True v. Utah Department of Transportation

2018 UT App 86

THE UTAH COURT OF APPEALS

THOMAS K. TRUE AND MELISSA L. TRUE,

Appellants,

v.

UTAH DEPARTMENT OF TRANSPORTATION,

Appellee.

Opinion

No. 20160704-CA

Filed May 10, 2018

Second District Court, Ogden Department

The Honorable Joseph M. Bean

No. 110903926

Francis J. Martin, Attorney for Appellants

Sean D. Reyes and J. Clifford Petersen, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGE

DIANA HAGEN concurred. JUDGE RYAN M. HARRIS concurred in

the result, with opinion.

POHLMAN, Judge:

¶1 Appellants Thomas K. True and Melissa L. True appeal

the district court’s grant of summary judgment in favor of the

Utah Department of Transportation (UDOT), dismissing on the

basis of governmental immunity their claim that injuries they

sustained in a traffic accident resulted from UDOT’s negligence.

We affirm.

True v. Utah Department of Transportation

BACKGROUND

The Accident

¶2 In June 2009, a construction project was underway in

Ogden, Utah, to install a water main line under a certain

intersection. Because the project involved “digging or

excavating” on a state highway, the project’s general contractor

had been required by law to obtain a permit from UDOT before

beginning construction. The contractor had duly submitted the

permit application before starting construction, which included

submission of a traffic control plan. UDOT approved the traffic

control plan and then issued the contractor the appropriate

permit.

¶3 The permit “granted [the contractor] permission to

encroach on [the] state highway” and “identified the what, when

and where of [the contractor’s] authorization.” It also required

the contractor to notify a UDOT permit inspector twenty-four

hours before starting the work and generally provided that “[a]n

inspector may be required at permittee’s expense, with 48 hours

notice.” Failure to comply with the “regulations, specifications,

or instructions pertinent to [the] permit” could result in UDOT

either suspending or “stopping all or any part of the work.”

¶4 UDOT assigned a transportation technician to perform

inspections of the project, as provided in the permit. The

technician “regularly inspected the job site and supported [the

contractor] in its efforts to implement and comply with the

traffic control plan.” The technician’s duties included inspecting

the traffic control at the site, making sure that it conformed to

the traffic control plan, and generally monitoring the

construction’s effect on the highway. However, the technician

was not present at the project site every day.

¶5 On June 19, 2009, the Trues were riding a motorcycle

together in Ogden. As they rode through the intersection

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undergoing construction, they were struck by a truck turning left

into the intersection. Both Trues were injured, and they brought

a negligence action against UDOT, the contractor, and the truck

driver. 1 The Trues asserted that UDOT was negligent on three

grounds: (1) “approving an unsafe traffic control plan”; (2)

“failing to maintain a safe intersection”; and (3) “failing to

properly monitor the traffic control to ensure it was being

carried out in accordance with the plan.” In particular, the Trues

asserted that UDOT was negligent in “allowing the removal of a

no-left-turn sign days before the collision took place, contrary to

the traffic control plan,” and that, had the sign remained in

place, the truck driver would have been prevented from turning

left into their path.

The Motion for Summary Judgment

¶6 UDOT moved for summary judgment. For purposes of its

motion, UDOT conceded that the Trues’ injuries were

“proximately caused by a negligent act or omission” sufficient to

waive its immunity, but it argued that it nonetheless retained

immunity from suit through the permit exception to the waiver

of immunity provided in section 63G-7-301(5)(c) 2 of the

Governmental Immunity Act of Utah (the Act). Specifically,

UDOT contended that it retained immunity because the Trues’

injuries “arose out of, in connection with, or resulted from” the

issuance of the permit to the contractor. At the time UDOT filed

and argued its motion, the Utah Supreme Court had interpreted

the “arose out of, in connection with, or resulted from” language

as establishing a “but-for” causation standard. Accordingly,

1. The contractor and the truck driver have been dismissed from

the case.

2. Although the Governmental Immunity Act of Utah has since

been amended, we cite its provisions as they existed in 2009.

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UDOT argued that all of the Trues’ allegations were connected

to the issuance of the permit and that “but for” the permit’s

issuance, no accident or injury would have occurred.

¶7 The Trues argued, in contrast, that their claims of

negligence “arose not from issuance of the permit, but from

UDOT’s own negligence in failing to ensure that the intersection

was safe during construction.” They contended that UDOT “had

a duty to maintain the intersection in a safe condition

independently from the issuance of the permit for the

construction work” and that UDOT had breached that duty by

approving the unsafe traffic control plan, failing to maintain a

safe intersection, and failing to properly monitor the traffic

control situation at the intersection. They also argued that

UDOT’s negligent actions could not “be characterized as formal,

official acts,” as required for the permit exception to apply.

¶8 The district court orally granted UDOT’s summary

judgment motion during the hearing on the motion, and it

directed counsel for UDOT to prepare an order. The court

determined that issuing the permit to the contractor constituted

a formal, official act and stated that UDOT would retain

immunity for actions “related to[] [or] arising out of the issuance

of the permit.” The court further concluded that the specific

actions complained of by the Trues—approving the traffic

control plan, failing to maintain a safe intersection, and failing to

properly inspect the intersection—arose from, were related to,

and “came as a result of UDOT issuing the Permit.”

Consequently, the court determined that but for the issuance of

the permit, the injuries would not have occurred, and that

UDOT therefore retained immunity.

The Issuance of Barneck

¶9 The district court held the summary judgment hearing on

June 11, 2015. One day later, the Utah Supreme Court issued its

decision in Barneck v. Utah Department of Transportation, 2015 UT

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50, 353 P.3d 140. In that decision, the supreme court repudiated

the “but-for” causation standard that had previously been

applied to determine whether an injury “arises out of, in

connection with, or results from” the exceptions listed in Utah

Code section 63G-7-301(5), including the permit exception. Id.

¶ 2. In its place, the court adopted a proximate cause standard

for determining whether an injury was sufficiently related to an

enumerated exception. Id. ¶¶ 2, 38, 44.

¶10 On June 16, 2015, counsel for UDOT sent the court a letter

advising the court of Barneck. 3 UDOT’s counsel explained his

belief that the court’s oral ruling was still correct even under the

new causation standard, but he requested an opportunity to

brief the issue if the court chose to revisit its summary judgment

decision. UDOT’s counsel copied the Trues’ counsel on the letter.

The Trues did not respond to the letter or otherwise ask the

court to reevaluate its summary judgment decision in light of the

new causation standard established in Barneck. UDOT filed its

proposed order on July 27, 2015, which the Trues approved as to

form, and the district court entered its written order granting

summary judgment on July 29, 2015, approximately fifty days

after the court issued its oral ruling during the hearing. The case

remained pending for nearly another year, during which time

the Trues settled their claims against the other defendants. The

district court entered final judgment as to all parties and claims

on July 20, 2016.

3. Both parties include the letter in the addenda of their briefing

and rely on it to support their respective arguments regarding

preservation. However, the letter was not included in the record,

and neither party has cited authority justifying our consideration

of it on appeal. Nevertheless, because both sides cite the letter in

their briefing, we construe their reliance as a stipulation that the

record can be supplemented with the inclusion of the letter, and

we therefore consider it to be part of the record on appeal.

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True v. Utah Department of Transportation

¶11 The Trues timely appealed the district court’s July 29,

2015 summary judgment order in favor of UDOT.

ISSUE AND STANDARD OF REVIEW

¶12 The Trues argue on appeal that the district court

improperly granted UDOT’s motion for summary judgment,

challenging the district court’s determination that UDOT

retained immunity under the permit exception to immunity

waiver. Specifically, they contend that UDOT’s issuance of the

construction permit did not proximately cause the accident and

their injuries; therefore, UDOT did not have immunity under the

permit exception.

¶13 “We review the district court’s decision granting

summary judgment de novo, affording it no deference,” and in

doing so, “we determine whether UDOT has established that

there are no genuine issues of material fact and that it is entitled

to judgment as a matter of law.” Barneck v. Utah Dep’t of Transp.,

2015 UT 50, ¶ 8, 353 P.3d 140; see also Utah R. Civ. P. 56(a).

ANALYSIS

¶14 The district court determined that the Trues’ injuries

“arose out of, related to, or resulted from UDOT’s issuance of the

Permit.” It did so by applying the pre-Barneck but-for causation

standard. On appeal, the Trues argue for the first time that

UDOT was not immune from suit under the permit exception of

the Act because UDOT’s issuance of the permit did not

proximately cause the accident and their injuries. In particular,

they contend that, through its negligent actions, UDOT waived

its immunity, and that no waiver exception applied to effectively

reinstate its immunity.

¶15 “We typically apply a three-part test to determine

whether a governmental entity enjoys immunity under the Act

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for the challenged activity.” Winkler v. Lemieux, 2014 UT App

141, ¶ 5, 329 P.3d 849.

First, courts must ascertain whether the activity

was a governmental function and thereby entitled

to blanket immunity under the Act. Second, if the

activity constituted a governmental function,

courts must then look to see whether the State has

waived immunity under another section of the Act.

Finally, courts must determine whether there is an

exception to the waiver of immunity that retains

immunity against suit for the cause of action in the

particular case.

Wagner v. State, 2005 UT 54, ¶ 12, 122 P.3d 599.

¶16 Both parties concede that the first two prongs are met in

this case and that only the third prong—“whether there is an

exception to the waiver of immunity that retains immunity

against suit”—is at issue. Id. The Act provides that immunity to

suit will be reinstated for “any injury proximately caused by a

negligent act or omission of an employee committed within the

scope of employment, if the injury arises out of, in connection

with, or results from,” among other things, “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.” Utah Code Ann.

§ 63G-7-301(5)(c) (LexisNexis 2008).

¶17 The parties disagree about whether the permit exception

under subsection (5)(c) applies. The Trues argue that the permit

exception does not apply for two reasons: (1) the issuance of the

construction permit did not proximately cause their injuries

under the causation standard announced in Barneck, and

(2) UDOT’s negligent actions “cannot be characterized as formal,

official acts,” as required under the supreme court’s statutory

interpretation of the permit exception in Thayer v. Washington

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County School District, 2012 UT 31, 285 P.3d 1142. We address

each contention below.

I. Proximate Causation under Barneck

¶18 During the summary judgment proceedings, the parties

disagreed about whether the issuance of the permit caused the

Trues’ injuries. The causation standard then in effect and relied

upon by the parties for determining whether a waiver exception

applied was “but-for” causation, as articulated in cases such as

Blackner v. State Department of Transportation, 2002 UT 44, 48 P.3d

949. See Hoyer v. State, 2009 UT 38, ¶ 32, 212 P.3d 547 (explaining

that “the test for whether an exception to the waiver of

immunity for negligence applies is whether ‘but for’ the

excepted act, the harm would not have occurred”). Under that

standard, UDOT simply had to demonstrate “some causal nexus”

between the issuance of the permit and the harm that followed.

See Blackner, 2002 UT 44, ¶ 15; see also Moss v. Pete Suazo Utah

Athletic Comm’n, 2007 UT 99, ¶¶ 14–19, 175 P.3d 1042

(interpreting the permit waiver exception to conclude that the

challenged governmental action need not be “directly tied to a

licensing decision,” because the statutory language is “broad”

and “certainly is not restricted to those decisions that constitute

licensing decisions per se”). Accordingly, the district court’s oral

ruling and written order on summary judgment incorporated

and applied the “but-for” causation standard to determine that

UDOT had established its entitlement to immunity under the

permit exception to waiver.

¶19 On appeal, the Trues do not ask us to reverse the district

court’s summary judgment ruling on the basis that its but-for

causation determination was erroneous. Rather, they ask us to

reverse the court’s ruling based on the new proximate causation

standard announced in Barneck. As discussed above, Barneck

repudiated the “but-for” causation standard applicable to waiver

exceptions and replaced it with a narrower proximate causation

standard. Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 2, 353

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P.3d 140. Specifically, Barneck held that “an immunity-invoking

condition . . . must be a proximate cause of the plaintiff’s injuries

in order to sustain the reinstatement of immunity.” Id. ¶ 38; see

also id. ¶¶ 42–44 (explaining that “a but-for connection” “would

allow the statutory exceptions to nullify the immunity waivers,”

which is illogical “in the context of a statute aimed at waiving

governmental immunity for negligence”). Relying on Barneck,

the Trues contend that the issuance of the construction permit

did not proximately cause their injuries, because “[i]ssuing the

construction permit did not foreseeably heighten the ‘scope of

the risk’ of [their] accident,” as required to establish proximate

causation. (Quoting Barneck, 2015 UT 50, ¶ 48.) Instead, they

allege that “UDOT’s own negligence in approving an unsafe

traffic control plan and then failing to make sure the plan was

being carried out correctly” caused their injuries.

¶20 In response, UDOT argues that we should decline to

reach the Trues’ Barneck causation argument because the Trues

failed to preserve it in the district court and have not otherwise

cited an exception to our preservation requirement. UDOT

concedes that Barneck changed the causation standard applicable

to whether immunity could be reinstated pursuant to a waiver

exception and that all of the “litigation preceding [the district

court’s verbal summary judgment] ruling, including the

summary judgment briefing and the extensive discovery

conducted[,] . . . proceeded under what was then the governing

pre-Barneck standard.” However, UDOT contends that, despite

having ample opportunity to raise the new causation standard as

a basis for revisiting the summary judgment motion, the Trues

failed to do so. Accordingly, UDOT contends that the Trues

should not be permitted to now argue that reversal is

appropriate under Barneck.

¶21 After conceding in their opening brief that the proximate

causation issue was not raised below, the Trues counter in their

reply brief that we should reach their causation argument

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because “[t]he basic issue of whether Defendant UDOT has

immunity based on the permit exception was preserved for

review.” The Trues also argue that the district court’s silence in

response to UDOT’s letter advising the court of the change in the

law “led [them] to believe that Barneck would not have changed

[the district court’s] decision.”

¶22 We agree with UDOT that, even though the overarching

issue of causation was before the district court, the Trues did not

preserve the distinct legal theory now advanced on appeal.

Further, because the Trues have not argued an exception to our

preservation requirement to persuade us to reach their causation

argument, we decline to reach the issue now. Cf. Marcroft v. Labor

Comm’n, 2015 UT App 174, ¶ 4, 356 P.3d 164 (explaining that “we

have consistently refused to consider arguments of plain error

raised for the first time in an appellant’s reply brief, even if the

plain error argument is in response to a dispute over

preservation raised for the first time in the appellee’s brief”

(quotation simplified)).

A. The Preservation Requirement

¶23 Our preservation requirement is well-settled: we require

parties to have raised and argued before the district court the

issue that they raise and argue before us on appeal, and if a

party does not, “it has failed to preserve the issue.” State v.

Johnson, 2017 UT 76, ¶ 15. As our supreme court recently

explained, “[o]ur appellate system has developed along the

adversarial model, which is founded on the premise that parties

are in the best position to select and argue the issues most

advantageous to themselves, while allowing an impartial

tribunal to determine the merits of those arguments.” Id. ¶ 8.

Parties, not the courts, have the duty “to identify legal issues and

bring arguments . . . to adjudicate their respective rights and

obligations.” Id. ¶ 14. It is through fulfilling this duty in a district

court that parties also fulfill their duty to preserve arguments for

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appeal. See Baumann v. Kroger Co., 2017 UT 80, ¶ 25 (explaining

the importance of the preservation requirement).

¶24 As a result, it is incumbent on parties to preserve in the

district court the issues they wish to assert on appeal or “risk

losing the opportunity to have the [appellate] court address that

issue.” See Johnson, 2017 UT 76, ¶¶ 14–15. For an issue to be

preserved, a party must raise it before the district court

specifically, in a timely manner, and with support by evidence

and relevant legal authority, Donjuan v. McDermott, 2011 UT 72,

¶ 20, 266 P.3d 839, such that the issue has been “presented to the

trial court in such a way that the trial court has an opportunity to

rule on [it],” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99

P.3d 801 (quotation simplified). See also In re Baby Girl T., 2012

UT 78, ¶ 34, 298 P.3d 1251 (explaining that, to be preserved, an

issue “must at least be raised to a level of consciousness such

that the trial judge can consider it” (quotation simplified)).

¶25 Our preservation requirement serves several important

policies. To begin with, requiring parties to raise issues before a

district court “allows an issue to be fully factually, procedurally,

and legally developed” before it reaches an appellate court,

which is necessary to facilitate a reviewing court’s analysis of

“both the application of a legal rule or principle to a concrete

and well-developed dispute and, nearly as important, the effect

of the district court’s ruling on the overall course of the

proceedings below.” Baumann, 2017 UT 80, ¶ 25. Without the

benefit of a fully developed record illustrating both the district

court’s thinking and the factual development bearing on the

issue at hand, an appellate court is necessarily handicapped in

reaching a well-considered decision. See id. ¶¶ 25–26.

¶26 The preservation requirement also serves important

policies of judicial economy and fairness. See Johnson, 2017 UT

76, ¶¶ 8, 13. See generally State v. Holgate, 2000 UT 74, ¶ 11, 10

P.3d 346 (identifying policies underlying the preservation rule).

In terms of judicial economy, “requiring a party to advise a trial

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court of potential errors” gives the trial court “the opportunity to

correct [the potential errors] before they blossom into appellate

issues.” Scott v. Scott, 2017 UT 66, ¶ 15; see also Patterson v.

Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828 (explaining that

“requiring a party to raise an issue or argument in the trial court

gives the trial court an opportunity to address the claimed error,

and if appropriate, correct it” (quotation simplified)). Among

other benefits, “this avoids unnecessary appeals and retrials.”

Patterson, 2011 UT 68, ¶ 15 (quotation simplified).

¶27 In addition, “notions of fairness dictate that a party

should be given an opportunity to address the alleged error in

the trial court.” Kell v. State, 2012 UT 25, ¶ 12, 285 P.3d 1133

(quotation simplified). “Having been given such a chance, the

party opposing a claim of error might have countered the

argument” in the district court. Id. (quotation simplified).

Moreover, our preservation requirement “discourages a party

from strategically ignoring errors in hopes of enhancing [his or]

her chances of prevailing on appeal.” Scott, 2017 UT 66, ¶ 15; see

also Salt Lake City Corp. v. Jordan River Restoration Network, 2012

UT 84, ¶ 28, 299 P.3d 990 (explaining that the preservation rule

“prevents a party from avoiding an issue at trial for strategic

reasons only to raise the issue on appeal if the strategy fails”

(quotation simplified)).

¶28 Furthermore, while we do “exercise wide discretion when

deciding whether to entertain or reject matters that are first

raised on appeal,” Patterson, 2011 UT 68, ¶ 13, our supreme court

has recently reiterated that “we have limited our discretion [to

entertain unpreserved issues] by creating exceptions to the

general preservation rule,” State v. Johnson, 2017 UT 76, ¶ 13.

Such limitations on our discretion are “an effort to serve the

policy considerations of judicial economy and fairness to the

parties, to preserve the adversarial model, and to provide clear

guidelines to litigants.” Id.; see also Patterson, 2011 UT 68, ¶ 13

(“We have exercised this discretion to recognize some limited

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exceptions to our general preservation rule.”); cf. State v. King,

2006 UT 3, ¶ 14, 131 P.3d 202 (“The rule that points not argued

will not be considered is more than just a prudential rule of

convenience; its observance, at least in the vast majority of cases,

distinguishes our adversary system of justice from the

inquisitorial one.” (quotation simplified)).

¶29 Accordingly, if a party has not preserved an issue

asserted on appeal, “the party [asserting the issue on appeal]

must establish the applicability of one of [the preservation]

exceptions to persuade an appellate court to reach that issue.”

Johnson, 2017 UT 76, ¶¶ 15, 17, 19 (“When a party fails to raise

and argue an issue in the trial court, it has failed to preserve the

issue, and an appellate court will not typically reach that issue

absent a valid exception to preservation.”); see also Baumann v.

Kroger Co., 2017 UT 80, ¶ 25 (explaining that the appellant carries

the burden of persuasion on an unpreserved issue, and that if

the appellant does not undertake an analysis of the issue under

the established exceptions to preservation, the appellant “will

have necessarily failed to explain why we should reach the issue

of which she complains”).

¶30 The exceptions to preservation are plain error, exceptional

circumstances, and, on some occasions, ineffective assistance of

counsel. In re adoption of K.A.S., 2016 UT 55, ¶ 19, 390 P.3d 278. If

a party fails to argue and establish the applicability of a

preservation exception, the appellate court will not reach the

unpreserved issue. See Baumann, 2017 UT 80, ¶ 25; Johnson, 2017

UT 76, ¶¶ 17, 19; State v. Rhinehart, 2007 UT 61, ¶ 21, 167 P.3d

1046 (stating that “presentation of the merits of an issue [alone]

cannot access an exception to the preservation doctrine”; instead,

to persuade an appellate court to reach the merits of an

unpreserved issue, an appellant should present the issue

“through the lens of one or all of [the preservation] exceptions”).

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B. Applying the Preservation Requirement

¶31 Applying these principles, we conclude that the Trues

failed to preserve their Barneck proximate causation issue, and

because they have failed to establish that a preservation

exception applies, we decline to address the argument on its

merits.

¶32 On appeal, the Trues contend that we ought to reverse the

district court’s decision because it was incorrect under the

proximate causation standard announced in Barneck. To that

end, the Trues have specifically defined the issue on appeal as

whether “UDOT’s act of issuing a construction permit

proximately cause[d] [their] accident and injuries, thereby

reinstating UDOT’s immunity from suit under the permit

exception.” But the Trues did not raise before the district court

the issue of whether UDOT retained immunity under the Barneck

proximate causation standard, nor did they at any time

otherwise suggest to the court that its summary judgment

decision was erroneous in light of Barneck. The district court also

did not sua sponte raise, address, and rule on the issue. See Fort

Pierce Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare,

2016 UT 28, ¶ 13, 379 P.3d 1218 (stating that a district court’s

“decision to take up the question conclusively overcame any

objection that the issue was not preserved for appeal”). Our

supreme court has directed us to “view issues narrowly.” See

Johnson, 2017 UT 76, ¶ 14 n.2. Although “new arguments, when

brought under a properly preserved issue or theory, do not

require an exception to preservation,” an argument based upon

an “entirely distinct legal theory” is a “new claim or issue” and

must be separately preserved. Id. Whether UDOT’s issuance of a

construction permit proximately caused the Trues’ injuries is not

merely a new argument to support the issue raised below, but an

“entirely distinct legal theory.” See id. And, despite the

concurrence’s suggestion that it is proper to do so, we decline to

redefine more broadly the issue for appeal identified by the

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Trues to reach the conclusion that they have preserved the

issue. 4

4. While the concurrence makes some good points, in our

adversarial system, it is the parties, not the courts, who maintain

the duty to identify an issue and then make arguments about

that issue both below and on appeal. See State v. Johnson, 2017 UT

76, ¶¶ 8–15; see also State v. King, 2006 UT 3, ¶ 14, 131 P.3d 202.

We cannot discern how recrafting the issue identified by an

appellant to reach the merits of what was an unaddressed issue

below serves the policies undergirding our preservation

requirement. For example, because the issue of UDOT’s

retention of immunity under a proximate causation standard

was not addressed below, we have neither the district court’s

reasoning and analysis nor the associated factual development

related to that issue to assist in our review. See Baumann v. Kroger

Co., 2017 UT 80, ¶¶ 25–26. It also cannot serve the interests of

judicial economy and fairness to suggest to parties that they may

forgo raising and arguing a distinct issue below in the hopes that

the appellate court will resolve the issue that could have been

raised below but instead went ignored by the party with the

burden to raise it. See Scott v. Scott, 2017 UT 66, ¶ 15; Patterson v.

Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828.

Moreover, we note that, as a practical matter, a proximate

causation analysis is “highly fact-sensitive” and “generally

cannot be resolved as a matter of law.” See Breton v. Clyde Snow

& Sessions, 2013 UT App 65, ¶ 10, 299 P.3d 13 (quotation

simplified). As UDOT contends, by failing to raise the proximate

causation issue below, the Trues denied UDOT an opportunity

to adequately address the applicability of Barneck, which might

have included conducting further discovery and presenting

additional evidence to support arguments about whether a

waiver exception could still be invoked under the proximate

causation standard. See Kell v. State, 2012 UT 25, ¶ 12, 285 P.3d

1133 (explaining that fairness dictates that the opposing party

(continued…)

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¶33 Quite simply, the issue of whether UDOT retained

immunity under the distinct proximate causation theory

announced in Barneck was not raised or at all developed in the

district court, and it was thereby not preserved. See State v.

Johnson, 2017 UT 76, ¶ 15. As a result, because the issue has been

raised for the first time on appeal, it is incumbent on the Trues to

identify and establish an exception to our preservation doctrine

to persuade us to reach the issue on its merits. Baumann, 2017 UT

80, ¶ 25.

¶34 The Trues have not carried their burden. In their opening

brief, while they acknowledge that “the issue of proximate

cause” was not preserved, they fail to offer any reasoned

explanation for their failure to raise the issue of UDOT’s

retention of immunity under Barneck’s proximate causation

standard. They acknowledge that Barneck essentially amounted

to an intervening change in the law and that the district court

did not apply it, but they provide no argument suggesting why

we nevertheless ought to reach the merits.

¶35 Indeed, the Trues fail to raise any exception to the

preservation doctrine. See Baumann v. Kroger Co., 2017 UT 80,

(…continued)

should have the opportunity to “address the alleged error in the

trial court” (quotation simplified)); Patterson, 2011 UT 68, ¶ 15

(“The policy of judicial economy is most directly frustrated

when an appellant asserts unpreserved claims that require

factual predicates.”).

In short, while we can appreciate both the concurrence’s

desire to reach the merits of the Barneck issue here as well as its

view that we should “err in close cases . . . on the side of

allowing parties to bring claims and on the side of adjudicating

claims on their merits,” see infra ¶ 61, we are unable to embrace

that view or join the concurrence in its resolution of the

preservation question.

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¶ 25 (explaining that an appellant cannot carry his or her burden

of persuasion with regard to an unpreserved issue if he or she

does not engage in an analysis of the preservation exceptions). It

is certainly possible, for example, that an intervening change of

law might create exceptional circumstances that could justify

addressing an issue uniquely affected by that intervening

change, see, e.g., Johnson, 2017 UT 76, ¶¶ 31, 33 (observing that “a

rare procedural anomaly” to establish the exceptional

circumstances exception to preservation “exists where a change

in law or the settled interpretation of law colors the failure to

have raised an issue at trial” (quotation simplified)); In re T.M.,

2003 UT App 191, ¶ 16, 73 P.3d 959 (reaching the merits of an

unpreserved issue based on a change in the intervening law

because the appellants raised and argued the exceptional

circumstances exception to preservation).

¶36 But the Trues must do more than simply note the

intervening change of law to satisfy their burden. See Baumann,

2017 UT 80, ¶ 25; see also Johnson, 2017 UT 76, ¶¶ 29, 37 (stating

that a party seeking to establish that exceptional circumstances

justify reaching an unpreserved issue must “show[] that a rare

procedural anomaly has occurred,” at which point “additional

factors must be considered to determine whether an appellate

court should reach an unpreserved issue,” and that these

additional factors include whether failure to consider it would

result in manifest injustice, whether a significant constitutional

right is at stake, and judicial economy). We are not persuaded

that the circumstances present in their case sufficiently justify

their failure to have raised below the immunity issue that was

essentially created by the decision in Barneck. 5

5. We also part ways with the concurrence about the need to

draw bright lines around the circumstances which may or may

not require a party to, for example, file a motion to reconsider to

(continued…)

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(…continued)

preserve an issue involving an intervening change of the law.

For one thing, there is a bright line rule in play here: an issue that

a party has not raised below is not preserved for appeal. Johnson,

2017 UT 76, ¶ 15. And this bright line is well-settled. Thus,

parties are already well-advised that they have the duty to raise

the issues below that they might wish to appeal. All else being

equal, if Barneck would have entitled the Trues to relief from the

summary judgment decision in the district court, then that is

where they should have first raised the issue.

We are also less concerned than the concurrence about

setting a precise temporal line before final judgment enters at

which a party still retains the duty to raise an intervening change

of law issue or risk waiving it. This is because our preservation

doctrine appears to provide an avenue for relief to parties

wishing to raise on appeal an unpreserved argument based upon

an intervening change of the law—the exceptional circumstances

exception. See generally id. ¶¶ 29–38; In re T.M., 2003 UT App 191,

¶¶ 15–16, 73 P.3d 959.

Further, while the duty to preserve is a bright line, the

unique circumstances that may be sufficient to establish an

exception to the preservation requirement must be assessed on a

case-by-case basis. Cf. Johnson, 2017 UT 76, ¶ 38 (explaining that

the “precise contours” of the exceptional circumstances

exception requires “case-by-case assessment”). The difficult line-

drawing question is not whether a party has raised below an

issue based on an intervening change in law or even whether a

party should have raised it below. Rather, it is whether the

circumstances in play justify the party’s failure to raise below the

issue based upon that change in law. And, as we have explained,

it is the appealing party’s burden to persuade us that the

circumstances present justify reaching the merits of any

unpreserved issue. Baumann, 2017 UT 80, ¶ 25.

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¶37 Moreover, the justification proffered in the Trues’ reply

brief for their failure to raise the issue is unavailing. They blame

their failure on the district court itself, contending that its failure

to respond to UDOT’s letter, which allegedly alerted the court to

Barneck’s issuance, “led [them] to believe that Barneck would not

have changed [the court’s] decision,” because if it had,

presumably, the court “would have responded and invited

further briefing on the issue.” But their position essentially turns

on its head our well-settled preservation requirement by shifting

onto the court itself the burden of alerting the parties to potential

errors. If the Trues believed that the district court erred in light

of Barneck, it was their duty to use the procedural tools available

to them to alert the district court. The court had no obligation to

address the alleged error sua sponte. See Patterson v. Patterson,

2011 UT 68, ¶ 16, 266 P.3d 828.

¶38 In any event, we question whether, in light of the

particular circumstances here, the Trues could have established

the presence of circumstances sufficient to persuade us to reach

the merits. For one thing, the timing in the case as well as the

Trues’ apparent awareness of Barneck suggest that the Trues

consciously declined to first raise before the district court the

theory for relief that they now attempt to raise on appeal. The

change in the applicable law announced in Barneck occurred one

day after the district court orally announced its summary

judgment decision, and approximately fifty days elapsed

between the time Barneck was decided and when the district

court entered the written summary judgment order. The Trues

were apparently aware of Barneck within days of its issuance, yet

they did not ask the district court to revisit its summary

judgment decision. Instead, the Trues approved the proposed

summary judgment order filed by UDOT, memorializing the

court’s oral ruling, including its reliance on the pre-Barneck

standard.

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¶39 In addition, the Trues had available to them a procedural

mechanism to ask the district court to revisit its summary

judgment ruling in light of Barneck, of which they failed to take

advantage. Although the district court entered its summary

judgment order in July 2015, the Trues did not resolve their case

against all defendants until one year later, in July 2016. See

generally Loffredo v. Holt, 2001 UT 97, ¶¶ 10–12, 37 P.3d 1070

(explaining what kind of order constitutes a final judgment).

Pursuant to Utah Rule of Civil Procedure 54(b), the order was

not final and could have been revised at any time before the

entry of final judgment. See Utah R. Civ. P. 54(b) (“[A]ny order

or other decision, however designated, that adjudicates fewer

than all the claims or the rights and liabilities of fewer than all

the parties does not end the action as to any of the claims or

parties, and may be changed at any time before the entry of

judgment adjudicating all the claims and the rights and liabilities

of all the parties.”). Motions to “reconsider or revise nonfinal

judgments . . . are sanctioned by our rules,” Gillett v. Price, 2006

UT 24, ¶ 10, 135 P.3d 861, and have been recognized as “a proper

vehicle” to ask the court to reconsider a summary judgment

decision, including where “there has been a change in the

governing law,” Trembly v. Mrs. Fields Cookies, 884 P.2d 1306,

1311 (Utah Ct. App. 1994) (identifying factors that may weigh in

favor of reconsidering a prior ruling under rule 54(b)). Yet at no

time during the intervening months did the Trues raise an

objection or ask the district court to revisit the summary

judgment decision in light of the new Barneck causation

standard. And it was their burden, as the party aggrieved by the

court’s summary judgment ruling, to do so, if they felt a change

in the law rendered the decision erroneous. 6 Cf. Patterson, 2011

6. The concurrence expresses concern that our decision might

encourage litigants to file flurries of motions to reconsider with

the district court in an effort to ensure that they preserve any

issue relating to an intervening change in the law—significant or

(continued…)

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UT 68, ¶ 16 (explaining that it is a party’s burden to detect and

assert error, not the court’s).

¶40 In sum, the Trues have not preserved the issue of whether

UDOT retained permit-exception immunity under the proximate

causation standard announced in Barneck. The Trues have also

failed to establish—indeed, have not attempted to establish—an

exception to our preservation requirement. Accordingly, we

decline to reach the merits of the Barneck causation issue.

¶41 In reaching this conclusion, we recognize that parties

have “no obligation to ‘preserve’ . . . citation to legal authority,”

Torian v. Craig, 2012 UT 63, ¶ 20, 289 P.3d 479, and that parties

are generally allowed “to supplement an argument with new

cases . . . that they did not raise in the district court,” Patterson,

2011 UT 68, ¶ 18 n.7. We further acknowledge that where there

is an intervening change in the law after a notice of appeal is

filed, an appellant should cite any relevant law that has some

bearing on a party’s case.

(…continued)

not. While we appreciate the desire to forestall an inundation of

potentially unnecessary filings with district courts, from an

institutional standpoint we think the less desirable result is one

that encourages parties to file appeals based on issues that they

could have raised but instead entirely forewent below. Indeed,

as explained above, our rules specifically sanction filing such

motions to reconsider on nonfinal orders, see Gillett v. Price, 2006

UT 24, ¶ 10, 135 P.3d 861; they do not, for example, sanction

parties’ strategic refusal to raise potentially dispositive issues

before a district court in the hopes that an appellate court will

later come to the rescue, see Scott, 2017 UT 66, ¶ 15. We therefore

err on the side of what we perceive to be the lesser institutional

evil.

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¶42 But it is crucially significant in this case that the Barneck

proximate causation standard forms the core of the Trues’ claim

of error. The Trues are not merely supplementing the but-for

causation arguments they presented to the district court; they are

employing Barneck to argue for reversal based upon an entirely

different analytical framework. See State v. Johnson, 2017 UT 76,

¶ 14 n.2 (explaining that raising an “entirely distinct legal

theory” renders the matter a “new claim or issue,” not merely a

new argument about an issue, and that a new issue requires an

exception to preservation if it was not preserved). As a result, it

was incumbent upon the Trues either to preserve the Barneck

proximate causation issue or to establish an exception to the lack

of its preservation on appeal. That they have done neither

effectively resolves the matter.

II. UDOT’s Actions as Formal, Official Acts

¶43 The Trues also argue that the permit exception does not

apply because “UDOT’s negligent actions cannot be

characterized as formal, official acts,” as required under our

supreme court’s decision in Thayer v. Washington County School

District, 2012 UT 31, 285 P.3d 1142. The Trues assert that Thayer

stands for the proposition that, in addition to causation, “two

elements . . . must be satisfied” for the permit exception to apply.

First, Thayer states that the governmental entity must have the

legal authority, derived through “legislative or executive

enactment,” to issue, deny, suspend, or revoke permits (and

thereby “give legal authority” to the entity requesting the

permit). See id. ¶¶ 17–18 (quotation simplified). Second, Thayer

states that the actions complained of must be “formal” and

“official” in nature. See id. ¶¶ 11, 13–15 (explaining that the

language of the permit exception “can be separated into two

categories of terms: those relating to the governmental action,”

such as “issuance, denial, suspension, or revocation,” and “those

relating to the object of that action,” such as “permit, license,

certificate, [or] approval,” and concluding that the permit

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exception “applies only to formal, official, regulatory

authorizations by a governmental entity empowered to issue,

deny, suspend, or revoke” permits (quotation simplified)).

¶44 Here, the district court determined that the issuance of the

permit was itself a formal and official action, that UDOT was

immune “with respect to any injury” caused by issuing the

permit, and that all of the specific actions alleged by the Trues as

negligent and ultimately harmful—“approving an unsafe traffic

control plan, failing to maintain a safe intersection, and . . .

failing to properly monitor the traffic control [at the site] to

ensure it was being carried out in accordance with the plan”—

were caused by the issuance of the formal, official permit.

¶45 The Trues “concede that UDOT had the statutory

authority to approve the traffic control plan, monitor traffic

control, restrict access to roads at the construction site, and

supervise others at the site.” They also apparently do not

challenge the district court’s determination that the issuance of

the permit itself was a formal, official action. But they contend

that UDOT’s decisions “regarding traffic safety at the construction

site cannot be characterized as formal, official authorizations,”

because there was “no formal official action taken . . . when

UDOT failed to maintain the intersection in a safe condition and

failed to adequately supervise others at the scene by allowing

the removal of the no-left-turn sign.” (Emphasis added.) As a

result, the Trues assert that the permit exception does not apply,

and UDOT therefore does not retain immunity. They request

reversal on that basis.

¶46 However, apart from contending that UDOT took no

formal, official actions related to the worksite’s safety and

inspection itself, the Trues have not explained why, given the

district court’s overall determination that all of the complained-

of actions arose from a formal, official permit issuance, it is

appropriate for us to nonetheless separately analyze the

formality of certain allegedly negligent worksite actions. Under

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the law in effect at the time of the summary judgment hearing,

this conclusion aligned with precedent on the issue of causation

and the extent to which the issuance of a license or permit, and

other actions flowing from issuing a permit, may be properly

characterized as causing certain harm. See Moss v. Pete Suazo

Utah Athletic Comm’n, 2007 UT 99, ¶¶ 14–19, 175 P.3d 1042

(explaining that the language of the permit exception is “not

restricted to those decisions that constitute licensing decisions

per se,” and concluding that a government entity’s violation of

its own rules “not directly tied to a licensing decision” was

nonetheless covered by the licensing exception because the

violations ultimately related to and derived from the entity’s

licensing authority); Gillman v. Department of Fin. Insts., 782 P.2d

506, 511–12 (Utah 1989) (rejecting the argument that failing to

take certain steps to ensure compliance with conditions of an

issued license constituted negligence distinct from any

negligence arising from the ministerial act of issuing the license

itself, and concluding that a government entity’s failure to

subsequently “ensure that [the licensee] complied with the

conditions” attached to the license arose out of a licensing

decision, as “broadly defined” by the licensing exception to

waiver); see also Thayer, 2012 UT 31, ¶¶ 18–20 (explaining that

requiring a government entity’s action to be formal and official

pursuant to its official regulatory authority is “consistent with

[the] case law” established by Moss and Gillman, because in those

cases “the [government] entity was empowered with the

regulatory authority to issue the authorization in question”).

¶47 As a result, to persuade us that reversal is appropriate on

the grounds that the failure to specifically maintain the

intersection in a safe condition and to adequately supervise

others at the scene are not formal, official actions, the Trues must

do more than simply convince us that the nature of those

individual omissions is not formal or official, as required by

actions covered by the permit exception under Thayer. Rather,

the Trues must first persuade us that these actions did not arise

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from the issuance of the permit—the action the Trues do not

challenge as formal and official. Only then may we separately

evaluate the identified omissions to determine whether reversal

is appropriate on the basis that those omissions are not formal,

official actions in and of themselves.

¶48 As explained above, the Trues have not succeeded in

challenging the district court’s causation analysis, with the result

that the court’s causation conclusion—and its conclusion that all

of the alleged negligence arose from the issuance of the permit—

stands. We therefore have no occasion to analytically reach the

question of whether the two omissions identified by the Trues—

failure to maintain the intersection in a safe condition and failure

to adequately supervise others at the scene—themselves lacked

the requisite formality. Those omissions remain formal and

official by virtue of their causal relationship to the formal,

official permit. See Thayer, 2012 UT 31, ¶¶ 18–20; cf. Moss, 2007

UT 99, ¶¶ 14–19; Gillman, 782 P.2d at 511–12.

CONCLUSION

¶49 We conclude that the Trues have failed to preserve their

challenge to the district court’s causation analysis, and we

decline to reach the issue on that basis. We also conclude that the

Trues have failed to persuade us that UDOT’s failure to maintain

a safe intersection or adequately supervise the construction site

lacked the requisite formal, official nature sufficient to establish

the permit exception under Utah Code section 63G-7-301(5)(c).

Accordingly, we affirm.

HARRIS, Judge (concurring):

¶50 I share my colleagues’ view that the district court

correctly entered summary judgment in UDOT’s favor, and

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therefore agree that the district court’s judgment should be

affirmed. However, I reach that conclusion for different reasons.

In my view, the Trues properly preserved for appellate review

the issue of whether UDOT is immune from suit pursuant to the

Utah Governmental Immunity Act’s (the Act) “permit

exception,” and we ought to reach the merits of that issue. On

the merits, however, UDOT has the better of the arguments. I

would therefore affirm on the merits, rather than on the basis

that the issue is unpreserved.

I

¶51 As the majority opinion recognizes, “[o]ur preservation

requirement is self-imposed and is therefore one of prudence

rather than jurisdiction.” Patterson v. Patterson, 2011 UT 68, ¶ 13,

266 P.3d 828. As a result, appellate courts have “wide discretion”

when determining whether to consider a matter preserved for

appellate review. Id. In exercising this discretion, we must

“balance the need for procedural regularity with the demands of

fairness.” State v. Johnson, 2017 UT 76, ¶ 12 (quotation

simplified). In my view, under the circumstances of this case, we

should not exercise that discretion to close the appellate

courthouse door to the Trues.

¶52 UDOT filed its motion for summary judgment regarding

governmental immunity in March 2015. At that time, Barneck

had not yet been decided and, as the majority acknowledges,

supra ¶ 18, “a but-for causal connection [was] sufficient to trigger

a statutory reinstatement of immunity under an exception

provision” of the Act. Barneck v. Utah Dep’t of Transp., 2015 UT

50, ¶ 39, 353 P.3d 140 (citing, among other cases, Hoyer v. State,

2009 UT 38, ¶ 32, 212 P.3d 547). Because the governing case law,

at the time, called for analysis of whether a “but-for causal

connection” existed, the parties briefed the issue with that rule in

mind. The parties appeared for oral argument on June 11, 2015,

and presented the issue to the district court in the same way they

had argued it in the briefs. Everyone here involved—apparently

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even including UDOT and the majority—appears to agree that

the issue was initially properly and comprehensively raised,

briefed, and argued, under the law as it existed at that time.

¶53 As the majority notes, the district court ruled from the

bench at the conclusion of the argument, and granted UDOT’s

motion, determining that the “permit exception” (and the

“inspection exception”) applied because there was a sufficiently

strong causal relationship between UDOT’s grant of the permit

(and its inspections thereunder) and the Trues’ injuries.

¶54 On June 12, 2015, the very next day after oral argument,

our supreme court issued its opinion in Barneck, ratcheting up

the level of causal connection required in order for the Act’s

exception provisions (such as the permit exception) to apply. The

district court did not sign its summary judgment order

dismissing the claims against UDOT until July 29, 2015, and

because the Trues possessed claims against other parties in the

case that were not finally adjudicated until July 20, 2016, some

thirteen months elapsed between the issuance of Barneck and the

issuance of a final appealable order in the case.

¶55 The majority appears to fault the Trues for failing, during

that thirteen-month period, to bring the matter back to the

attention of the district court by way of a motion for

reconsideration. See supra ¶¶ 36, 39 & n.5. Indeed, the majority’s

ruling in this case would seem to establish a requirement that, if

the law changes between the time a district court issues an oral

ruling and the time the court’s order memorializing that ruling

becomes final, it is incumbent upon the party affected by the

change in the law to bring a motion to reconsider during that

intervening period, and if the party fails to do so, it will not be

considered to have done enough to preserve the entire changed

legal issue for appellate review. In my view, such a rule is

problematic, for a number of reasons.

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¶56 First, “issues” are what must be preserved, not arguments

in support of an issue or citations to legal authority supporting

an issue. 7 See Gressman v. State, 2013 UT 63, ¶ 45, 323 P.3d 998

(stating that “[i]ssues must be preserved, not arguments for or

against a particular ruling on an issue raised below”); Utah R.

App. P. 24(a)(5)(B) (requiring appellate briefs to contain “citation

to the record showing that the issue was preserved for review”

(emphasis added)); see also Bagley v. Bagley, 2016 UT 48, ¶ 26, 387

P.3d 1000 (stating that parties are allowed to “offer[] a[] [new]

argument in support of a particular issue already preserved on

appeal”); Torian v. Craig, 2012 UT 63, ¶ 20, 289 P.3d 479 (stating

that “a litigant has no obligation to ‘preserve’ his citation to legal

authority,” and that “if the foundation of a claim or argument is

presented in a manner that allows the district court to rule on it,

a party challenging the lower court’s resolution of that matter is

free to marshal any legal authority that may be relevant to its

consideration on appeal” (quotation simplified)). I would define

7. I acknowledge that our supreme court, in Patterson, expressly

refused to “draw a distinction between ‘issues’ and ‘arguments’

when determining whether to apply our preservation rule,” and

stated that the terms “issue,” “argument,” “claim,” and “matter”

were more or less interchangeable. See Patterson v. Patterson, 2011

UT 68, ¶ 14, 266 P.3d 828. Yet less than two years later, the

supreme court drew just such a distinction in Gressman, when it

stated that “[i]ssues must be preserved, not arguments for or

against a particular ruling on an issue raised below,” Gressman v.

State, 2013 UT 63, ¶ 45, 323 P.3d 998, and then the court repeated

that same quotation from Gressman just last year in State v.

Garcia, 2017 UT 53, ¶ 51. In determining what to make of these

seemingly inconsistent statements from our supreme court, I am

compelled to favor the more recent statements over the older

ones. See, e.g., State v. Aleh, 2015 UT App 195, ¶ 18 n.2, 357 P.3d

12 (analyzing apparently inconsistent Utah Supreme Court

cases, and relying on the more recent cases).

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the “issue” more broadly than does the majority: in my view, the

relevant “issue” is whether UDOT is immune from suit under

the Act’s “permit exception.” That issue was squarely and

robustly raised before the district court, and the district court

made a ruling on that issue. 8 With the issue thus defined, it

necessarily follows that the Trues properly preserved the issue in

the district court. In my view, it also necessarily follows that the

causation principles discussed in Barneck were not “‘an entirely

distinct legal theory,’” see supra ¶ 32 (quoting Johnson, 2017 UT

76, ¶ 14 n.2), but, rather, were simply arguments that could have

been offered in support of the issue raised. Indeed, this

conclusion is practically compelled by the majority’s proposed

solution to the perceived problem: to require the Trues (and

similarly situated parties) to file a motion to reconsider in the

event that the law changes in the time between the district

court’s oral ruling and the entry of final judgment. One does not

re-consider an issue that has not already been considered.

¶57 Second, appellate courts are certainly capable of

grappling with the implications of a change in the governing law

that occurs after the district court has made its ruling. That is,

there exist no insurmountable practical problems with allowing

parties to proceed on appeal even where the governing law has

changed since the issue was presented to the district court. For

8. The majority asserts that I am “recrafting the issue” in order

“to reach the merits.” See supra ¶ 32 & n.4. In response, I simply

point out that the summary judgment motion granted by the

district court was titled “UDOT’s Motion for Summary

Judgment No. 2 Re: Permit Immunity,” and that UDOT devoted

its entire memorandum to arguing that it was immune from suit

under the Act’s “permit exception.” Neither I nor the majority is

doing any “recrafting”; rather, we simply have a disagreement

about how broadly one should define the “issue” presented for

the district court’s consideration.

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instance, if the change in the law occurs after the notice of appeal

is filed, appeals proceed normally, and there has never been any

suggestion, in such a case, that the matter should be returned to

the district court so that the district court could consider the

matter anew in light of the change in the governing law. See, e.g.,

Patterson, 2011 UT 68, ¶ 18 & n.7 (observing that appellate courts

“routinely consider new authority relevant to issues that have

properly been preserved,” and stating that “we have always

allowed parties to supplement an argument with new cases or

relevant legislative history that they did not raise in the district

court”). Indeed, our rules of appellate procedure specifically

contemplate situations where a party to an appeal may, for

various reasons, need to bring new authority to the appellate

court’s attention after briefing or oral argument but before an

appellate court has issued its decision. See Utah R. App. P. 24(j)

(“When authority of central importance to an issue comes to the

attention of a party after briefing or oral argument but before

decision, that party may file a notice of supplemental

authority.”). In this case, if Barneck had been issued after the

filing of a notice of appeal (rather than while the case was still

pending before the district court), I suspect that UDOT would

not even have argued that the issue was unpreserved. But there

is no practical reason—at least not one related to the capability of

appellate courts to consider such an issue—that counsels in favor

of treating the Trues’ situation any differently.

¶58 Third, I see line-drawing problems with the majority’s

resolution of the preservation issue, which problems may not be

present here but will undoubtedly be present in future cases.

There are, to be sure, aspects of this case that could give a person

reason to question the Trues’ decision not to bring the matter

back to the attention of the district court after Barneck. After all,

under the unique circumstances of this case, they had thirteen

months to do so, and thirteen months is a long time. Moreover,

the change in the law articulated by Barneck was a fairly clear

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one. But these factors present in the Trues’ situation will not

always be so clearly present in other cases.

¶59 The first line-drawing problem I perceive is a temporal

one. A party who is given thirteen months to bring the matter

back to the district court for reconsideration is certainly capable,

as a practical matter, of doing so. But what about a party who is

given two months? One month? Two weeks? One week? One

day? At some point, a party will not have enough time to bring a

motion to reconsider, let alone have that motion adjudicated,

before final judgment enters. 9 I see no way to draw a temporal

line that makes any principled sense, and I do not think we

should engage in the effort. I would much rather fall back to a

clear line that is defensible on something other than an ad hoc

basis.

¶60 The second line-drawing problem I perceive is a legal one,

involving the definition of what would be considered a “change

in the law” momentous enough to require the filing of a motion

to reconsider, as distinguished from minor statutory or common-

law tweaks that have little effect on the litigation of a case and

would not, even under the majority’s analysis, present a

preservation problem. Diligent attorneys who might not be

certain where that line might lie will have no choice but to pre-

9. In cases where a party may not have enough time to file a

motion to reconsider before final judgment enters, the majority’s

requirement would compel parties to file a post-judgment

motion to reconsider, motions that our supreme court has

referred to as “the cheatgrass of the litigation landscape.”

Shipman v. Evans, 2004 UT 44, ¶ 18 n.5, 100 P.3d 1151, abrogated

on other grounds by Utahns for Better Dental Health-Davis, Inc. v.

Davis County Clerk, 2007 UT 97, ¶ 6, 175 P.3d 1036. We ought not

be imposing requirements that may encourage the additional

filing of such motions.

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emptively file motions for reconsideration, because failure to do

so might result in loss of the right to appeal an issue. We should

not create requirements that incentivize the filing of additional

motions to reconsider.

¶61 When applying our prudential, discretionary doctrine of

preservation, we should err in close cases—if err we must—on

the side of allowing parties to bring claims and on the side of

adjudicating claims on their merits. Accordingly, I think it an

unwise exercise of our discretion to require parties to file

motions to reconsider in order to preserve issues that have been

squarely presented to the district court under the law in effect at

the time those issues were briefed, argued, and decided. I do not

think that the Trues had an obligation to file any such motion,

and in my view the Trues did everything they needed to do in

order to preserve the issue for appellate review. I would

therefore reach the merits of the question presented.

II

¶62 On the merits of the governmental immunity question, in

my view the district court correctly ruled that UDOT is immune

from the Trues’ lawsuit based on the Act’s immunity-invoking

exceptions.

A

¶63 The Act, as formulated in 2009, 10 stated as a general

proposition that “each governmental entity and each employee

10. The parties agree that the 2009 version of the Act governs the

outcome of this case. In 2015, the legislature amended and

recodified the relevant provisions of the Act. Governmental

Immunity Act Amendments, ch. 342, § 3, 2015 Utah Laws 1868,

1868–71. We are not asked to determine whether the outcome of

(continued…)

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True v. Utah Department of Transportation

of a governmental entity are immune from suit for any injury

that results from the exercise of a governmental function.” Utah

Code Ann. § 63G-7-201(1) (LexisNexis 2008). However, the Act

waives governmental immunity in certain circumstances, and

some of the waivers contain exceptions. Thus, in cases where a

governmental entity asserts that it is immune from suit pursuant

to the Act, we apply a three-part test to determine whether

immunity exists. Thayer v. Washington County School Dist., 2012

UT 31, ¶ 8, 285 P.3d 1142. First, we examine “whether the

activity undertaken is a governmental function.” Id. (quotation

simplified). Second, we determine “whether governmental

immunity was waived for the particular activity.” Id. (quotation

simplified). Finally, we look to see whether immunity has been

reinstated through a statutory exception to the immunity waiver.

Id.

¶64 As the majority recognizes, supra ¶ 16, both parties

acknowledge that the first two steps are met here, because the

activity undertaken is a governmental function, and because the

Trues accuse UDOT of negligent conduct, a category of conduct

for which governmental immunity is generally waived. See Utah

Code Ann. § 63G-7-301(4) (LexisNexis 2008) (stating that

“[i]mmunity from suit . . . is waived as to any injury proximately

caused by a negligent act”). The operative question in the case,

then, is whether immunity has been reinstated by way of a

statutory exception to the immunity waiver for negligent

conduct.

¶65 UDOT asserts that the permit exception applies here,

pursuant to which immunity from suit is not waived—or, is

reinstated—“if the injury arises out of, in connection with, or

(…continued)

this case would have been different under the current version of

the Act.

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results from . . . the issuance, denial, suspension, or revocation of

. . . any permit, license, certificate, approval, order, or similar

authorization.” Id. § 63G-7-301(5)(c). 11 As the majority notes, the

causal link language (“arises out of, in connection with, or

results from”) in the statute was, until the issuance of Barneck,

construed as requiring only but-for causation. See, e.g., Hoyer v.

State, 2009 UT 38, ¶ 32, 212 P.3d 547. In Barneck, however, our

supreme court “repudiated the language of some of [its] prior

decisions” and held that “an immunity-invoking condition”

(such as the issuance of a permit or license) “must be a proximate

cause of the plaintiff’s injuries in order to sustain the

reinstatement of immunity.” See Barneck, 2015 UT 50, ¶ 38.

Accordingly, after Barneck, the dispositive question in the case is

whether UDOT’s conduct associated with its issuance of the

permit, and with its inspections conducted thereunder, was a

proximate cause of the Trues’ injuries. In my view, that

dispositive question must be answered in the affirmative.

¶66 UDOT’s involvement in this matter began in May 2009

when it issued a formal permit allowing the project contractor to

begin road work on the state highway in question. Indeed, the

Trues conceded, at the district court, that there was no evidence

that the state highway was unsafe before the construction project

11. As discussed more fully below, the district court also ruled

that a second immunity-invoking exception—the “inspection

exception”—applied to at least some of the Trues’ claims. Under

that exception, UDOT is immune from suit if the Trues’ injuries

were proximately caused by UDOT’s “failure to make an

inspection or by making an inadequate or negligent inspection.”

See Utah Code Ann. § 63G-7-301(5)(d) (LexisNexis 2008). Under

either exception, however, UDOT is immune from suit only if

the Trues’ injuries were proximately caused by the immunity-

invoking condition. See id. § 63G-7-301(5); see also Barneck v. Utah

Dep’t of Transp., 2015 UT 50, ¶ 38, 353 P.3d 140.

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True v. Utah Department of Transportation

began. By issuing the permit, UDOT allowed the work to

proceed, but it imposed a number of conditions and

requirements upon the contractor, including the following: (a)

that, before beginning any work, the contractor “shall notify”

UDOT’s permit inspector; (b) that commencement of the work

“is understood to indicate that the [contractor] will comply with

all [of UDOT’s] instruction and regulations”; and (c) that UDOT

may inspect the work at any time, with 48 hours’ notice.

¶67 The Trues complain that UDOT was negligent by

“approving an unsafe traffic control plan and then subsequently

failing to make sure the plan was carried out.” But UDOT

correctly points out that its involvement in approving (or not

approving) any traffic control plan for the project, or in

following up by way of inspection to make sure that any such

traffic control plan was in fact followed, was involvement that

stemmed entirely from UDOT’s permit and, specifically, from

the authority it retained, pursuant to the terms of the permit, to

inspect the work and to require the contractor to comply with

UDOT’s “instruction and regulations.” UDOT’s only

involvement with this project was because of its permit.

Everything UDOT did on this project was because of its role as

permittor and inspector of the project. If a UDOT permit had not

been required, UDOT would have had no involvement with this

project whatsoever, and would not have been in a position to

approve any traffic control plans.

¶68 The district court, on these facts, correctly determined that

there was at least a “but-for” causal relationship between

UDOT’s permit and the Trues’ injuries, and therefore the

“permit exception” applied to render UDOT immune from suit.

The Trues do not directly challenge this determination on

appeal; instead, they rely upon the new “proximate cause”

standard articulated by Barneck, and argue that proximate cause

is not present here. Because it decided the matter prior to

Barneck, the district court was not asked to consider whether a

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True v. Utah Department of Transportation

causal link stronger than “but-for” causation existed on these

facts. But I have no trouble reaching this conclusion on the

undisputed facts set forth in the record.

¶69 This court has defined “[p]roximate cause” as “‘that cause

which, in a natural and continuous sequence, unbroken by any

new cause, produced the injury, and without which the injury

would not have occurred.’” Dee v. Johnson, 2012 UT App 237, ¶ 4,

286 P.3d 22 (quoting Bunker v. Union Pac. R.R., 114 P. 764, 775

(Utah 1911)). There are two components of “proximate cause”:

but-for causation, and foreseeability. Id. ¶ 5. (stating

that “foreseeability is an element of proximate cause” (quotation

simplified)); see also Model Utah Jury Instructions 2d (MUJI)

CV209 (2016), https://www.utcourts.gov/resources/muji/inc_list.

asp?action=showRule&id=2#209 [https://perma.cc/KV6J-LF4Q]

(stating that the first element of “cause” is that “the person’s act

or failure to act produced the harm directly or set in motion

events that produced the harm in a natural and continuous

sequence,” and that the second element of “cause” is that “the

person’s act or failure to act could be foreseen by a reasonable

person to produce a harm of the same general nature”).

¶70 The first element of proximate cause is unquestionably

present here. As the district court determined, there is at least a

“but-for” causal link between UDOT’s issuance of the permit

and the Trues’ injuries. If UDOT had not issued the permit, the

project would never have taken place, traffic would never have

been diverted or controlled to facilitate the project, and the

Trues’ injuries would not have happened. As noted, the Trues do

not mount any kind of serious argument that “but-for” causation

is not present here.

¶71 But it is no less clear that foreseeability, and therefore

proximate causation, is also present. UDOT’s approval of any

specific traffic control plan was given pursuant to its authority

under the issued permit. In addition, UDOT’s authority to

inspect the premises to make sure that any traffic control plan it

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True v. Utah Department of Transportation

approved was actually being followed was also authority that it

possessed by virtue of its permit. It is certainly foreseeable, as a

matter of law, that UDOT’s actions in approving and monitoring

traffic control plans pursuant to that permitting and inspection

authority, if carried out negligently, might injure motorists

whose traffic was affected by the control plan. Thus, in my view,

both elements of proximate cause are present here, and the

causal link between UDOT’s permitting and inspection actions

and the Trues’ injuries is therefore strong enough to constitute

“proximate cause,” and not just “but-for” causation. See

Holmstrom v. C.R. England, Inc., 2000 UT App 239, ¶ 36, 8 P.3d

281 (stating that a cause is a “proximate cause” if it “played a

substantial role in causing the [plaintiff’s] injuries”).

B

¶72 The Trues final argument is that the “permit exception”

cannot apply here because UDOT’s actions were not formal

governmental actions. The Trues correctly assert that, in order

for the “permit exception” to apply, two requirements must be

met: authority and formality. See Winkler v. Lemieux, 2014 UT

App 141, ¶ 9, 329 P.3d 849 (noting that there are two

requirements for invocation of the “permit exception”:

“authority and formality”). The Trues “concede that UDOT had

the statutory authority to approve the traffic control plan,

monitor traffic control, restrict access to roads at the construction

site, and supervise others at the site.” They argue, however, that

UDOT’s actions were not sufficiently formal to meet the

formality requirement. Their arguments are unpersuasive.

¶73 With regard to UDOT’s decision to issue the permit in the

first place, there is no question that the formality requirement is

met. In this case, a permit from UDOT was required by statute

before the contractor could “dig or excavate” on the state

highway in question, see Utah Code Ann. § 72-7-102 (LexisNexis

2008), and UDOT had an institutional procedure for

consideration and approval of requests for such permits. There is

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True v. Utah Department of Transportation

no dispute, on the facts of this case, that UDOT considered and

issued the permit pursuant to that formal procedure, or that the

permit is a formal document bearing the signatures of UDOT

officials. At a minimum, UDOT’s issuance of the permit was a

formal, official act.

¶74 The Trues argue, however, that UDOT’s decisions after

issuance of the permit—such as, for instance, approving and

monitoring specific traffic control plans—were not formal

enough to satisfy the formality requirement, but these

arguments are unconvincing. In this case, the traffic control plan

was created by a consultant, and was a three-page written

document with maps and charts that called for the specific

placement of signs, barrels, and other traffic control devices.

Moreover, UDOT’s approval of the plan was an act carried out

pursuant to authority granted to UDOT by the terms of a formal

written permit. In my view, UDOT’s actions in approving this

particular traffic control plan differ from governmental actions

deemed potentially too informal to qualify for immunity

pursuant to the “permit exception.” See, e.g., Thayer, 2012 UT 31,

¶¶ 4, 28 (determining that school administrators’ approval of the

use of a firearm in a school play was insufficiently formal);

Winkler, 2014 UT App 141, ¶ 9 (stating that the record was

“insufficient to support a legal conclusion that [a] flagger’s

[traffic] signal” was sufficiently formal).

¶75 Moreover, I do not need to grapple with the question of

whether UDOT’s alleged failure to monitor implementation of

the approved traffic control plan was sufficiently formal,

because the district court determined that UDOT enjoys

immunity—on a ground other than the “permit exception”—

from the Trues’ claims that it failed to properly monitor traffic

control plans for the construction site, and the Trues have failed

to appeal that portion of the district court’s ruling.

¶76 Under the Act, UDOT is also immune from suit if the

Trues’ injuries were proximately caused by UDOT’s “failure to

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True v. Utah Department of Transportation

make an inspection or making an inadequate or negligent

inspection.” See Utah Code Ann. § 63G-7-301(5)(d) (LexisNexis

2008). In addition to ruling that the “permit exception” applied

to grant UDOT immunity from suit for claims related to the

permit, the district court also determined that this “inspection

exception” likewise applied to also grant UDOT immunity from

suit for any “failure to properly monitor the traffic control to

ensure it was being carried out in accordance with the traffic

control plan.” As the State correctly points out, the Trues do not

challenge the district court’s separate ruling that UDOT is

immune from suit, pursuant to the “inspection exception,” for

claims regarding alleged failure to monitor traffic control. The

Trues’ failure to challenge the district court’s independent

ground for decision is fatal to their appeal of the district court’s

decision in this regard. See State v. Roberts, 2015 UT 24, ¶ 38, 345

P.3d 1226 (stating that an appellate court “will not reverse a

ruling of the trial court that rests on independent alternative

grounds where the appellant challenges only one of those

grounds” (quotation simplified)). Accordingly, there is no

further occasion to consider whether UDOT’s alleged failure to

properly monitor the implementation of traffic control plans at

the construction site was sufficiently formal to meet the

formality requirement of the “permit exception.”

III

¶77 The district court’s decision to grant UDOT’s summary

judgment motion on the basis of governmental immunity was

correct, and should be affirmed. I do not reach that conclusion

because I perceive any problem with preservation; indeed, in my

view, the Trues did everything they needed to do in order to

preserve the overarching issue for appellate review. On the

merits of that issue, however, UDOT prevails as a matter of law.

On that basis, I would affirm, and I therefore concur in the result

reached by the majority opinion.

20160704-CA 39 2018 UT App 86