Doutre v. Box Elder County

2024 UT App 58

THE UTAH COURT OF APPEALS

ALEXIS DOUTRE,

Appellant,

v.

BOX ELDER COUNTY, BRIGHAM CITY, UNION PACIFIC RAILROAD

COMPANY, AND UTAH DEPARTMENT OF TRANSPORTATION,

Appellees.

Opinion

No. 20220139-CA

Filed April 18, 2024

Second District Court, Ogden Department

The Honorable Noel S. Hyde

No. 180906306

Troy L. Booher, Beth E. Kennedy, and Taylor P.

Webb, Attorneys for Appellant

Susan Black Dunn, Attorney for Appellee

Box Elder County

Matthew D. Church and Adam D. Goff,

Attorneys for Appellee Brigham City

Gina M. Rossi, Attorney for Appellee Union Pacific

Railroad Company

Sean D. Reyes and Peggy E. Stone, Attorneys for

Appellee Utah Department of Transportation

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.

MORTENSEN, Judge:

¶1 Seeking a thrill in a friend’s Jeep, Alexis Doutre and her

friends decided to jump railroad tracks at a crossing on a country

road. This choice was ill-advised, as the Jeep crashed into a nearby

utility pole, causing Doutre serious injury. Doutre sued various

Doutre v. Box Elder County

parties, including Box Elder County, Brigham City, Union Pacific

Railroad Company, and the Utah Department of Transportation,

alleging a number of claims, including (1) failure to investigate,

remedy, or warn of unsafe conditions; (2) negligent design and

maintenance; and (3) liability for maintaining an attractive

nuisance. All of Doutre’s claims were dismissed on summary

judgment. Doutre appeals, and we affirm.

BACKGROUND

¶2 On the outskirts of Brigham City, Utah, lies 1500 North, a

dirt and gravel road. As the road approaches some railroad tracks,

it rises rather steeply at about a 10% incline and creates a ramp

that allows a vehicle traveling at sufficient speed to experience a

“roller-coaster feeling” or even become airborne.

¶3 Stop signs stand on both sides of the tracks, and the tracks

are marked with standard railroad crossing signs. There is also a

low under-clearance sign on the west side of the tracks to warn

westbound drivers. The posted speed limit is 35 miles per hour

for eastbound traffic and 25 miles per hour for westbound traffic.

¶4 On a Friday night in late February 2017, Doutre and four

friends, all between fifteen and seventeen years old, decided to

jump this crossing. They were riding in a Jeep driven by one of

the friends (Friend). There was one passenger in the front, with

the other three, Doutre included, in the back. None of them were

wearing seatbelts. Doutre had been involved in this activity before

this incident. In fact, about a week earlier, she had driven her

mother’s minivan out to jump this same crossing. However,

Doutre did not tell her mother about the track jumping because

she knew that her mother would have told her it was dangerous.

¶5 Friend first approached the tracks from the east, hitting the

tracks at around 40 to 50 miles per hour—enough to get the tires

“a little bit” off the ground. Friend then turned around and

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approached the tracks from the west, this time traveling at 60

miles per hour. The Jeep became airborne and landed on the other

side of the tracks, where Friend lost control of the vehicle and

crashed into a nearby utility pole. Doutre was seriously injured.

There was some speculation that the Jeep’s wheel may have hit a

pothole on landing, contributing to the loss of control.

¶6 Doutre filed a lawsuit, with claims divided among

multiple parties, including Box Elder County (the County),

Brigham City (the City), the Utah Department of Transportation

(UDOT), and Union Pacific Railroad Company (Union Pacific). 1

Among her general allegations was that the railroad intersection

“constituted a hazard” because its “steep grade,” limited

visibility, and the “condition of the road” made it “difficult for

drivers to accurately assess the danger and properly maintain

control of their vehicles.” Doutre further alleged that the crossing

lacked “adequate warning” to “alert drivers to [its] defective,

unsafe and/or dangerous condition,” that “multiple car wrecks

and injuries had occurred at this location,” and that “young

drivers (minor children) were attracted” to the intersection. As

relevant here, she asserted three claims for relief: (1) failure to

investigate, remedy, or warn of unsafe conditions; (2) negligent

design and maintenance; and (3) liability for maintaining an

attractive nuisance. The district court dismissed all of Doutre’s

claims on summary judgment. We recount Doutre’s claims, the

responses, and the district court’s disposition of the claims by

party.

¶7 The County: Doutre alleged that the County owned 1500

North until about 80 feet east of the tracks, where it became

Wilson Lane and was owned by the City. She claimed that the

County, as the owner of the portion of the road in question, failed

to maintain the road in a safe condition, including eliminating the

1. Doutre also sued Friend, Friend’s mother, and PacifiCorp (the

owner of the utility pole). These defendants settled with Doutre.

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“steepness hazard” and the “potholes present in the dirt road.” In

a summary judgment motion, the County argued that under the

Utah Governmental Immunity Act (UGIA), it was immune from

suit because fixing the dangerous condition was a discretionary

function, not a mandatory one. The County also argued that there

was no evidence that a pothole caused the Jeep to swerve into the

utility pole.

¶8 The court granted summary judgment. It first ruled that

Doutre’s argument that the County “breached its duty to maintain

the road” failed “in the specific instance of the existence of

potholes or other surface damage to the road affecting the vehicle,

or that any particular pothole existed contemporaneously with

the accident.” The court concluded that although Doutre had “put

forth evidence from witnesses,” which Doutre alleged

demonstrated “an issue of material fact, . . . this evidence, even

viewed in the light most favorable to [Doutre] on that issue,” was

“insufficient to rise to the level of creating a factual issue that

[would] survive summary judgment.” Regarding the incline of

the slope approaching the tracks, the court determined that

Doutre’s claims were barred by the UGIA because the County’s

maintenance of the road was a discretionary function. See Utah

Code § 63G-7-201(4)(a).

¶9 The City: Doutre alleged that the City, as the owner of the

land where the Jeep crashed, was responsible for maintaining a

seven-foot-wide clear zone on the side of the roadway. The City

failed in this duty, she alleged, by allowing the utility pole to be

so close to the road. Doutre also claimed that the City failed to

regrade and resurface the road—something it had a contractual

obligation with the County to do—which should have eliminated

the pothole that allegedly caused Friend to lose control of the Jeep

when it landed.

¶10 In its summary judgment motion, the City argued that

Doutre had presented no evidence as to which pothole caused the

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Doutre v. Box Elder County

Jeep to lose control on landing. Regarding the utility pole, the City

acknowledged that it was within city limits but nevertheless

alleged that the City had “nothing to do with” the pole. The pole

was installed in 1984 outside of city limits, and it fell within city

limits only after 2015 when the City annexed the land on which it

sat: “[U]ltimate responsibility for the power pole, including its

location, maintenance, and operation remains with PacifiCorp.

There is no relationship between the City and the power pole

beyond its innocuous inclusion in land annexed by the City in

2015.”

¶11 The court granted summary judgment in the City’s favor,

ruling that Doutre’s claim “that there existed a pothole of

sufficient substance to cause the vehicle to swerve into the pole”

could not “be reasonably inferred from the known facts that

[were] not in dispute,” explaining that it required “not only a

reasonable inference, but pure speculation to arrive at the

[conclusion] that there was . . . a pothole within the limits of [the]

City . . . that caused the car to swerve into the pole.”

¶12 With regard to the City’s duty “to maintain the roadway

based upon . . . an agreement” with the County, the court noted

that the only available interpretation of the agreement,

“established as undisputed” by the testimony of the City and the

County, was “that the obligation for maintaining the roadway

[was] the obligation of [the] County, at least until the . . . City

limit.” Thus, the court ruled that there were “insufficient facts . . .

to suggest the extension of any general liability of maintenance for

[the] City with respect to the . . . County roadway.” Concerning

the utility pole, the court ruled that even if the pole was too close

to the road, there had “been no factual presentation to suggest

that [the] City’s actions or inactions in connection with that pole,

for which there is no history of any problem at any time . . . since

its placement, constitute[d] a violation of the requirement of

reasonable diligence.”

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¶13 UDOT: Doutre alleged that UDOT, which is responsible

for ensuring the safety of railroad crossings, was required to make

the crossing safe or, if it was unable to do so, to close it.

¶14 In its motion for summary judgment, UDOT argued that it

had not breached any duty to Doutre because its responsibility,

which it had fulfilled, was limited to ensuring that “appropriate

signage relating to the railroad crossing was in place.” UDOT also

argued that it owed no duty to Doutre under the attractive

nuisance doctrine because UDOT was not a “possessor of land.”

Lastly, UDOT argued that it was “immune from suit under

discretionary function immunity for decisions relating to railroad

crossing improvements” under the UGIA.

¶15 In granting summary judgment in UDOT’s favor, the court

ruled that Doutre’s claim of attractive nuisance failed because

“UDOT was not a possessor of land where the accident occurred.”

Moreover, the court ruled that UDOT’s role in “reviewing and

regulating railroad crossings” was a “discretionary function

protected by governmental immunity” under the test set forth in

Little v. Utah State Division of Family Services, 667 P.2d 49 (Utah

1983).

¶16 Union Pacific: Doutre claimed that Union Pacific was

negligent in failing to maintain the railroad crossing, including

the sufficiency of the crossing signals and the incline of the road.

In its motion for summary judgment, Union Pacific argued that

there was no breach of duty in this case because Doutre assumed

the risk when she engaged “in a dangerous activity which caused

her injury” and it “is axiomatic that where a driver ignores traffic

control devices, at the urging or acquiescence of their passengers,

that they are at risk of being in an accident.” Moreover, Union

Pacific asserted that the attractive nuisance doctrine did not apply

because Doutre could not “be considered a child in this context.”

In this respect, Union Pacific argued, “It is a well-established

principle of tort law that a minor participating in an adult activity,

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Doutre v. Box Elder County

such as operating a motor vehicle, is held to the same standard of

care as an adult. . . . The undisputed facts show that [Doutre] was

a licensed driver who previously engaged in the same activity that

led to the subject accident.”

¶17 In granting summary judgment in favor of Union Pacific,

the court ruled that Doutre had presented insufficient evidence

“to establish that the railroad crossing was unreasonably

dangerous” and it was therefore not liable for Doutre’s negligence

claim. Concerning the attractive nuisance claim, the court ruled

that Doutre had “not produced sufficient evidence . . . to support

a finding that the railroad had actual notice that kids were

jumping the tracks,” and, therefore, Union Pacific could not “be

held liable under that doctrine.”

¶18 Doutre filed a motion to reconsider, in which she presented

evidence allegedly showing that the crossing was unreasonably

dangerous. She argued that she had “produced evidence of

[Union Pacific’s] constructive knowledge, at the very least, that it

knew about the dangerous condition, and that it knew the

condition created an unreasonable risk of death or harm to

children.”

¶19 The court denied the motion, explaining that the duty of

Union Pacific regarding the crossing “is only to eliminate those

circumstances where there are more than ordinarily hazardous

conditions” and that it was not persuaded “the arguments

presented in this case . . . established the existence of . . .

circumstances involving a more than ordinarily hazardous

condition.” More specifically, the court ruled that Union Pacific’s

“obligation to ameliorate hazardous conditions within the right-

of-way [did] not extend to the requirement to make physical

modifications to public roadways that also occupy the right-of-

way.” The court went on to state,

And the [court] has not been presented with any

factual evidence or any legal argument to support

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the theory that a railroad has the duty, or even the

legal right to make structural modifications to

public roadways that happen to co-exist in its right-

of-way. And that argument has not been effectively

made by [Doutre]. And even though there is a

general duty to eliminate hazardous conditions

within the railroad’s right-of-way, there has been a

lack of either a factual showing or a legal argument

presented that would suggest the right or duty of

[Union Pacific] to make such structural changes to

public roads.

¶20 Doutre appeals.

ISSUES AND STANDARDS OF REVIEW

¶21 First, Doutre contends that “the district court failed to

apply the summary judgment standard and construe the evidence

in the light most favorable” to Doutre when it ruled that there was

insufficient evidence of negligence for dangerous conditions that

caused the accident, specifically the slope of the road and the

presence of potholes.

¶22 Second, Doutre argues that the court erred in ruling—on

summary judgment and on the motion to reconsider—that the

attractive nuisance doctrine did not apply to Doutre’s claims

against UDOT and Union Pacific.

¶23 Third, Doutre claims that the court erred in ruling on

summary judgment that the City did not breach its duty by

allowing the utility pole to remain so close to the road.

¶24 A “court shall grant summary judgment if the moving

party shows that there is no genuine dispute as to any material

fact and the moving party is entitled to judgment as a matter of

law.” Utah R. Civ. P. 56(a). And we review a court’s grant of

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summary judgment for correctness, giving the district court’s

decision no deference. Stafford v. Sandy Paydirt LLC, 2022 UT App

76, ¶ 7, 514 P.3d 157.

¶25 We review a district court’s decision not to contemplate the

merits of a motion to reconsider its previous summary judgment

decision for abuse of discretion. See Koerber v. Mismash, 2015 UT

App 237, ¶ 15, 359 P.3d 701 (“We review a district court’s decision

to deny a motion to reconsider a summary judgment decision for

an abuse of discretion.”). However, when a district court decides

to address a motion to reconsider on its merits and revisits the

substance of a previous summary judgment decision, we review

the court’s subsequent merits decision for correctness. See

Radakovich v. Cornaby, 2006 UT App 454, ¶ 3, 147 P.3d 1195 (“In

reviewing [motions to reconsider], we accord no deference to the

trial court’s conclusions of law but review them for correctness.”

(cleaned up)). 2

ANALYSIS

I. The Condition of the Crossing

¶26 Doutre first claims that the district court improperly

applied the summary judgment standard. More specifically,

Doutre challenges the court’s ruling that (1) Union Pacific could

not be liable because Doutre had presented no evidence that the

crossing was more than “ordinarily hazardous,” (2) the County

could not be liable because Doutre could not establish that a

pothole contributed to her injuries, and (3) the City could not be

liable because Doutre had not presented evidence that the city

was responsible to fix the potholes. Doutre argues that she

2. Doutre filed several other motions for summary judgment,

which were denied. She does not challenge their denial, and thus

any factual disputes or assertions of additional facts raised therein

are irrelevant for our purposes.

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“presented more than sufficient evidence to survive summary

judgment on each of these claims.” And she asserts that “the

potholes were not the only basis” for the County’s liability; in

addition to the potholes, Doutre contends that the road’s

excessive steepness created a “dangerous ramp.”

¶27 Even if we assume, without deciding, (1) that the road was

more than ordinarily hazardous due to its steepness and (2) that

there were potholes present, we see no error in the district court’s

summary judgment ruling in favor of the County, the City, and

Union Pacific on these claims. We address the steepness of the

road and the potholes as they apply to the relevant defendants in

turn.

A. The Incline of the Road

1. Union Pacific

¶28 With regard to Union Pacific’s responsibility to ameliorate

the steepness of the road as it approached the crossing, we agree

with the district court’s assessment that no evidence was

presented, nor legal argument made, to establish that Union

Pacific had a legal duty—or even the right—to modify a public

roadway.

¶29 Doutre argues that Union Pacific mistakenly asserts that

the “court ruled that Union Pacific had no right or ability to fix the

hazard.” She contends that “the court made no such ruling” and

instead ruled “only that there was no evidence that Union Pacific

had the right or ability to fix the hazard.” But as confirmed by the

express statement of the court when denying Doutre’s motion to

reconsider, Doutre is the one who is mistaken:

The ruling of the Court is that [Union Pacific’s]

obligation to ameliorate hazardous conditions

within the right-of-way does not extend to the

requirement to make physical modifications to public

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roadways that also occupy the right-of-way. The

purpose of the provision requiring a railroad to

eliminate hazardous conditions within its right-of-

way deals with, most specifically, circumstances

other than public roadways.

(Emphasis added.)

¶30 The court then went on to explain that Doutre had not

presented “any factual evidence or any legal argument to support”

a contrary conclusion, namely, “the theory that a railroad has the

duty, or even the legal right to make structural modifications to

public roadways that happen to co-exist in its right-of-way.”

(Emphasis added.) The argument, the court stated, had “not been

effectively made by” Doutre. In sum, the court said that whether

Union Pacific had “any legal ability to make structural changes to

the roadway” was simply “not present in the evidence or in the

legal presentation.” (Emphasis added.)

¶31 Even on appeal, Doutre does not address the district

court’s well-reasoned ruling. Instead, she limits her arguments to

asserting that she presented sufficient evidence of the dangerous

design of the crossing to survive summary judgment. Even if this

premise is accurate, it does not relieve her of the duty to address

the court’s legal reasoning and conclusion that Union Pacific had

no duty or legal right to make structural modifications to the

public roadway. It is well settled that appellants who fail to

“address the district court’s reasoning” also fail to carry their

“burden of persuasion on appeal.” Federated Cap. Corp. v. Shaw,

2018 UT App 120, ¶ 20, 428 P.3d 12. “Accordingly, we conclude

that [Doutre] has not demonstrated that the district court

erroneously granted” summary judgment in favor of Union

Pacific on this point. Id.; see also Bad Ass Coffee Co. of Haw. v. Royal

Aloha Int’l LLC, 2020 UT App 122, ¶ 48, 473 P.3d 624 (explaining

that an appellant who “does not acknowledge the district court’s

reasoning” and “explain why the court was wrong” fails to carry

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its burden to show that the court erred with respect to a

challenged decision).

2. The County

¶32 In granting summary judgment in favor of the County, the

court ruled “that the specific maintenance and both determination

and continuation of a particular grade or incline to a railroad

crossing is not simply the maintenance of a roadway, but that it

does require the exercise of a discretionary function.” In reaching

this determination that addressing the “grade or incline” of the

road at the crossing was a “discretionary function,” the court

relied on the four-part test provided in Little v. Utah State Division

of Family Services, 667 P.2d 49 (Utah 1983).

¶33 The UGIA broadly grants immunity “from suit for any

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

Utah Code § 63G-7-201(1). And a governmental function is

defined as “each activity, undertaking, or operation of a

governmental entity.” Id. § 63G-7-102(5)(a). Governmental

entities “retain immunity from suit unless that immunity has been

expressly waived” by the UGIA. Id. § 63G-7-101(3). One such

express waiver is for “any injury caused by . . . a defective, unsafe,

or dangerous condition of any highway, road, . . . or other

structure located on them.” Id. § 63G-7-301(2)(h)(i). However,

notwithstanding this express waiver for roads, immunity is

nevertheless retained—under an exception to the waiver—for the

exercise of discretionary functions:

A governmental entity, its officers, and its

employees are immune from suit, and immunity is

not waived, 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 or in connection with, or results from . . . the

exercise or performance, or the failure to exercise or

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Doutre v. Box Elder County

perform, a discretionary function, whether or not

the discretion is abused . . . .

Id. § 63G-7-201(4)(a).

¶34 In Little, on which the district court relied, the Utah

Supreme Court adopted a four-part test for determining whether

a governmental function is discretionary and thus subject to

governmental immunity:

To be purely discretionary, an act by the state must

be affirmed under four preliminary questions:

(1) Does the challenged act, omission, or decision

necessarily involve a basic governmental policy,

program, or objective?

(2) Is the questioned act, omission, or decision

essential to the realization or accomplishment of

that policy, program, or objective as opposed to one

which would not change the course or direction of

the policy, program, or objective?

(3) Does the act, omission, or decision require the

exercise of basic policy evaluation, judgment, and

expertise on the part of the governmental agency

involved?

(4) Does the governmental agency involved possess

the requisite constitutional, statutory, or lawful

authority and duty to do or make the challenged act,

omission, or decision?

667 P.2d at 51 (cleaned up).

¶35 In applying this test, Utah courts have focused on whether

the function requires evaluation and judgment to implement

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Doutre v. Box Elder County

policies. While acknowledging that “‘discretionary function’ is

not susceptible to precise definition in all legal contexts,” our

supreme court has “held that discretionary functions are those

requiring evaluation of basic governmental policy matters and do

not include acts and decisions at the operational level—those

everyday, routine matters not requiring evaluation of broad

policy factors.” Nelson ex rel. Stuckman v. Salt Lake City, 919 P.2d

568, 575 (Utah 1996) (cleaned up). In other words, “[d]iscretionary

immunity is a distinct, more limited form of immunity and should

be applied only when a plaintiff is challenging a governmental

decision that involves a basic policy-making function.” Id. And

“the relevant question asks whether the discretionary act

occurred at the operational level or required evaluation of broad

policy factors.” Faucheaux v. Provo City, 2015 UT App 3, ¶ 36, 343

P.3d 288 (cleaned up), cert. denied, 352 P.3d 106 (Utah 2015).

¶36 For example, in Duncan v. Union Pacific Railroad Co., 842

P.2d 832 (Utah 1992), our supreme court concluded “that UDOT’s

decision to defer improving the adequacy of warning devices at a

[railroad] crossing” was a discretionary decision rather than an

operational one. Id. at 835. The court observed that UDOT utilized

“a surveillance team to evaluate the level of the hazards to

motorists at hundreds of crossings where active warning devices

are not in place.” Id. Based on this evaluation, UDOT assigned

priority “to those crossings where the greatest hazards” existed,

upgrading “the warning devices at those crossings with the

highest priority until the limited available funds [had] been

exhausted.” Id. Upgrading crossings “with a lower priority”

would wait for future funding. Id. Indeed, the Duncan court’s

reasoning echoed the reasoning of this court, which it was

affirming: “Highway maintenance and improvement are

predominately fiscal matters. Every highway could probably be

made safer by further expenditures, but we will not hold UDOT

(and implicitly, the legislature) negligent for having to strike a

difficult balance between the need for greater safety and the

burden of funding improvements.” Duncan v. Union Pac. R.R. Co.,

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Doutre v. Box Elder County

790 P.2d 595, 601 (Utah Ct. App. 1990) (cleaned up), aff’d, 842 P.2d

832 (Utah 1992); see also Gleave v. Denver & Rio Grande W.R.R. Co.,

749 P.2d 660, 669 (Utah Ct. App. 1988) (determining that the

obligation of UDOT to “install different safety signals or devices

at the subject crossing was a purely discretionary function”), cert.

denied, 765 P.2d 1278 (Utah 1988).

¶37 Doutre argues that the County “failed to satisfy its burden

to show” that addressing the incline of the road “was in fact the

subject of intense scrutiny and review” necessary to establish that

the function was discretionary. (Quoting Trujillo v. Utah Dep’t of

Transp., 1999 UT App 227, ¶ 31, 986 P.2d 752.) But Doutre does not

give fair reading to the County’s undisputed facts. In its motion

for summary judgment, the County explicitly argued that

improvement to the road was a discretionary function:

The ability to grade or alter the road is dependent

on [the] County’s ability to pay for such a venture.

The crossing . . . does not qualify for State or Federal

funds for the purpose of improvement projects.

Therefore, it is entirely dependent on County funds.

As shown in the Statement of Undisputed Facts, the

Box Elder County Commission [(Commission)]

designates its limited funds to provide grading of its

gravel roads and to maintain the warning signs

along 1500 North. This decision requires the

exercise of basic policy judgment and the . . .

Commission clearly has the lawful authority and

duty to make the decision.

¶38 And in its motion for summary judgment, the County

referenced specific evidence to support this position that

addressing the incline of the road was discretionary. Citing

evidence produced during discovery, the County stated that the

crossing in question was not assigned priority by UDOT and it

therefore did “not qualify for State or Federal funds for the

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purpose of improvement.” Moreover, the statement of facts

indicated that UDOT had funding to improve only about four

crossings a year from among the top twenty-five prioritized

crossings and that the crossing in question was ranked 426 on the

list. In terms of its own resources committed to road maintenance,

the County stated that budget figures are presented to the county

auditor, after which they are forwarded to the Commission. Then

the superintendent of the road department meets with the

Commission to discuss the proposed budget—which is about $5

million annually—before the “Commission reviews, considers

and adopts or rejects items and/or expenditures by line-item.”

Moreover, “specific requests for allocation of funds must also be

presented for approval by the Commission.” If the roads

department exceeds “its budget, the Commission [has] to

advertise a public meeting to open the County’s budget, or

increase taxes.” The County also averred that its budget for the

road department had a line item for the “[m]aintenance and

grading” of dirt and gravel roads. It is obvious that the County

was not referring to the incline of the road by its use of the word

“grading” but to the annual surface smoothing of unpaved roads

“after the frost is out of the ground.” 3 Thus, the County’s

undisputed facts establish that modifying the road to address its

steep incline was not a normally budgeted item and that,

depending on the expense of the project, modifying the incline

would require special approval of the Commission and possibly

3. “Grading involves the reshaping of the traveling surface

through removal of all potholes and/or washboards and the re-

establishment of the crown of the unpaved road. Grading is

performed by a motor grader that cuts the surface of the unpaved

road to the bottom of the potholes and/or washboards and then

spreads the material across the surface of the roadway.” Fed.

Highway Admin., U.S. Dep’t of Transp., Gravel Roads Construction

& Maintenance Guide 133 (2015) https://www.fhwa.dot.gov/

construction/pubs/ots15002.pdf [https://perma.cc/RES7-XYUG].

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a public meeting to open the budget for the allocation of such

funds.

¶39 This is the very type of governmental function that our

caselaw identifies as discretionary. Finding funding to modify the

incline of the road would likely require the County to go through

a process of evaluation, judgment, and policy implementation.

Reconstructing the road—given the County’s budget constraints

and processes—would certainly not be an act or decision

belonging to “the operational level” and involving “everyday,

routine matters not requiring evaluation of broad policy factors.”

Nelson ex rel. Stuckman, 919 P.2d at 575 (cleaned up). The road

could potentially have been made safer by additional

expenditures. But finding money to do that is a classic example of

a fiscal matter that falls squarely within the confines of a

governmental discretionary function. See Duncan, 790 P.2d at 601.

Accordingly, we see no error in the district court’s conclusion on

summary judgment that the County enjoyed governmental

immunity for liability related to the incline of the road. 4

4. To be clear, our analysis as to the exercise of a discretionary

function is limited to the County’s involvement in addressing the

incline of the road. As explained below, we resolve the issue of

the potholes in a different fashion.

Doutre also suggests that the County had a duty to remove

the utility pole, while acknowledging that at the time of the

accident the land was no longer on county property. But apart

from mentioning this alleged duty in passing at several points in

her opening brief, she develops scant argument specifically

addressing this issue as it relates to the County. Doutre appears

to have recognized this problem by the time she filed her reply

brief, where she again mentions the County’s duty several times

in passing and asserts, “The County does not respond to the

argument that it was required to remove the utility pole.” In fact,

(continued…)

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Doutre v. Box Elder County

B. The Potholes

¶40 Doutre presented little evidence that the road’s potholes

caused the crash that resulted in her injuries. Indeed, the evidence

presented was that potholes were not shown to be an identifiable

factor in the crash. Nor could a reasonable inference be made that

any pothole was a factor in the crash. Thus, establishing a nexus

between the potholes and the crash would require speculation.

¶41 An officer who investigated the crash testified that he did

not “recall any snow or ice on the road” and that he did not

“specifically remember potholes, short of [the] rough road.”

When asked if potholes contributed to the crash, the officer stated,

“I couldn’t say whether the potholes affected it specifically. . . . I

wasn’t there to see how the vehicle landed and the course it took

and if the pothole maybe altered the steering. I’d have to speculate

on that.”

¶42 The passengers and driver offered nothing but speculation

on the connection between the potholes and the crash. One of the

passengers in the Jeep equivocated when offering his “opinion”

about the effect of potholes on the crash, testifying that he

“thought” the Jeep “might have hit a pothole” but he did not

know which wheel hit it. Nevertheless, he speculated that “the

it seems likely that the County didn’t respond to the argument

because the argument was so obliquely raised, making it rather

difficult to discern. Thus, we do not see this as a deficiency on the

part of the County but on the part of Doutre. Because Doutre’s

potential arguments regarding the County’s duty to address the

utility pole are inadequately briefed, we decline to address this

issue further, apart from observing that moving the utility pole

would likely fall under the discretionary function rubric

discussed above. See State v. Thomas, 961 P.2d 299, 304 (Utah 1998)

(“It is well established that a reviewing court will not address

arguments that are not adequately briefed.”).

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Doutre v. Box Elder County

front [of the Jeep] probably hit some potholes because . . . there’s

a lot of potholes going up to that railroad.” However, he clarified

that he did not have “any concerns” about the potholes “[o]ther

than they’re a little bumpy.” And the other passengers did not

identify a pothole as causing the crash. One said that while the

road was wet and had potholes, the Jeep simply “drifted off” the

road after “[o]ne wheel hit first and caused” them to “swerve”

into the utility pole. Another stated that the accident happened

because there was “a lot of loose gravel” where they landed and

they “were just going too fast.” And while Friend testified that the

road had potholes, she did not offer any testimony that she hit one

of them.

¶43 Doutre’s experts were equally equivocal about the nexus

between the potholes and the accident. One of her experts testified

in his deposition, “[F]rom reading the testimony of the passengers

in the vehicle, . . . apparently . . . there are lots of potholes on this

roadway.” This expert went on to observe, “It was mentioned by

several of the parties in the car that the Jeep hit a pothole. And

after hitting the pothole, it seemed to veer off to the right in which

case it hit the utility pole.” This expert also stated that a “pothole

is more than just a problem, an imperfection in the roadway, it’s

also a hazard.” He then speculated, “And that pothole and the

maintainability of this roadway could have directly . . . resulted

in that car hitting that utility pole.” But, importantly, when the

expert was asked if he had “anything other than the testimony

that there might have been a pothole” or that “the Jeep ever struck

a pothole,” he avoided giving a direct answer. This expert was

further asked if he saw any photographs of “any actual potholes

that were hit” by the Jeep. He responded that “it could have been

in there but it was almost impossible to see” because the “pictures

were so dark.”

¶44 Another expert wrote—without any supporting analysis as

required by the Utah Rules of Evidence—that “[p]otholes in the

road were what likely caused the vehicle to veer to the right and

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Doutre v. Box Elder County

strike the power pole” and that it was “the speed, high grade,

uneven roadbed, and fixed object in the clear zone that led to this

injury accident.” See Utah R. Evid. 702(b) (“Scientific, technical, or

other specialized knowledge may serve as the basis for expert

testimony only if there is a threshold showing that the principles

or methods that are underlying in the testimony (1) are reliable,

(2) are based upon sufficient facts or data, and (3) have been

reliably applied to the facts.”). This expert did not identify the

location of the purported accident-causing pothole, and thus he

did not identify where—on city versus county property—the

pothole existed such that a jury could evaluate which party might

potentially be liable for its existence.

¶45 While Doutre certainly presented evidence that the road

had potholes near the crossing, she presented scant evidence—

apart from isolated speculation based on the vague memories of

one passenger and her experts’ parroting of the passenger

speculation—that the potholes caused the crash. Moreover, as the

County points out, “Doutre presented no evidence regarding any

specific information about the potholes, including . . . location,

diameter, depth, substance (mud, dirt, gravel, snow, or ice). There

was no evidence regarding skid marks, landing marks, or other

debris at or near potholes.”

¶46 And Doutre needed more than mere speculation. We have

repeatedly noted that while “entitled to all favorable inferences,”

a non-moving party “is not entitled to build a case on the

gossamer threads of whimsy, speculation and conjecture.” Ladd v.

Bowers Trucking, Inc., 2011 UT App 355, ¶ 7, 264 P.3d 752 (cleaned

up); accord Kranendonk v. Gregory & Swapp, PLLC, 2014 UT App 36,

¶ 15, 320 P.3d 689, cert. denied, 329 P.3d 36 (Utah 2014). “In essence,

the parties must submit admissible evidence to present an issue

of material fact,” and “unsubstantiated conclusions and opinions

are inadmissible.” JENCO LC v. Perkins Coie LLP, 2016 UT App

140, ¶ 15, 378 P.3d 131 (cleaned up). Another way of expressing

this dynamic is there must be a “genuine issue of material fact” in

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Doutre v. Box Elder County

play for a non-moving party to survive summary judgment. See

Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 20, 390 P.3d 314

(cleaned up). “The word ‘genuine’ indicates that a district court is

not required to draw every possible inference of fact, no matter

how remote or improbable, in favor of the nonmoving party.

Instead, it is required to draw all reasonable inferences in favor of

the nonmoving party.” Id. ¶ 21 (cleaned up).

¶47 Thus, we perceive no error in the district court’s conclusion

that Doutre’s “articulation of speculation or possibility [did] not

rise to the level of creating a factual issue that [would] survive

summary judgment.” We agree with the court’s assessment that

Doutre presented insufficient evidence of the “existence of any

particular pothole or that the vehicle actually was affected by any

particular pothole, nor [was] there any evidence

contemporaneous with the accident that any particular pothole

existed.” The most that Doutre’s expert was able to say in this

respect is that a pothole “could have been in there.” But such

vague and unidentifiable conjecture about what “could have”

caused the accident is not enough to survive summary judgment,

for when “the proximate cause of an injury is left to speculation,

the claim fails as a matter of law.” Clark v. Farmers Ins. Exch., 893

P.2d 598, 601 (Utah Ct. App. 1995) (cleaned up) (holding that

summary judgment was appropriate where experts could not

identify the mechanism of causation). The evidence Doutre

presented shows that there were potholes along the stretch of

road where the Jeep landed, but this evidence merely suggests

that the driver could have hit a pothole on landing and that the

pothole could have caused the car to veer to the right. General

statements that the road may have had potholes around the tracks

or that the road was bumpy with loose gravel simply don’t create

a factual dispute about potholes causing the accident. Rather, that

is nothing more than speculation compounding speculation, and

Doutre needs more than that to meet her burden to establish a

prima facie case that the County or the City were negligent in

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Doutre v. Box Elder County

failing to address the pothole problem that allegedly led to her

injuries.

II. Attractive Nuisance

¶48 Doutre next claims that the district court erred in ruling

that UDOT and Union Pacific were not liable for the railroad

crossing under the attractive nuisance doctrine. 5

¶49 The Utah Supreme Court “expressly adopted” section 339

of the Restatement (Second) of Torts “as the complete statement

of the attractive nuisance doctrine in our jurisprudence.” Colosimo

v. Gateway Cmty. Church, 2018 UT 26, ¶ 27, 424 P.3d 866 (cleaned

up). That section provides,

A possessor of land is subject to liability for physical

harm to children trespassing thereon caused by an

artificial condition upon the land if

(a) the place where the condition exists is one

upon which the possessor knows or has

reason to know that children are likely to

trespass, and

5. With respect to UDOT, Doutre also argues that the district court

erred in concluding that it was immune from suit under the

UGIA. But because Doutre argues—at least insofar as we can

divine from her briefing—that UDOT’s liability arose only with

regard to maintaining an attractive nuisance and because we

conclude that no duty arose under the attractive nuisance

doctrine, we need not address governmental immunity claims

with respect to UDOT. However, if we were to consider that issue

substantively, UDOT’s responsibility to eliminate the steepness of

the road’s incline would, like the County’s, certainly be an

exercise of a discretionary function and thus protected by

governmental immunity.

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Doutre v. Box Elder County

(b) the condition is one of which the

possessor knows or has reason to know and

which he realizes or should realize will

involve an unreasonable risk of death or

serious bodily harm to such children, and

(c) the children because of their youth do not

discover the condition or realize the risk

involved in intermeddling with it or in

coming within the area made dangerous by

it, and

(d) the utility to the possessor of maintaining

the condition and the burden of eliminating

the danger are slight as compared with the

risk to children involved, and

(e) the possessor fails to exercise reasonable

care to eliminate the danger or otherwise to

protect the children.

Restatement (Second) of Torts § 339 (Am. L. Inst. 1965). 6

6. It might be difficult to see how Doutre—or the other

occupants—were trespassers since they were using a public road.

See Restatement (Second) of Torts § 329 (“A trespasser is a person

who enters or remains upon land in the possession of another

without a privilege to do so created by the possessor’s consent or

otherwise.”). But under the attractive nuisance doctrine, a

possessor of land is still subject to liability even if the child is on

the land as a licensee or an invitee. See id. § 343B (“In any case

where a possessor of land would be subject to liability to a child

for physical harm caused by a condition on the land if the child

were a trespasser, the possessor is subject to liability if the child is

a licensee or an invitee.”).

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Doutre v. Box Elder County

¶50 Doutre’s attractive nuisance claims fail as a matter of law

owing to a fact about which there is no dispute: Doutre and Friend

were licensed drivers. And when minors take part in adult

activities, like driving, they are held to an adult standard of care.

Indeed, it is a “well-established principle of tort law that a minor

participating in an adult activity, such as operating a motor

vehicle, is held to the same standard of care as an adult.”

Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah Ct. App. 1995).

Thus, Doutre was required to conform her “conduct to the

standard of care required of the ordinary, prudent adult driver.”

Id. at 1045.

¶51 Doutre argues in response, “This authority is inapplicable

because [Doutre] was not driving. Instead, she was riding in a car

after consenting to track jumping. This is precisely the sort of

circumstance in which the attractive nuisance doctrine is designed

to apply. The doctrine protects minors ‘from their childish lack of

attention and judgment.’” (Quoting Restatement (Second) of Torts

§ 339 cmt. i.) 7 But even though Doutre was not driving, she is not

excused from being aware of the knowledge she has as a driver.

Put simply, Doutre does not qualify as someone who, because of

her youth, does not “realize the risk involved” with jumping

railroad tracks or coming into contact with a gravel road after

having jumped those tracks. See Restatement (Second) of Torts

7. We can only imagine the landslide of litigation that would

descend upon us if teen drivers and passengers were excused,

because of their youth, from the standard of care applicable to all

drivers. Any open stretch of road, particularly every downhill

grade in mountainous Utah, could be deemed an attractive

nuisance because it might entice minor drivers to speed and so

create an “unreasonable risk of death.” See Restatement (Second)

of Torts § 339(b) (Am. L. Inst. 1965). Under Doutre’s logic, there

would scarcely be an aspect of road construction that would not

be an inchoate attractive nuisance claim. And we are simply

unwilling to sign on to such an approach.

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Doutre v. Box Elder County

§ 339(c). She was a licensed driver and was hence presumed to

exercise the prudence of an adult driver. Moreover, Doutre

admitted that she was very much aware of the potential danger of

jumping the tracks when she had consciously avoided telling her

mother about taking the family minivan to participate in the

activity. Accordingly, the attractive nuisance doctrine is a poor fit

for Doutre’s conduct as a licensed driver, and the district court

did not err in granting summary judgment in favor of UDOT and

Union Pacific on Doutre’s attractive nuisance claims. 8

III. The Utility Pole

¶52 Doutre asserts that the district court erred in ruling that the

City had no duty to move the utility pole. Specifically, she argues

that under the Utah Administrative Code, the City was required

8. The district court concluded that the attractive nuisance

doctrine did not apply to UDOT and Union Pacific for other

reasons. For UDOT, the district court determined that the doctrine

was inapplicable because the entity was not a possessor of land.

And for Union Pacific, the court ruled that the doctrine did not

apply because the railroad did not have notice of the danger. We

also determine that the doctrine does not apply as a matter of law

but because of the licensed-driver status of Doutre and Friend. It

is well-established that “an appellate court may affirm the

judgment appealed from if it is sustainable on any legal ground

or theory apparent on the record.” Bailey v. Bayles, 2002 UT 58,

¶ 20, 52 P.3d 1158.

As an aside, we have reservations about the applicability

of the attractive nuisance doctrine to Doutre as a minor passenger.

It seems odd to piggy-back an injured minor’s negligence claim

for attractive nuisance on another person’s participation in a

dangerous activity. Nevertheless, we have analyzed this issue—

as the parties have proceeded on appeal—under the assumption

that the doctrine applies.

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Doutre v. Box Elder County

to ensure that the pole was at least seven feet from the edge of the

road. 9

¶53 We perceive no error in the district court’s determination

that even if the pole was too close to the road, Doutre had failed

to produce evidence the City violated the reasonable diligence

standard in allowing it to remain in place.

¶54 In an old case, our supreme court clarified that a

municipality must exercise reasonable diligence to ensure that

poles on the margins of streets are reasonably safe: “If a mere

stranger . . . erected a large pole 60 or 70 feet in height in the

margin of the street” such that it was “a menace to others, it would

have been the duty of the city to exercise reasonable diligence to

discover it, and to exercise ordinary care to remove it or to make

it reasonably safe.” Morris v. Salt Lake City, 101 P. 373, 377–78

(Utah 1909). Thus, after it had annexed the property, the City had

a duty to “exercise reasonable diligence” to discover the presence

of the pole and take steps “to make it reasonably safe.” Id. at 378.

¶55 Here, the pole had been installed by the power company in

1984 on unincorporated property of the County. The property on

which the pole stood was annexed by the City in 2015, meaning

that the pole was within the City’s jurisdiction for only about

eighteen months before the accident. The record contained no

9. “The horizontal location of utility facilities and appurtenances

within the right of way shall conform to the current edition of the

AASHTO Roadside Design Guide.” See Utah Admin. Code R930-

7-8(1)(a)(iv). “AASHTO is the American Association of State

Highway and Transportation Officials, which publishes

guidelines to highway agencies to promote adequate highway

design and highway safety.” Johnson v. State, 275 So. 3d 879, 889

n.3 (La. Ct. App. 2019). According to one of Doutre’s experts,

under AASHTO standards, “the clear zone for this type of road is

seven feet.”

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Doutre v. Box Elder County

evidence that the City was made aware of any dangerous

condition regarding the pole. The district court summarized the

facts as showing that (1) the pole had been in place for “nearly 40

years”; (2) by the “best estimate” of Doutre’s counsel, the pole was

“one-foot in deviation from a stated standard”; (3) there was “no

indication of any information ever being provided” to the City

“with respect either to that deviation or any concerns about the

location of the pole or any prior history of problems with respect

to that pole”; and (4) there had been “no factual presentation to

suggest” that the City’s “actions or inactions in connection with

that pole . . . constitute violation of the requirement of reasonable

diligence.” The district court concluded that, “based upon the

facts, even when viewed in [a] light most favorable to [Doutre’s]

position,” the “legal standard [was] not maintained.”

¶56 We agree with the district court’s conclusion. Given these

facts, this is a case where reasonable minds cannot differ that the

City did not fail to act with reasonable diligence in discovering a

problem with the pole’s location. See generally Davis v. Wal-Mart

Stores Inc., 2022 UT App 87, ¶ 27, 514 P.3d 1209 (“[S]ummary

judgment is appropriate when reasonable minds cannot differ

about whether the defendant’s actions violated the duty of

reasonable care.”), cert. denied, 526 P.3d 827 (Utah 2022). The pole

fell within the City’s jurisdiction only eighteen months before the

accident, and there was no evidence that the City was ever made

aware of safety problems with the placement of the pole being too

close to the road generally or that it did not satisfy AASHTO

standards specifically. See supra note 9. In other words, there is no

evidence in the record that the pole’s location was obviously

problematic or even abnormally out of place. Doutre’s argument

seems to suggest that when this area was annexed by the City, the

City had a duty to explore the entirety of the expanse, measuring

tape in hand, and verify compliance with all applicable standards.

Such a high expectation exceeds the reasonable diligence that the

law actually imposes on municipalities. Accordingly, we find no

error in the district court’s conclusion on summary judgment that

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Doutre v. Box Elder County

Doutre failed to show, as a matter of law, that the City failed to

exercise reasonable diligence.

CONCLUSION

¶57 For the foregoing reasons, we hold that the district court’s

grant of summary judgment was sound in each particular issue

on appeal.

¶58 Affirmed.

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