Article Title: Utah Supreme Court Review 2000

• Publication year: 2001
• Pages: 05-10
• Citation: Vol. 2001 No. 05 Pg. 05-10

Utah Bar Journal Volume 5.

05-10 (2001). Article Title: Utah Supreme Court Review 2000

May, 2001

Article Title: Utah Supreme Court Review 2000

Author: Justice Michael J. Wilkins & Judith M. Billings

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Case Summaries

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EDITOR'S NOTE:Supreme Court Justice Michael J. Wilkins and Court of Appeals Judge Judith M Billings recently addressed last year's important Utah appellate decisions at well-attended CLE events. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, the handouts are reprinted here, with the speakers' permission Especially because readers will not have the benefit of the narrative commentary provided by the speakers, readers are cautioned that the summaries should not be relied on for any purpose other than generally explaining what each case involves.

Utah Supreme Court Review 2000

By Justice Michael J. Wilkins, Utah Supreme Court

1.Dramshop

Adkins v. Uncle Bart's, Inc., 2000 UT 14, 11 P.3d 528. Three different establishments were sued by the parents of a child killed by a driver who was served alcohol in all three. The supreme court held that remedies under the Dramshop Act were the only ones available to the parents, and that those damages were limited to funeral and burial expenses in the case of the Adkins's deceased son. The Adkins could not bring actions based on negligence, wrongful death, or for punitive damages.

MacKay v. 7-Eleven Sales Corp., 2000 UT 15, 9995 P.2d 1233. In a case issued simultaneously with Adkins, the supreme court held that 7-Eleven could be liable for selling alcohol to an underage third party who gave it to an underage driver whose intoxication resulted in the death of his passenger, if the trier of fact found that the injury was foreseeable and proximately caused by the sale.

Red Flame, Inc. v. Martinez, 2000 UT 22, 9996 P.2d 540. The supreme court held that a provider of alcohol could seek allocation of fault under the comparative negligence statute from the drunk driver in response to an action against it under the Dramshop Act.

Gilger v. Hernandez, 2000 UT 23, 997 P.2d 305. Milissa Hernandez held a party and served alcohol to a minor guest, Jason Martinez. In a fight, Martinez injured the plaintiffs. The plaintiffs sued their host, alleging she was liable for their injuries. The supreme court held that in a private setting, a host has no liability under the Dramshop Act.

2. Attractive Nuisance

Kessler v. Mortenson, 2000 UT 95, 16 P.3d 1225. Six year old Eric Kessler went to play in the house under construction near his home. He backed into a hole in the floor and fell. Eric's mother sued the home builder and his contractor. The trial court dismissed the action on the grounds that Eric was a trespasser, and that under Taylor v. United Homes, Inc., 21 Utah 2d 304, 445 P.2d 140 (1968) and Featherstone v. Berg, 28 Utah 2d 94, 498 P.2d 660 (1972), the attractive nuisance doctrine did not apply to residential home construction. The court held that while the trial court had correctly applied the rule of Taylor and Featherstone, the exception of residential construction from the general applicability of the attractive nuisance doctrine no longer made sense. Reversing Taylor and Featherstone, the court adopted Section 339 of the Restatement Second of Torts, and held that attractive nuisance was uniformly applicable to residential construction as to other circumstances, reasoning that the hazard was temporary, created and controlled by the builder, and subject to reasonable steps to exclude children and minimize the danger to them, even as trespassers.

Pullan v. Steinmetz, 2000 UT 103, 16 P.3d 1245. Young Arielle Pullan fed Rocky the horse some oats kept near the stables. Rocky bit the hand that fed him. Arielle lost the top of her left ring finger and sued the owners and keepers of the horse. The court held that strict liability as applied to dogs does not apply to horses, even those kept in an urban setting like a pet or hobby. Also, the court declined to apply the attractive nuisance doctrine to Rocky, without reaching the question of whether or not a horse is an "artificial condition upon the land," because the plaintiff admitted that the defendants did not have knowledge that the place where the condition existed was one where children were likely to trespass.

3.Juvenile Law

State ex rel. M.W., 2000 UT 79, 12 P.3d 80. In response to cross petitions for certiorari, the supreme court held that adjudication of a neglect petition in juvenile court against a parent that results in a finding of neglect against the parent constitutes a final order, and deprives the parent of the "parental presumption" under Hutchison v. Hutchison.

State v. Bybee, 2000 UT 43, 1 P.3d 1087. Alexander Bybee, a juvenile tried as an adult, pleaded guilty to murdering a six year old boy, reserving issues for appeal. Bybee had committed the murder in Utah, but moved to Nevada shortly thereafter, and was admitted to a youth mental health facility there by his father. Bybee was 16, almost 17, when he admitted the murder to his father, then police. Bybee was given the Miranda warnings prior to questioning by Utah officers, and waived those rights. On appeal, he argued that Utah Rule of Juvenile Procedure 8(d) prohibiting questioning of a child without his parent's permission in a "detention facility" made the questioning improper. The supreme court held that the Nevada mental health facility was not a "detention facility" within the meaning of the rule and affirmed.

4.Criminal

State v. Clark, 2001 UT 9, 414 Utah Adv. 10. The quantum of evidence necessary to support a bindover to stand trial on a criminal charge is less than that necessary to survive a directed verdict motion. The prosecution must present sufficient evidence to support a reasonable belief that an offense has been committed, and that the defendant has committed it. The standard is the same as for an arrest warrant.

State v. Burns, 2000 UT 56, 4 P.3d 795. Becky Burns was convicted of murdering her six month old son, Shawn, by starvation and dehydration. A relative had paid for defense counsel, but Burns was unable to afford expert witnesses to testify regarding the medical causes and circumstances of Shawn's death. The trial court required Burns to accept representation by the Legal Defenders Association as a condition to receiving funds to hire an expert. The trial court noted that the LDA contract with the county made arrangements for experts when needed, and that the procedure was a reasonable way to handle the problem. The supreme court held that the Sixth Amendment right to effective assistance of counsel includes the right to expert witnesses when necessary, and that under the Utah Code of Criminal Procedure, at section 77-32-6 (now 77-32-306) and Rule 15(a) of the Utah Rules of Criminal Procedure, counties, cities and towns are required to provide for payment of expert witnesses needed by indigent defendants. The right to expert witness assistance cannot be conditioned upon use of counsel of the county's choosing. Ms. Burns had the right to counsel of her choice, where that counsel was made available to her, and to the assistance of expert witnesses at county expense, if she was indigent.

State v. Nelson-Waggoner, 2000 UT 59, 6 P.3d 1120. Stacey Lamar Nelson-Waggoner was convicted of the rape of a USU female student in his dorm room. She reported a sequence of events related to the rape that were almost identical to those reported by other women who also accused Nelson-Waggoner of rape. Reports of two other women were admitted at trial over defense objections. The supreme court reviewed application of Rule 404(b) of the rules of evidence and held that admission of the evidence of prior bad acts introduced for non-character purposes to establish a pattern of behavior was not error. The court also applied Rule 402 (relevance) and Rule 403 (probative value versus prejudice) in affirming the action of the trial court, and the conviction.

State v. James, 2000 UT 80, 13 P.3d 576. James was parked in his own driveway, having been followed there by officers investigating allegations of DUI. James refused to open the door or window, so the officer opened the door to ask James to get out of the truck. When he opened the door the officer saw an open alcohol container in the front floor area. The supreme court held that the officer could have required James to open the truck door, and that there was no distinction between James and the officer...