Vol. 21, No. 3, 1. 2007 Case Summaries.


Utah Bar Journal

Volume 21.

Vol. 21, No. 3, 1.

2007 Case Summaries

Utah Bar JournalVol. 21, No. 3May/June 20082007 Case Summaries2007 Case SummariesPresented by Associate Chief Justice Michael J. Wilkins and Judge Carolyn McHughEditor's Note: Supreme Court Associate Chief Justice Michael J. Wilkins and Court of Appeals Judge Carolyn B. McHugh addressed some of last year's important Utah appellate decisions at a Salt Lake County Bar luncheon on January 31, 2008. 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 commentary provided by the speakers, readers are cautioned that the summaries should not be relied on for any purposes other than calling attention to these opinions and explaining what each case generally involves.Supreme Court of Utah 2007 DecisionsTotal Number of Cases............................99Civil.......................................................41Criminal.................................................30Administrative..........................................6Procedural...............................................8Family Law..............................................4Professional Misconduct...........................3Affirmed or Affirmed in Part.......................52Reversed or Vacated................................30CIVIL CASES1Pratt v. Nelson, 2007 UT 41, 164 P.3d 366 (Remanded) MBD*2 When the defendant was 16 years old, her father allegedly forced her to marry her uncle. She subsequently filed suit against plaintiffs and others, alleging that they had ties with a polygamous organization and that they were negligent and had assisted, encouraged, conspired, or knew of and failed to prevent or report, the abuses alleged to have been committed by her father and uncle. Plaintiffs filed suit against defendant, alleging that she had defamed plaintiffs at a press conference and through the resulting publicity. The court held that through excessive publication, the defendant's statements lost any immunity they might have otherwise enjoyed under the judicial proceeding privilege. The court also held that the group defamation rule did not preclude plaintiffs' defamation claim.Carbaugh v. Asbestos Corp. Ltd., 2007 UT 65, 167 P.3d 1063 (Reversed and Remanded) REN* The court held that the "expert testimony" exception to Utah's medical licensing statutes allowed experts who were licensed to practice medicine in other states but not in Utah to conduct pre-testimony medical evaluations in preparation for their forthcoming testimony as expert witnesses. While the doctor undoubtedly practiced medicine in Utah without a license when he held himself out as a physician, he performed those "practices or acts" as "an individual providing expert testimony in a legal proceeding" and thus did not violate the Act.Colosimo v. Roman Catholic Bishop, 2007 UT 25, 156 P.3d 806 (Affirmed) JNP* Two brothers alleged that their former teacher, who was also their priest, sexually abused them on repeated occasions from approximately 1970 to 1975. In 2002, they filed suit, alleging that defendants knew that the teacher had sexually abused children but deliberately concealed it from them to protect their own interests. In affirming the dismissal of the brothers' action, the court held that the students' action was barred by the one to four years' statute of limitations provided by Utah Code Ann. § 78-12-25(3), 78-12-26(3), 78-12-29(4) (2002). The discovery rule provided in section -26(3) did not apply because the students knew that they had been abused by the teacher and that the teacher was employed by defendants; this knowledge was sufficient to trigger a duty to inquire into claims against defendants.Munson v. Chamberlain, 2007 UT 91, 2007 Utah LEXIS 199 (Reversed and Remanded) JNP* Defendants argued that a notice of intent and opinion letter submitted to a pre-litigation panel were transformed into confidential documents by virtue of being presented to the panel. The court held that neither the plain language of Utah Code Ann. § 78-14-12(1)(d) nor the statutory purpose supported the broad interpretation of the confidentiality requirement that the court had recognized in that previous case law. Because the patient had independent access to the notice of intent and the opinion letter, their use in the pretrial proceeding did not render them confidential. The court overruled the last paragraph of Doe v. Maret, 984 P.2d 980 (Utah 1999) because it erroneously suggested that all documents submitted to a pre-litigation panel were confidential.Rothstein v. Snowbird Corp., 2007 UT 96, 2007 Utah LEXIS 219 (Vacated and Remanded) (J. Wilkins dissenting) REN*, CMD, JNP-concur in REN's opinion. MJW*, MBD - dissenting An expert skier sustained serious injuries when he collided with a retaining wall while skiing at the resort. The resort claimed that the skier waived his ability to sue the resort for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence. The court concluded that the release and indemnify agreements the skier signed were contrary to the public policy of the State of Utah and were, therefore, unenforceable. The court also held that the core purpose of Utah's Inherent Risks of Skiing Act, see Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007), was not to advance the cause of insulating ski area operators from their negligence, but rather to make them better able to insure themselves against the risk of loss occasioned by their negligence.Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442 (Affirmed in part/Reversed in part) REN* Before being allowed to participate in a ski race, a skier was required to sign a release of liability and indemnity agreement. The court held that the release was enforceable. Assuming that skiercross racing was an abnormally dangerous activity, the skier's role as a participant in that activity also excluded him from eligibility to recover under a theory of strict liability.Mountain W. Surgical Ctr. v. Hosp. Corp. Of Utah, 2007 UT 92, 2007 Utah LEXIS 212 (Affirmed) MBD* To block construction of a new medical complex adjacent to the hospital, the hospital filed a lawsuit against the property owner and recorded a notice of lis pendens on the property. The company claimed that by filing the first lawsuit and the lis pendens, the hospital caused the complex to be built in a different location, resulting in increased costs and delays. The court noted that the company offered no testimony other than the affidavit of an employee, that the lis pendens caused them to refuse to proceed with the sale of the property. Instead, the employee's affidavit was insufficient because: (1) it was not based on the employee's personal knowledge, as required by Utah R. Evid. 602, and (2) even if a proper foundation for the employee's statements were assumed, they were factually insufficient to establish causation.Moss v. Pete Suazo Utah Athletic Comm'n, 2007 UT 99, 2007 Utah LEXIS 222 (Affirmed) JNP* Decedent's sister sought to recover damages from the Pete Suazo Utah Athletic Commission for negligently allowing her brother to fight in a boxing match, even though his physical condition and boxing record violated certain commission rules. The court held that the commission was immune from suit under Utah Code Ann. § 63-30-1 to -38 (2004), the Utah Governmental Immunity Act, because the actions in question fell within the exception articulated in section 63-30-10(3). Section 63-30-10(3) states that immunity is not waived for "the issuance, denial, suspension, or revocation of or by the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization." Since petitioner's allegations of negligence were directed to "licensing decisions" for which immunity had not been waived, her claim failed.Utahns for Better Dental Health-Davis v. Rawlings, 2007 UT 97, 2007 Utah LEXIS 220 (Reversed and Remanded) CMD*, MBD, JNP-concur in CMD's opinion MJW*, REN-dissenting The court held that de novo review is the appropriate standard of review for attorney fee awards under the private attorney general doctrine. Further, the court held that an award of attorney fees was appropriate in this case because it involved vindication of a strong or societally important public policy concerning the misuse of the constitutionally-based initiative power and the integrity of a public election.Bilanzich v. Lonetti, 2007 UT 26, 160 P.3d 1041 (Reversed and Remanded) JNP*, MBD, CMD-concur in JNP's opinion MJW*, REN-dissenting In an action seeking to have a personal guaranty declared unenforceable, petitioner guarantor filed a motion seeking his attorney fees under Utah Code Ann. § 78-27-56.5 (2002). Petitioner argued that the statute allowed an award of attorney fees pursuant to a contract, where a party successfully claimed the same contract was unenforceable due to the failure of a condition precedent. The court held that Utah Code Ann. § 78-27-56.5 granted the district court discretion to award attorney fees and costs to a prevailing party if the writing that formed the...

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