Clegg v. Wasatch Co

2010 UT 5
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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Steve Clegg, 	No. 20070547
Plaintiff and Appellant,
v.
F I L E D
Wasatch County and Bruce T. Jensen,
Defendants and Appellees. 	February 5, 2010
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Fourth District, Heber Dep’t
The Honorable Fred D. Howard
No. 030500422
Attorneys: 	Daniel F. Bertch, Kevin K. Robson, Salt Lake City,
for plaintiff
Linette B. Hutton, Salt Lake City, for defendants
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NEHRING, Justice:
INTRODUCTION
¶1 	Steven Clegg sued Wasatch County and Wasatch County
Sheriff’s Deputy Travis Jensen for injuries he sustained when
Deputy Jensen’s patrol car struck the rear portion of his
vehicle. 	The district court granted Wasatch County’s motion for
summary judgment on the basis that the Utah Governmental Immunity
Act barred Mr. Clegg’s claims. 	Mr. Clegg appealed. 	We affirm in
part and reverse in part.
BACKGROUND
¶2 	On July 16, 2002, Steven Clegg visited the Hamlet
Condominiums on the outskirts of Midway, Utah. 	As he was
leaving, Mr. Clegg came to a stop at the intersection of 750 East
and SR 113 in anticipation of making a left hand turn. 	He then
pulled forward to a position from which he could better view
approaching eastbound traffic. 	At the same time, Deputy Jensen
was driving east on SR 113. 	He was responding to an injury-
accident in Timber Lakes, Utah. 	At the time his car collided

1 Throughout our opinion, we will use Wasatch County to
collectively refer to Deputy Jensen and Wasatch County.
No. 20070547 	2
with Mr. Clegg’s vehicle, Deputy Jensen had activated both his
siren and his emergency lights. 	Deputy Jensen claims that Mr.
Clegg was partially blocking the eastbound lane of SR 113 and
that he attempted to pass Mr. Clegg on the south shoulder of the
highway because he saw oncoming traffic in the westbound lanes.
Deputy Jensen’s attempted pass was not successful, and his police
car struck the rear portion of Mr. Clegg’s vehicle.
¶3 	Mr. Clegg sued Deputy Jensen and Wasatch County for
negligence. 1 	Wasatch County moved for summary judgment on the
basis that the Utah Governmental Immunity Act, which retains the
immunity of governmental entities from suit for the operation of
emergency vehicles, barred Mr. Clegg’s claim. 	Mr. Clegg argued
that the section of the Utah Governmental Immunity Act that
grants immunity for the operation of emergency vehicles is
unconstitutional under the open courts clause of article I,
section 11, and the uniform operation of laws clause found in
article I, section 24 of the Utah Constitution. 	Mr. Clegg also
asserted that operators of emergency vehicles and other personnel
who respond to emergencies owe a duty of care to others on the
road. 	In addition, Mr. Clegg claimed that because Deputy Jensen
had violated the Wasatch County Policy and Procedure Manual, he
had breached that duty of care. 	Finally, Mr. Clegg argued that
disputed facts remained regarding whether the audible and visual
signals on the patrol car gave adequate notice of a peace officer
responding to an emergency because he stated that he never heard
Deputy Jensen’s siren nor saw his lights until the police car was
skidding towards his vehicle. 	The district court adopted all of
Wasatch County’s factual statements as true and granted summary
judgment to the County.
¶4 	On appeal, Mr. Clegg makes the following four
arguments: 	(1) that granting summary judgment to Wasatch County
on the issue of governmental immunity was improper because there
are material issues of fact in dispute, in particular, whether
the audible and visual signals were “adequate”; (2) that even if
the audible and visual signals were adequate, the 1993 amendments
to Utah Code section 41-6-14 are unconstitutional under the open
courts clause and the uniform operation of laws provision of the
Utah Constitution; (3) that because Wasatch County was
constitutionally prohibited from obtaining complete immunity for
the operation of emergency vehicles, Deputy Jensen was negligent
if he was driving faster than allowed by the Wasatch County
Sheriff’s Department Policy Manual; and (4) that the affidavit of

3 	No. 20070547
Mr. Bonner should not have been admitted and the affidavit of
Mr. Robson should not have been stricken.
¶5 	Wasatch County argues that the district court was
correct when it granted summary judgment because the Utah
Governmental Immunity Act is constitutional and bars Mr. Clegg’s
claims against the County. 	Moreover, the County contends that
neither Deputy Jensen’s siren nor his visual signals were
inadequate. 	We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(j)(2008).
STANDARD OF REVIEW
¶6 	We review a district court’s grant of summary judgment
for correctness. 	Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 14, 194
P.3d 956. 	When reviewing the grant of summary judgment, we
interpret “the facts in the light most favorable to the nonmoving
party,” here, Mr. Clegg. 	Giusti v. Sterling Wentworth Corp.,
2009 UT 2, ¶ 6, 201 P.3d 966.
ANALYSIS
¶7 	The district court granted summary judgment in favor of
the defendants. 	In doing so, Judge Howard “adopt[ed] and
incorporat[ed] the arguments set forth in Defendants’ memoranda
on all issues and particularly [found] there [was] no factual
issue as to [Deputy Jensen’s] speed to defeat summary judgment.”
The district court held that the Utah Governmental Immunity Act
barred Mr. Clegg’s claim because the patrol car was operated in
compliance with Utah Code sections 41-6-132 and 41-6-146. 	By
granting summary judgment to the defendants, the district court
held that there were no material facts in dispute and that Deputy
Jensen’s audible and visual signals were adequate. 	We hold that
(1) the adequacy of the audible and visual signals is a material
fact in dispute; (2) until this issue is resolved, Mr. Clegg’s
constitutional arguments are not ripe for our consideration; and
(3) the Wasatch County Policy and Procedures Manual is relevant
to the question of negligence if on remand the court determines
that Wasatch County does not enjoy governmental immunity, and
that the district court’s rulings regarding the affidavits were
not in error.
I. 	THE DISTRICT COURT ERRED IN HOLDING THERE WAS NO ISSUE OF
MATERIAL FACT AS TO WHETHER DEPUTY JENSEN’S LIGHTS OR SIREN WERE
PROPERLY AUDIBLE OR VISIBLE FROM 500 FEET UNDER NORMAL
CONDITIONS, AND THUS, THE DISTRICT COURT ERRED IN DETERMINING
THAT THE UTAH GOVERNMENTAL IMMUNITY ACT BARRED MR. CLEGG’S CLAIMS

No. 20070547 	4
¶8 	We begin our governmental immunity analysis by
analyzing whether Deputy Jensen owed a duty of care to other
drivers on the road. 	We traditionally start with this common law
duty analysis because if we find no duty exists, no negligence
action can be maintained, and a plaintiff cannot recover even if
we find governmental immunity is waived. 	Day v. State, 1999 UT
46, ¶ 10, 980 P.2d 1171; Ledfors v. Emery County Sch. Dist., 849
P.2d 1162, 1163-64 (Utah 1993).
¶9 	We have long recognized that drivers of emergency
vehicles owe a duty of reasonable care to other motorists on the
road. 	See Day, 1999 UT 46, ¶ 31; Howe v. Jackson, 421 P.2d 159,
161-62 (Utah 1966); Jensen v. Taylor, 271 P.2d 838, 841 (Utah
1954). 	In doing so, we have recognized that emergency situations
sometimes necessitate actions that may be unreasonable otherwise,
and thus “emergency vehicles are not bound by all traffic laws”
and drivers “do not necessarily violate a duty of due care when
they exceed the speed limit or do not comply with certain other
safety regulations.” 	Day, 1999 UT 46, ¶ 31. 	Although we afford
emergency vehicle operators some latitude in responding to an
emergency, we do not absolve them of all responsibility to act
reasonably and “‘any careless, arbitrary or unreasonable exercise
of those privileges would be negligence.’” 	Id. ¶ 14 (quoting
Howe, 421 P.2d at 161-62). 	In an effort to balance the interest
of safety for all persons, “[t]he test is whether the driver of
the emergency vehicle acted reasonably and with appropriate care
for the safety of others in light of all the circumstances.” 	Id.
¶ 32.
¶10 	Having concluded that Deputy Jensen owed a common law
duty to other motorists on the road, we now examine whether the
Utah Governmental Immunity Act nevertheless prevents Mr. Clegg
from bringing his negligence claim against Wasatch County.
¶11 	In Ledfors, we set forth a three-part inquiry to
determine whether a governmental entity is entitled to immunity.
First, we ask whether the activity performed was “a governmental
function and therefore immunized from suit by the general grant
of immunity contained in section 63-30-3.” 	Lyon v. Burton, 2000
UT 19, ¶ 13, 5 P.3d 616 (quoting Ledfors, 849 P.2d at 1164).
“Second, if the activity was a governmental function,” we then
determine whether “some other section of the Act [has] waived
that blanket immunity.” 	Id. 	“Third, if the blanket immunity has
been waived,” we determine whether the Act “also contain[s] an
exception to that waiver which results in a retention of immunity
against the particular claim.” 	Id.

2 The relevant events in this case took place in 2002 and
are therefore governed by the statutes in effect at that time.
Since the Utah Governmental Immunity Act and many of the statutes
it references have been substantively amended since 2002, we cite
to the versions of the statutes in effect in 2002 unless
otherwise noted.
5 	No. 20070547
¶12 	There is no dispute that the operation of an emergency
vehicle constitutes a governmental function, and is thus
immunized from suit. 	Likewise, the parties do not dispute that
Utah Code section 63-30-10 (2002) 2 waives that immunity if during
such operation, injury is caused by an officer’s negligent act.
Thus, the only remaining issue is whether Deputy Jensen’s
operation of his emergency vehicle fits within an exception to
the waiver of that immunity.
¶13 	Utah Code section 63-30-10(15) contains an exception to
the waiver, retaining immunity for officers so long as the
emergency vehicle was “driven in accordance with the requirements
of Section 41-6-14.” 	Thus, in order for Deputy Jensen and
Wasatch County to qualify for governmental immunity and fit
within the exception to the waiver of that immunity, Deputy
Jensen must have operated his vehicle in a manner consistent with
Utah Code section 41-6-14. 	Section 41-6-14(3) states that the
privilege only applies when the operator of the vehicle, not
involved in a vehicle pursuit, “sounds an audible signal under
section 41-6-146, or uses a visual signal as defined under
section 41-6-132, which is visible from in front of the vehicle.”
Id. § 41-6-14(3) (emphasis added). 	Section 41-6-146(d) states
that authorized emergency vehicles “shall be equipped with a
siren . . . capable of emitting sound audible under normal
conditions from a distance of not less than 500 feet.” 	Id. § 41-
6-146(d). 	Section 41-6-132 states that authorized emergency
vehicles must have lights as high and wide as possible and that
these lights must be visible from 500 feet under normal
conditions. 	See id. § 41-6-132.
¶14 	In sum, the adequacy of the audible and visual signals
are material facts, the presence or absence of which will be
central to determining whether there is governmental immunity for
the actions of a particular officer in responding to an
emergency. 	While Mr. Clegg disputes the adequacy of both the
audible and visual signals, Wasatch County will be immune from
suit if either signal is found to be adequate. 	See id. § 41-6-
14(3). 	We now turn to the decision of the district court to
determine if summary judgment was properly granted on this issue.

No. 20070547 	6
¶15 	The first step in reviewing a district court’s grant of
summary judgment is to determine whether “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact.” 	Utah R. Civ. P. 56(c).
As part of the inquiry, the court must apply an objective
standard to determine whether a genuine issue of material fact
remains. 	Newman v. White Water Whirlpool, 2008 UT 79, ¶ 11, 197
P.3d 654. 	The objective standard seeks to find whether
reasonable jurors, properly instructed, would be able to come to
only one conclusion, or if they might come to different
conclusions, thereby making summary judgment inappropriate. 	Id.
Whether Deputy Jensen’s lights and siren were adequate is crucial
in determining if Wasatch County is immune from suit.
¶16 	Mr. Clegg concedes that Deputy Jensen had his lights
and siren on when the Deputy’s car hit Mr. Clegg’s car. 	However,
Mr. Clegg asserts that these signals did not provide adequate
notice that a peace officer responding to an emergency was
approaching because Mr. Clegg did not hear the siren or see the
visual signals until Deputy Jensen was skidding towards him.
Wasatch County argues that because several people saw the lights
and heard the siren and because Mr. Clegg admits that the lights
and siren were on, there can be no doubt as to their adequacy,
and Mr. Clegg’s suit is thus barred by the Utah Governmental
Immunity Act.
¶17 	We addressed the question of visibility of a police
car’s lights in Kouris v. Utah Highway Patrol, 2003 UT 19, 70
P.3d 72. 	In Kouris, a police officer responding to an emergency
hit a boy crossing the street on his bicycle. 	Id. ¶ 4. 	The
district court found that “[a]t some point” Kouris activated his
warning lights. 	Id. 	We held that when the lights were activated
and whether they were adequate were issues of material fact. 	Id.
¶ 14.
¶18 	Mr. Clegg relies on Kouris for the proposition that the
immunity will only arise under Utah Code sections 63-3-10(15) and
41-6-14 if the lights were visible to him or the siren was
audible to him. 	He argues that because he claimed he was not
able to see the lights or hear the siren, a disputed issue of
material fact is present foreclosing summary judgment. 	We
disagree with Mr. Clegg’s reading of Kouris. 	In Kouris, the
central question was when the police officer activated his lights
and whether, as an objective matter, they were adequate under
section 41-6-14, not whether the plaintiff saw or heard them.
The question, therefore, is not whether Mr. Clegg saw the lights
or heard the siren, but whether the lights and siren were

7 	No. 20070547
properly audible or visible under section 41-6-14, and thereby
sections 41-6-132 and 41-6-146.
¶19 	In this case, we must determine whether it was error
for the district court to determine that a reasonable juror could
not find that Deputy Jensen’s lights or siren were properly
activated and able to be seen and heard. 	Because the statute
provides for immunity if either the siren was audible from 500
feet or the lights were visible from 500 feet, only one of these
facts must be undisputed for summary judgment to be proper.
¶20 	Deputy Jensen testified that as soon as he was
contacted by the dispatcher, he turned on his overhead lights and
his siren. 	In a witness statement, one motorist stated that
Deputy Jensen’s vehicle came up behind his car “with lights and
siren running,” and that he pulled over to let Deputy Jensen
pass. 	A second witness stated that he was able to hear the
siren. 	Mr. Clegg’s own expert testified that, based on the
testimony of the witnesses, there was no reason to conclude that
Deputy Jensen’s siren was not working properly.
¶21 	Wasatch County asserts that the audible and visual
signals were on and activated exactly as required by Utah Code
section 41-6-14. 	Mr. Clegg asserts that these signals were not
adequate because he did not perceive them until it was too late
to avoid a collision. 	He does not, however, dispute the
testimony that the lights and siren were on prior to the crash or
assert that as an objective matter, they were not properly
audible or visible under normal conditions. 	Rather, he argues
that there is a disputed issue of material fact because he did
not see or hear Deputy Jensen’s emergency signals until it was
too late to avoid a crash.
¶22 	Whether Mr. Clegg actually heard or saw Deputy Jensen’s
siren or lights is not material. 	Rather, the material fact that
must be undisputed in this case for Wasatch County to be immune
is that either Deputy Jensen’s lights or siren were adequately
visible or audible under normal conditions. 	If reasonable minds
could not differ as to whether the siren was audible from 500
feet or whether the lights were adequately visible, summary
judgment was proper. 	On the other hand, if reasonable minds
could differ about whether the lights or siren were visible or
audible from 500 feet in normal conditions, summary judgment was
inappropriate.
¶23 	Viewing the evidence in a light most favorable to Mr.
Clegg, it is not clear whether the lights or siren on Deputy
Jensen’s car were properly audible or visible from 500 feet under

No. 20070547 	8
normal conditions as required by Utah Code section 41-6-14 and
therefore, a material question of fact is in dispute. 	There were
at least two people who said they heard the siren, and one
witness stated that he saw the lights when Deputy Jensen passed
him prior to the accident. 	Although Mr. Clegg relies solely on
his own assertion that he did not see or hear Deputy Jensen’s
emergency signals until Deputy Jensen was skidding toward him,
none of Wasatch County’s evidence details how far away the
witnesses were when they saw or heard Deputy Jensen’s emergency
signals. 	In order for Wasatch County to prevail on summary
judgment, it must not only be undisputed that either Deputy
Jensen’s lights or siren were on, but that the signals were
visible or audible from 500 feet under normal conditions.
Because Wasatch County presented no evidence regarding how far
the witnesses who heard or saw Deputy Jensen’s emergency signals
were from the patrol car, and because Mr. Clegg asserted that he
did not hear or see Deputy Jensen’s signals until seconds before
impact, we hold that the issue of whether the lights or siren
were visible or audible from 500 feet remains in dispute.
II. 	MR. CLEGG’S CONSTITUTIONAL ARGUMENTS ARE NOT RIPE FOR
ADJUDICATION
¶24 	In addition to claiming a question of fact exists as to
whether the emergency vehicle in this case was operated in
compliance with section 41-6-14 of the Motor Vehicle Act, Mr.
Clegg claims that the 1993 amendments to this section of the
Motor Vehicle Act, along with Utah Code section 63-30-10(15) are
unconstitutional under the uniform operation of laws provision in
article I, section 24, and the open courts clause contained in
article I, section 11 of the Utah Constitution. 	Relying on our
decisions in Day v. State, 1999 UT 46, 980 P.2d 1171, and Berry
v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), Mr. Clegg
argues that when the legislature amended the Motor Vehicle
statute in 1993 to remove the duty of care provision, they
unconstitutionally abrogated a pre-existing negligence cause of
action, and that but for this change Mr. Clegg could have brought
a negligence claim against Wasatch County. 	Furthermore, Mr.
Clegg claims that the 1993 amendments are also unconstitutional
under the uniform operation of laws provision because they
impermissibly treat the class of persons injured by emergency
vehicles in pursuit differently than the class of persons injured
by the negligent operation of an emergency vehicle in other
circumstances.
¶25 	Wasatch County argues that the test articulated in
Standiford v. Salt Lake City Corp., 605 P.2d 1230 (Utah 1980), is
the appropriate test to apply, and since operating an emergency

9 	No. 20070547
vehicle constitutes a “governmental function” under Standiford,
there is no open courts clause violation. 	Furthermore, Wasatch
County contends that the statute is constitutional under the
uniform operation of laws provision because the statute is
subject to rational basis review and has a rational relationship
to the legitimate interest of promoting public safety by allowing
police officers to quickly respond to emergency situations.
¶26 	We decline to reach these constitutional questions
because we conclude they are not ripe for adjudication. 	We have
previously stated that where a controversy “has not yet sharpened
into an actual or imminent clash of legal rights and obligations
between the parties,” or “[w]here there exists no more than a
difference of opinion regarding the hypothetical application of a
piece of legislation to a situation in which the parties might,
at some future time, find themselves, the question is unripe for
adjudication.” 	State v. Ortiz, 1999 UT 84, ¶ 3, 987 P.2d 39
(quoting State v. Herrera, 895 P.2d 359, 371 (Utah 1995)).
Indeed, where “any direction we may provide . . . may ultimately
prove to be irrelevant,” Pett v. Autoliv ASP Inc., 2005 UT 2,
¶ 5, 106 P.3d 705, or where there are “possible circumstances
under which we would not need to address the constitutionality of
[a statute],” to do so would be to impermissibly render an
advisory opinion. 	Ortiz, 1999 UT 84, ¶ 4.
¶27 	We conclude that before we can address the
constitutionality of the 1993 amendments to the Motor Vehicle Act
and the Utah Governmental Immunity Act, an issue of fact--
whether at the time his vehicle collided with Mr. Clegg’s
vehicle, Deputy Jensen was complying with Utah Code section 41-6-
14--must first be resolved. 	Although, as in Ortiz, it is
possible that “at some future time,” Mr. Clegg may find himself
in a position to claim the 1993 amendments are nonuniform and
have unconstitutionally abrogated his cause of action, that time
only arises when and if a finder of fact determines that Deputy
Jensen’s siren was audible or his lights were visible from 500
feet, a finding that would compel the conclusion that the current
language of the Act prevents Mr. Clegg from pursuing his claims
against Wasatch County. 	Because no finding has been made on this
question, Mr. Clegg’s constitutional argument is not ripe for us
to consider. 	We therefore remand to the district court to
resolve this question of fact, and decline to prematurely reach
Mr. Clegg’s constitutional challenges.
III. 	THE WASATCH COUNTY POLICY AND PROCEDURES MANUAL IS RELEVANT
TO THE QUESTION OF NEGLIGENCE IF ON REMAND THE COURT DETERMINES
THAT WASATCH COUNTY DOES NOT ENJOY GOVERNMENTAL IMMUNITY, AND THE

No. 20070547 	10
DISTRICT COURT’S RULINGS REGARDING THE AFFIDAVITS WERE NOT IN ERROR
¶28 	Finally, Mr. Clegg argues that Deputy Jensen’s possible
violation of the Wasatch County Policy and Procedures Manual has
bearing on whether Deputy Jensen’s negligence was the cause of
his collision with Mr. Clegg. 	Wasatch County argues that the
Policy Manual does not apply because it is not a statute,
ordinance, or a municipal policy. 	Affidavits were submitted
regarding the applicability of the Policy Manual, one from Chief
Deputy Todd Bonner of the Wasatch County Sheriff’s Office and one
from Mr. Clegg’s counsel, Kevin Robson. 	Mr. Clegg moved to
strike the affidavit of Mr. Bonner, and Wasatch County moved to
strike the affidavit of Mr. Robson. 	Wasatch County opposed Mr.
Clegg’s motion to strike, and it was denied. 	Mr. Clegg did not
oppose Wasatch County’s motion to strike, and it was granted.
¶29 	Because the Utah Governmental Immunity Act grants
immunity to Wasatch County for negligence of its officers in
responding to emergencies so long as either their emergency
lights or siren are visible or audible from 500 feet in normal
conditions, the Policy Manual will only have bearing on the
question of Deputy Jensen’s negligence if on remand the district
court finds that neither Deputy Jensen’s lights or siren were
audible or visible from 500 feet and Wasatch County is not immune
from suit. 	If that is the case, violation of the Policy Manual
will be relevant to the question of negligence, but will not
necessarily be determinative. 	See Rollins v. Petersen, 813 P.2d
1156, 1163 (Utah 1991).
¶30 	Following a request by the district court for
supplemental briefing regarding the applicability of the Policy
Manual to this case, Mr. Clegg submitted his Supplemental
Memorandum of Points and Authorities Opposing Summary Judgment;
Wasatch County submitted its Response to Plaintiff’s Supplemental
Memorandum, which included the affidavit of Mr. Bonner; and Mr.
Clegg submitted a Reply Memorandum Regarding Applicability of
Sheriff’s Manual. 	Before submitting his Reply Memorandum, Mr.
Clegg moved to strike Mr. Bonner’s affidavit. 	The district court
denied Mr. Clegg’s motion to strike.
¶31 	Mr. Clegg urges us to reverse the decision of the
district court, arguing that the affidavit of Mr. Bonner violated
Utah Rules of Civil Procedure 7(c) and 56(e). 	Mr. Clegg argues
that when all the subsections of rule 7(c) are read together,
they stand for the proposition that all materials supporting a
party’s motion for summary judgment, including affidavits, must
be filed with the original motion. 	We disagree. 	A party is
allowed to file a reply memorandum to rebut matters raised in the

11 	No. 20070547
memorandum in opposition. 	Utah R. Civ. P. 7(c)(1). 	In rebutting
those matters, “[a] party may attach as exhibits to a memorandum
relevant portions of documents cited in the memorandum, such as
affidavits or discovery materials.” 	Utah R. Civ. P. 7(c)(3)(D).
Clearly, under the rule, supporting affidavits to reply memoranda
are allowed, and the inclusion of Mr. Bonner’s affidavit did not
violate the rule.
¶32 	In this case, the district court called for
supplemental briefing on the question of whether the Policy
Manual applied. 	It directed Mr. Clegg to file supplemental
briefing within fourteen days of the order and directed Wasatch
County to file responsive supplemental briefing within fourteen
days of Mr. Clegg’s filing. 	Mr. Clegg’s supplemental brief
raised the issue of whether the area where the accident occurred
was a “populated” area as defined by the Policy Manual. 	Whether
Wasatch County’s supplemental brief containing the affidavit of
Mr. Bonner is considered as a supplement to its previous reply
brief, or as a memorandum in opposition to Mr. Clegg’s
supplemental brief, the rule allows Wasatch County to rebut
matters raised in Mr. Clegg’s briefing using an attached
affidavit.
¶33 	In addition to arguing that the affidavit was not
allowed under rule 7, Mr. Clegg argues that Mr. Bonner’s
statements in the affidavit violated Utah Rule of Civil Procedure
56(e). 	Rule 56(e) states that affidavits “shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.”
Mr. Clegg’s only argument for why Mr. Bonner’s affidavit violated
rule 56(e) is that it “merely makes inadmissible ‘arguments’
rather than stating specific facts.” 	After making statements
regarding his qualifications, and providing background on the
Policy Manual, Mr. Bonner makes the following averments in his
affidavit:
4. 	The term “populated area” is
intended to describe a residential area, or a
[sic] area heavily trafficked by both
vehicles and pedestrians. 	We refer to a
populated area as “city-like,” or an area
with the look and feel of a busy residential
neighborhood or city center.
5. 	The highway between Midway and Heber
City, designated as SR 113, particularly in
the vicinity of 750 East, is not the type of
area considered “populated” for application

No. 20070547 	12
of the speed restriction set forth in § 3-3-
01.05(1). 	However, the deputy is trained to
drive at a speed that is reasonable and
prudent considering the existing conditions.
¶34 	We agree with the district court that these statements
were statements of fact. 	Speaking in his official capacity as
Deputy Jensen’s supervisor, Mr. Bonner made factual statements
regarding how the Sheriff’s Office interprets its own Policy
Manual.
¶35 	Mr. Clegg also seeks a reversal of the district court’s
grant of Wasatch County’s motion to strike the affidavit of Mr.
Robson. 	“‘[T]o preserve an issue for appellate review, a party
must first raise the issue in the trial court,’ because ‘a trial
court must be offered an opportunity to rule on an issue.’”
O’Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d 704 (quoting Badger v.
Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998) (alteration in
original)). 	We decline to address Mr. Clegg’s argument for
reversing the district court on this point because Mr. Clegg
failed to oppose Wasatch County’s motion to strike in the
district court.
CONCLUSION
¶36 	While recognizing that law enforcement officers need to
react quickly in response to emergencies, we find that in doing
so they must exercise a duty of reasonable care under all the
circumstances. 	Although we find a common law duty to act
reasonably under all the circumstances, we also find that even if
Deputy Jensen failed to do so, Wasatch County may still be immune
from suit if it is able to show that Deputy Jensen’s lights or
siren were properly visible or audible from 500 feet. 	Because
there is no evidence in the record regarding the distance from
which the signals could be seen or heard, we hold that a disputed
issue of material fact remains as to the question of distance.
Should the district court find on remand that Wasatch County is
not immune from suit because Deputy Jensen failed to properly
activate his lights or siren as required by the Act, the Wasatch
County Policy and Procedures Manual could be relevant to Mr.
Clegg’s negligence cause of action, but will not necessarily be
determinative. 	Finally, we affirm the district court’s denial of
Mr. Clegg’s motion to strike the affidavit of Mr. Bonner and its
grant of Wasatch County’s motion to strike the affidavit of Mr.
Robson.
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13 	No. 20070547
¶37 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.
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