                        UNITED STATES COURT OF APPEALS
Filed 11/12/96
                                      TENTH CIRCUIT



 HORTENCIA BETANCOURT, AMY
 BETANCOURT, and the ESTATE OF
 SALVADOR BETANCOURT, by and
 through its Personal Representative,
 RICHARD BETANCOURT,
                                                            No. 95-4170
          Plaintiffs-Appellants,
                                                        (D.C. No. 93-C-734J)
 v.
                                                          (District of Utah)
 EDGAR V. FETZER and PHIL
 WATERS,

          Defendants-Appellees.




                                   ORDER AND JUDGMENT*


Before BRORBY, Circuit Judge, GODBOLD, ** Senior Circuit Judge, and
MCWILLIAMS, Senior Circuit Judge.


      On January 3, 1992, at approximately 5:35 p.m., Phil Fell, driving a pick up truck

pulling a horse trailer, collided head-on with an automobile driven by Salvador



      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3

       Honorable John C. Godbold, Senior Circuit Judge, United States Court of
      **

Appeals for the Eleventh Circuit.
Betancourt on State Highway 191, a rural two-lane highway in southeastern Utah. At the

time, Fell was proceeding southbound on Highway 191 and Betancourt, accompanied by

his wife and daughter, was proceeding northbound on the same highway. At the moment

of impact, Fell’s truck had crossed over the center line of the highway. Betancourt was

killed in the accident, and his wife and daughter suffered severe injuries.

        Minutes prior to the aforesaid accident, Edgar V. Fetzer was driving a rental car

southbound on Highway 191 when he was stopped by Utah Highway Patrol Trooper Phil

Waters. In his deposition, Trooper Waters stated that Fetzer was going 69-70 miles per

hour in an area where the speed limit was 55 miles per hour, and that the only reason he

stopped Fetzer was that he was exceeding the speed limit. In stopping Fetzer, Trooper

Waters activated his flashing emergency lights. Fetzer responded promptly to the signal

by pulling over to the shoulder on the side of the road, and Trooper Waters pulled in

directly behind his vehicle. The left tires of both vehicles were on the so-called “fogline,”

i.e., the solid, white line which separates the travel portion of the highway from the

“shoulder.” Trooper Waters exited his vehicle and proceeded to Fetzer’s vehicle. While

questioning Fetzer, Trooper Waters detected an odor of marijuana. Thereafter, Trooper

Waters directed Fetzer to stand in front of his car and he went to the right hand side of

Fetzer’s vehicle and checked the items on the front seat, on the passenger side. At that

time, Trooper Waters discovered a small amount of marijuana in a backpack on the front

seat.


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       It was in this setting that Fell, about five minutes after Trooper Waters had stopped

Fetzer, came onto the scene. In going around the two stopped vehicles, Fell’s vehicle

crossed the center lane of the highway and collided with the automobile driven by

Salvador Betancourt.

       Based on the foregoing events, Hortencia Betancourt, the widow of Salvador

Betancourt, Amy Betancourt, the daughter of Salvador Betancourt, and the Estate of

Salvador Betancourt, by and through its personal representative, Richard Betancourt, a

son of Salvador Betancourt, brought suit in the United States District Court for the

District of Utah. Named as defendants were Fetzer and Trooper Waters.1 The amended

complaint set forth in detail the chronology leading up to the fatal accident, which has

been summarized above.

       In their amended complaint the Betancourts’ set forth three claims for relief: one

against Trooper Waters based on negligence, a second against Fetzer based on

negligence, and a third against Trooper Waters for violating the plaintiffs’ civil rights. 42

U.S.C. § 1983. The first two claims were based on diversity of citizenship. 28 U.S.C. §

1332(a). In this connection, the Betancourts were citizens of the State of Washington,

Fetzer was a citizen of the State of Alaska, and Trooper Waters was a citizen of the State

of Utah. Trooper Waters was subsequently dismissed from the action and that matter is


       1
        We are advised that Fell died before the present action was filed, and, we are also
advised, that the Betancourts resolved their claims against Fell prior to the institution of
the present action.

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not involved in the present appeal.

       In their claim against Fetzer, the plaintiffs alleged as follows:

              29. The conduct of defendant Fetzer (a) in operating his
              motor vehicle in such a manner that resulted in his being
              stopped by defendant Waters, and (b) in having a small
              amount of marijuana in his possession, was unreasonable,
              violated his duty of care to Salvador Betancourt, Hortencia
              Betancourt and Amy Betancourt, and constitutes negligence.

              30. As proximate results of defendant Fetzer’s negligence,
              plaintiffs have suffered the injuries and damages complained
              of herein, and plaintiffs are entitled to recover from defendant
              Fetzer for their injuries and damages as more particularly set
              forth in the Damages Provisions of this Amended Complaint.

       After discovery, Fetzer filed a motion for summary judgment. The gist of the

motion was that Fetzer did not breach any duty of due care owed the Betancourts. After a

hearing, the district court granted Fetzer’s motion for summary judgment and dismissed

the action with prejudice. In so doing, the district court spoke as follows:

              1. There are no material issues of disputed fact and the
              matters presented are ripe for determination under Rule 56 of
              the Federal Rules of Civil Procedure;

              2. The speeding and marijuana use of Defendant Fetzer are
              not legal causes of the automobile accident that forms the
              basis of this action, the speeding and marijuana use being too
              attenuated in time to have contributed to the accident and any
              negligence attributable to the speeding and marijuana use
              ended at the time Defendant Fetzer was pulled over to the side
              of the road by Defendant Waters;

              3. There are no facts upon which a jury could reasonably find
              that Defendant Fetzer was negligent;


                                             -4-
              4. Defendant Fetzer was obligated by law to pull over to the
              side of the road in response to Defendant Water’s signal and
              Fetzer’s legal liability ended when Waters pulled him over to
              the side of the road;

              5. At such time as the Defendants’ vehicles were pulled over
              to the side of the road, the legal duty of care to other motorists
              rested upon Defendant Waters.

       As indicated, jurisdiction for plaintiffs’ claim against Fetzer was based on diversity

of citizenship. 28 U.S.C. § 1332(a). In their amended complaint, the plaintiffs alleged, in

effect, that by speeding, thereby precipitating the stop by Trooper Waters, and by having a

small amount of marijuana in his possession, which prolonged the detention, Fetzer was

negligent. The plaintiffs further alleged that such negligence was the proximate cause of

the damages and injuries suffered by the plaintiffs in the head-on collision with the

vehicle driven by Fell.

       Under Utah law, in order for a plaintiff to prevail in an action based on negligence,

the plaintiff must establish that the defendant owed the plaintiff a duty, that the defendant

breached that duty, and that the breach of duty was a proximate cause of injuries suffered

by the plaintiff. Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252, 1254 (Utah

1996). Further, “proximate cause” is defined as “that cause which, in natural and

continuous sequence, produces the injury and without which the result would not have

occurred. It is the efficient cause--the one that necessarily sets in operation the factors

that accomplish the injury.” Mitchell v. Pearson Enters., 697 P.2d 240, 245 (Utah 1985).

However, “[a]n intervening, independent, and efficient cause ordinarily severs whatever

                                             -5-
connection there may be between the defendant’s [prior in time] negligence and the

plaintiff’s injuries, unless the intervening cause was foreseeable.” Cruz v. Middlekauff

Lincoln-Mercury, Inc., 909 P.2d 1252, 1257 (Utah 1996).

       In granting Fetzer’s motion for summary judgment, the district court stated that,

based on the record before it, “[t]he speeding and marijuana use of Defendant Fetzer are

not legal causes of the automobile accident that forms the basis of this action . . .” and

that “any negligence attributable to speeding and marijuana use ended at the time

Defendant Fetzer was pulled over to the side of the road by Defendant Waters.”2 The

district court also held that “[t]here are no facts upon which a jury could reasonably find

that Defendant Fetzer was negligent.”

       Although the determinations of negligence and proximate cause are generally

questions of fact, to be resolved by a jury, they become questions of law when the

undisputed facts permit only one reasonable conclusion. FMA Acceptance Co. v.

Leatherby Ins. Co., 594 P.2d 1332, 1335 (Utah 1979); Ostler v. Albina Transfer Co., 781

P.2d 445, 451 (Utah App. 1989). Our study of the record leads us to conclude that the

undisputed facts in the instant case show that Fetzer did not breach any duty owed by him

to the Betancourts, nor was his conduct, be it negligent or otherwise, a proximate cause of



       2
        Fetzer had smoked one marijuana cigarette on the morning of January 3, 1992.
However, as above stated, the plaintiffs, in charging Fetzer with negligence, did not rely
on that fact. Rather, the plaintiffs relied on the small amount of marijuana that was found
in Fetzer’s possession, as well as speeding.

                                             -6-
the automobile accident between Fell and the Betancourts.

       As indicated, in their complaint the Betancourts did not allege that Fetzer was

negligent in stopping when Trooper Waters activated his flashing emergency lights, nor

did they allege that Fetzer stopped in the wrong place. Neither did they base their claim

of negligence on the fact that Fetzer admitted that on the morning of January 3, 1992, he

had smoked one marijuana cigarette. Rather, the Betancourts based their allegation that

Fetzer was negligent towards them on two matters: (1) Fetzer was speeding which caused

Trooper Waters to stop him in the first instance, and (2) Trooper Waters, after first

detecting an odor of marijuana, proceeded to make a further check resulting in the

discovery of a small amount of marijuana in a backpack on the front seat. In this latter

regard, the argument apparently is that if Trooper Waters had not detained Fetzer to make

this further check, Fetzer would have received his traffic ticket and been on his way

before the Fell vehicle collided with the Betancourts’ vehicle.

       In our view, the fact that Fetzer was speeding, and the further fact that Fetzer had a

small amount of marijuana in his possession, do not, under any stretch of the imagination,

constitute a breach of any duty owed to the Betancourts by Fetzer. Most certainly, such

were not a proximate cause of the Betancourts’ injuries. In support of this conclusion, see

such cases as Haworth v. Mosher, 395 F.2d 566 (10th Cir. 1968) and Beesley v. United

States, 364 F.2d 194 (10th Cir. 1966).

       Both Haworth and Beesley were cases originating in Oklahoma, but the Utah tort


                                            -7-
law relevant to the particular fact situation here involved would appear to be the same as

that in Oklahoma. In Haworth, we affirmed an order of the district court granting

summary judgment to a driver who had stopped his vehicle in a dust storm on the traveled

portion of the highway. A series of rear end collisions occurred thereafter. In that case,

the plaintiff struck a vehicle in front of him, which vehicle had been stopped by its driver

without hitting the vehicle immediately before him. In Haworth, we held that the district

court correctly ruled that the acts of the first driver in stopping because of the dust storm

“were a remote and not a proximate cause of appellant’s injuries and the case was

appropriately ripe for summary disposition.” Haworth, 395 F.2d at 569.

       In Beesley, a government vehicle ran out of gasoline and came to a stop in a two

lane traffic overpass. The plaintiffs’ vehicle, which was behind the government vehicle,

stopped, but was then struck in the rear by a vehicle which was following them. A trial to

the court resulted in a judgment in favor of the government. On appeal, we affirmed. In

so doing, we held that the government’s negligence was not a proximate cause of

plaintiffs’ injuries, stating that for proximate cause to exist, “there must be some actual

causal connection between the negligence and the injury.” Beesley, 364 F.2d at 197.

       Judgment affirmed.

                                                   Entered for the Court,

                                                   Robert H. McWilliams
                                                   Senior Circuit Judge



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