the spoliator’s opponent, a fact rendering summary
judgment inappropriate.‛ (citation and internal quotation marks
omitted)); Adobe Land Corp. v. Griffin, LLC, 236 S.W.3d 351, 360
(Tex App. 2007) (concluding that summary judgment was
inappropriate where the prevailing party had destroyed
‚material evidence that went to the very heart‛ of the case).
While Utah’s courts have not formally recognized a free-
standing spoliation doctrine independent of the rules of civil
procedure,4 rule 37 seems to address the same concerns as these
cases, imposing similar sanctions to discourage similar
misconduct. See, e.g., Beers v. Bayliner Marine Corp., 675 A.2d 829,
4. See Burns v. Cannondale Bicycle Co., 876 P.2d 415, 419 (Utah Ct.
App. 1994) (‚While *the plaintiff+ cites no authority
demonstrating that Utah has adopted the spoliation doctrine, we
conclude that it would not apply to the facts of this case in any
event.‛); Margaret M. Koesel & Tracey L. Turnbull, Spoliation of
Evidence 125–256 (Daniel F. Gourash ed., 2d ed. 2006)
(surveying the sanctions that courts in all fifty states impose for
the destruction of evidence and noting that Utah courts have not
recognized the spoliation doctrine outside the specific
application of rule 37).

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831–32 (Conn. 1996) (collecting cases from other jurisdictions
that discuss the imposition of adverse inferences against a party
who destroys or conceals evidence). And we see no reason why
the spoliation of relevant evidence would be treated any
differently under rule 37 than under an independent spoliation
doctrine, at least under the circumstances of this case.
¶14 Consequently, we conclude that granting the Club’s
motion for summary judgment was inappropriate in these
circumstances; the district court should have addressed the
potential effects of spoliation on the credibility or reliability of
the Club’s summary judgment evidence and whether Ockey’s
assertions in that regard created a genuine issue of material fact
precluding summary judgment. And in response to Ockey’s
request for rule 37 sanctions, the court should have resolved the
question of whether the ladder the Club produced was the
original ladder and, if not, the circumstances that had led to its
production for Ockey’s inspection rather than the original. If the
court determined that it was not the original ladder, then it
would have to determine whether Ockey was entitled to a
discovery sanction and, if so, whether the chosen sanction
precluded summary judgment. Thus, the resolution of the issues
surrounding Ockey’s evidence that the ladder the Club
produced was not the ladder it originally provided for her to use
to hang her artwork has potentially significant implications with
regard to the resolution of the Club’s summary judgment motion
that were not taken into account by the district court.
¶15 In reaching this conclusion, we express no opinion
regarding whether the Club destroyed or concealed the ladder;
whether rule 37 sanctions would be justified if it did; which
sanction, if any, would be appropriate; or even whether
summary judgment might ultimately be available in this case.
Each of those questions is within the purview of the district
court, because unlike an appellate court, it ‚deal*s+ first hand
with the parties and the discovery process,‛ Morton v.
Continental Baking Co., 938 P.2d 271, 274 (Utah 1997) (citation and

Ockey v. Club Jam
20130024-CA 10 2014 UT App 126
internal quotation marks omitted), and is therefore best
equipped to resolve those issues. Rather, we simply conclude
that the court did not adequately address the issues raised by
Ockey’s spoliation claim and the evidence supporting it when
the court granted summary judgment against her.5
5. On remand, the district court may have the unenviable task of
sorting through a variety of potentially complex procedural
questions upon which Utah’s appellate courts have so far
provided little guidance. If the Club spoliated the ladder as
Ockey claims, the court will need to determine whether rule 37
sanctions are warranted, and if they are, which sanction is
appropriate under the circumstances. And it may still need to
decide whether the spoliation issue is ultimately a question of
fact that should be determined by a jury. See Beers v. Bayliner
Marine Corp., 675 A.2d 829, 832–34 (Conn. 1996) (discussing the
impact an adverse inference of spoliation may have on the
plaintiff’s burden of proof at summary judgment and at trial);
Jamie S. Gorelick et al., Destruction of Evidence § 2.22C (Aspen
Publishers 2014) (collecting cases where summary judgment was
either granted or denied based on a spoliation inference); David
C. Norton et al., Fifty Shades of Sanctions: What Hath the
Goldsmith’s Apprentice Wrought?, 64 S.C. L. Rev. 459, 461–70
(2013) (summarizing the federal courts’ approach to spoliation,
including instances where the issue is submitted to the jury even
after the judge’s imposition of sanctions). And that could involve
deciding whether Utah recognizes a free-standing spoliation
doctrine like other states that is independent of rule 37—a
question that Utah courts have not yet definitively answered. See
Burns v. Cannondale Bicycle Co., 876 P.2d 415, 419 (Utah Ct. App.
1994) (‚While *the plaintiff+ cites no authority demonstrating
that Utah has adopted the spoliation doctrine, we conclude that
it would not apply to the facts of this case in any event.‛). See
generally Rachel A. Campbell, Annotation, Effect of Spoliation of
Evidence in Tort Actions Other than Product Liability Actions, 121
A.L.R. 5th 157 (2004) (surveying state and federal approaches to
(Continued . . .)

Ockey v. Club Jam
20130024-CA 11 2014 UT App 126
¶16 We recognize that our decision today may not provide the
district court with the same degree of guidance appellate courts
endeavor to provide to aid the resolution of issues that will
undoubtedly arise on remand. See, e.g., State v. Low, 2008 UT 58,
¶ 61, 192 P.3d 867 (exercising discretion to address ‚other issues
presented on appeal that will likely arise during retrial . . . for
purposes of providing guidance on remand‛). But due to the
novelty of the procedural issue presented here, we feel further
comment may unnecessarily narrow the scope of the district
court’s inquiry regarding issues we are relatively ill-equipped to
address at this stage of the litigation, where these issues have not
been briefed by the parties on appeal or subjected to the crucible
of adversarial testing in the district court. Cf. McPherson v.
McPherson, 2013 UT App 302, ¶ 8, 318 P.3d 773 (noting that
comments on the merits of an alimony award ‚were intended to
guide and focus the trial court’s consideration on remand on an
issue we concluded had not been adequately addressed,‛ not ‚to
superimpose any particular findings of fact, limit the sound
exercise of the trial court’s discretion, or dictate any particular
result‛).
¶17 Accordingly, we vacate the district court’s order granting
the Club’s motion for summary judgment and remand for
further proceedings consistent with this decision.
the spoliation doctrine, including when the question is
submitted to the jury and how spoliation inferences might
interact with the plaintiff’s burden of proof). For reasons we
have already discussed, we leave it to the district court to
determine whether these issues are ultimately pertinent to the
facts of this case.