Ladd v. BOWERS TRUCKING, INC.

2011 UT App 355, 264 P.3d 752, 693 Utah Adv. Rep. 45, 2011 Utah App. LEXIS 354, 2011 WL 4978756
CourtCourt of Appeals of Utah
DecidedOctober 20, 2011
Docket20100889-CA
StatusPublished
Cited by19 cases

This text of 2011 UT App 355 (Ladd v. BOWERS TRUCKING, INC.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ladd v. BOWERS TRUCKING, INC., 2011 UT App 355, 264 P.3d 752, 693 Utah Adv. Rep. 45, 2011 Utah App. LEXIS 354, 2011 WL 4978756 (Utah Ct. App. 2011).

Opinions

MEMORANDUM DECISION

DAVIS, Presiding Judge:

T1 Christopher Ladd appeals the trial court's grant of summary judgment in favor of Bowers Trucking, Inc. and the Estate of Tyrone A. Granlund (collectively, Defendants). We affirm.

T2 Ladd was the passenger in a pickup truck traveling eastbound on Interstate 80 between Wendover, Nevada, and Salt Lake City, Utah, at 4:00 a.m. on August 10, 2008. For unknown reasons, the driver of the pickup truck (Driver) lost control of the vehicle, causing the pickup to roll. It landed on its wheels partly in the passing lane of traffic and partly in the median. Multiple eyewitnesses traveling in two separate vehicles were passed by the pickup minutes before the rollover accident occurred. The eyewitnesses pulled off to the side of the highway at the scene of the accident to see if they could help the rollover victims. They found the pickup empty and Driver on the ground, partially in the road, east of the pickup. Driver was semi-conscious, covered in blood, and slightly gasping for air. While the eyewitnesses were attempting to help Driver, a second accident occurred in which another vehicle on the highway clipped the pickup as it drove past. Then, as the eyewitnesses were still attempting to stabilize Driver, a semi-truck driven by Granlund, who worked for Bowers Trucking, collided with the pickup, hurling the pickup into the air and into one of the eyewitnesses and Driver, injuring the eyewitness and killing Driver. Granlund also died as a result of the accident.

183 Ladd suffered several substantial injuries including six brain contusions that resulted in short-term memory loss, a problem he continued to experience for at least six years after the accidents despite having received several weeks of cognitive therapy. Ladd had no memory of the accidents until four to six months later when he purportedly relived the accidents in a dream. In his dream, after the pickup stopped rolling, Ladd "cut himself out of his seatbelt, crawled across the driver seat and out of the vehicle," stood up, and, almost immediately upon standing up, was struck by the Bowers Trucking semi-truck driven by Granlund. Ladd dreamed that he then regained consciousness from the semi-truck accident somewhere in proximity to Driver, saw Driver's injuries, and ran in a "freaked out" panic until he collapsed in the median, where he was ultimately found by police. The dream contained only the rollover and semi-truck accidents, not the clipping accident.

T4 Ladd sued Defendants for negligence.1 In a deposition, Ladd described the details of [754]*754his dream, explaining that his account of the accident is "actually [him] reliving [his] dream." He explained that prior to having this dream, he had a gap in memory in which he had no recollection of the accidents at all; he remembered events in the truck before the accident-ie., making a cell phone call and lighting a cigarette-and he remembered waking up in the hospital after the accident.

15 Ladd's dream testimony conflicts with the eyewitnesses' and the responding Utah Highway Patrol trooper's statements. Although the eyewitnesses and the trooper could not recall seeing Ladd at the accident scene specifically, their statements indicate that Ladd was ejected during the rollover into the median and that he remained in the median until the emergency responders arrived. In granting summary judgment in favor of Defendants, the trial court ruled that Ladd's dream was inadmissible and concluded that there were no material facts in dispute. Additionally, the trial court stated that summary judgment was also warranted in light of Ladd's failure "to designate an expert witness regarding causation of damages ... [and that als such, [Ladd] cannot prove causation." Ladd appeals, arguing that the trial court erred in ruling that there were no issues of material fact in dispute based on an incorrect determination that Ladd's dream was inadmissible, that the trial court erred by weighing the evidence surrounding the semi-truck accident in its sammary judgment determination, and that the trial court erred in ruling that Ladd was required to present expert testimony to prove medical causation.

T6 Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(c). In reviewing a motion for summary judgment, the trial court "consider[s] all of the facts presented, and every inference fairly arising therefrom in the light most favorable to [the nonmoving party]." Morris v. Farnsworth Motel, 123 Utah 289, 259 P.2d 297, 298-99 (1953).

17 Although Ladd is "entitled to all favorable inferences, he is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture." Manganaro v. Delaval Separator Co., 309 F.2d 389, 393 (1st Cir.1962). To present an issue of material fact, the parties must submit admissible evidence. Ladd argues that "[ulnder Rule 601 of the Utah Rules of Evidence, [he] is presumed to be competent to testify," and that "[blased on that presumption, Ladd's testimony ... has shown the existence of a disputed issue of material fact, here whether he was involved in the accident with Defendants' vehicle." Defendants argue that Ladd's dream does not qualify as "personal knowledge" under rule 602 of the Utah Rules of Evidence and that, therefore, Ladd is incompetent to testify and there is no issue of material fact in dispute at summary judgment. Ladd counters that rule 602 of the Utah Rules of Evidence, which "requires that [a] witness have the opportunity and the capacity to perceive the events in question," State v. Eldredge, 773 P.2d 29, 33 (Utah 1989), is satisfied here because "Ladd was at the seene at the time the accident happened and as such had the opportunity to perceive the events in question." Ladd likens his situation to that discussed in State v. Eldredge, 773 P.2d 29 (Utah 1989), in which a child's testimony about sexual abuse satisfied rule 602's requirements because the child had "personal knowledge of the incidents of abuse" even though at times the child's "testimony was somewhat confused and contradictory," id. at 30, 33. Ladd argues that Eldredge stands for the proposition that rule 602 is not concerned with "the [755]*755quality of the memory but the opportunity and capacity to observe," and asserts that Ladd had both. Therefore, Ladd contends that the issue boils down to whether "the recovery of memory regardless of source {should bel considered personal knowledge [or] subject to exclusion under Utah Rule of Evidence 602."

18 We disagree. We do not believe Ladd's dream can properly be categorized as a "recovered memory." Rather, Ladds memory is of the dream itself and the dream alone. Ladd clearly stated in his deposition that his account of the accidents is "actually {him] reliving [his] dream" and that, putting the dream aside, he otherwise had absolutely no recollection of the accidents. Ladd's complaint also admits his memory lapse, stating, "Based on his limited memory of the accident, [Ladd] may have been thrown from the vehicle.2 (Emphasis added.) Rule 602, which is identical to rule 602 of the

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Ladd v. BOWERS TRUCKING, INC.
2011 UT App 355 (Court of Appeals of Utah, 2011)

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Bluebook (online)
2011 UT App 355, 264 P.3d 752, 693 Utah Adv. Rep. 45, 2011 Utah App. LEXIS 354, 2011 WL 4978756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ladd-v-bowers-trucking-inc-utahctapp-2011.