The Utah Court of Appeals has ruled that expert testimony from a civil engineer was needed to establish two essential elements—breach of duty and causation—in a negligence case alleging an injury caused by a defect in design or construction.

The November 25, 2011, decision in Spafford v. Granite Credit Union upholds a trial judge’s grant of summary judgment in favor of the defendant. Anthony C. Kaye of Ballard Spahr’s Salt Lake City office represented Granite.

In the suit, plaintiffs Iris and Earl Spafford brought claims for negligence and loss of consortium, alleging that Mrs. Spafford sustained injuries when she fell stepping up from a parking lot onto a curb while walking into a credit union branch. The suit alleged that the fall was caused by “design and construction defects,” and that the parking lot of the credit union branch was in a dangerous and defective condition.

Granite moved for summary judgment, relying on the affidavit of its expert, a civil engineer, who testified that the curb and parking lot area was not dangerous or defective, that it was not in violation of any building code requirements, and that the physical features of its facility were not the cause of Mrs. Spafford’s fall.

The plaintiffs failed to timely serve their expert disclosure, but attempted to rely on an affidavit from their untimely disclosed expert and on lay testimony from Mr. Spafford to oppose the defense motion. The trial court granted Granite’s motion to strike the affidavit of the plaintiffs’ expert due to the untimely disclosure. After striking plaintiffs’ lay opinion testimony, the trial judge entered summary judgment for the defendant, holding that, in the absence of expert testimony, the plaintiffs could not establish the elements of breach of duty and causation essential to their negligence claim.

On appeal, the plaintiffs argued there was no need for expert testimony, and that the trial court erred by relying on Fox v. Brigham Young University, a 2007 ruling by the Court of Appeals that also upheld the dismissal of a negligence claim due to lack of expert witness support.

The plaintiffs argued that Fox was factually different from their case because a key issue in Fox was whether expert medical testimony was necessary to establish an injured party’s prior medical condition had not caused her fall.

The Court of Appeals acknowledged the factual differences, but found that Fox nonetheless supports the general principal that expert testimony is required when “breach of duty and causation are beyond the common scope and experience of lay persons.”

The plaintiffs needed expert testimony from a civil engineer, the Court of Appeals found, to prove that the height of the curb or the slope of the asphalt violated “specific industry standards” or amounted to “a deviation from accepted practice.” Quoting the trial judge, the appellate panel held that “where the average person has little understanding of the duties owed by particular trades and professions, expert testimony must ordinarily be presented to establish the standard of care.”

“Our research suggests that expert witnesses are routinely used in cases involving the height and slope of curbs and steps,” Judge J. Frederic Voros, Jr., wrote on behalf of the unanimous three-judge panel. The plaintiffs, Judge Voros wrote, “have not demonstrated that this general rule should not apply here.”

After affirming the trial court’s ruling to strike plaintiffs’ expert affidavit, the Court of Appeals held that the trial court did not err in dismissing the plaintiffs’ negligence claim for failure to present expert testimony on the elements of breach of duty and causation.

Ballard Spahr’s Construction Dispute Resolution Group is nationally recognized for its experience in the full range of negotiation, mediation, arbitration, and other forms of construction dispute resolution, including litigating in venues throughout the country. For more information, please contact Anthony C. Kaye at 801.531.3069 or 



Copyright © 2011 by Ballard Spahr LLP.
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