Madsen v. Beacon Roofing Supply

2024 UT App 177

THE UTAH COURT OF APPEALS

RUSS MADSEN, MANDY MADSEN, ANGIE WALL, SOFIA BOWERS, AND
MICHAEL BOWERS,
Appellees,
v.
BEACON ROOFING SUPPLY, BEACON SALES ACQUISITION INC., AND
RUSTY CADE COPE,
Appellants.

Opinion
No. 20230392-CA
Filed December 5, 2024

Fourth District Court, Provo Department
The Honorable Thomas Low
No. 190401592

Ruth A. Shapiro, Dani N. Cepernich, Bryson R.
Brown, Tracy H. Fowler, Elisabeth M. McOmber, and
Ryan S. Alba, Attorneys for Appellants
Blake W. Johnson, Attorney for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

MORTENSEN, Judge:

¶1 After viewing a movie at a local theater, three boys
congregated near a busy intersection as they waited for a walk
signal to enter the crosswalk. Michael, age eleven, walked in front
of the others toward the crosswalk, hesitated a moment at the
curb, and proceeded into the marked crosswalk with the
pedestrian signal illuminated. Michael apparently did not see a
large commercial truck turning right, nor did the driver of the
truck appreciate Michael’s presence, and several feet into the
crosswalk Michael was hit and killed.
Madsen v. Beacon Roofing

¶2 Michael’s parents, along with the parents of the other boys,
(collectively, the Parents) brought an action for wrongful death
and related claims. In a bifurcated trial, a jury determined that the
truck driver was not at fault. Following the verdict, the Parents
filed a renewed motion for judgment as a matter of law. The
district court granted the motion and conditionally granted a new
trial. The driver, Rusty Cade Cope, and his employer, Beacon
Roofing Supply, petitioned for permission to appeal, which we
granted. 1 For the reasons identified below, we affirm the district
court’s rulings.

BACKGROUND

The Accident

¶3 On December 17, 2018, Michael went to an afternoon
movie with two friends in Pleasant Grove, Utah. After the movie,
at around 6:00 p.m., they left the theater, crossed a road, and stood
near the corner at the intersection of Pleasant Grove Boulevard
and State Street. Once there, the boys pressed the pedestrian
crossing button three times as they waited for the “Walk” signal
to activate so they could make their way across Pleasant Grove
Boulevard.

¶4 Meanwhile, Cope, who had a passenger with him, was
driving a large commercial roofing truck toward the intersection
of Pleasant Grove Boulevard and State Street where the boys were
waiting. Cope maneuvered his vehicle into the right-hand turn

1. For simplicity, we will refer to the employer and the driver as
“Cope” when describing the procedural history of this case.
Beacon Sales Acquisition Inc. is legally affiliated with Beacon
Roofing Supply and was joined as a defendant in the early stages
of this litigation.

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lane on State Street as he prepared to turn onto Pleasant Grove
Boulevard.

¶5 The traffic signal at the intersection had turned green by
the time Cope reached Pleasant Grove Boulevard. And at the
same time the traffic signal had turned green, the “Walk” signal
had illuminated. When the “Walk” signal illuminated, Michael,
who was at the corner, proceeded into the crosswalk. Cope, who
had been slowing because the light had been red, proceeded to
make a right-hand turn without stopping, traveling at about
eleven miles per hour. As Cope rounded the corner, his vehicle
struck and killed Michael. Michael was approximately fifteen feet
into the crosswalk when he was hit.

The Trial

¶6 The Parents brought a wrongful death and personal injury
case against Cope, asserting various claims sounding in
negligence. The jury trial was bifurcated, with the first phase
addressing only whether the breach of any duties caused
Michael’s death. The second phase would address the remaining
issues, most notably the allocation of fault and damages.

¶7 The Parents presented evidence from two eyewitnesses
who were stopped at the intersection at the time of the accident.
One of these eyewitnesses testified that he noticed “three boys on
the corner . . . waiting to cross the street.” He said the boys
“seemed . . . on high alert about what they were doing”—as
indicated by their “pacing, movement, lots of stepping and head
turning, swiveling, [and] looking different directions.” He further
testified that Cope was braking because the light had been red as
he approached the intersection, but that the light turned green
before Cope stopped, at which point Cope continued making the
right-hand turn, striking Michael. This eyewitness further stated
that the “Walk” symbol for the boys had illuminated at the same
time the light had turned green for Cope. The other eyewitness
said Michael was standing by the light post, “moving around,”

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“jumping up and down,” “hitting the button,” and “obviously,
waiting . . . for the light to come on so he could cross.” He also
testified that Cope made the turn without stopping.

¶8 The Parents also called several experts. They first called a
mechanical engineer. He testified that the “Walk” symbol
illuminated for the boys at the same time the light changed from
red to green for Cope. Another expert, a forensic engineer,
testified that the light had turned green 5.5 seconds before the
impact occurred. He further testified that “one or more of the boys
was visible and detectable as a pedestrian moving toward the
crosswalk” for 10.6 seconds prior to impact. The forensic engineer
also testified about the lighting on the corner where the boys were
standing. He concluded that the illumination was “so far above
the threshold needed for the detection of pedestrians that even a
darkly clothed pedestrian would have been easily detectable and
visible to a driver approaching . . . that intersection in that area.”

¶9 Cope testified that the light was red but it changed to green
as he approached the intersection. Cope admitted that he had told
police officers immediately after the accident that he had come to
a complete stop because the light had been red, that he looked
right and left to verify that it was safe to turn, and that only then
did he make the turn. But he testified on the stand that he only
“thought [he] had” come to complete a stop and that “[a]fter the
fact, [he] had come to find out that [he] did not stop.” In
retrospect, Cope admitted, “The color of the light was red as I
approached. It changed to green. I did think I came to a stop that
night. And I tried to be as truthful as I could on that.”

¶10 Cope further testified that in spite of keeping “a continual
scan . . . through the turn,” he “never saw anybody on the street
corner” where the boys were standing. He was aware, however,
that there was a crosswalk painted on the road for pedestrian use.
He testified that he did not see the illuminated “Walk” signal
because he did not look for it.

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¶11 Cope also presented a mechanical engineer to testify as an
expert. Cope’s expert agreed that it was “probably true” that the
“Walk” signal illuminated for Michael at the same time the light
had turned green. This expert also provided several explanations
for Cope’s failure to see the boys, including that it was dark, that
the turn was made at a complicated intersection with a lot of
“clutter,” that the turn involved a large truck in a tight lane, that
there were other bright lights at the intersection, that the
movement of the truck impeded visibility, and that the physical
characteristics (namely, a large mirror, the hood, the roof
supports, and the window frame) of the truck interfered with
Cope’s line of sight to create “blind spots.”

¶12 The jury also saw two videos of the accident and the events
leading up to it captured by surveillance cameras from two
nearby businesses.

¶13 After the close of evidence, the Parents moved for
judgment as a matter of law under rule 50 of the Utah Rules of
Civil Procedure as to whether Cope breached his duty of care
toward Michael. Cope opposed the motion, and the district court
reserved ruling on it pursuant to rule 50(b). The jury returned a
verdict in favor of Cope, finding that he did not negligently
operate the vehicle.

Judgment as a Matter of Law

¶14 Following the verdict, the Parents filed a renewed motion
for judgment as a matter of law and a motion for a new trial.
Specifically, the Parents argued,

The evidence presented at trial demonstrably
show[ed] that Cope violated numerous duties and
traffic safety laws. [Cope] provided no evidence to
rebut the significant amount of evidence that the
boys were there to be seen. [Cope] only offered
evidence that it was more difficult for Cope to see

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the boys, which does not excuse his violation to
keep a proper lookout, yield to pedestrians, and
turn only when it could be done safely.

Accordingly, the Parents, pursuant to rule 50(b) of the Utah Rules
of Civil Procedure, requested judgment as a matter of law on the
issue of Cope’s negligence. See Utah R. Civ. P 50(b). The Parents
also requested a new trial, asserting that the verdict was based on
insufficient evidence or contrary to law. See id. R. 59(a)(6)–(7).
Cope opposed the Parents’ motion for judgment as a matter of
law, arguing that substantial evidence showed that the Parents
failed to meet their burden of showing that Cope failed to keep a
proper lookout, drove too fast, failed to yield, or failed to exercise
reasonable care under the circumstances. Cope also argued that
there were no irregularities to justify a new trial.

¶15 The district court granted the Parents’ motion, determining
that “the evidence wholly contradict[ed] the verdict” and that no
“facts adduced at trial support[ed] the verdict the jury reached.”
The court devoted a great deal of effort—twenty-four pages—to
recounting the facts of the case and applying the law to them. In
reviewing the evidentiary background, the court noted that
undisputed evidence indicated that the “Walk” signal was
illuminated when Michael entered the crosswalk and that Cope
did not see Michael or the other boys at any point while they were
waiting to cross. The court noted, however, that “Cope’s failure to
see the boys” contrasted “with the ability of other individuals”
who were stopped at the intersection to observe the boys. The
court also acknowledged that the evidence indicated that there
were “variables” and “complexities” typical of a “busy
intersection” that Cope needed to safely address. These included
the narrowness of the right-turn lane relative to the width of his
truck, the possible presence of pedestrians, and the tightness of
the turn. The court also recognized that the evidence indicated
that while the intersection was well lit, other factors, such as the
presence of additional lights, may have “added clutter and
confusion to the intersection.” The court further noted the

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undisputed evidence that the traffic light turned green for Cope
5.5 seconds before the collision occurred. But during that time
after the light turned green, the court observed the evidence
indicated “Cope decided to take the turn without stopping” by
letting his foot off the brake. It was during this brief period that
Cope’s “window for noticing Michael’s presence and stopping
before the accident would close.”

¶16 In ruling on the Parents’ motion, the district court
concluded that if conditions that night made it difficult for Cope
to see pedestrians, then his decision not to slow down to allow for
the opportunity to properly evaluate the situation violated his
duty of care. In sum, the court determined, as a matter of law, that
Cope breached the duty of care he owed Michael in the following
five ways:

1. He “operated his vehicle at a speed greater than what was
reasonable and prudent under the existing conditions,
including when approaching and crossing an intersection,
because his speed allowed him too short a time to notice
and respond to Michael’s presence;”

2. He “turned his vehicle before it could be done with
reasonable safety because Michael was given a ‘Walk’
signal at the same time [Cope] was given a green traffic
signal, but he failed to yield to Michael when Michael
entered the intersection within a reasonable time after the
‘Walk’ signal illuminated;”

3. He “failed to keep a proper lookout by failing to see either
the ‘Walk’ signal or any of the three boys approaching the
crosswalk;”

4. He “failed to yield the right-of-way, by slowing down or
stopping if necessary, to a pedestrian crossing the roadway
within a crosswalk when the pedestrian was on the half of
the roadway upon which his vehicle was traveling;” and

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5. He “failed to exercise reasonable care by failing to slow
down sufficiently before the intersection and by failing to
wait to proceed into it until after he had performed all of
the foregoing duties, including observing the ‘Walk’ signal
and the pedestrians, and by failing to check the areas in his
vehicle’s blind spots.”

¶17 And in compliance with the Utah Rules of Civil Procedure,
the district court conditionally granted the Parents’ motion for a
new trial. 2

ISSUE AND STANDARD OF REVIEW

¶18 Cope argues that the district court erred in granting the
Parents’ renewed motion for judgment as a matter of law. We
review a motion for judgment as a matter of law for correctness
and “accept as true all testimony and reasonable inferences that
support the jury’s verdict.” Smith v. Volkswagen SouthTowne, Inc.,
2022 UT 29, ¶ 38, 513 P.3d 729 (cleaned up). 3

2. Rule 50(c)(1) of the Utah Rules of the Civil Procedure states, “If
the court grants a renewed motion for judgment as a matter of
law, it must also conditionally rule on any motion for a new trial
by determining whether a new trial should be granted if the
judgment is later vacated or reversed.” “Conditionally granting
the motion for a new trial does not affect the judgment’s finality;
if the judgment [as a matter of law] is reversed, the new trial must
proceed unless the appellate court orders otherwise.” Utah R. Civ.
P. 50(c)(2).

3. Cope also asserts that the district court abused its discretion in
conditionally granting a new trial on the basis that the verdict was
contrary to law and the evidence was insufficient to justify the
verdict. Our conclusion that the district court did not err in
(continued…)

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ANALYSIS

¶19 At the outset, it’s essential to keep in mind that this trial
was bifurcated, with the sole question during the first phase of the
trial being whether Cope was negligent. Thus, if the evidence
showed that Cope was negligent to any degree—even if his
negligence was slight—the jury should have returned a verdict
against him and the trial should have proceeded to the second
phase, where the apportionment of fault would occur. With this
procedural posture in mind, we conclude that the district court
correctly granted the Parents’ motion for judgment as a matter of
law because the evidence and Utah law compel the conclusion
that Cope was negligent. In short, there was abundant evidence
presented to support the conclusion that, as a matter of law, Cope
breached—at least to some degree—the duty of care he owed as a
driver to Michael as a pedestrian and that this breach resulted in
Michael’s death. In reaching this conclusion, we in no way depart
from the longstanding deference owed to a jury’s verdict.
Snyderville Transp. Co. v. Christiansen, 609 P.2d 939, 942 (Utah 1980)
(“[T]he decisions reached by a jury, acting as sole finder of fact,
are to be accorded due deference by a reviewing Court.”); Wilson
v. Sanders, 2019 UT App 126, ¶ 23, 447 P.3d 1240 (stating that a
“healthy dose of deference” is “owed to jury verdicts” (cleaned
up)). But this deference, though well-established, is not
sacrosanct; it must yield when, as here, “reasonable minds would
not differ on the facts to be determined from the evidence
presented.” Heslop v. Bank of Utah, 839 P.2d 828, 838 (Utah 1992).
As our supreme court pronounced long ago, “[W]e must review
cases in the light of the legal principles we espouse and discard
reverence for [the jury] where we are convinced it has erred. Here,
we believe, is a case where that rather rare occasion must be met
with reversal and without equivocation.” Martin v. Ehlers, 371
P.2d 851, 852 (Utah 1962).

granting the Parents’ motion for judgment as a matter of law
obviates the need to address the conditional grant of a new trial.

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¶20 In negligence cases, a duty is “defined as an obligation, to
which the law will give recognition and effect, to conform to a
particular standard of conduct toward another.” Davis v. Wal-
Mart Stores Inc., 2022 UT App 87, ¶ 10, 514 P.3d 1209 (cleaned up).
And “the existence of a duty must be determined as a matter of
law and on a categorical basis for a given class of tort claims.” Id.
(cleaned up). For the driver of a vehicle, there is an overarching
duty of care that encompasses seeing what there is to be seen—as
recognized in Child v. Gonda, 972 P.2d 425 (Utah 1998). In that case,
a passenger was in a vehicle driven by her friend. Id. at 427. The
friend turned left in front of oncoming traffic, resulting in the
passenger’s death. Id. After settling with the friend, the
passenger’s estate sued the other driver, Gonda. Id. At trial, the
estate presented evidence that Gonda was negligent, including
that (1) the friend had “waited at the intersection for
approximately 12 seconds before turning into Gonda’s path; (2) it
was raining; (3) Gonda did not have her lights on; (4) the driver of
the vehicle following Gonda testified that she [i.e., the driver
following Gonda] probably had her lights on; and (5) an expert
witness testified that the vehicle following Gonda’s may have
created a ‘haloing’ effect, making it difficult for Gonda’s vehicle
to be seen.” Id. at 431. The trial court granted a directed verdict in
favor of Gonda, stating, “There is nothing in this record that
would support any conclusion other than [the friend] did not see
what was there to be seen.” Id. (cleaned up). The court noted that
even though the “haloing effect” would have impeded visibility,
it still did not “get over” the “hurdle” of the friend’s failure to see
an “immediate hazard” that was “there to be seen.” Id. (cleaned
up). On appeal, our supreme court agreed with the trial court:
“While the evidence [the estate] offers may help to explain [the
friend’s] actions, it does not show that [the friend] was not
negligent. Therefore, even if the trial court had considered all of
the evidence [the estate] presented as uncontroverted fact, [the
estate] offered no evidence that would convince any reasonable
jury that [the friend] was not negligent.” Id.

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¶21 An older case from our supreme court, Charvoz v. Cottrell,
361 P.2d 516 (Utah 1961), helps illustrate the duty of care that a
driver has to keep a proper lookout in the context of yielding to a
pedestrian in a crosswalk. In Charvoz, a pedestrian was struck and
killed in an intersection crosswalk at around 7:00 p.m. when it was
dark. Id. at 517. While the crosswalk was well marked, the
intersection was dimly lit and the pedestrian was wearing dark
clothing. Id. at 517–18. The driver testified that he was traveling
approximately thirty miles per hour with his headlights on low
beam as he approached the intersection, but that he did not see
the pedestrian until he was about sixty-five feet from the point of
impact. Id. He immediately applied his brakes but was unable to
stop in time. Id. The jury returned a verdict of no cause of action
in favor of the driver. Id. at 517. The pedestrian’s estate appealed,
arguing that the driver was negligent, as a matter of law, “in
failing to keep a proper lookout and in failing to yield the right of
way” to the pedestrian. Id. at 517–18.

¶22 Our supreme court affirmed the verdict, concluding that
“the lower court properly refused to give the requested
instruction that the [driver] was negligent as a matter of law.” Id.
at 519. The court noted, “It is well settled that statutes or
ordinances giving pedestrians the right of way at street crossings
create a preferential but not an absolute right in their favor.” Id.
And it clarified, “Before the duty of a driver to yield the right of
way arises he must be in a situation whereby he is either aware of
the presence of a pedestrian within the crosswalk or should have,
in the exercise of reasonable care, become aware of the pedestrian’s
presence in time to yield the right of way.” Id. (emphasis added).
Thus, as articulated in Charvoz, two conditions are necessary to
conclude, as a matter of law, that a driver is negligent in failing to
yield: (1) the driver must have been or should have been aware of
the hazard and (2) the driver had time to avoid the collision. Id.

¶23 Charvoz reiterated the standard articulated in Martin v.
Stevens, 243 P.2d 747 (Utah 1952). In that case, a driver crashed
into the side of the plaintiff’s car. Id. at 748. The driver moved for

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dismissal, arguing that the plaintiff was guilty of contributory
negligence. Id. After the motion was granted, the plaintiff
appealed. Id. On appeal, arguing under the old system of
contributory negligence, the driver asserted “virtually that no
matter how negligent” he may have been, it was “still the
plaintiff’s duty to avoid the collision.” Id. at 749. Our supreme
court called this assertion “fallacious” because it stretched
“contributory negligence to the point where we make it
incumbent upon one not only to drive carefully himself, but to
drive so carefully as always to be prepared for some sudden burst
of negligence of another and be able to avoid it.” Id. at 750 (cleaned
up). The court observed that the rule the driver advocated “would
throw a protective cloak over wrongdoers and penalize careful
drivers by requiring them to anticipate and avoid the negligence
of others.” Id. Instead, the court articulated that to be “held to be
negligent as a matter of law,” a driver must have “either observed,
or in the exercise of due care should have observed, the manner in
which the other driver was approaching the intersection and
clearly could by ordinary reasonable care have avoided the
collision.” Id. at 751 (emphasis added); see also Johnson v. Syme, 313
P.2d 468, 469 (Utah 1957) (stating that where the decedent’s
approaching car was readily visible to others, the “plaintiff either
looked and failed to see the obvious, or failed to look at all, and, as a
matter of law negligently contributed to her own injuries and the
death of another motorist” (emphasis added)).

¶24 Moreover, Utah statutory law imposes additional
obligations on drivers:

• Drivers “may not operate a vehicle at a speed greater than
is reasonable and prudent under the existing conditions,
giving regard to the actual and potential hazards then
existing, including when . . . approaching and crossing an
intersection [and] traveling in, through, or approaching
other hazards that exist due to pedestrians, other traffic,
weather, or highway conditions.” Utah Code § 41-6a-
601(1)(a), (e).

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• A driver “may not turn a vehicle . . . until . . . the movement
can be made with reasonable safety.” Id. § 41-6a-
804(1)(a)(i).

• Drivers must “yield the right-of-way by slowing down or
stopping if necessary . . . to a pedestrian crossing the
roadway within a crosswalk when the pedestrian is on the
half of the roadway upon which the vehicle is traveling.”
Id. § 41-6a-1002(1)(a)(i). And “a pedestrian facing a steady
‘Walk’ or symbol of ‘Walking Person’ of a pedestrian
traffic-control signal has the right-of-way and may proceed
across the roadway in the direction of the signal.” Id. § 41-
6a-306(1).

¶25 Applying this precedent and statutory law, the question is
whether the undisputed facts establish (1) that Cope was aware of
or should have been aware of—in the exercise of ordinary and
reasonable care—the presence of the boys waiting to cross at the
corner and (2) whether Cope had time to avoid the collision under
the circumstances such that judgment can be made as a matter of
law.

¶26 First, the undisputed facts make clear that Cope should
have been aware of the boys’ presence at the corner. Cope points
to Charvoz as supporting his argument that he was under no
obligation to see the boys because, like the pedestrian in Charvoz,
he argues that they were not “there to be seen.” But Cope’s
reliance on Charvoz begs the question on this point. The reason
Cope did not see the boys isn’t that they were not there to be seen;
instead, it’s that Cope didn’t pay attention to the signs of their
presence or take the time to look for them, as a driver exercising
reasonable care would have done. Charvoz clearly states that a
driver’s duty of care to yield to a pedestrian in a crosswalk arises
when the driver becomes aware or should have become aware of
the pedestrian’s presence in time to stop. See 361 P.2d at 519
(“Before the duty of a driver to yield the right of way arises he
must be in a situation whereby he is either aware of the presence of

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a pedestrian within the crosswalk or should have, in the exercise of
reasonable care, become aware of the pedestrian’s presence in time to
yield the right of way.” (emphasis added)). In a departure from
Charvoz, Cope employs circular reasoning to assert that the boys
were not “there to be seen” because he did not see them. This faulty
logic will not do—it is inconsistent with the principle laid down
in Charvoz that the duty of care to yield to a pedestrian arises when
an operator should have become aware of the pedestrian’s
presence.

¶27 The evidence here is that Cope, in the exercise of
reasonable care, should have been aware of the boys’ presence as
they waited to cross the street. The circumstances in Charvoz—
where the supreme court concluded that the pedestrian was not
visible in time to avoid the collision—are distinguishable from
those Cope encountered. The crosswalk in Charvoz was on a
straightaway rather than on a busy adjacent road regulated by
traffic signals. There was no illuminated “Walk” signal at play in
Charvoz. Moreover, it is undisputed that the light was red as Cope
approached the intersection. The traffic signal, along with the
“Walk” signal, changed approximately 5.5 seconds before Cope
reached the crosswalk. During that time, Michael—as shown in
the surveillance videos—was standing on the corner where
pedestrians waiting for the “Walk” signal are expected to be. This
is an example of the kind of situation Charvoz indicated “should
have” made a driver “become aware of the pedestrian’s presence
in time to yield the right of way.” Id. Indeed, Cope, in the exercise
of reasonable care, should have been on heightened alert that the
traffic light, having just changed, might mean that pedestrians
would begin crossing the adjacent street onto which he was
turning.

¶28 We note that (1) the limitation of visibility due to the
complex and cluttered nature of the intersection, (2) the blind
spots created by the configuration of Cope’s vehicle, (3) the fact
that it was dark, or (4) the difficulty of turning a large truck in a
tight lane does not create a situation that eliminates or mitigates

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Cope’s duty of care. Instead of establishing non-negligence, these
are circumstances that Cope should have considered as
prudentially limiting the speed with which he could make the
turn under the existing conditions so as to ensure that the
maneuver could be accomplished with reasonable safety and with
the proper lookout for potential pedestrians. See Utah Code §§ 41-
6a-804(1)(a)(i), -1002(1)(a)(i). Rather than excusing Cope’s
responsibility, these circumstances enhanced his duty of care to
make a safe turn.

¶29 Second, Cope—if he had exercised the reasonable care by
which he should have become aware of the boys’ presence—
would have almost certainly avoided the collision that killed
Michael. If Cope had observed his duty of care to operate his
vehicle at a speed that was “reasonable and prudent under the
existing conditions, giving regard to the actual and potential
hazards then existing, including when . . . approaching and
crossing an intersection [and] traveling in, through, or
approaching other hazards that exist due to pedestrians, other
traffic, weather, or highway conditions,” see id. § 41-6a-601(1)(a),
(e), he would have had time to bring his vehicle to a stop or take
other evasive maneuvers instead of continuing with his turn.
Even Cope’s own expert stated that Cope “could have slowed
down” to “give himself more time to account for” all the
“conditions and . . . obstructions” that impeded his ability to see
pedestrians at the intersection. 4 But Cope never slowed down
enough to give himself time to evaluate the situation. As a result,

4. Cope’s expert went on to qualify his statement that Cope could
have slowed down by saying, “[B]ut there was really no reason
for him to slow down more than he already had.” This
qualification appears to be based on the faulty premise that Cope
had no reason to slow because he did not see the boys. But this is
the very reason that Cope, had he been exercising reasonable care,
should have slowed down, namely, to give him time to verify the
crossing was free of pedestrians and that he could make the turn
safely.

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he never saw the boys standing at the corner, even though, had
he been exercising reasonable care, he should have. After all, other
drivers at the intersection saw them. Indeed, Cope should have
been alerted to the possibility that pedestrians might be intending
to cross the adjacent street the moment his traffic signal turned
green. Instead of letting his foot off the brake as he was making
his intended right turn, a reasonable driver would have continued
to slow and scanned the corner to verify that no pedestrians were
waiting to cross, especially since the “Walk” signal had been
illuminated. See id. § 41-6a-306(1) (stating that a pedestrian with a
“Walk” symbol “has the right-of-way and may proceed across the
roadway”). So, while it may be true, as Cope argues, that the
accident was unavoidable because Cope did not see Michael, this
argument is based on the false premise that Cope could not have
seen Michael waiting on the corner. And the evidence is
undisputable that if Cope had driven his vehicle at a speed that
was reasonable and prudent under the circumstances, he would
have seen the several clues (e.g., the boys at the corner and the
illuminated “Walk” symbol) counseling against making an unsafe
right-hand turn, see id. § 41-6a-804(1)(a)(i) (stating that a driver
“may not turn a vehicle” until “the movement can be made with
reasonable safety”), thus avoiding the accident. Instead, Cope
would have brought his vehicle to a stop, allowed the boys to
cross, and this tragedy could have been avoided altogether.

¶30 As our precedent indicates, when clear evidence
demonstrates that the hazard was visible with enough time to
prevent an accident, the question of negligence can be
appropriately resolved by a court. In cases like this one, where the
facts are undisputed, our supreme court has routinely concluded
that a driver was negligent, as a matter of law, for not seeing what
was to be seen—either because the driver was not keeping a
proper lookout or because the driver was not paying attention. See
Phillips v. Tooele City Corp., 500 P.2d 669, 672 (Utah 1972) (“The
failure of [the driver] to keep a proper lookout and to heed what
was there to be observed constituted contributory negligence as a
matter of law.”); Benson v. Denver & Rio Grande W. R.R. Co., 286

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P.2d 790, 794 (Utah 1952) (“We believe that all reasonable [people]
would agree that if [the] plaintiff had looked he could have [seen]
the approaching train in time to stop and avoid the collision,
unless he was traveling too fast under the existing conditions to do so.”);
Compton v. Ogden Union Ry. & Depot Co., 235 P.2d 515, 517 (Utah
1951) (“If [the driver] had looked at any time, . . . she must
necessarily have seen the train approaching. She was, therefore,
either negligent in failing to look or in failing to heed the train if
she saw it.”); Gren v. Norton, 213 P.2d 356, 359–60 (Utah 1949)
(“There is no reason why, during this whole period, the truck
could not have been observed by [the driver] had he been keeping
any lookout. . . . [O]ur conclusion [is] that [the driver,] in failing
to keep a proper lookout[,] was guilty of contributory negligence
as a matter of law.”); Conklin v. Walsh, 193 P.2d 437, 440 (Utah
1948) (“The driver having failed to see [the approaching]
automobile until too late to avoid the collision, we see no escape
from the conclusion that he did not keep a proper lookout and
was guilty of negligence in that omission.”). 5

5. This issue used to be reviewed far more frequently in the
context of contributory negligence, where if the plaintiff was even
the slightest bit negligent—even 1%—there was no basis for a
claim. But that scheme no longer pertains under the Liability
Reform Act, see Utah Code §§ 78B-5-817 to -823, and the advent of
the doctrine of comparative fault, see State v. Grant, 2021 UT App
104, ¶ 30, 499 P.3d 176 (“The Liability Reform Act delineates the
apportionment of comparative fault in civil actions. . . . This
scheme allows an injured party to recover damages from any
defendant whose fault exceeds his own. And the amount an
injured party may recover is proportionate to the percentage of
fault attributed to the defendant.” (cleaned up)). But the Liability
Reform Act doesn’t change the reality that courts can determine,
under the right circumstances, the complete absence of negligence
or the existence of at least some measure of negligence—even if
it’s small.

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¶31 Here, Cope was “negligent as a matter of law” because he
could have “either observed, or in the exercise of due care should
have observed,” the presence of the boys waiting to cross the
street and “clearly could by ordinary reasonable care have
avoided the collision” that resulted in Michael’s death. See Martin
v. Stevens, 243 P.2d 747, 751 (Utah 1952); see also Charvoz, 361 P.2d
at 519 (“[T]he duty of a driver to yield the right of way arises
[when] . . . he is either aware of the presence of a pedestrian within
the crosswalk or should have, in the exercise of reasonable care,
become aware of the pedestrian’s presence in time to yield the
right of way.”). The undisputed evidence established that Cope
failed to exercise reasonable care when he proceeded into the
intersection and struck Michael without first ensuring that the
turn could be made safely. We find no error in the district court’s
reasoning by which it reached the same determination on this
point, namely that “the evidence wholly contradict[ed] the
verdict” and that “[n]o facts adduced at trial support[ed] the
verdict the jury reached.” The district court correctly concluded
that the undisputed evidence showed that Cope did not visually
confirm that he could make the turn safely; that he was driving
too fast to account for all actual and potential hazards, including
those caused by his own vehicle; that he did not yield to Michael,
who had the presumed right of way in a crosswalk with a “Walk”
signal; that he did not maintain a proper lookout or see what was
there to be seen; and that he did not exercise the reasonable care
he was duty-bound to exercise. Instead of slowing down to verify
that the coast was clear, Cope decided to make the turn quickly
after the light turned green, even though it had changed 5.5
seconds before the accident. While he took the time to maintain
his speed and stay in his lane, Cope—as the district court
observed—failed to fulfill his more important duty of care:
looking for the illuminated “Walk” signal and pedestrians on the
corner, both of which were there to be seen. Given all this, the
district court correctly concluded that the jury’s verdict
contradicted the evidence. We see no error in the district court’s
determination that judgment as a matter of law was appropriate
because the jury’s verdict could “only be supported by the

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mistaken beliefs that Cope could acquire the right of way by
driving in a way that made him an immediate hazard to Michael
and that a vehicle’s blind spots can constitute a non-negligent
excuse for failing to see what is there to be seen.” We thus agree
with the district court that such a “verdict is unsupported by the
facts and misapplies the law.”

¶32 Moreover, the two surveillance videos—which the district
court referred to only tangentially, but which are part of the
record on appeal—strike us as compelling evidence that Cope
violated his duty of care. Both videos clearly show Michael
moving about on the corner after he had pressed the button while
he was waiting for the “Walk” signal to illuminate. The videos
show Michael pause momentarily at the curbside before he
continues into the crosswalk. Both videos make it abundantly
clear that Cope would have seen Michael in the crosswalk if he
had fulfilled his duty of care and slowed down to make a safe
turn—as a reasonable driver would when approaching an
intersection with a crosswalk to make a right-hand turn
immediately after the light had changed. See Utah Code § 41-6a-
804(1)(a)(i) (stating that a driver “may not turn a vehicle . . . until
. . . the movement can be made with reasonable safety”).

¶33 Based on the above considerations, we conclude, as a
matter of law, that Cope breached his duty of care by approaching
the intersection and crosswalk at an unsafe speed given the
conditions. His speed did not allow him the time to notice and
react to Michael’s presence. He turned before it was safe to do
so—a reasonable driver would have anticipated that a pedestrian
would have a “Walk” signal at the same time as a green traffic
signal. Yet Cope did not take heed of this caution, and so he failed
to fulfill the responsibilities of a reasonable and prudent driver.
Accordingly, the district court did not err in granting the Parents’
renewed motion for judgment as a matter of law.

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CONCLUSION

¶34 Having concluded that based on the evidence presented at
trial Cope operated his vehicle in a negligent manner, at least to
some degree, we perceive no error in the district court’s grant of
the Parents’ motion for judgment as a matter of law.

¶35 Affirmed.

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