Howe v. Momentum, LLC

2020 UT App 5
THE UTAH COURT OF APPEALS
S COTT HOWE,
Appellee,
v.
M OMENTUM LLC,
Appellant.
Opinion
No. 20190187-CA
Filed January 3, 2020
Third District Court, Salt Lake Department
The Honorable Patrick Corum
No. 160901585
Andrew D. Wright and A. Joseph Sano, Attorneys
for Appellant
Ralph C. Petty, Attorney for Appellee
JUDGE K ATE A PPLEBY authored this Opinion, in which
JUDGES R YAN M. HARRIS and DIANA HAGEN concurred.
APPLEBY, Judge:
¶1 	Scott Howe sued Momentum LLC under a theory of gross
negligence1 	for 	injuries 	he 	sustained 	while 	“bouldering.”2
1. Howe also sued Momentum for ordinary negligence, but that
claim was dismissed on summary judgment because it “[wa]s
extinguished by the pre-injury release signed by [Howe]” and he
does not appeal the dismissal of his ordinary negligence claim.
2. According to Momentum, “bouldering” in the context of
indoor 	climbing 	refers 	to 	“free 	climbing, 	without 	ropes 	or
harnesses,” in which “climbers use small rock formations or
artificial rock walls for hand- and foot-holds.”

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Momentum moved for summary judgment, which the district
court denied because the disputed facts were sufficient to raise a
jury question. The district court also ruled that Howe’s expert
(Expert) was qualified to testify on the industry standard of care.
The 	matter 	is 	before 	this 	court 	on 	an 	interlocutory 	appeal
challenging the court’s denial of the summary judgment motion
and its decision to permit Expert to testify. We affirm and
remand for further proceedings.
BACKGROUND3
¶2 	Momentum is an indoor-climbing facility with a separate
area for bouldering. The bouldering area’s concrete floor is
covered 	by 	approximately 	twelve 	inches 	of 	foam 	padding
overlain 	by 	thick 	vinyl, 	known 	as 	an 	“impact 	attenuation
surface.” In the years after Momentum’s 2007 opening, some of
the vinyl began to tear and separate. In late September 2011,
Momentum had “[a]t least one” tear repaired with a welded
vinyl patch.
¶3 	But Momentum’s management team deemed these tear
patches 	a 	hazard 	for 	tripping,4 	so 	it 	placed 	modular
3. On appeal from a district court’s summary judgment ruling,
we 	recite 	“the 	facts 	and 	all 	reasonable 	inferences 	drawn
therefrom in the light most favorable to” Howe, the nonmoving
party. 	See 	Orvis 	v. 	Johnson, 	2008 	UT 	2, 	¶ 	6, 	177 	P.3d 	600
(quotation simplified). Conflicting evidence is presented “only
as necessary to understand issues raised on appeal.” USA Power,
LLC v. PacifiCorp, 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (quotation
simplified).
4. 	In 	Howe’s 	view, 	the 	vinyl 	weld 	“proved 	effective 	and
alleviated the defective condition of the floor in the repaired
area.”

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one-inch-thick mats over certain areas of the bouldering area
floor that were showing signs of wear or damage. The mats are
not designed to be anchored to the underlying pad and they
would sometimes move when people landed on them. Because
the mats tended to move, Momentum staff “monitored the floor
regularly to try to keep the [mats] in place.” In addition to this
action, a Momentum employee altered the routes above those
areas by reconfiguring and reducing the number of foot- and
hand-holds to reduce customer use of the areas with worn and
damaged padding.
¶4 	Over 	the 	years—and 	prior 	to 	Howe’s 	injury—
Momentum’s patrons had reported incidents, some of which
involved injuries, which alerted Momentum to the fact that
the padding in the bouldering area was worn and damaged
in 	some 	places. 	Before 	Howe 	was 	injured, 	five 	incidents
were 	reported 	before 	Momentum 	began 	using 	the 	mats
and 	another 	eight 	were 	reported 	thereafter. 	Each 	of 	these
injuries 	involved 	a 	climber 	dropping 	from 	the 	bouldering
wall 	or “slab area” to the floor below and, upon landing,
pushing a foot through the floor padding, making contact with
the concrete floor below, either rolling or twisting an ankle in the
process.
¶5 	In March 2012, Howe was bouldering at Momentum.
After finishing his bouldering route, Howe dropped off the
wall to the floor below. As he made contact with the floor,
his 	“left 	foot 	impacted 	the 	mat 	on 	top 	of 	the 	padded
floor, causing the mat to move. As the mat moved, it exposed
the 	padded 	floor 	beneath. 	Concealed 	under 	the 	mat, 	the
cover of the pad was split in a straight line, exposing the
abutting 	edges 	of 	pads 	below.” 	When 	Howe’s 	“right 	foot
impacted 	the 	top 	of 	the 	two 	abutting 	pads, 	[his] 	foot
passed between the two abutting pads to the floor beneath.” As
a result of the contact with the concrete, Howe broke his right
ankle.

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¶6 	Howe 	sued, 	asserting—among 	other 	things—that
Momentum was grossly negligent. He alleged that Momentum,
“with a knowing and reckless indifference and disregard for the
safety of [Howe] and other members of [Momentum], concealed,
or caused to be concealed, the defects in their floor padding by
placing mats over the defective area.”
¶7 	Howe 	designated 	a 	liability 	Expert. 	Expert 	has 	a
bachelor’s 	degree 	in 	chemical 	engineering 	and 	petroleum
refining, 	as 	well 	as 	a 	master’s 	degree 	in 	metallurgical
and 	materials 	engineering. 	His 	professional 	experience
includes 	research 	and 	development 	engineering 	as 	well 	as
forensic 	engineering. 	Expert 	owns 	a 	forensic 	engineering
company 	that 	specializes 	in 	“metallurgical, 	materials, 	and
mechanical failure analysis”; “materials evaluation and testing”;
“product liability and analysis”; “fire and explosion cause and
origin”; 	“industrial, 	recreational, 	and 	construction 	accident
analysis”; 	and 	“chemical 	and 	mechanical 	systems 	failure
analysis.” Expert has been an expert witness in numerous cases,
one of which involved a mechanical failure that caused an
indoor 	climbing 	accident. 	He 	has 	also 	had 	professional
experience with evaluating impact attenuation surfaces in the ski
industry.
¶8 	Expert opined that Momentum did not take appropriate
steps to protect climbers in the bouldering area. Indeed, Expert
concluded that
Momentum significantly elevated the risk of injury
to climbers in the bouldering area by (1) failing to
repair, restrict access, clearly mark, cordon off,
close walls, or close areas around and near the
areas 	where 	the 	vinyl 	padding 	cover 	was
damaged, and by (2) placing the [mats] over the
damaged 	areas 	of 	the 	padding 	cover, 	thus
concealing the hazard created by the damage.

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In Expert’s opinion, appropriate steps to remedy the problem
could have included using “warning signs, closing the sections
of 	the 	floor 	or 	wall 	near 	damaged 	areas,” 	removing 	the
hand- and 	foot-holds above the damaged padding, making
inaccessible 	the 	damaged 	padding 	areas, 	or 	repairing 	the
damaged 	padding. 	During 	deposition 	testimony, 	Expert
explained that “those are ways to prevent the public from
interacting with the obvious hazard created by the opening in
the 	pads.” 	This 	approach 	was 	based 	on 	his 	“engineering
background and experience in dealing with hazards.” In short,
his opinion is that “gluing and adhering . . . a large patch of
vinyl over the tear” would have been safer than using the mats.
¶9 	Momentum moved for summary judgment, arguing the
undisputed facts established that it exercised at least slight care
to protect climbers using its facility, which meant Howe could
not demonstrate gross negligence. Momentum also moved to
exclude Expert, claiming he was unqualified to opine upon the
standard of care in the indoor-climbing industry. The district
court 	denied 	these 	motions, 	and 	Momentum 	successfully
petitioned this court for an interlocutory appeal.
ISSUES AND STANDARDS OF REVIEW
¶10 	Momentum raises two issues on appeal. First, it claims the
district court erred when it denied Momentum’s motion for
summary 	judgment. 	Denials 	of 	summary 	judgment 	are
questions of law reviewed for correctness. Glenn v. Reese, 2009
UT 80, ¶ 6, 225 P.3d 185.
¶11 	Second, Momentum claims the district court erred when it
denied Momentum’s motion to exclude Expert. A district court’s
determination regarding the admissibility of expert testimony is
reviewed for abuse of discretion. Gunn Hill Dairy Props., LLC v.
Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 16, 269
P.3d 980.

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ANALYSIS
I. Summary Judgment
¶12 	Summary 	judgment 	shall 	be 	granted 	“if 	the 	moving
party 	shows 	that 	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). 	In 	this 	case, 	the
district 	court 	denied 	Momentum’s 	motion 	for 	summary
judgment on Howe’s claim for gross negligence, based on its
finding that there were ”numerous genuine issues of disputed
material fact.”
¶13 	In 	reviewing 	a 	district 	court’s 	summary 	judgment
decision, appellate courts “must evaluate all the evidence and all
reasonable inferences fairly drawn from the evidence in a light
most favorable to the party opposing summary judgment to
determine whether there is a material issue of fact to be tried.”
Horgan v. Industrial Design Corp., 657 P.2d 751, 752 (Utah 1982).
“Gross negligence is the failure to observe even slight care; it is
carelessness 	or 	recklessness 	to 	a 	degree 	that 	shows 	utter
indifference to the consequences that may result. Summary
judgment is proper where reasonable minds could reach only
one conclusion based on the applicable material facts.” Penunuri
v. Sundance Partners, Ltd., 2017 UT 54, ¶ 35, 423 P.3d 1150
(quotation simplified).
¶14 	Citing Penunuri and Blaisdell v. Dentrix Dental Systems,
Inc., 	2012 	UT 	37, 	284 	P.3d 	616, 	Momentum 	argues 	that
“the 	undisputed 	material 	facts 	of 	this 	case 	show 	that 	[it]
exercised care, far more than even slight care, and was not
careless or reckless, let alone to a degree that shows utter
indifference,” and that therefore “the district court erred in
denying 	Momentum’s 	motion 	for 	summary 	judgment.”
(Quotation 	simplified.) 	Momentum 	points 	out 	that 	it
“[u]ndisputedly . . . took steps to protect climbers from being
injured by the wear and tear damage that had developed in its

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primary padding,” including using welded patches, “thinn[ing]
out” the climbing routes, and, “[a]fter determining that the . . .
patches 	created 	tripping 	hazards,” 	using 	the 	mats 	and
monitoring their positioning. In Momentum’s view, these steps
demonstrate that it took at least slight care and was not utterly
indifferent to the consequences that could result from a failure to
take care.
¶15 	Howe 	acknowledges 	that 	Momentum 	took 	these
steps, 	but 	argues 	they 	were 	inadequate. 	He 	further 	asserts
that 	Momentum’s 	use 	of 	the 	pads 	to 	cover 	the 	defective
flooring 	concealed 	the 	risk 	and 	rendered 	the 	climbers
“defenseless 	against 	the 	dangerous 	conditions 	known
to 	Momentum,” 	and 	claims 	that 	his 	“inability 	to 	see
the dangerous flooring over which he was climbing contributed
to 	his 	injuries.” 	At 	oral 	argument 	before this 	court, 	Howe
argued this concealment “dramatically magnified” the risk of
harm.
¶16 	We 	note 	the 	tension 	between 	our 	supreme 	court’s
recent 	articulation 	of 	the 	elements 	of 	gross 	negligence 	as
“the failure to observe even slight care,” Penunuri, 2017 UT 54,
¶ 35 (quotation simplified), and the language of a subsequent
paragraph 	suggesting 	that 	“the 	essential 	evidence 	needed
to survive a defendant’s motion for summary judgment on
a gross negligence claim” is “evidence that the defendant’s
conduct 	dramatically 	magnified 	the 	risk 	of 	harm 	to 	the
plaintiff,” id. ¶ 37. We can envision situations in which the
straightforward 	application 	of 	the 	elements 	identified 	in
paragraph 35 might dictate a grant of summary judgment in
favor of the defendant while the application of the elements
identified 	in 	paragraph 	37 	might 	dictate 	the 	denial 	of
summary judgment. But we need not explore this tension further
here because Momentum’s failure to take further action in the
face of eight additional incidents creates questions of fact about
whether it was grossly negligent, even assuming that paragraph

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35 sets forth the correct formulation of the elements of gross
negligence.
¶17 	Although Momentum took certain steps to remedy the
problem created by the deterioration of the foam padding, injury
incidents 	continued 	to 	occur 	even 	after 	implementation 	of
Momentum’s injury-avoidance strategy. It is beyond question
that a plaintiff who can demonstrate that a defendant has taken
no action in response to injury incidents will have likely made
out at least a prima facie case of gross negligence, one sufficient
to 	withstand 	summary 	judgment. 	See 	id. 	¶ 	16 	(“Summary
judgment dismissing a gross negligence claim is appropriate
where reasonable minds could only conclude that the defendant
was not grossly negligent under the circumstances . . . .”). We
cannot see much of a distinction between that situation and the
case 	Howe 	brings 	here: 	a 	defendant 	takes 	some 	action 	in
response 	to 	injury 	incidents, 	and 	therefore 	arguably
demonstrates 	slight 	care 	in 	the 	beginning, 	but 	takes 	no
additional 	action 	after 	injury 	incidents 	continue 	to 	occur
following implementation of its original strategy. Stated another
way, we are not persuaded that a defendant who simply relies
on a repeatedly-failed strategy to avert injury from a known risk
is entitled to judgment as a matter of law on the “slight care”
question.
¶18 	In 	this 	case, 	five 	incidents, 	some 	of 	which 	involved
injuries, 	motivated 	Momentum 	to 	take 	steps 	to 	address
the problem and ultimately to place mats over the cracked foam
padding. These acts arguably show that Momentum exercised
slight care in the beginning and was therefore not completely
indifferent to the consequences of allowing climbers to use the
bouldering area given the condition of the padding. But by the
time Howe was injured, eight more injuries had been reported to
Momentum, even after it had thinned the routes and put down
the extra pads. These eight additional climbers were injured in
roughly the same manner as Howe: when they dropped from the

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bouldering wall onto the floor below, the mat moved, their feet
were caught in the crack in the foam padding, and their ankles
were 	injured. 	Under 	these 	circumstances, 	the 	question 	of
whether Momentum’s continued use of the mats constituted
gross negligence presents a disputed issue of material fact.
¶19 	Because a reasonable finder of fact could determine, on
this record, that Momentum was grossly negligent, the district
court’s denial of summary judgment was appropriate.
II. Expert Testimony
¶20 	The Utah Rules of Evidence allow “a witness who is
qualified as an expert by knowledge, skill, experience, training,
or education” to “testify in the form of an opinion or otherwise if
the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue.” Utah R. Evid. 702(a). Furthermore,
“[s]cientific, technical, or other specialized knowledge may serve
as the basis for expert testimony only if there is a threshold
showing that the principles or methods that are underlying in
the testimony (1) are reliable, (2) are based upon sufficient facts
or data, and (3) have been reliably applied to the facts.” Id.
R. 702(b).
¶21 	Momentum argues the district court abused its discretion
in 	denying 	its motion 	to 	exclude 	Expert. First, 	it 	contends
Expert’s experience as an engineer did not qualify him to testify
as to the applicable standard of care in the indoor-climbing
industry. Second, Momentum contends that, because Expert
did not evaluate or test vinyl floor padding or the mats used to
cover the damaged areas, Expert’s opinions did not meet the
reliability standard imposed by rule 702 of the Utah Rules of
Evidence.
¶22 	But 	as 	Howe 	points 	out, 	Expert’s 	training 	as 	a
professional engineer with experience in “forensic engineering

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and accident analysis in recreational settings,” “slip and fall
accident analysis,” and “warnings, design, and standard of care
issues” qualifies him to assist the finder of fact in making a
determination of the standard of care in the indoor-climbing
industry.
¶23 	Expert’s proposed testimony is that Momentum acted
with indifference toward the safety of its members when it
placed mats over the damaged padding; Expert opines that
Momentum could have and should have taken alternative steps
to mitigate the effects of the worn padding. As Howe points out,
and the district court agreed, this testimony “will be helpful to
the jury to understand the options Momentum had in addressing
the damaged vinyl” and to avoid speculation regarding its
options.
¶24 	Further, as to reliability, Expert’s opinion is based “upon
[his] 	engineering 	education, 	experience, 	and 	training” 	and
“knowledge . . . gained from being a forensic engineer . . . and
studying padding and other types of accidents.” In determining
whether to allow an expert to offer an opinion, the district
court’s role is that of a “gatekeeper,” meant “to screen out
unreliable expert testimony.” Gunn Hill Dairy Props., LLC v. Los
Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 28, 269 P.3d
980 	(quotation 	simplified). 	The 	court 	is 	afforded 	“broad
discretion” 	when 	making 	this 	determination, 	and 	we 	“will
reverse 	its 	decision 	only 	when 	it 	exceeds 	the 	bounds 	of
reasonability.” Id. ¶ 31 (quotation simplified). Here, the court’s
determination that Expert’s opinion was sufficiently reliable
does not “exceed[] the bounds of reasonability,” and we decline
to reverse it. See id. (quotation simplified). Expert’s opinion
meets the threshold showing of reliability and “will help the trier
of fact to understand the evidence or to determine a fact in
issue.” Utah R. Evid. 702(a). Therefore the district court did not
abuse its discretion in denying Momentum’s motion to exclude
his testimony.

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CONCLUSION
¶25 	Because there are material facts in dispute, the district
court properly denied Momentum’s summary judgment motion.
Furthermore, the court did not abuse its discretion in denying
Momentum’s motion to exclude Expert. We affirm the district
court’s 	rulings 	on 	these 	points 	and 	remand 	for 	further
proceedings.