                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                      July 9, 2008
                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court


 WADE CHRISTENSEN,

          Plaintiff-Appellant,

 v.                                                      No. 07-4133
                                                  (D.C. No. 2:05-CV-55-DAK)
 UNITED STATES OF AMERICA;                                 (D. Utah)
 FORSGREN ASSOCIATES, INC.; and
 JAY DIGS INCORPORATED,

          Defendants-Appellees.


                          ORDER AND JUDGMENT *

Before McCONNELL, SEYMOUR, and GORSUCH, Circuit Judges.


      This is a civil case brought by Wade Christensen against the United States,

Forsgren Associates, Inc., and Jay Digs, Inc. Mr. Christensen contends he was

injured by the negligence of the three defendants because they failed to detect and

address the hazards created by a loop of exposed grounding wire on a section of

land on which the United States owns an easement. The district court granted

summary judgment for all three defendants, and Mr. Christensen appeals. We


      *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with F ED . R. A PP . P. 32.1 and 10 TH
C IR . R. 32.1.
have jurisdiction pursuant to 28 U.S.C. §§ 1291, and we affirm.

                                         I

      On April 6, 2003, Mr. Christensen was herding cattle when his horse

tripped over a nine-foot loop of exposed grounding wire that was attached to a

nearby power pole owned and maintained by the United States. Mr. Christensen

was thrown to the ground and tore an artery in his neck, allegedly causing him to

have a stroke resulting in injury and permanent damage.

      The fall occurred on a section of the Grantsville Soil Conservation District

on which the United States owns an easement. In the six weeks prior to the

accident, Tooele County had been in the process of installing a water pipeline on

a thirty-foot wide easement it obtained from the United States near this area.

Defendant Forsgren Associates engineered the project, and defendant Jay Digs

Inc. installed the pipeline. The easement for the pipeline came within six feet of

the power pole that was connected to the wire over which Mr. Christensen’s horse

tripped. The construction activity may have come closer.

      Mr. Christensen brought a negligence action against the United States

under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), claiming that it failed

to maintain its easement and power pole in a safe condition. It also contended the

United States failed to use reasonable care to discover the loop of exposed

grounding wire prior to Mr. Christensen’s fall, and to remedy the hazardous

situation presented. In addition, Mr. Christensen brought claims against Forsgren

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Associates and Jay Digs for negligently causing the loop of grounding wire to

become exposed during the construction of the water pipeline, and/or for failing

to inspect for, report, or clean up any hazardous conditions in the construction

zone following completion of the project.

      All three defendants filed motions for summary judgment. After hearing

oral argument, the district court granted these motions and dismissed the case in

its entirety. On appeal, Mr. Christensen contends the United States failed to

exercise reasonable care to discover the exposed wire, it had constructive notice

that the wire had become unearthed, and circumstantial evidence exists that the

construction of the water pipeline exposed the wire. He argues there are triable

issues of material fact with respect to his claims against all three defendants, thus

precluding summary judgment.

                                          II

      The district court’s conclusions were four-fold. First, in granting the

United States’ motion for summary judgment, the court held that, regardless of

whether he was an invitee or licensee on the land, Mr. Christensen had “not

shown a breach of the duty owed to him.” Christensen v. United States, No.

2:05CV55DAK, 2007 WL 1467347, at *6 (D. Utah May 18, 2007) (hereinafter D.

Ct. Op.). Under Utah law, if the alleged negligence arises out of “unsafe

conditions of a temporary nature,” a plaintiff must show the defendant had actual

or constructive knowledge that the unsafe condition existed, and sufficient time

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after such knowledge to remedy the condition. Schnuphase v. Storehouse Market,

918 P.2d 476, 478 (Utah 1996). The district court pointed out that even Mr.

Christensen’s “expert would not fault the United States for relying” on the project

engineer and the excavating crew to monitor the job site and report any problems.

D. Ct. Op. at *4. The court observed there was “no evidence that the United

States had actual or constructive knowledge of an exposed grounding wire with

time to remedy the condition before Christensen’s accident,” concluding that “[a]

private person would not be liable on these facts under Utah law.” Id. at *5. See

Goebel v. Salt Lake City Southern R.R. Co., 104 P.3d 1185, 1193-94 (Utah 2004).

       Second, the court declined to hold that the United States had a heightened

duty of care. The court explained that because the wire Mr. Christensen’s horse

tripped over was not “live,” “[t] he circumstances of this case do not involve a

degree of danger that would justify a heightened standard of care.” D. Ct. Op. at

*6. The court noted that other courts have “declined to hold electrical utilities to

a heightened duty of care where the danger does not involve live wires,” and that

“conventional negligence concepts” have been applied when the danger from such

wires is minimal. Id. (citing McFarland v. Entergy Mississippi, 919 So.2d 894,

899 (Miss. 2005); Keegan v. Grant County Pub. Util. Dist., 661 P.2d 146, 149

(Wash. Ct. App. 1983)).

      Third, in granting Jay Digs Inc.’s motion for summary judgment, the

district court held that absent temporal proximity, Mr Christensen had “no

                                         -4-
evidence that the water pipe installation disturbed the grounding wire or rod.” D.

Ct. Op. at *7. 1 Indeed, the court determined that Mr. Christensen could not prove

the two main theories of his case against Jay Digs which were:

      (1) the grounding rod was located within the area where the trench
      for the water line was to be dug and so was moved by Jay Digs; and
      (2) that during installation of the water pipe, a track on the heavy
      equipment reached down and snagged the wire and pulled it and the
      rod to the surface.

Id. at *7. The court noted there was “no evidence that the grounding rod and wire

were ever within the easement where Jay Digs was working,” and that Mr.

Christensen’s “own expert witnesses . . . have been unable to reach a conclusion

supported by actual evidence of how the grounding rod could have been disturbed

during the excavation.” Id. Further, the court observed:

      Perhaps the most telling fact is that after Christensen fell, no one
      could find any evidence that the area around the pole had been
      disturbed during construction. No tire or crawler tracts [sic] were
      located. No soil appeared to have been recently dug up. And, there
      was no evidence that the rod or wire had been recently disturbed or
      re-buried. There is no evidence from any source that the wire was
      tangled, dented, bent, or otherwise deformed so as to suggest that it
      had been torn from the ground in a construction accident.

Id. at *8 (emphasis added). The court concluded Jay Digs was entitled to

summary judgment because of the lack of evidence regarding causation.

      Fourth, in granting Forsgren’s motion for summary judgment, the court


      1
       The court noted that temporal proximity does not provide proof of
causation, citing Sunward Corp. v. Dun & Bradstreet, 811 F.2d 511, 521 (10th
Cir. 1987).

                                        -5-
concluded there were “no documents, photographs, or other types of evidence

offered to establish that Forsgren caused Christensen’s injuries.” Id. at *9.

Significantly, it emphasized that “[m]any people have had access to the land since

the power poles were installed and there is no evidence to narrow down the

potential cause of the exposed grounding wire.” Id. Finally, the court observed

that “[w]hile it is generally true that a jury is allowed to infer causation and

negligence from the underlying operative facts, a jury is not allowed to infer the

underlying operative facts.” Id.

                                          III

      Having read the record, the parties’ briefs, and the relevant case law, we

cannot fault the district court’s analysis. With no evidence as to when the loop of

wire was exposed, there is no supportable inference that any of the defendants

was responsible. We affirm substantially for the reasons given by the district

court in its well stated opinion.

      AFFIRMED.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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