- Jury finds Nephi City negligent in death of Shelly Elder in 1998
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TRAGIC CROSSING • In June 1998 Shelly Elder died in a truck / train accident at this crossing. Last week a Jury found Nephi City 70 percent at fault in the accident because trees that existed at the crossing were not trimmed. Nephi City did not have any comment on the verdict
By Myrna Trauntvein
Times-News Correspondent
An eight-person jury found that Nephi City was negligent in the death of Shelly Elder in a case heard in Fourth District Court in Nephi.
The verdict of the jury was that Nephi City was 70 percent at fault for the accident and other entities were 30 percent at fault. Shelly Elder, the victim, was found to have no fault in the accident that caused his death.
The crux of the case was that Nephi City should have cut back some trees that obstructed Elder’s view of the train track on the west of Nephi where he was traveling across the tracks in performance of his job of driving a dump truck from the county road shed east across the tracks.
The presence of the trees resulted in him not seeing the approaching train. The verdict of the jury was that Nephi City was 70 percent at fault for the accident and is, therefore, responsible for the damages which were set by statute at $250,000.
“The jury didn’t make a monetary award,” said Tyler Young, attorney son of Nan Elder’s primary attorney, Allen K. Young. “The amount of $250,000 was the figure set because of agreements understood before the trial.”
One of the pretrial stipulations came because of statute. Only the monetary award of $250,000 would be allowed under law. Less could be collected, depending on the percentage of damages assigned but no more than that amount could be collected.
The case appeared before Judge Fred D. Howard and was decided on Friday, June 4.
Elder was killed on a Union Pacific Railroad railway track in west Nephi 10-years ago, when the dump truck he was driving was struck by a ninety-one-car freight train. Nan Elder, Shelly Elder’s widow, contended that her husband’s death was caused by the negligence of the city.
“According to Mrs. Elder, her husband would not have lost his life had a line of trees located parallel to the railroad tracks not obscured his vision of the train,” said her attorney, Allen K. Young, Provo. “The trees were situated on land owned by Nephi.”
Benson L. Hathaway, Salt Lake City, acting for the city and supplied by their liability firm, Utah Local Government’s Trust, represented the defendant, Nephi City.
Nan Elder, individually, and as personal representative of The Estate of Shelly Elder, and on behalf of their children, asked the court to find Nephi City negligent in the death of Shelly Elder.
“We had an expert witness who summarized the special damages,” said T. Young. “The tort limits were set by statute at $250,000.”
Special damages are ones actually sustained, rather than implied by law. They are either added to general damages arising from an act injurious in itself or arise from an act not actionable in itself, but injurious only in its consequences. To constitute special damage, the legal and natural consequence must arise from the tort and not from a mere wrongful act of a third person or a remote consequence.
Two years ago, the Supreme Court of Utah, in a case before them on appeal from the district court, concluded the railroad did not have a duty to ensure the trees did not impair motorists’ view of approaching trains and was not negligent in failing to remove the trees and affirmed the district court’s summary dismissal of Nan Elder’s wrongful death action with respect to the railroad.
“Although we conclude Nephi was under no statutory obligation to remove the trees, we vacate the district court’s grant of summary judgment on the issue of common-law duty and remand for proceedings consistent with this opinion,” read the conclusion of the justices.
The state supreme court also found that while Nephi owed no statutory duty, the district court erred when it held Nephi owed no common-law duty to Elder.
On Friday in Nephi, the jury deliberated for three hours before returning the verdict that the city was negligent in events that caused or contributed to the cause of the death of Elder.
Judge Howard presented the jury with seven questions to consider for the court in determining fault. Those questions dealt with the negligence of the city and “other parties.”
In considering the preponderance of the evidence, jurors were asked to decide whether or not there was negligence on the part of the city and whether or not the city’s negligence contributed to the cause or was the cause of the death of Elder. They were also asked to consider whether other parties were negligent and whether that fact contributed to the cause or did cause the death of Elder.
The judge also asked jurors to determine from the evidence whether Elder was negligent or whether his negligence, if any, contributed to his death.
“If you answer, ‘yes’ to questions two, four or five,” said Judge Howard, “you must determine the percentage of the negligence for Nephi City and of other parties.”
Nephi City was found responsible for 70 percent of the damages and, although in court on Friday no monetary amount was discussed, prior stipulations were understood by both parties, said T. Young.
There is an old statute on the books that makes it so that the Elder family could only collect up to the $250,000. The family could have, he said, collected less if the percentage of negligence had not been as high as it was but, since the percentage was 70 percent, the full amount will be paid. All parties agreed, prior to the trial, to the monetary stipulation.
“We expect no difficulty in collecting the $250,000 for the Elder family,” said T. Young. “My father, Attorney Allen Young has worked for the past 10 years for this.”
Nephi City will not have a statement or a comment on the Elder family’s suit,” said Randy McKnight, city administrator.
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