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Sutton v Byer Excavating, Inc.

Case No. 20100830‐CA (UT Ct. App., Feb. 2, 2012)

Plaintiff E.J. Sutton appeals the district court’s grant of summary judgment in favor of defendant Byer Excavating, Inc. (Byer Excavating). We affirm.

BACKGROUND



In the summer of 2007, two separate houses were being built on adjacent lots 173 and 174 on White Pine Canyon Road in Park City, Utah. M.H. Allred Construction performed as the general contractor on Lot 174, with both Byer Excavating and R.W. Construction performing as subcontractors. Byer Excavating employed Bob Miles to operate its trackhoe. R.W. Construction employed Sutton as a framing superintendent.

On August 1, 2007, Lowell Construction Company (Lowell Construction) received a load of rebar at Lot 173 for the housing project on that lot. Miles was performing clearing and excavation work on Lot 174 when Sutton asked Miles to discontinue his excavation work on Lot 174 to help unload Lowell Construction’s rebar for Lot 173 using Byer Excavating’s trackhoe. Byer Excavating had not been hired to perform work on Lot 173 and had no prior arrangement with Lowell Construction to unload the rebar. Although Miles was reluctant to stop his own work, he agreed to help Lowell Construction unload the rebar and left the area where he was working to do so. To help unload the rebar, Sutton rigged the load of rebar on the trackhoe and later testified that he acted as “kind of a spotter.” Don Jones worked as Lowell Construction’s superintendent on Lot 173 and was in charge of unloading the rebar for the housing project on Lot 173. While Miles was operating the trackhoe, the unstable load struck and injured Sutton. Byer Excavating was not aware that Miles used the trackhoe to assist Lowell Construction until after the accident occurred.
 

 

Judge(s): Michele M. Christiansen
Jurisdiction: Utah Court of Appeals
Related Categories: Employment , Torts
 
Trial Court Judge(s)
Robert Hilder

 
Court of Appeals Judge(s)
Michele Christiansen
James Davis
Stephen Roth

 
Appellant Lawyer(s) Appellant Law Firm(s)
John Hansen
Jonathan Rupp

 
Appellee Lawyer(s) Appellee Law Firm(s)
Spencer Brown
Stanford Fitts
Michael Ford

 

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Click the maroon box above for a formatted PDF of the decision.
accomplishment of objectives within the scope of [miles]'s duties and authority, or testified that he acted as "kind of a spotter." don jones worked as lowell 7 "under the doctrine of respondeat superior, an employer may be held ) demonstrate that the undisputed facts establish that its actions did not clothe miles with operate its trackhoe. r.w. construction employed sutton as a framing superintendent. [a]n employee's acts or conduct must be generally directed to demonstrate that byer excavating allowed its other employees to leave the job on employment issue[s] must be submitted to a jury whenever equated to byer excavating's recognition that miles had the independent authority to 2 in the summer of 2007, two separate houses were being built on adjacent lots 173 newman, 2008 ut 79, 9 (quoting birkner, 771 p.2d at 105657). sutton's claim failed, as a matter of law, when he could not establish one element of the performed as the general contractor on lot 174, with both byer excavating and r.w. and scope of his employment for byer [excavating] . . . at the time of the accident." james z. davis, judge sutton now appeals. ____________________________________ allowed miles or its other employees to leave the job to assist on a separate job site, but employee's activity is so clearly within or outside the scope birkner test, no reasonable jury could conclude that miles was acting within the course given its other employees that authority. because sutton failed to produce any evidence work on projects, and have used trackhoes to unload rebar"; (2) "miles was a byer unload the rebar. although miles was reluctant to stop his own work, he agreed to help this appeal focuses solely on byer excavating. 3 on august 1, 2007, lowell construction company (lowell construction) corporation's knowledge of and acquiescence in the conduct 20100830ca 7 14 we affirm the district court's grant of summary judgment in favor of byer utah corporation; james h. diamond and 174 on white pine canyon road in park city, utah. m.h. allred construction 2 load struck and injured sutton. byer excavating was not aware that miles used the received a load of rebar at lot 173 for the housing project on that lot. miles was byer excavating's favor because miles had apparent authority to act for byer "there [were] no genuine issues of material fact and byer [excavating] . . . [wa]s entitled differ about whether an employee is within the course and and all reasonable inferences drawn therefrom in the light most favorable to [sutton,] analysis the honorable robert k. hilder reasonably rely on that authority. therefore, the district court did not err in granting law." id. 10 (citing utah r. civ. p. 56(c)). endeavor. [the employee] in a managerial position did not clothe [the employee] with the (february 2, 2012) project. not only did sutton fail to dispute byer excavating's evidence that it never different job site or produce any evidence that byer excavating had ever authorized authority to leave his job to unload rebar for another job site or that sutton could ordinary spatial boundaries of the employment'"; and (3) "`the employee's conduct excavating.2 jurors might differ about whether the employee's actions fell the nonmoving party.'" orvis v. johnson, 2008 ut 2, 6, 177 p.3d 600 (citation omitted). of its agent which has led third parties to rely upon the i. course and scope of employment [excavating] employee in control of byer [excavating]owned equipment at the time of and all reasonable inferences drawn therefrom in the light most favorable to the performing clearing and excavation work on lot 174 when sutton asked miles to 10 sutton also argues that the district court erred in granting summary judgment in the responsibility to ascertain that agent's authority despite 6 to be entitled to summary judgment, the movant must establish "both that there ii. apparent authority principal" and not the acts of the agent, we examine only the facts related to byer excavating. sutton correctly notes that utah law allows for vicarious liability "for the [excavating] employees have used byer [excavating] equipment to do extracontractual trackhoe to assist lowell construction until after the accident occurred. trackhoe work that consisted of excavation and earthwork, and that his work did not to judgment in its favor as a matter of law that . . . miles was acting outside the course case no. 20100830ca christiansen, judge: subsequently, byer excavating filed a motion for summary judgment. 5 sutton argues that the district court improperly granted summary judgment in agent's actions. nor is the authority of the agent `apparent' thereto. in other words, the employee must be about the however, even considering these facts and the reasonable inferences drawn therefrom of employment that reasonable minds cannot differ. reasonably believing that miles had the authority to unload the rebar. however, sutton believe that the agent is clothed with apparent authority. . . . vicariously liable for the acts of its employee if the employee is [acting] in the course therefore, the district court properly granted summary judgment in favor of byer because we are reviewing a grant of summary judgment, we recite "`the facts f i l e d background1 1 allowed miles to independently operate its equipment on a job site does not years of employment with byer excavating, that miles was hired for and performed lowell construction unload the rebar and left the area where he was working to do so. cnty., 771 p.2d 1053, 105657 (utah 1989), to establish that the employee was acting 2012 ut app 28 showing, whether or not supported by additional 12 first, sutton argues that the undisputed fact that miles operated byer stephen l. roth, judge v. ) ) employment under the birkner test presents a question of 20100830ca 5 attorneys: john edward hansen and jonathan h. rupp, salt lake city, for the authority to leave the job he was hired to perform and unload the rebar for another authority. defendants and appellee. and scope of his employment at the time of the act giving rise to the injury." newman v. kind [of work miles was] employed to perform." see id. 9. was at a certain time . . . within the scope of employment. reasonable juror could come to any other conclusion, the housing project on lot 173. while miles was operating the trackhoe, the unstable sutton did not dispute any of the material facts that established that byer excavating judgment is improper and the issue should go to the jury for id. 1011 (alterations and omission in original) (citations and internal quotation 20100830ca 4 authority to become romantically involved with his subordinates."). conclusion regarding the employee's conduct. if no without dispute, that it had a separate group of employees that unloaded objects. ) which they were working to unload objects for an unrelated job site, byer excavating's demonstrate that byer excavating authorized, or should be held liable for, miles leaving not only did sutton fail to dispute byer excavating's evidence that it had not given 1995). thus, for byer excavating to be entitled to summary judgment it must concrete, a utah corporation; and john and ultimate grant or denial of summary judgment' for correctness and views `the facts in the utah court of appeals sutton merely recites facts and argues that they establish apparent authority. because did not dispute that miles had never unloaded rebar in his work with byer excavating, white water whirlpool, 2008 ut 79, 8, 197 p.3d 654. the party asserting vicarious "where corporate liability is sought for acts of its agent ____________________________________ employer's business and the duties assigned by the does 1 through 3, excavating's trackhoe without constant monitoring by a byer excavating supervisor birkner, 771 p.2d at 1057. include unloading objects. additionally, sutton's affidavit, which stated that other byer whether an employee is in the course and scope of his plaintiff and appellant, within the course and scope of his employment, summary the agent's representations." employee's conduct must occur within the hours of the employee's work and the construction's superintendent on lot 173 and was in charge of unloading the rebar for whether reasonable jurors, having been properly instructed e.j. sutton, ) conduct[s] itself in such a way as to clothe its employee with apparent authority to nonmoving party, who . . . "must set forth specific facts conclusion ____________________________________ determination. when viewed in sutton's favor, preclude the entry of summary judgment: (1) "byer ) following briefing and oral argument, the district court granted the motion, ruling that material facts were at issue and that it was "entitled to judgment as a matter of law," 13 second, sutton argues that byer excavating's acquiescence in allowing other opinion ) furthermore, sutton failed to must be of the general kind the employee is employed to perform'"; (2) "`the is no material issue of fact and that the movant is entitled to judgment as a matter of and thus, sutton did not raise any material issue of fact that byer excavating had given under apparent authority, liability is premised upon the corporation; lowell construction co., a for appellee not differ on the issue of whether miles's conduct was "generally directed toward the 15 we concur: plymouth, 672 p.2d 89, 90 (utah 1983)); accord bodell constr. co. v. stewart title guar. co., affirmative factual evidence, the burden then shifts to the appellant ooooo for lot 173 using byer excavating's trackhoe. byer excavating had not been hired to zions first nat'l bank, 762 p.2d at 1095 (quoting city elec. v. dean evans chrysler excavating employees had used byer excavating's trackhoes to unload objects, does not miles that apparent authority, but sutton also failed to dispute that byer excavating had reasonably incidental thereto." see id. because byer excavating established that the accident"; and (3) "miles'[s] conduct was motivated in part to benefit his employer." construction performing as subcontractors. byer excavating employed bob miles to summary judgment is proper, then, only when the ) liability must prove three elements (the birkner test), see generally birkner v. salt lake 20100830ca 6 nonmoving party.'" orvis v. johnson, 2008 ut 2, 6, 177 p.3d 600 (citations omitted). such use of its equipment. thus, given the undisputed facts, reasonable minds could discontinue his excavation work on lot 174 to help unload lowell construction's rebar there is no genuine issue of material fact. upon such a byer excavating's favor. "an appellate court reviews a trial court's `legal conclusions within the course and scope of his or her employment: (1) "`an employee's conduct summary judgment in byer excavating's favor. id. 18 (citation omitted) (quoting utah r. civ. p. 56(e)). in this case, the district court the employee's duties and authority, or reasonably incidental see generally jackson, 891 p.2d at 1392 ("[t]he mere fact that [the employer] employed byer excavating employees to use its trackhoes to unload objects resulted in sutton in sutton's favor, sutton did not dispute other key facts that byer excavating presented byer excavating, inc., a utah 4 following the accident, sutton sued several defendants, including byer favor of defendant byer excavating, inc. (byer excavating). we affirm. issue and standard of review objective one. in other words, the standard is not whether contractor on another job site or that sutton did not reasonably rely on that apparent nonmoving party will bear the burden of proof at trial, may showing that there is a genuine issue for trial." reasonable minds may differ as to whether the [employee] by the trial court, would be unable to come to any other to establish, as a matter of law, that miles's conduct in utilizing byer excavating's byer excavating admitted that other employees unloaded objects but stated, 20100830ca 2 michele m. christiansen, judge in determining whether reasonable minds might third district, salt lake department, 080911879 11 on appeal, sutton does not argue that any specific fact was disputed, but instead, undisputed facts established, as a matter of law, that miles did not have the apparent excavating. perform the torts committed and there [was] reasonable reliance on that apparent scope of his employment, the standard to be applied is an perform work on lot 173 and had no prior arrangement with lowell construction to miles the apparent authority to leave his job to unload rebar for an unrelated job site. acts of an employee under the theory of apparent authority" when "an employer . . . 945 p.2d 119, 124 (utah ct. app. 1997). thus, the mere fact that byer excavating trackhoe to unload rebar for another construction site's project was not "the general it follows that one who deals exclusively with an agent has a summary judgment movant, on an issue where the raise a material issue of disputed fact because his affidavit did not assert that miles must be motivated, at least in part, by the purpose of serving the employer's interest.'" these parties' minds differ--which they obviously do--but 3 toward the accomplishment of objectives within the scope of himself had ever performed these unloading tasks.3 law, that it "clothe[d miles] with apparent authority to perform the torts committed." 1 plaintiff e.j. sutton appeals the district court's grant of summary judgment in authority on the part of the injured party." jackson v. righter, 891 p.2d 1387, 1392 (utah and scope of his employment with byer excavating at the time of the accident. never before unloaded rebar using byer excavating's trackhoe during his seventeen excavating. correctly granted summary judgment. after byer excavating demonstrated that no ) ) ) 9 sutton produced no facts to dispute byer excavating's evidence that miles had merely because it looks so to the person with whom he to help unload the rebar, sutton rigged the load of rebar on the trackhoe and later ) ) 8 on appeal, sutton argues that the following material facts are disputed and, "an agent's apparent . . . authority flows only from the acts and conduct of the produce any evidence to dispute byer excavating's evidence that miles had never 20100830ca 3 satisfy its burden on summary judgment by showing . . . that deals. it is the principal who must cause third parties to marks omitted). fact for the factfinder. indeed, [s]cope of employment authority. see zions first nat'l bank v. clark clinic corp., 762 p.2d 1090, 1095 (utah 1988). stanford p. fitts, michael l. ford, and s. spencer brown, salt lake city, excavating's actions to determine whether the undisputed facts establish apparent leave his job and help another contractor unload rebar for a different construction site's before left the job site he was assigned in order to assist on an unrelated project on a summary judgment is appropriate. if, however, reasonable his work to unload rebar for an unrelated job site. before judges davis, roth, and christiansen. questions are inherently fact bound. accordingly, scope of 20100830ca 8 was entitled to summary judgment as a matter of law. see id. employer, as opposed to being wholly involved in a personal byer excavating's lack of constant supervision is not enough to establish, as a matter of


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