Paget v. UDOT

1. Our original opinion in this matter was issued on June 27, 2013.
See Paget v. Department of Transp., 2013 UT App 161. We thereafter
granted UDOT's petition for rehearing and heard arguments
thereon. This opinion resolves the petition for rehearing. As
explained in the lead opinion, while the substantive analysis of our
original opinion remains unaltered, the result is changed from a
remand to an affirmance.
2. Judge Carolyn B. McHugh participated in and voted on this case
as a member of the Utah Court of Appeals. She resigned from the
court before this decision issued.
2014 UT App 62
_________________________________________________________
THE UTAH COURT OF APPEALS
TIMOTHY PAGET AND ANNETTE PAGET,
Plaintiffs and Appellants,
v.
DEPARTMENT OF TRANSPORTATION,
Defendant and Appellee.
Opinion on Rehearing1
No. 20120481-CA
Filed March 20, 2014
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 080925951
Mark R. Taylor and David C. Biggs, Attorneys
for Appellants
Sean D. Reyes and Peggy E. Stone, Attorneys
for Appellee
JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGE
CAROLYN B. MCHUGH concurred. JUDGE GREGORY K. ORME
2
dissented, with opinion.

Paget v. UDOT
20120481-CA 2 2014 UT App 62
DAVIS, Judge:
¶1 We previously addressed this case in Paget v. Department of
Transportation, 2013 UT App 161. There, we affirmed the trial
court’s determination that the Pagets’ expert testimony establishing
the standard of care that the Utah Department of Transportation
(UDOT) allegedly violated was inadmissible. Id. ¶ 15. However, we
reversed the trial court’s summary judgment ruling in favor of
UDOT because we determined that UDOT had failed to prove that
its decision not to erect a median barrier was reasonable as a matter
of law. Id. ¶ 22. After we issued that decision, UDOT filed a petition
for rehearing in which it asserted that the Pagets could not
establish a prima facie case of negligence without the excluded
expert testimony and that UDOT was therefore entitled to
judgment as a matter of law. We agree and now affirm the trial
court’s summary judgment ruling in favor of UDOT. Accordingly,
this supplemental opinion supersedes Part II of our previously-
issued opinion insofar as the two opinions conflict.
¶2 Although UDOT was unable to definitively establish that its
actions were reasonable, we agree with UDOT that this is “not the
only way UDOT can show it is entitled to judgment as a matter of
law.” To avoid summary judgment, the Pagets were required to
make out a prima facie case of negligence against UDOT, including
presenting evidence from which the jury could find that UDOT’s
decision not to erect a median barrier fell below the applicable
standard of care. The trial court summarized its decision as follows:
“[I]n compliance with [the trial court’s] gatekeeping responsibility
to exclude unreliable expert testimony, [the Pagets’ expert’s]
testimony is rejected by the Court. Based upon the undisputed
material facts in this case, there is no evidence that UDOT’s design
of I-80 fell below a recognized standard of care.” We agree with the
trial court that the Pagets cannot establish essential elements of
their negligence claim without the testimony of their expert and
that summary judgment was therefore appropriate. Cf. Jenkins v.
Jordan Valley Water Conservancy Dist., 2013 UT 59, ¶¶ 2, 4 (holding
that “the question whether a pipeline needs to be replaced is

Paget v. UDOT
3. The dissent asserts that UDOT’s sole theory in its motion for
summary judgment was that the standards developed by the
American Association of State Highway and Transportation
Officials (AASHTO) established the standard of care. However,
UDOT also argued that the Pagets’ claim would fail if their expert
were disqualified and asserted, “[C]laims of engineering negligence
must be supported with competent expert testimony; otherwise,
(continued...)
20120481-CA 3 2014 UT App 62
outside the knowledge and experience of average lay persons” and
that homeowners whose basement was flooded by a broken pipe
“had an obligation to designate an expert to establish a basis for”
their argument that the water conservancy district had a duty to
replace the pipeline before the break occurred); Spafford v. Granite
Credit Union, 2011 UT App 401, ¶ 34, 266 P.3d 866 (holding that a
plaintiff’s lack of expert testimony establishing “that the height of
the curb [on which she was injured] or the slope of the asphalt
violated any specific industry standards or otherwise constitute[d]
a deviation from accepted practice” prevented the plaintiff from
establishing breach of duty or causation and that summary
judgment in favor of the defendant was therefore appropriate
(second alteration in original) (citation and internal quotation
marks omitted)).
¶3 In their reply brief and in their response to UDOT’s petition
for rehearing, the Pagets asserted for the first time that they could
establish a prima facie case without expert testimony because
“laypersons could easily recognize the ‘obvious dangerous and
unsafe’ condition created by the absence of a median barrier along
the subject portion of I-80.” (Quoting Peck v. Horrocks Eng’rs, Inc.,
106 F.3d 949, 955 (10th Cir. 1997) (applying Utah law indicating that
expert testimony is unnecessary to establish reasonable care where
a condition is “so obviously dangerous and unsafe immediately
prior [to the accident] that any person could recognize the danger”
(citation and internal quotation marks omitted)).) This argument
was not preserved in the trial court, but even if it had been, we are3

Paget v. UDOT
3. (...continued)
the claim fails as a matter of law.” The trial court implicitly
accepted this argument as an alternative basis for summary
judgment when it pointed out, after excluding the testimony of the
Pagets’ expert, that there was “no evidence that UDOT’s design of
I-80 fell below a recognized standard of care.” Despite UDOT’s
argument and the trial court’s ruling, the Pagets never argued to
the trial court that they could establish the standard of care without
expert testimony.
20120481-CA 4 2014 UT App 62
not convinced that the lack of a median barrier in this case was so
obviously dangerous that the Pagets could have established the
standard of care without expert testimony. Cf. Jenkins, 2013 UT 59,
¶¶ 16–19 (rejecting a plaintiff’s assertion that the standard of care
for replacing cast-iron pipe could be established without expert
testimony, explaining that such an assessment is “inherently
complex and case-specific, requiring the detail necessary to
perform the cost-benefit calculus and the sophistication necessary
to interpret it”).
¶4 In the absence of admissible evidence that UDOT’s design
of I-80 fell below a recognized standard of care, the Pagets cannot
establish a prima facie case of negligence against UDOT. Therefore,
even though UDOT has not established that its design met the
applicable standard of care as a matter of law, our determination
that the trial court did not err in excluding the Pagets’ expert leads
us to the conclusion that summary judgment in favor of UDOT was
appropriate. Accordingly, we affirm the trial court’s summary
judgment ruling.
ORME, Judge (dissenting):
¶5 I disagree with my colleagues’ determination to meddle in
what should be the business of the trial court on remand. I do
acknowledge that there is a certain logic to their underlying

Paget v. UDOT
4. My colleagues assert in footnote 3 that I have this wrong, that
UDOT also contended that the Pagets’ claim would fail as a matter
of law if their expert were disqualified. Here is the only substantive
paragraph in UDOT’s motion for summary judgment in its
entirety, and the emphasis of the singular is mine:
The reason for this motion is as follows: This case
involves a motor vehicle accident in which a vehicle
crossed a median and collided with plaintiffs’
oncoming car. Because a median barrier may have
prevented the accident, the issue for the trier of fact
is whether the lack of a median barrier fell below the
highway engineering standards of care. The State of
Utah has adopted a standard, promulgated by the
American Association of State Highway and
Transportation Officials (AASHTO), which did not
require median barriers for medians greater than 30
feet wide. Here, the median was over 40 feet wide,
and so no barrier was required. Thus, UDOT did not
breach any applicable standard and cannot be held
liable as a matter of law.
20120481-CA 5 2014 UT App 62
position and that it makes sense to affirm a grant of summary
judgment in most cases when a plaintiff needs an expert to
establish a prima facie case and the plaintiff does not have such an
expert. But this case is on a different footing than such cases
generally.
¶6 The theory of UDOT’s summary judgment motion was not
that the Pagets lacked a viable expert to opine as to UDOT’s
standard of care and thus could not prevail as a matter of law.
UDOT’s sole theory in bringing its motion for summary judgment4
was that AASHTO, as explained by its expert, established UDOT’s
duty of care and that UDOT met its duty in opting not to install a
median barrier at the crash site. The Pagets, like UDOT, had lined
up an expert, and he countered the views expressed by UDOT’s
expert. In considering the motion for summary judgment, the trial

Paget v. UDOT
5. My colleagues, in footnote 3, also contend the trial court
premised its grant of summary judgement to UDOT on the
alternative ground that “the claim fails as a matter of law” if Pagets
have no expert. This is a real stretch. The lynchpin of the trial
court’s analysis, as set forth in its memorandum decision, is that
“UDOT met the AASHTO standard adopted by the State of Utah”
and, again, that “UDOT complied with the adopted governing
standard pertaining to median barriers in the State of Utah.” The
thrust of its rejection of the Pagets’ expert’s testimony was that the
expert ”cannot contravene published standards based upon his
unsupported opinion alone.” It was in the context of having just
concluded that AASHTO set the standard governing UDOT’s duty,
and having concluded that the Pagets’ expert did not succeed in
undercutting it, that the trial court determined that “there is no
evidence that UDOT’s design of I-80 fell below a recognized
standard of care.” It is clear to me that the trial court’s erroneous
acceptance of AASHTO as setting forth a meaningful standard
drove its decision, and we unanimously rejected that conclusion in
our initial opinion. Of course, to the extent that the trial court’s
memorandum decision is amenable to differing interpretations, it
is only another reason why it makes sense to let the trial court
revisit the matter.
20120481-CA 6 2014 UT App 62
court concluded that the AASHTO standard governed and had
been met by UDOT, and that there was nothing left for trial
because the Pagets’ expert’s testimony was legally flawed and thus
UDOT’s theory stood unrefuted. In other words, the trial court’s
critique of the Pagets’ expert’s testimony was in the context of
evaluating whether a dispute warranting trial had been shown by
the Pagets, and the court concluded it had not.5
¶7 What makes this case somewhat unique is that, while
affirming the trial court’s rejection of the testimony from the
Pagets’ expert, we also ruled that it should have rejected that of
UDOT’s expert centered on the flawed AASHTO “standard.” As
that was the sole basis for the trial court’s grant of summary

Paget v. UDOT
20120481-CA 7 2014 UT App 62
judgment to UDOT, it followed—and still follows—that the
judgment as entered by the trial court cannot stand.
¶8 Could UDOT bring a second motion for summary judgment,
contending that the Pagets could not establish a prima facie case in
the absence of an expert witness and that the time for designating
experts has run? Of course. And that was the thrust of UDOT’s
petition for rehearing—that we should affirm the summary
judgment on the alternative ground that the Pagets were destined
to lose without an expert even though we concluded that UDOT
was not entitled to summary judgment on the ground that it
advanced and that the trial court accepted. As UDOT put it in its
petition for rehearing, “[R]emand to the district court will be a
needless waste of the partie[s’] time and money and judicial
resources because the Pagets will be unable to withstand either a
second motion for summary [judgment] or a motion for directed
verdict at trial.” UDOT may well be right about that, but I see no
compelling need to cut short the normal flow of events on the basis
of UDOT’s self-serving concern over judicial economy.
¶9 The flaw in the thinking of UDOT and my colleagues is that
the deadline for designation of experts in this case is not a product
of natural law, constitutional requirement, statutory mandate, the
Utah Rules of Civil Procedure, or even a local rule. The deadline
was simply a provision contained in the trial court’s scheduling
order. And as such, it is entirely within the purview of the trial
court to adjust or revise it as the trial court may deem appropriate.
On remand, would the Pagets ask the trial court to give them a
second chance to find an expert? I don’t know. If they did ask,
would the trial court accommodate them? I don’t know. But I do
know that it is appropriate for that to play out, as it will, in the trial
court, rather than to be micromanaged by this court.
¶10 The focus of the debate between UDOT and the Pagets on
summary judgment was whether the AASHTO standard, as
interpreted by UDOT’s expert, meant that UDOT was free to install
a median barrier at the accident site or not to install one, as a

Paget v. UDOT
20120481-CA 8 2014 UT App 62
matter—essentially—of whim. The trial court did not buy the
Pagets’ expert’s attack on that theory because his approach was
flawed. We affirmed that determination. But we reversed the trial
court’s conclusion that AASHTO set the applicable standard,
concluding that the “standard” was circular nonsense. And on that
basis we vacated the summary judgment in favor of UDOT and
remanded the case to the trial court so that it could decide what
should happen next. Trial courts are very adept at managing the
cases pending before them and I see no need for this court to wrest
control of this case from the trial court.
¶11 If I were the trial judge and the case were sent back to me in
the posture envisioned in our initial opinion, maybe I would
decline to give the Pagets a new opportunity to engage an expert.
That done, I might then grant a renewed motion for summary
judgment by UDOT, this time premised on the Pagets’ need for an
expert and their lack of one. But I might well be amenable to the
suggestion that the sea change in the posture of the case, prompted
by unanticipated appellate intervention, necessitates taking a step
back and giving both sides a chance to regroup, including giving
both sides a chance to engage new experts who would focus on the
actual gravamen of UDOT’s alleged negligence—was UDOT
negligent for not installing a median barrier at the crash site before
it did?—rather than on the sideshow that was the flawed AASHTO
“standard.” Or I might conclude that the Pagets were not to blame
for the fact that their expert’s methodology and opinions were
flawed and that, in the interest of justice, they should have ninety
days, say, to line up a new one.
¶12 We ruled correctly in the first instance in this case. We set
aside the summary judgment in favor of UDOT because UDOT was
not entitled to judgment as a matter of law on the theory it
advanced. That done, perhaps there was no need to also opine
about the merit of disallowing the Pagets’ expert witness. Having
reversed the summary judgment for lack of merit on its own terms,
we could simply have remanded without considering the bona
fides of the Pagets’ expert. But the Pagets had contended that the

Paget v. UDOT
20120481-CA 9 2014 UT App 62
trial court erred in disallowing his testimony, and the question was
fully briefed. It seemed appropriate to resolve it. Still, our decision
in UDOT’s favor on that issue should not trump its failure to
establish its entitlement to judgment as a matter of law on the
ground it advanced in the trial court. And our answering the two
questions presented to us in the manner we did should not deprive
the trial court of its opportunity to consider where those two
answers leave the parties as they proceed to final resolution of the
matter.