                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 16 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    SUZANNE BAGLEY,

                Plaintiff-Counter-
                Defendant - Appellant,

    v.                                                   No. 01-4185
                                                    D.C. No. 98-CV-408-TS
    WELDON D. BAGLEY and                                  (D. Utah)
    JAMES V. BAGLEY,

                Defendants-Counter-
                Claimants - Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY and BALDOCK , Circuit Judges, and          BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the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.
      Appellant Suzanne Bagley brought this action seeking damages for injuries

she suffered after her vehicle struck appellees’ bull, which was loose on the road

after dark. Exercising diversity jurisdiction, the district court granted appellees’

motion for summary judgment, concluding that there was no evidence of

appellees’ negligence in allowing the bull to stray or remain unaccompanied on

the highway.   1
                   The sole issue on appeal is whether the district court erred in

granting the motion. Upon careful consideration of the record and the parties’

arguments on appeal, we affirm.


                                             I.

      Due to the nature of this dispute, it is unnecessary to repeat in entirety the

district court’s detailed recitation of facts leading to this unfortunate accident.

The undisputed facts show that on the day of the accident appellees were moving

cattle to different pastures, using the Cattlemen Association’s holding corrals

adjacent to Utah State Road 62 to separate and hold the animals. Appellees’ bull

was placed in one of the corrals, either alone or with several cows, and the gate

was secured. At dusk, appellees were moving a load of cattle by trailer when, at

some point, they noticed a stray bull, on or near the road. After identifying the

bull as their own, one appellee went to the corral and verified that the bull was


1
      Appellees’ counterclaim for the loss of the bull was dismissed and is not
being appealed.

                                            -2-
gone, but the gate was still latched shut. At the same time, appellee’s son ran

down the opposite side of the road, circled the bull, and began to coax it back to

a corral. Within two minutes from the time that appellee’s son ran after the bull,

appellant drove into the area. As her car approached, the bull abruptly turned and

stepped onto the road. Appellant’s car struck the bull, killing it; appellant was

severely injured by the collision. After the accident, one appellee rechecked the

corral and found the gates still closed and mud smears on the corral fencing

indicating that the bull had jumped out.


                                            II.

       When reviewing a diversity action, we look to state substantive law, but we

follow federal law in determining the propriety of the district court’s grant of

summary judgment.      Eck v. Parke, Davis & Co. , 256 F.3d 1013, 1016 (10th Cir.

2001). “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.”       Simms v. Okla.

ex rel. Dep’t of Mental Health & Substance Abuse Servs.         , 165 F.3d 1321, 1326

(10th Cir. 1999). Summary judgment is proper if the moving party shows that

“there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “[T]he

substantive law will identify which facts are material. Only disputes over facts

that might affect the outcome of the suit under the governing law will properly

                                            -3-
preclude the entry of summary judgment. Factual disputes that are irrelevant or

unnecessary will not be counted.”     Anderson v. Liberty Lobby, Inc.   , 477 U.S. 242,

248 (1986). “[A]n issue of material fact is genuine only if the nonmovant

presents facts such that a reasonable jury could find in favor of the nonmovant.”

Simms , 165 F.3d at 1326. In considering whether summary judgment was

appropriate, “we view the evidence and draw reasonable inferences therefrom

in the light most favorable to the nonmoving party.”      Id.


                                           III.

       As correctly noted by the district court, liability for accidents caused by

livestock straying on a highway in Utah must be predicated on negligence or

willfulness by the owner or person in possession or control of the animal.       See

Utah Code Ann. § 41-6-38(1). However, “there is no presumption that the

collision was due to negligence on behalf of the owner or the person in possession

of [the] livestock.”   Id. § 41-6-38(3). “To prove negligence, a plaintiff must show

four things: duty, breach of duty, causation, and damages.”       Gerbich v. Numed

Inc. , 977 P.2d 1205, 1207 (Utah 1999).

       Appellant argues that the district court erred in concluding that there were

no genuine issues of material fact demonstrating appellees’ negligence. In

response to the motion for summary judgment in the present case, appellant

disputed a number of statements of fact put forth by appellees. The district court

                                            -4-
noted those disputes, but found that none were material to the questions of

whether appellees were negligent either by allowing the bull to escape or by

failing to warn appellant in the brief period of time that appellees were aware of

the stray animal.

       We agree with the district court’s assessment of the case. In light of the

undisputed material facts, the district court correctly determined, as a matter of

law, that a reasonable jury would not find in favor of appellant.   See Liberty

Lobby, 477 U.S. at 251-52. Setting aside the disputed issues that were either

irrelevant or unnecessary to the outcome of the suit, the district court was left

only with evidence that the animal somehow escaped. However, under Utah law

“[t]he mere fact that the animal[] escaped from the enclosure is not sufficient

evidence, standing alone, to justify the submission of defendant[s’] negligence to

the jury.” Rhiness v. Dansie , 472 P.2d 428, 430 (Utah 1970).


                                            IV.

       Appellant also argues that the district court erred in interpreting Utah Code

Ann. § 41-6-38(2). That section states:

       A person may not drive any livestock upon, over, or across any
       highway during the period from half an hour after sunset to half an
       hour before sunrise, without keeping a sufficient number of herders
       with warning lights on continual duty to open the road to permit the
       passage of vehicles.



                                            -5-
Appellant contends that a reasonable jury could believe that when the son of one

of the appellees attempted to recapture the bull he was “driving” the bull on the

highway; therefore, appellees violated the statute by not using warning lights.

We disagree. Appellant’s reading of the statute ignores the essential difference

between § 41-6-38(1), prohibiting a person from wilfully or negligently

permitting non-range livestock to stray or remain unaccompanied on a highway,

and § 41-6-38(2), concerning the intentional act of herding livestock on or across

a highway. Our reading of the statute as a whole convinces us that the plain

language of subsection two does not apply to the particular facts presented by this

case. Our conclusion is in accordance with Utah law, which draws a distinction

between the intentional act of herding or otherwise allowing livestock to run at

large and an attempt to recapture an errant animal.   See Hornsby v. Corp. of the

Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints    , 758 P.2d

929, 934-35 (Utah Ct. App. 1988).

       Accordingly, for substantially those reasons articulated in its order filed

August 9, 2001, the judgment of the United States District Court for the District

of Utah is AFFIRMED.

                                                      Entered for the Court



                                                      Wade Brorby
                                                      Senior Circuit Judge

                                            -6-
