United Fire Group v. Staker and Parson Companies

1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 170
_________________________________________________________
THE UTAH COURT OF APPEALS
UNITED FIRE GROUP,
Plaintiff and Appellant,
v.
STAKER AND PARSON COMPANIES,
Defendant and Appellee.
Opinion
No. 20130451-CA
Filed July 25, 2014
Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 120901221
Jan P. Malmberg and Robert K. Hilder, Attorneys
for Appellant
George W. Burbidge II and Nathan R. White,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
STEPHEN L. ROTH and SENIOR JUDGE JUDITH M. BILLINGS
concurred.1
ORME, Judge:
¶1 Plaintiff United Fire Group appeals the district court’s
summary judgment in favor of defendant Staker and Parson
Companies (Staker). The district court granted Staker’s motion for
summary judgment and dismissed the case because it determined
that United Fire could not present a prima facie case of negligence

United Fire Group v. Staker and Parson Companies
2. We recite the facts and reasonable inferences that may be drawn
therefrom in the light most favorable to United Fire as the
nonmoving party. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
20130451-CA 2 2014 UT App 170
against Staker in the absence of an expert witness. We reverse and
remand.
BACKGROUND2
¶2 On the evening of October 14, 2009, Scott and Brenda
McDowell were traveling to Ogden, Utah, to visit a family member.
The McDowells exited Interstate 15 at the Ogden 12th Street exit
but quickly realized that they were in the wrong location. They
turned from 12th Street into an adjacent parking lot to call for
directions. After getting directions, the McDowells turned back
onto 12th Street and attempted to return westbound to the freeway.
¶3 This particular stretch of 12th Street was undergoing major
construction at the time. On the night that the McDowells found
themselves traveling on 12th Street, Staker—the company
performing the 12th Street construction project—had blocked off
the westbound lanes of 12th Street and diverted westbound traffic
to one of what would normally be two eastbound lanes. There was,
however, no barrier preventing them from entering the westbound
lanes from the parking lot they were in or any sign warning them
not to do so.
¶4 The McDowells traveled a short distance on the newly
paved westbound lanes without incident but soon ran off the end
of the paved section of road and dropped into the unfinished
section, sustaining injuries. There were no signs or barriers
immediately preceding the dropoff.
¶5 United Fire, the McDowells’ insurer, paid for the
McDowells’ medical bills and vehicle damage related to the
accident. United Fire, as the McDowells’ subrogee, then sued
Staker claiming it negligently maintained the construction zone.
Following the close of discovery, Staker filed a motion for

United Fire Group v. Staker and Parson Companies
20130451-CA 3 2014 UT App 170
summary judgment on the basis that United Fire, which had not
designated an expert, could not establish the standard of care or a
breach of that standard in this case without expert testimony.
United Fire, in addition to resisting Staker’s motion for summary
judgment, also moved to hold a new discovery scheduling
conference and to amend its complaint to add additional plaintiffs.
¶6 The district court granted Staker’s motion for summary
judgment, noting, “United Fire needed to offer expert testimony in
order to establish the standard of care for temporary traffic control
during the major road construction that was taking place at the
time of the [a]ccident. It did not do so.” Therefore, the district court
concluded, because “United Fire cannot establish all of the essential
elements for a negligence claim,” summary judgment in favor of
Staker was appropriate. The district court granted Staker’s motion
and dismissed United Fire’s negligence action. As a result, the
district court did not rule on United Fire’s pending motions
because the court concluded that “the summary judgment
render[ed] all other issues moot.” United Fire appeals.
ISSUE AND STANDARD OF REVIEW
¶7 United Fire challenges the district court’s determination that
an expert was required to establish the standard of care for
temporary traffic control and the breach of that standard in this
case. “We review a summary judgment determination for
correctness, granting no deference to the [district] court’s legal
conclusions.” Salt Lake County v. Holliday Water Co., 2010 UT 45,
¶ 14, 234 P.3d 1105 (alteration in original) (citation and internal
quotation marks omitted).
ANALYSIS
¶8 To prevail on its negligence claim, United Fire must establish
four essential elements: (1) that Staker owed the McDowells a duty,
(2) that Staker breached that duty, (3) that the breach of duty was
the proximate cause of the McDowells’ injuries, and (4) that the
McDowells in fact suffered injuries or damages. See Thurston v.

United Fire Group v. Staker and Parson Companies
3. Because the provisions in effect at the relevant time do not differ
in any way material to our analysis from the statutory provisions
(continued...)
20130451-CA 4 2014 UT App 170
Workers Comp. Fund, 2003 UT App 438, ¶ 12, 83 P.3d 391. In the face
of a well-presented motion for summary judgment by the
defendant, “[a] plaintiff’s failure to present evidence that, if
believed by the trier of fact, would establish any one of the
[elements] of [a] prima facie case justifies a grant of summary
judgment to the defendant.” Dikeou v. Osborn, 881 P.2d 943, 946
(Utah Ct. App. 1994). The district court determined that because
United Fire failed to designate an expert witness to testify about the
standard of care for temporary traffic control, it could not present
evidence that, if believed by a jury, would “establish the scope of
Staker’s legal duty or demonstrate that Staker breached that duty.”
¶9 United Fire argues that expert testimony should not have
been required in this case because the matter at issue is within the
knowledge of the average juror. We disagree that the standard of
care for temporary traffic control is ordinarily within the
knowledge of the average juror. As we have previously observed,
Where the average person has little understanding of
the duties owed by particular trades or professions,
expert testimony must ordinarily be presented to
establish the standard of care. For instance, expert
testimony has been required to establish the standard
of care for medical doctors, architects, engineers,
insurance brokers, and professional estate executors.
Wycalis v. Guardian Title, 780 P.2d 821, 826 n.8 (Utah Ct. App. 1989)
(citations omitted). We reject United Fire’s contention that the
average juror understands the intricacies of temporary traffic
control during a major construction project.
¶10 As required by law, UDOT publishes a manual of traffic-
control standards and specifications that must be used on
any highway open to public travel in Utah (the Manual). See Utah
Code Ann. § 41-6a-301 (LexisNexis 2010) (stating that UDOT3

United Fire Group v. Staker and Parson Companies
3. (...continued)
now in effect, we cite the current version of the Utah Code as a
convenience to the reader.
20130451-CA 5 2014 UT App 170
shall make rules adopting standards and specifications for a
uniform system of traffic-control devices that shall “correlate
with, and where possible conform to, the system set forth
in the most recent edition of the ‘Manual on Uniform Traffic
Control Devices for Streets and Highways’”); Utah Admin. Code
R920-1-1, -2 (“The purpose of this rule is to adopt standards and
establish specifications for a uniform system of traffic-control
devices used on all highways open to public travel . . . .
Incorporated by reference is the [Manual].”). The Manual is 985
pages long, comprises nine parts and numerous subparts, and
contains many technical instructions, tables, and diagrams.
See Utah Dep’t of Transp., Utah Manual on Uniform Traffic
Control Devices for Streets and Highways (2011), available at
http://www.udot.utah.gov/main/uconowner.gf?n=1228150473560
6387 (last visited July 8, 2014).
¶11 The Manual states that any “decision to use a particular
device at a particular location should be made on the basis of either
an engineering study or the application of engineering judgment.”
Id. § 1A.09.02a (noting additionally that while the Manual provides
standards and guidance, it should “not be considered a substitute
for engineering judgment”). Furthermore, it requires that
engineering judgment be exercised and engineering studies be
performed “by an engineer, or by an individual working under the
supervision of an engineer.” Id. § 1A.13.03, .64, .65. In this
particular case, Staker’s traffic control foreman received training
and certification in traffic control through the Associated General
Contractors association and UDOT, and he maintains that
certification by attending training and recertification classes every
three years. Additionally, the Manual grants traffic controllers
discretion to adjust temporary traffic control to case-specific
variables, such as “type of highway, road user conditions, duration
of operation, physical constraints, and the nearness of the work
space or incident management activity to road users.” Id.
§ 6A.01.07, .13.

United Fire Group v. Staker and Parson Companies
4. We previously considered a similar case and likewise there
determined that expert testimony is necessary to establish the
standard of care for temporary traffic-control measures. See
Macintosh v. Staker Paving & Constr. Co., 2009 UT App 96U.
20130451-CA 6 2014 UT App 170
¶12 “In the absence of expert assistance, jurors would not likely
possess the information or understanding necessary” to interpret
the technical specifications contained in the Manual and the
standards to which a temporary traffic controller must adhere. See
Jenkins v. Jordan Valley Water Conservancy Dist., 2013 UT 59,
¶¶ 19–20, 321 P.3d 1049. Moreover, a traffic-control engineer must
make adjustments and decisions that are “inherently complex and
case-specific” and that require a sophisticated understanding of the
principles of traffic control. See id. Therefore, we conclude that, as
a general matter, the nature of temporary traffic control in major
road construction “removes the particularities of its practice from
the knowledge and understanding of the average citizen.” Nixdorf
v. Hicken, 612 P.2d 348, 352 (Utah 1980). Only an expert would be
intimately familiar with the industry standards for temporary
traffic control.4
¶13 But United Fire’s claims are based not on perceived
deficiencies in the traffic-control signage and devices employed in
this case, but on a complete lack of signs or devices to warn or
guide the McDowells away from danger. Scott McDowell’s
affidavit states that “[n]othing was blocking the road”; there were
some cones of unknown purpose, but “no flashers, and no warning
signs”—“[n]othing was marked” and there was even a “sign with
an arrow pointing traffic down the street.” He also noted, with our
emphasis, as follows:
Before [the] abrupt drop off, no flashing lights were
operating and no cones or barrels were in front of the
road. The road did not contain a sign in front of the
drop off, stating “road closed” or even a barrier in
front of the drop off. Nothing indicated the road had
ceased and had no through travel. No workers were
present in the area, and nothing was blocking the
road. Nothing at all.

United Fire Group v. Staker and Parson Companies
20130451-CA 7 2014 UT App 170
¶14 Therefore, if the jury believes United Fire’s version of
events—namely, that there was a total absence of warning
signs—“there is no question of skill and judgment, no question of
practice beyond the knowledge of laymen which must be
established through expert testimony.” Nixdorf, 612 P.2d at 355. No
expert is required to determine that Staker should have given at
least some warning about the dangerous road condition that it
created or done something to guide traffic away from it. See Hansen
v. Clyde, 56 P.2d 1366, 1368 (Utah 1936) (“When a hazard is created
by a contractor upon a public highway, it becomes his duty to place
suitable barricades or warning signs and in the nighttime to
properly place lights to warn the traveling public of the presence
of the hazard.”); Jeffs ex rel. B.R. v. West, 2012 UT 11, ¶ 21, 275 P.3d
228 (“As a general rule, we all have a duty to exercise care when
engaging in affirmative conduct that creates a risk of physical harm
to others.”). Cf. Nixdorf, 612 P.2d at 352 (“[E]xpert testimony is
unnecessary to establish the standard of care owed the plaintiff
where the propriety of the treatment received is within the
common knowledge and experience of the layman. The loss of a
surgical instrument or other paraphernalia, in the operating site,
exemplifies this type of treatment.”); Nguyen v. IHC Health Servs.,
Inc., 2010 UT App 85, ¶¶ 17–18, 232 P.3d 529 (holding that no
expert was needed to demonstrate inadequacy of disclosure in
informed consent case when claim was that no disclosure was
made).
¶15 But if the jury believes the thrust of Staker’s version of
events—that is, if the jury finds that there were at least some
warning signs and devices in place over the route the McDowells
traveled—and the question becomes the adequacy of the warning
thus imparted, United Fire cannot prevail without an expert. See
Salt Lake City Sch. Dist. v. Galbraith & Green, Inc., 740 P.2d 284, 289
(Utah Ct. App. 1987) (“If the matter at issue in the case is one which
requires special knowledge not held by the trier of fact, expert
evidence must be presented.”). As we have already concluded, in
the absence of an expert to testify about temporary traffic control,
“jurors would not likely possess the information or understanding
necessary to make such assessments.” See Jenkins v. Jordan Valley
Water Conservancy Dist., 2013 UT 59, ¶ 20, 321 P.3d 1049. And “left
to their own devices, jurors would be forced to speculate about”

United Fire Group v. Staker and Parson Companies
5. On remand, the district court should presumably also consider
and rule upon United Fire’s motions that the court did not
previously reach due to its summary disposition of the case.
20130451-CA 8 2014 UT App 170
the standard of care for temporary traffic control and whether
Staker failed to conform to that standard in this case. “Such
speculation has no place in our courtrooms—on matters of duty,
breach, or otherwise.” Id. ¶ 21.
CONCLUSION
¶16 The average person has little understanding of the standard
of care for temporary traffic control in a major construction project
and therefore expert testimony must usually be presented to
establish the standard of care for warning travelers of danger.
However, if the jury believes United Fire’s evidence that there was
a complete lack of signage warning the McDowells of dangerous
road conditions or of devices guiding them away from such
danger, the jury may well find for United Fire even in the absence
of expert testimony. Thus, we reverse the grant of summary
judgment to Staker and remand to the district court for further
proceedings consistent with this opinion.5