Poteet v. White

2006 UT 63
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Greg Poteet, No. 20050368
Plaintiff and Appellant,
v.
William White, Rick Green, and F I L E D
Mark Harris,
Defendants and Appellee. October 20, 2006
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Sixth District, Panguitch
The Honorable David L. Mower
No. 040600008
Attorneys: Daniel F. Bertch, Kevin R. Robson, Salt Lake City,
for plaintiff
Scott W. Christensen, Cory D. Memmott, Salt Lake
City, for appellee
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DURRANT, Justice:
INTRODUCTION
¶1 This case concerns a fire that spread from William
White’s property to Greg Poteet’s sawmill on a neighboring
property. The fire was allegedly started by White’s independent
contractor, Rick Green. Poteet sued White for negligence,
seeking to recover for damages to his property. The district
court granted White’s motion for summary judgment. We conclude
that summary judgment was appropriate because the undisputed
facts entitle White to judgment as a matter of law. White
produced evidence by affidavit and deposition establishing that
Green, who had previously used fire to clean White’s property,
did not light the fire that spread to the sawmill. We have not
found and Poteet has not directed us to any admissible evidence
in the record to dispute this evidence. Because the record
contains no admissible evidence connecting White to the damage to
Poteet’s sawmill, the district court correctly entered summary
judgment against him. We therefore affirm.

No. 20050368 2
BACKGROUND
¶2 Defendant William White owned property near Escalante,
Utah that abutted a county road. Across the county road from
White’s property, Greg Poteet owned property on which he operated
a small sawmill. In late 2000 or early 2001, White hired Rick
Green as an independent contractor to clean up White’s property.
Green lived and worked in Escalante during the spring, summer,
and fall, but worked at White’s restaurant in Park City during
the winter. Green was aware that White owned property near
Escalante and offered to clean it up for a fee. White accepted
Green’s offer.
¶3 As part of cleaning the property, Green gathered debris
into piles and burned them. The parties refer to these piles of
debris as “slash piles.” Although it is disputed whether White
knew that Green would be using fire to clean up the property, it
is undisputed that White did not instruct Green to use fire. It
is also undisputed that White did not exercise any control over
how Green did the job. The record shows that Green burned at
least two slash piles in the course of his clean-up. He burned a
large slash pile in late 2000 or early 2001 and a second slash
pile in the fall of 2001 (“Fall 2001 Fire”). Green characterizes
this second fire as “the final slash pile” and states that it was
“the last obstacle of [his] initial work for [White].”
¶4 Poteet’s injury stems from a later fire, however, which
was lit on White’s property in late January or early February,
2002 (“Winter 2002 Fire”). During this time period, Poteet saw
Troy Lyman, Jr. and Mark Harris attending a fire on White’s land
and cautioned them to take care of the fire and “put it dead
out.” But in April 2002, smoldering embers from that fire
reignited during a wind storm and caused the fire to spread
across the county road, ultimately damaging Poteet’s sawmill. A
forest service fire investigator, Donald Mosier, ruled out the
Fall 2001 Fire as the source of the fire and concluded that the
Winter 2002 Fire was the only source of the damage.
¶5 Poteet alleged in his complaint that Green set the
Winter 2002 Fire. In support of this allegation, Poteet gave an
affidavit where he states that Lyman and Harris told him that
they were watching the fire for Green who had set it the day
before. But in his deposition, Green denied knowledge of “any
kind of a fire that was built on Mr. White’s property in late
January or early February [of 2002]” and affirmed that during the
relevant time period he was “really involved with the [Salt Lake
City Winter] Olympics.”

1 Utah R. Civ. P. 56(c).
2 Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1162
(Utah 1993).
3 Utah R. Civ. P. 56(e); accord Johnson v. Hermes Assocs.,
2005 UT 82, ¶ 20, 128 P.3d 1151 (holding that facts were “not
disputed because [nonmovant] failed to contest them with specific
sworn evidence as required under rule 56(e)”).
4 See Johnson, 2005 UT 82, ¶ 20.
3 No. 20050368
¶6 Poteet filed his complaint on October 31, 2002, naming
White, Green, and Harris as defendants. Almost two years later,
White filed a motion for summary judgment, arguing that Poteet
had “produced no evidence that . . . White is liable for the fire
that caused plaintiff’s damages” and asserting that Green was, at
most, an independent contractor for whose actions he could not be
held liable. Poteet responded that White’s motion disregarded
the evidence that the Winter 2002 Fire, not the Fall 2001 Fire,
spread to his sawmill and that vicarious liability was
appropriate under various restatement sections. The district
court entered summary judgment in favor of White, concluding that
Green was an independent contractor, that White did not have
control over Green sufficient to impose liability on White, and
that White’s knowledge that Green was utilizing fire as part of
his clean-up responsibilities was by itself insufficient to
impose liability on White. Poteet timely appealed the judgment
to this court.
ANALYSIS
¶7 Summary judgment is appropriate only where (1) “there
is no genuine issue as to any material fact” and (2) “the moving
party is entitled to a judgment as a matter of law.”1 Because,
by definition, a district court does not resolve issues of fact
at summary judgment, we consider the record as a whole and review
the district court’s grant of summary judgment de novo, reciting
all facts and fair inferences drawn from the record in the light
most favorable to the nonmoving party.2 Nevertheless, where the
movant supports a motion for summary judgment with affidavits or
other sworn evidence, the nonmoving party may not rely on bare
allegations from the pleadings to raise a dispute of fact.3
Accordingly, an allegation in a pleading has no effect on our
view of the facts if it is controverted by depositions, answers
to interrogatories, admissions on file, affidavits, or other
admissible evidence in the record.4 If a motion for summary
judgment is supported by these types of evidence, in order to

5 Id.
6 Restatement (Second) of Torts § 427 (1965).
7 Id. § 427A.
8 Id. § 427B.
9 See id. §§ 427, 427A, 427B.
No. 20050368 4
raise a dispute of fact, a nonmoving party must use evidence from
these same types of sources.5
¶8 Given these principles, our task in this appeal is to
examine the record and determine whether it establishes at least
a dispute of fact as to the elements required to hold White
liable for the injury to Poteet’s sawmill. Poteet bases his case
against White on the theory that Green set the Winter 2002 Fire
and that White is vicariously liable for Green’s actions.
Poteet’s arguments for vicarious liability are based solely on
sections 427, 427A, and 427B of the Restatement (Second) of
Torts. Section 427 provides for vicarious liability for one who
employs an independent contractor to do inherently dangerous
work.6 Section 427A provides for vicarious liability for one who
employs an independent contractor to do abnormally dangerous
work.7 And section 427B provides for vicarious liability for one
who employs an independent contractor to do work likely to
involve a trespass or nuisance.8 Poteet argues that we should
adopt these sections and apply them to impose liability on White
in this case. We have not previously considered whether to adopt
these sections into the law of Utah. And we decline to consider
adopting them here because it is unnecessary to our resolution of
the case. The record does not present a dispute of material fact
as to a key element that would be required to impose vicarious
liability on White under these sections. In particular, although
Poteet claims that Green started the Winter 2002 Fire, we find no
admissible evidence to dispute Green’s denial in his deposition
that he was involved in that fire.
¶9 Even if White were vicariously liable for Green’s
actions, Poteet would still need to prove that Green’s actions
caused the damage to the sawmill.9 Both White and the district
court appear to assume at least a dispute of fact as to whether
Green caused the damage, but a close look at the record reveals
that the undisputed evidence is that Green did not set the fire.
In his deposition, Green was asked whether he knew “anything
about any kind of a fire that was built on Mr. White’s property
in late January or early February.” He answered “No.” Green

10 See Utah R. Evid. 801, 802.
11 Utah R. Civ. P. 56(e).
12 Wayment v. Clear Channel Broad., Inc., 2005 UT 25, ¶ 41,
116 P.3d 271.
5 No. 20050368
further affirmed that he was involved in the Salt Lake City
Winter Olympics during that time. Poteet argues that this fact
is disputed based on (1) Poteet’s affidavit in which he states
that Harris and Lyman told him that Green set the fire, and (2)
statements in Green’s depositions where he admits to setting two
separate fires. We will discuss these two sources in turn.
¶10 Poteet testified in his affidavit that in late January
or early February 2002, he spoke with Lyman and Harris who were
attending a fire on “the same exact spot from which the fire
spread to [his] sawmill.” He further testified that “[Lyman and
Harris] said they had come to check the fire for Rick Green, whom
they said had started the fire the day before.” This testimony
is, however, inadmissible as classic hearsay that does not fall
under any exception.10 Accordingly, the testimony does not
satisfy rule 56(e)’s requirement that an affidavit only “set
forth such facts as would be admissible in evidence.”11 As we
have noted in the past, “[s]ummary judgment may . . . not be
denied based solely on inadmissible hearsay.”12 Thus, the only
admissible evidence regarding Poteet’s encounter with Lyman and
Harris from Poteet’s affidavit is that the fire was started in
late January or early February 2002, and that it was attended by
Harris and Lyman. This is insufficient to give rise even to an
inference that Green started the fire.
¶11 Poteet also claims that Green specifically admitted to
setting the fire that damaged the sawmill. There were at least
three fires set on White’s property from the fall of 2000 to the
winter of 2002. It is undisputed that the Winter 2002 Fire is
the one that damaged Poteet’s sawmill. In one of his memoranda
in opposition to summary judgment, Poteet quoted a portion of
Green’s deposition where Green admits to setting fire to the
slash pile closest to the road and admits to setting fire to the
slash pile farthest from the road. In bracketed additions within
the quotation, Poteet’s counsel characterized the pile closest to
the road as the one that spread to the sawmill. But without the
commentary it is unclear from the record before us which two of
the three slash piles Green admitted to starting. There are no
maps labeling the various slash piles and no deposition testimony
or affidavit to clarify the slash piles to which Green was
referring. Most troubling, there are no copies of the portions

13 See Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158
(“[A]n appellate court may affirm the judgment appealed from if
it is sustainable on any legal ground or theory apparent on the
record.” (internal quotation marks omitted)).
No. 20050368 6
of Green’s deposition necessary to give us the context for these
admissions. In essence, there is no way to verify that Poteet’s
counsel’s interpretation of Green’s testimony is correct. Where
the record before us contains evidence of at least three fires,
Green’s admission to setting the first two fires is insufficient
to give rise to the inference that one of those two was the fire
that damaged the sawmill. Accordingly, this evidence is also
insufficient to dispute Green’s testimony that he had no
knowledge of the fire started in late January or early February
2002.
¶12 Ultimately, we do not consider the adoption of the
restatement sections or specifically address the district court’s
reasoning because we affirm the district court’s entry of summary
judgment in favor of White on an alternative ground.13 We hold
that as a matter of law White could not be held liable for the
damage to the sawmill where it is undisputed that his independent
contractor did not set the fire that caused the damage.
CONCLUSION
¶13 The district court correctly granted White’s motion for
summary judgment because the undisputed facts prevent the
imposition of vicarious liability under Restatement (Second) of
Torts sections 427, 427A, and 427B even were we to adopt them.
It is undisputed that Green did not set the fire that spread to
Poteet’s sawmill. Because these restatement sections would not
impose vicarious liability on White given the undisputed facts in
this case, we expressly decline to address in this appeal the
issue of whether to adopt these sections in Utah. We therefore
affirm.
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¶14 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.