author: DURHAM, Justice.

text:
    2002 UT 41
    STATE of Utah, Plaintiff and Appellee, v. Kevin Lee PECHT, Defendant and Appellant.
    No. 990537.
    Supreme Court of Utah.
    April 26, 2002.

      Mark L. Shurtleff, Att'y Gen., Karen A. Klueznik, Asst. Att'y Gen., Salt Lake City, David M. Cole, Davis County, for plaintiff.
    Seott L. Wiggins, Salt Lake City, for defendant.
   DURHAM, Justice.

INTRODUCTION

1 Defendant Kevin Lee Pecht appeals a judgment and conviction of two counts of sodomy on a child and aggravated sexual abuse, both first degree felonies in violation of Utah Code Ann. §§ 76-5-408.1 and 76-5-404.1 (1999), respectively. On appeal, defendant challenges his conviction on three separate grounds. First, he alleges that the trial court committed plain error in its application of Utah Code Ann. § 76-5-411 (1999) by failing to make the required reliability evaluations of out-of-court statements offered at trial, by not reducing its findings to writing, and by admitting the hearsay statements of the victim's brother under section 76-5-411. Second, defendant argues that he was deprived of his right to effective assistance of counsel because his lawyer failed to object or otherwise limit the reference by several witnesses to defendant's previous incarcerations. Finally, defendant claims that the trial court abused its discretion by excluding testimony regarding previous allegations of abuse made by the victim's mother against other individuals. ‘

BACKGROUND _

T2 In reviewing a jury verdict, we view the evidence in a light most favorable to the verdict. State v. Lafferty, 2001 UT 19, T2, 20 P.3d 342. We recite the facts accordingly.

13 The appellant, Kevin Lee Pecht, married Belinda Pecht in 1985. They divorced in 1988. Ms. Pecht took custody of the couple's two children, but intermittently allowed them to stay with defendant when he was not incarcerated.

[ 4 During one such period in 1997, defendant and his children lived together in a mobile home. All three slept together in the back bedroom on a single bed. On at least one occasion during that time, defendant sexually molested the victim, his daughter, by touching her breasts and genitals and, on at least two occasions, by sodomizing her. While the abuse was taking place, the vice-tim's brother-defendant's son-was able to see or hear what was going on, although he was never physically abused. Defendant told both of his children not to tell anyone about his acts, explaining to them that he would be sent back to prison if anyone found out.

T5 In June or July 1997, defendant was arrested and sent to prison for a parole violation connected with a previous conviction (not related to child abuse or these charges), and the children returned to live with their mother. One day during this period, the victim and her brother got into an argument at their mother's house, and the brother blurted out, "At least I don't suck my dad's dick." Ms. Pecht overheard the comment and contacted the Division of Child and Family Services (DCFS). Once contacted, DCFS arranged for interviews of both children by a caseworker, which were videotaped and transcribed.

~ T6. Defendant was charged with two counts of sodomy upon a child and one count of aggravated sexual abuse of a child. A trial date was set for August 27, 1999, but on August 26, counsel for the defendant and the State reached an agreement on a proposed disposition of the case. Over the course of that evening, however, defendant "spent a sleepless night" and changed his mind, deciding that he wanted to proceed with the trial. In order to preserve the initial trial date in spite of the last minute change in plans, the trial court conducted a pretrial hearing on evidentiary matters under section 76-5-411 of the Utah Code and Utah Rule of Criminal Procedure 15.5.

I 7 The prosecution initially sought permission to offer five sets of statements into evidence under section 76-5-411 of the Utah Code, including statements contained in the videotaped interviews of the victim and her brother. The prosecution voluntarily withdrew one statement, after which the court made oral findings about the reliability of the remaining statements. In addition to the videotaped interviews, the remaining statements included a statement the victim made to a counselor, a written statement from the victim to one of the DCFS counselors, and the victim's statements from subsequent DCFS interviews. As to the videotapes, the trial court found that both of the children appeared to be sufficiently "reliable and trustworthy" because of the consistency with which they each told their stories during the interviews, as well as their responsiveness and maturity.

T8 The victim's statement included uncontested information about the living situation at the mobile home, as well as her feelings about Pecht's incarceration, and her assertion that "she didn't want to go back" to living with her father. It also contained brief descriptions of the abuse.

T 9 The court made oral findings that the victim's comments were reliable based on, among other things, the manner in which the questions were asked and the victim's overall demeanor and knowledge. Regarding the counselor, the court found "that she followed her training with regard to long leading questions" and that there was not "any evidence that there were leading questions asked." In ruling on the victim's letter, the court relied on the earlier factual findings about the victim's age and maturity, and her relationship with Pecht, and found that "the best evidence before the court is that [the victim] did write the letter ... without her mother's knowledge." Finally, the trial court made oral findings about the nature of the statements and the qualifications of the counselors similar to its findings with regard to the videotape, and additionally found that the statements "would also be properly admissible under Rule 808(4), Utah Rules of Evidence, statements for purposes of medical diagnosis or treatment" because "the state: ment was an oral statement describing past or present symptoms." After addressing each statement, the trial court orally recited its findings, and then asked the prosecutor to put them into writing.

'I 10 Also at the outset of the trial, counsel for both parties stipulated that defendant was incarcerated at the Utah State Prison "on a non-related, non-sexual offense matter." At this point, defendant had decided to testify at the trial, and was aware that his numerous felony convictions could be introduced to impeach his credibility. Defendant, however, felt that if he took the stand, he could inform the jury that even though he had an extensive criminal history, he had always "accepted responsibility" and had never before requested a jury trial. Therefore, as defendant's counsel explained to the court, defendant actually wanted the jury to know he was incarcerated as part of his trial strategy. Defendant's theory of the case was that Ms. Pecht had orchestrated the allegations against him in order to have his parole revoked, thus leaving her with custody of the children. Defeﬁdant recognized that an implicit part of that defense was the admission that he was in fact on parole for a prior conviction. Both the State and defendant agreed that the stipulation was an effective means of minimizing the impact of defendant's history of incarceration.

111 An additional element of defendant's trial strategy involved information about previous occasions of sexual abuse of the victim by other people Defendant intended to show that the victim's knowledge and use of sexually explicit terms could have been the result either of other occasions of abuse or of Ms. Pecht's statements about those occasions. In order to advance this part of defendant's strategy, defense counsel requested the court's permission to call two witnesses, Brian Hughes and Mary Ann Hartmann, who could testify that Ms. Pecht had told them about previous instances of abuse. The trial court questioned the relevance of the witnesses' testimonies, but stated it would refrain from making a formal decision until after Ms. Pecht testified.

T 12 During the State's case in chief, the prosecution called the two DCFS counselors and Ms. Pecht as witnesses, followed by the alleged victim and her brother. Although the children were physically removed from the presence of the jury and defendant, their testimony was transmitted to the courtroom via closed-circuit television.

{13 After the children's testimony, outside the presence of the jury, the prosecution sought to recall Ms. Pecht as a witness. Defense counsel requested the court's permission to ask Ms. Pecht about the previous allegations of abuse. As the State pointed out, the questions were designed to get Ms. Pecht to deny making any previous allegations so that two witnesses could be called to impeach her. The trial court granted defense counsel permission to ask the questions, but pointed out that under a strict evidentiary analysis, they addressed only collateral matters. The court again deferred its ruling on whether the additional witnesses would be allowed to testlfy until after Ms. Pecht's testimony.

14 During the prosecution’s direct examination, Ms. Pecht indicated that she remembered making reports to DCFS about previous instances of sexual abuse in 1991 and 1992. During cross-examination, however, Ms. Pecht stated that she did not recall telling either Brian Hughes or Mary Aun Hartmann about the abuse. Ms. Pecht was then excused, and the State rested. _

115 During defendant's case, the court excused the jury and asked to meet with counsel. The court raised the issue of defense counsel's earlier motion regarding the testimony of Brian Hughes and Mary Aun Hartmann. Defense counsel stated that he wished to call them to testify that Ms. Pecht had made specific allegations to them about the 1991 abuse. The court held that such statements "appear[ed] to be properly admissible." Notwithstanding this ruling, however, defense counsel did not call either witness to testify.

116 Throughout trial, several witnesses referred to defendant's criminal history, including previous arrests and prior periods of incarceration, all of which had been referenced in the stipulation agreed to by the parties. Defendant's counsel made no objection to any of these various references, nor did he request that the jury receive any limiting instruction regarding them.

117 On August 28, 1999, a jury convicted defendant on all three counts of the information, and he was sentenced to terms of ten-years-to-life on each of the sodomy convictions and five-years-to-life on the aggravated sexual abuse conviction.

ANALYSIS

I. STATUTORY REQUIREMENTS UNDER SECTION 76-5-411

118 Defendant raises the section 76-5-411 issues for the first time on appeal. Generally; a defendant who fails to bring an issue before the trial court is barred from asserting it on appeal unless the trial court committed "plain error." State v. Labrum, 925 P.2d 937, 939 (Utah 1996). - In this case, defendant argues that the trial court committed plain error by (1) failing to make adequate reliability findings under the statute, and (2) failing to reduce its findings to writing. Additionally, defendant argues that the court erred by allowing the victim's brother's videotaped statements into evidence under section 76-5-411. To establish plain error, an appellant must demonstrate that "G) [aln error exists, (i) the error should have been obvious to the trial court, and (ii) the error is harmful." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1998).

A. Consideration of the Reliability of the Admitted Statements

{19 Before a court allows a child sex-abuse victim's out-of-court statements into evidence, it must specifically consider:

whether the interest of justice will best be served by admission of that statement. In making this determination the judge shall consider (1) the age and maturity of the child, (2) the nature and duration of the abuse, (8) the relationship of the child to the offender, and (4) the reliability of the assertion and of the child. Utah Code Ann. § 76-5-411(2)(1999).

120 Assessing the last factor, "the reliability of the assertion and of the child," a court may be required to consider some matters not specifically mentioned in the statute. For example:

[A] court should consider how soon after the event [the statement] was given, whether the statement was spontaneous, the questions asked to elicit it, the number of times the statement was repeated or rehearsed, and whether the statement is reproduced verbatim in court, viz., tape recording, videotape, or otherwise.

State v. Nelson, 725 P.2d 1858, 1856 n. 3 (Utah 1986).

121 Defendant does not argue that the trial court failed to consider any of the factors mandated by section 76-5-411, but rather that the court failed to consider two of Nelson's suggested factors. Specifically, defendant claims that no consideration was given to either "how soon after the event [the statements were] given" or "the number of times the statement was repeated or rehearsed." Nelson, 725 P.2d at 1356 n. 8.

122 As a rule, this court generally * "upholds the trial court even if it failed to make findings on the record whenever it would be reasonable to assume that the court actually made such findings" " State v. Helms, 2002 UT 12, 111, 40 P.3d 626 (citing State v. Robertson, 982 P.2d 1219, 1234 (Utah 1997)) (quoting State v. Ramires, 817 P.2d 774, 788 n. 6 (Utah 1991)). We do not follow this rule when "(1) an ambiguity of facts makes the assumption unreasonable, (2) a statute explicitly provides that written findings must be made, or (8) a prior case states that findings on an issue must be made." Id. (citation omitted). Except in such instances, we will not infer "that the trial court's silence, by itself, presupposes that the court did not consider the proper factors as required by law." Id. -

123 Here, we have no ambiguity of facts. Furthermore, there exists no statutory or case law requirement that written findings must be made. Rather, the record contains the court's specific findings that the abuse occurred "startfing] in ... September of 1996" and that the four admitted statements were respectively made "on or about March 25th of 1998," "April the 7th, 1998," "on April the 7th of 1998," and "on April 21st of 1998." The reference to these dates in its findings demonstrates the trial court's awareness of the length of time between the abuse and the statements. Moreover, there is no indication that the passage of time had any material effect on the reliability of the statements. Consequently, defendant's attempt to trigger a plain error review on this ground fails.

124 Likewise, defendant's assertion that the trial court failed to adequately consider "the number of times the statement was repeated or rehearsed" under Nelson is unsupported. Reviewing the record as a whole, we conclude that the absence of the court's express consideration of this element is not error since there is no suggestion that the victim's testimony was memorized or rehearsed. Additionally, the trial court specifically found that none of the statements were prompted, made under improper duress, or affected by any motive to fabricate.

. 125 Although it did not explicitly incorporate Nelson's terminology, the trial court made no error in its findings. The trial court correctly noted that the list of factors provided by section 76-5-411 "isn't, exclusive but is simply intended to prompt a comprehensive inquiry into all the cireumstances surrounding the out of court statement in order. to determine . reliability." The court's findings reflect such an inquiry, leaving no indication that defendant suffered any harm. Defendant implicitly concedes this point, first by failing to suggest any detrimental repetition or rehearsal at trial, and second, by failing to allege harm in his appellate brief.

B. No Written Findings of Fact Requirement Under Section 76-5-411 '

1 26 Defendant also contends that the trial court erred by failing to issue its findings in writing. Although section 76-5-411 makes no specific requirement that the findings be written, this court has addressed the issue on several occasions.

1 27 Nelson is the principal case on section 76-5-411. There, the defendant was convict, ed of the rape and aggravated sexual abuse of a child. Nelson, 725 P.2d at 1858. Raising the issue of section 76-5-411's reliability findings sua sponte, we recommended the "consideration of ... matters not specifically mentioned in the statute." Id. at 1356 n. 3. The opinion held only that "the trial court must make an in-depth evaluation of the proposed testimony"; it did not require that those findings be written. Id.

128 Three years later, in State v. Eldredge, T3 P.2d 29 (Utah 1989), we again considered section 76-5-411. In Eldredge, the defendant had been convicted of sodomy of a child, and argued on appeal that the trial court erroneously admitted statements under section 76-5-411 without making the findings required by Nelson. Id. at 84. The issue in Eldredge was therefore not any technical deficiency in the form of the findings, but rather the complete absence of findings. Although the issue was held not to have been preserved for appeal, and was therefore ultimately not determinative, 'W! dredge reinforced the importance of the finding requirements explained in Nelson. Id. We explained that "after considering all the relevant factors, the court must make written findings and conclusions with respect to each factor." Id. (emphasis added). The reference to "written" findings, therefore, was dictum, because the necessity for findings to be written was not argued or decided in Eldredge.

129 In State v. Matsamas, 808 P.2d 1048 (Utah 1991), the defendant was convicted of rape and sodomy of a child. Id. at 1049. The trial court admitted the evidence was based solely on the conclusion that "it might help the jury and the court decide what had occurred." Id. at 1052. As in Eldredge, no specific findings were made. We reversed, finding that the convictions were based in part on the evidence admitted under section 76-5-411, and that the trial court had failed to make the necessary findings regarding reliability of the evidence. Id. In Matsamas, we did not mention a writing requirement.

1 30 Two years later, in State v. Seale, 853 P.2d 862 (Utah 1993), we addressed an issue factually similar to the one raised here. The trial court in Seale made the specific findings required by the statute and Nelson, but did not reduce them to writing. The record, we said, "consider[ed] ... as a whole," indicated the trial court's careful examination of the cireumstances under which the hearsay statements were made, thus satisfying seetion 76-5-411's findings requirement. Id. Although the findings had not been reduced to writing, we saw "no reason why oral findings, duly recorded, [did] not satisfy that requirement." Id. at 872 n. 5.

31 Eldredge's dictum surfaced in 1994 in a Court of Appeals case. In State v. Cook, 881 P.2d 913 (Utah App.1994), the defendant appealed his conviction on two counts of sodomy of a child, alleging that the trial court erred by admitting hearsay statements into evidence under section 76-5-411 "without making the express findings required." Id. It is unclear from the factual record preserved in Cook whether no findings had been made, as in Eldredge and Matsamas, or whether findings had been made but not reduced to writing, as in Seale. The Court of Appeals, however, not only incorrectly summarized Nelson's holding, but also stated its belief that "the supreme court's language in Eldredge clearly establishes that after Nelson, a trial court's failure to enter written findings and conclusions under section 76-5-411 is plain error." Id. at 916.

1 32 More recently, this court has inadvertently added to the confusion. In State v. Labrum, 925 P.2d 987 (Utah 1996), we reviewed a Court of Appeals ruling affirming a gang sentence enhancement imposed on the defendant after his conviction for attempted criminal homicide. Id. The defendant argued that the trial court erred in not entering written findings of fact pursuant to section 76-3-208.1(1), which states, "iln conjunction with sentencing, the court shall enter written findings of fact concerning the applicability of this section" (emphasis added).

133 In our discussion of the statute at issue in Labrum, which does in fact explicitly require written findings, we, like the Court of Appeals in Cook, confused Eldredge's dictum with Nelson's holding. The section 76-5-411 issue was not before us in Labrum, and had not been addressed by the parties, but we nonetheless stated that "Nelson and subsequent cases held that written findings must be entered prior to admitting the 'statements." Id. at 940 (citing Eldredge, T73 P.2d at 86 n. 12, Matsamas, 808 P.2d at 1051, and Cook, 881 P.2d at 915-16).

134 The language of our cases makes clear that we have on several occasions, out of concern for the necessity of adequate, detailed, and specific findings, inadvertently referred to the required findings as "written" instead of merely "on the record." In Labrum, of course, the statute at issue is explicit in requiring written findings, but Nelson, Eldredge, and Matsamqs were only about findings versus no findings, not oral findings versus written ones. Our holding in Seale represents the only occasion where we have specifically considered the question of oral findings versus written ones in a case under section 76-5-411. We reiterate that holding now, and expressly disavow our prior dictum. Written findings are not required to determine that "the statutorily required appraisal has been made [under section 76-5-411]." Nelson, 725 P.2d at 1856 n. 8 To that extent, we overrule State v. Cook. While we strongly recommend that trial courts enter written findings, we hold that where the record as a whole sufficiently indicates that the comprehensive inquiries mandated by section 76-5-411 and Nelson have been made, an absence of written findings will not invalidate the trial court's conclusions. We therefore conclude that the absence of written findings in this case does not constitute error.

C. _- "Victim" Under Section 76-5-411

$35 Defendant also argues that the court's allowance of the victim's brother's testimony under section 76-5-411 was error. The statute states, "A child victim's out-of-court statement regarding sexual abuse of that child is admissible as evidence...." Utah Code Ann. § 76-5-411 (1999). In State v. Loughton, 747 P.2d 426 (Utah 1987), we explained that the term "victim" as used in section 76-5-411 is merely to identify the declarant, and thus means an "alleged vice-tim." Id. Such a reading is consistent with the plain meaning and intent of the legislation. -

1 36 While defendant's actions presumably had an adverse impact upon his son, the victim's brother, and may well have constituted a criminal offense, the boy was not a "victim" of any of the offenses defendant was charged with in this case. He was therefore not an "alleged victim" under Loughton or a "victim" as contemplated by section 76-5-411.. Although the State attempts to expand the definition of "victim" under section 76-5-411 to include those indirectly affected by the abuse of. another, doing so not only conflicts with the analysis in Loughton, but also is inconsistent with the focus of the statute. Therefore, the trial court's allowance of the victim's brother's videotaped testimony under section 76-5-411 was error.

137 We believe that the error was plain. The court undertook extensive consideration of the reliability of the witnesses and of the language of the statute. During the prosecution's presentation of items to be admitted under section 76-5-411, the court re-read the statute and explained its limitations, thereby prompting the prosecution to withdraw one of the statements. The language of the statute clearly states that "the victim's" out-of-court statements could be allowed.

138 Notwithstanding this conclusion of error, however, we find no measurable harm or prejudice to defendant. The record shows that nearly all of the information conveyed to the jury through the videotaped interview with the victim's brother was discussed in either the victim's or her brother's trial testimony. The only exception to this is that neither of the children repeated the words the victim's brother spoke during the argument overheard by Ms. Pecht. That statement, however, was repeated by counsel for 'both parties in opening statements, and by other witnesses later in the trial, all without objection.

139 Additionally, regardless of any details the videotapes may have provided that were not also provided in trial testimony, defendant's constitutional right to confront the witnesses was clearly preserved. By questioning the victim and her brother in court, the State provided the defense with the opportunity to cross-examine .both of them not only on the matters addressed in direct examination, but also on the substance of the information contained in the videotapes. Nelson, 725 P.2d at 1357. The defense chose not to question either the vietim or her brother on the information contained in the videotapes, but the opportunity to do so was available, satisfying the confrontation clause. Id. "It is the opportunity to cross-examine that is guaranteed by the state and federal constitutions, not whether that opportunity is exercised." Id. (citing State v. Jolley, 571 P.2d 582, 586 (Utah 1977)). Thus, defendant did not suffer prejudice warrant ing reversal of the jury's verdict.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

T40 Defendant next argues that his trial counsel was ineffective in failing to object to or to request limiting instructions concerning evidence of defendant's numerous periods of incarceration. Defendant claims that he was unjustly prejudiced by the evidence because it created the impression that defendant possessed a propensity to commit crime. *

141 In order to demonstrate ineffective assistance, an appellant must show that trial counsel "rendered deficient performance which fell below an objective standard of professional judgment," and that the deficiency was ultimately prejudicial. State v. Chacon, 962 P.2d 48, 50 (Utah 1998). A defendant cannot prevail on a claim of ineffective assistance of counsel where "the challenged act of omission might be considered sound trial strategy." State v. Parker, 2000 UT 51, { 10, 4 P.8d 778.

1 42 Defense counsel stated to the court at the outset of the trial that letting the jury know about defendant's incarceration was part of a trial strategy he had discussed with defendant. Indeed, counsel stated that defendant was "adamant" about this element of the defense. Defendant's strategie position was that Ms. Pecht had orchestrated the allegations to obtain custody of the children. Defendant was incarcerated for violating his parole from a prior conviction for a nonsexual offense, but he asserted that he would have been released if it were not for the allegations in this case. Apparently, defendant thought that letting the jury know he was incarcerated would illustrate that Ms. Pecht's "plan" had been successful. He recognized that an implicit element of this strategy was letting the jury know about the conviction for which he was incarcerated. As a result of this defense strategy, defendant agreed to stipulate with the State to inform the jury that he was incarcerated on a "non-related, non-sexual" offense.

111 43 Further, defendant's trial counsel had considered the effect of making the jury aware of his incarceration history because the defendant insisted on taking the stand. Defendant believed that his testimony would help his defense because he could inform the jury that although he had an extensive criminal record, he had always taken responsibility for his previous crimes. This was defendant's decision, in spite of his counsel's advice against testifying. These strategic elements were already in place when other witnesses mentioned his incarceration record, and no objections were made to their comments because he intended to discuss the same issues in his testimony.

144 Shortly before he was to take the stand, however, defendant changed his mind. Whether or not the original defense strategy would have been effective is impossible to determine. Nevertheless, defendant had made his testimony a key element of his defense, and his last-minute decision not to testify caused the strategy to unravel. The failure of trial strategy, however, does not indicate ineffectiveness of counsel. See Parsons v. Barnes, 871 P.2d 516, 524 (Utah 1994) ("[ Whenever there is a legitimate exercise of professional judgment in the choice of trial strategy, the fact that it did not produce the expected result does not constitute ineffectiveness of counsel.") (citations omitted). Defendant's ineffective assistance of counsel claim fails.

III. EXCLUSION OF DEFENSE WITNESSES

(45 The final issue defendant raises is whether the trial court erred in excluding the testimony of Brian Hughes and Mary Ann Hartmann, who would have testified that Ms. Pecht had previously made allegations of sexual abuse of her daughter. In presenting this issue, defendant has not accurately represented the trial court's decision.

{46 The record indicates that defense counsel raised the issue of the witnesses prior to trial, but that the court deferred ruling on the issue until it heard from other witnesses. When the court did rule on the issue, it plainly stated that the witnesses' statements would be allowed. The record also clearly shows that in spite of the court's ruling, the witnesses were never called. There is no indication, however, that they were not called because they had been excluded by the court. The trial court exercised its discretion judiciously in holding that the witnesses' potential statements "ap-pearled}] to be properly admissible." Defendant's claim that the witnesses were excluded is simply incorrect, and therefore without merit.

CONCLUSION

€§47 We hold that: (1) the trial court's reliability findings regarding the hearsay statements admitted pursuant to section 76-5-411 and our previous holding in Nelson were sufficient; (2) section 76-5-411 does not require written findings-oral findings, duly recorded, are sufficient; (8) the victim's brother was not a "victim" within the meaning of section 76-5-411, but the trial court's error in admitting his statements was harmless; (4) defendant's trial counsel did not provide ineffective assistance by failing to object to multiple references to defendant's incarceration record when the disclosure of the same information was an integral element of defense strategy; and (5) defendant's witnesses were not excluded by the court.

1 48 The defendant's conviction is affirmed.

[49 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURRANT, and Justice WILKINS concur in Justice DURHAM's opinion.

      . See, infra, section IB.

      . The Court of Appeals stated Nelson was a "seminal case in this area which held that the trial court must enter written findings under section 76-5411." State v. Cook, 881 P.2d at 915. 2s

      . The State contends that defendant did not raise the issue below and did not argue plain error, and that the issue should therefore be waived. We disagree. Pecht raised this issue while discussing the trial court's decisions on section 76-5-411 under the plain error framework. While the argument may not have been as fully developed as other issues raised on appeal, it was raised.

      . This court's holding under section 76-5-411, however, does not foreclose the admissibility of such statements under other evidentiary provisions, such as Rule 15.5, Utah Rules of Criminal Procedure. In this case, the State did not argue that the brother's statements were admissible under Rule 15.5.

      , See note 1, supra.


source: Caselaw Access Project

author: DURHAM, Chief Justice:

license: Public Domain

text:
    2002 UT 42
    Stephen L. PETERSON, Plaintiff and Appellant, v. COCA-COLA USA, Coca-Cola USA Operations, Coca-Cola USA (BOD) Bottling Operations - Department, - Coca-Cola Fountain, Swire Pacific Holdings, Inc., a Delaware Corporation, dba, Coca-Cola Bottling Company of Salt Lake, aka, Swire Coca-Cola, Coca-Cola Bottling Company of Salt Lake, Defendants and Appellees.
    No. 20000804.
    Supreme Court of Utah.
    April 26, 2002.

      Tim Dalton Dunn, Paul J. Simonson, David A. Goodwill, Salt Lake, for plaintiff.
    Dale J. Lambert, Rebecca L. Hill, Salt Lake City, for defendants.
   DURHAM, Chief Justice:

1 1 This is a personal injury action brought by Stephen Peterson against Swire Pacific Holdings Inc. (Swire), a Delaware corporation doing business as Coca-Cola Bottling Company of Salt Lake, for damages sustained in a motor vehicle accident in Salt Lake City. Peterson sued Swire as the employer of the driver, Thomas Stengel (Stengel), based on the doctrine of respondeat superior. Peterson appeals the trial court's grant of partial summary judgment to Swire.

FACTS

{2 On February 12, 1992, Stengel was driving northbound on 900 East when he fell asleep at the wheel and his car collided with Peterson's. At the time of the accident Stengel was employed by Swire and acting within the scope of his employment.

13 On August 4, 1998, Peterson settled with Stengel for the amount of Stengel's automobile insurance policy limits. Stengel's insurance carrier, Nationwide Mutual Company (Nationwide), paid Peterson $50,000, and in return, Peterson and his wife signed a release. At the time of this settlement, neither Peterson nor his lawyer knew that Stengel was employed by Swire. The relevant part of the release states as follows:

FOR AND IN CONSIDERATION OF the payment to me/us of the sum of $50,000.00 FIFTY THOUSAND & NO/100 Dollars, and other good and valuable consideration, I/we, being of lawful age, have released and discharged, and by these presents do for myself/ourselves, my/our heirs, executors, administrators and assigns, release, acquit and forever discharge Thomas & Susan Stengel and Nationwide Mutual Co. (reserving, however, our rights to, be made whole through our uninsured motorist coverage under our auto insurer, American States Ins. Company ) and any and all other persons, firms and corporations, whether herein named or referred to or not, of and from any and all past, present and future actions, causes of action, claims, demands, damages, costs, loss of services, expenses, compensation, third party actions, suits at law or in equity, including claims or suits for contribution and/or indemnity, of whatever nature, and all consequential damage on account of, or in any way growing out of any and all known and unknown personal injuries, death and/or property damage resulting or to result from an accident that occurred on or about the 18th day of Feb 19 92, at or near 2800 S. & 9th E-SLC Utah.

T4 After settling with Stengel, Peterson obtained $300,000 for his injuries from Peterson's underinsured motorist carrier, American States Insurance (American). Peterson first learned of Stengel's employment with Swire during finalization of negotiations with American. ©

{5 On February 9, 1996, this lawsuit was filed, and on December 8, 1997, Gayle Peterson was appointed Stephen Peterson's conservator and guardian because of his incapacity.

T6 The trial court granted Swire's motion for summary judgment, concluding that: (1) the August 4, 1998 release entered into by Peterson was valid and relieved Swire of lability for all claims involving vicarious liability and respondeat superior; (2) there was no evidentiary or legal basis for reforming, voiding, or otherwise failing to enforce the release entered into by Peterson; and (8) if the release does not release Swire from vicarious liability, then Swire is entitled to a $350,000 credit for the money already received by Peterson from his own underin-sured motorist carrier. Peterson appealed.

STANDARD OF REVIEW

17 Summary judgment is proper only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ P. 56(c). In considering a grant of summary judgment, "we review the court's legal decision for correctness, giving no deference, and review 'the facts and inferences to be drawn therefrom in the light most favorable to the nonmoving party'" Booth v. Attorneys' Title Guaranty Fund, Inc., 2001 UT 13, 128, 20 P.3d 319 (quoting J.R. Simplot Co. v. Sales King Int'l Inc., 2000 UT 92, [ 13, 17 P.3d 1100).

"ANALYSIS

4 8 On appeal, Peterson argues that partial summary judgment should not have been granted. He asserts that (1) the release was not valid to relieve Swire from vicarious liability; (2) the release should have been voided or reformed; and (8) Swire should not have been granted a $350,000 credit toward its liability. ~

I. APPLICABILITY OF THE, RELEASE TO SWIRE

19 Under Utah law, "Releases are contractual provisions and should be interpreted according to well-developed rules of contract interpretation." - Ward - v. Intermountain Farmers Ass'n, 907 P.2d 264, 267 (Utah 1995) (citing Simonson v. Travis, 728 P.2d 999, 1001-02 (Utah 1986); Horgan v. Industrial Design Corp., 657 P.2d 751, 753 (Utah 1982). The underlying purpose in construing or interpreting contractual provisions is to determine the intentions of the parties. See SME Industries, Inc. v. Thompson, Ventulett, Stainback and Associates, Inc., 2001 UT 54, 114, 28 P.3d 669 (citing Winegar v. Froerer Corp., 813 P.2d 104, 108 (Utah 1991)); John Call Eng'g, Inc. v. Manti City Corp., 748 P.2d 1205, 1207 (Utah 1987). The court may consider extrinsic evidence of the parties' intentions where the contractual provision is ambiguous. See SME Industries, 2001 UT 54 at 114, 28 P.3d 669. "A contract provision is ambiguous if it is capable of more than one reasonable interpretation because of 'uncertain meanings of terms, missing terms, or other facial deficiencies.'" Winegar, 818 P.2d at 108 (quoting Faulkner v. Farnsworth, 665 P.2d 1292, 1298 (Utah 1983)). |

110 In addition to the general rules of contract construction that apply to releases, there are statutory provisions that govern them. The two relevant statutes are section 78-27-42 of the Liability Reform Act (the LRA release clause) and section 15-4-4 of the Joint Obligations Act (the JOA release clause). The LRA release clause provides:

A release given by a person seeking recovery to one or more defendants does not discharge any other defendant unless the release so provides.

Utah Code Ann. § 78-27-42 (1996).

The JOA release clause provides:

[TThe obligee's release or discharge of one or more of several obligors, or of one or more of joint or of joint and several obli-gors, shall not discharge co-obligors against whom the obligee in writing and as part of the same. transaction as the release or discharge expressly reserves his rights; and in the absence of such a reservation of rights shall discharge co-obligors only to the extent provided in Section 15-4-5.

Utah Code Ann. § 15-4-4 (1999).

Both acts similarly provide that "the release of one obligor does not discharge co-obligors against whom the obligee in writing expressly reserves his rights." Nelson v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints, 985 P.2d 512, 514 (Utah 1997). The application of the JOA language and the LRA language differs, however, where a release does not contain an express reservation of rights. The LRA release clause has been interpreted as requiring that a release "must contain language either naming the defendant or identifying the defendant with some degree of specificity in order to discharge that defendant from liability." Child v. Newsom, 892 P.2d 9, 12 (Utah 1995). The JOA release clause, however, has been interpreted as releasing a joint obligor from liability by the release of other joint obligors usless there is an express reservation in writing by the injured party, See Krukiewics v. Draper, 725 P.2d 1349, 1350 (Utah 1986).

{11 In determining the reach of these two statutes, this court has previously observed that the LRA is a pro tanto repeal of the JOA as it applies to regular co-defendants, but that the JOA still applies to vicariously liable parties. See Nelson, 985 P.2d at 514 n. 3. In the present case, Peterson is suing Stengel's employer, Swire, under a theory of vicarious liability, so the JOA applies to the interpretation of the release.

T 12 We find that the release is unambiguous because it is not "capable of more than one reasonable interpretation." Wine gar, 813 P.2d at 108. The release specifically states that it releases Stengel, his wife, Nationwide, as well as "any and all other persons, firms and corporations, whether herein named or referred to or not." The contract's only express reservation of rights is to allow Peterson to pursue additional recovery from his underinsured motorist carrier, American. Swire is a corporation that clearly falls within the definition of "any and all other persons, firms and corporations." Because the JOA release clause required Peterson to expressly reserve his rights against Swire in writing, which he did not do, see Krukiewicz, 725 P.2d at 1850, we find the release is valid as to Swire.

II. ENFORCEABILITY OF THE RELEASE

{13 Peterson argues that the release is void or should have been reformed because (1) Swire was an undisclosed principal at the time the release was signed and therefore should not be allowed to take advantage of the release; (2) Peterson was incompetent to sign the release; (8) mutual mistake of the parties requires the release's reformation; and (4) applying the JOA instead of the LRA to vicariously liable parties is unconstitutional.

A. Undisclosed Principal

T14 At the time Peterson signed the release agreement with Stengel, he did not know that Stengel was employed by Swire. Peterson argues that because Swire was Stengel's principal, Swire could not be released from vicarious liability for the accident without first disclosing its relationship to Stengel. Swire bases this argument on our decision in Garland v. Fleischmann, 831 P.2d 107, 110 (Utah 1992), where we observed: ‘

It is well established in the law that a principal is liable for the acts of his agent within the seope of the agent's authority, irrespective of whether the principal is disclosed or undisclosed. The fact that an agent acts in his own name without disclosing his principal does not preclude liability on the part of the principal when he is discovered to be such by a third party who has dealt with the agent. $ Am.Jur2d Agency § 320 (1986). This is true even though the third person dealing with the agent did not learn of the existence of the principal until after the bargain was completed. Holman-O.D. Baker Co. v. Pre-Design, Inc., 104 NH. 116, 118, 179 A2d 454, 455 (1962).

' 15 Peterson's reliance on Garland is misplaced. Garland stands for the proposition that disclosure or nondisclosure of a principal will not absolve the principal of responsibility for an agent's actions. See id. However, the present case does not involve a question of agency or the existence of vicarious lability. Instead, it depends on the interpretation of a contractual release. For purposes of summary judgment, Swire conceded that Stengel was its agent acting in the course of his employment. - Swire does not argue that it is free from liability for its agent's actions based on anything other than the release.

116 Peterson argues that his lack of knowledge of Stengel's agency justifies voiding or reforming the release. " 'If a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient.'" Miller v. Celebration Mining Co., 2001 UT 64, ¶10, 29 P.3d 1231 (quoting Restatement (Second) of Contracts § 164(1) (1981)). Peterson, however, has presented no evidence that his lack of knowledge of Stengel's ageney was caused by fraud or misrepresentation.

B. Competence

117 Peterson argues that the release he signed with Stengel and Stengel's insurer should be voided because of Peterson was incompetent at the time of the contract. Competency to enter a contract is measured by whether "'the mental facilities [were] so deficient or impaired that there was not sufficient power to comprehend the subject of the contract, its nature and its probable consequences, and to act with discretion in relation thereto, or with relation to the ordinary affairs of life'" Walker v. U.S. General Inc., 916 P.2d 903, 907 (Utah 1996) (citations omitted).

118 Peterson offered no evidence before the trial court indicating that he was unable to understand the nature of the release at the time he signed it. He relied on his wife's appointment as his general guardian in 1997 to demonstrate incompetence. The release, however, was signed by Peterson on August 4, 1998, more than four years before the guardianship appointment. Although Mrs. Peterson's appointment as Peterson's general guardian is evidence of incompetence in 1997, it is not evidence that he was incompetent in 1998. Peterson's argument is particularly tenuous in light of the fact that neither Mrs. Peterson, Peterson's lawyer, Stengel, or Stengel's insurance carrier raised any concerns about Peterson's mental capacity at the time the release was signed.

C. Mutual Mistake

119 Peterson next argues that the release should be voided due to mutual mistake. Mutual mistake warrants the reformation of written instruments if the complaining party can show:

(1) that the instrument as made failed to conform to what both parties intended; or (2) that the claiming party was mistaken as to its actual content and the other party, knowing of this mistake, kept silent; or (8) that the claiming party was mistaken as to actual content because of fraudulent affirmative behavior.

Mabey v. Kay Peterson Constr. Co., 682 P.2d 287, 290 (Utah 1984).

$20 Peterson argues that neither of the parties intended to release Swire; so the release must fail. However, his characterization of the intent of Stengel and his insurance carrier is entirely speculative. Although upon summary judgment the court must view all facts and inferences in favor of the nonmoving party, it may not assume facts for which no evidence is offered. "Allegations or denials in the pleadings are not a sufficient basis for opposing summary judgment." Hall v. Fitzgerald, 671 P.2d 224, 227-28 (1988). The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Thornock v. Cook, 604 P.2d 9834, 936 (Utah 1979). Peterson has offered nothing more than unsupported allegations to prove the intent, mistake, or fraud of the other parties to the release. Thus, the trial court properly found that Peterson's claim of mutual mistake fails Cf. Hess v. Ford Motor Co., 27 Cal4th 516, 526, 117 Cal.Rptr.2d 220, 41 P.3d 46 (2002) (holding that a release's broad language did not release a third party where the uncontroverted evidence established mutual mistake).

D. Constitutionality of the operation of the JOA and the LRA -

121 In general " '[A] constitutional question is not to be reached if the merits of the case in hand may be fairly determined on other than constitutional issues'" State v. Webster, 2001 UT App 238, n. 8, 32 P.8d 976 (quoting Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980). Because this case has not been resolved on other grounds, we address the constitutional question presented by Peterson. j

{22 As mentioned above, in Nelson we held that the release clause of the Joint Obligations Act applies to releases dealing with vicariously liable parties, while the release clause of the Liability Reform Act applies to all other co-defendants. See Nelson, 935 P.2d at 514 n. 3. Under the JOA, there must be an express reservation of rights by plaintiffs or the release operates to release all joint obligors. See Krukiewics, 725 P.2d at 1350. Under the LRA, the release must name the defendant or identify the defendant with some degree of specificity for there to be a release. See Child, 892 P.2d at 12. Peterson argues that applying the JOA to vicariously liable parties and the LRA to regular co-defendants is a violation of Article I, Section 24, of the Utah Constitution's uniform operation of laws clause, because doing so affects similarly situated parties differently.

1283 Article I, Section 24 provides that: "All laws of a general nature shall have uniform operation." Utah Const. art. I, § 24. Under the uniform operation of laws clause, we utilize a lower standard of review unless the statute infringes a "fundamental or critical right ... [or creates] classifications considered impermissible or suspect in the abstract." Ryan v. Gold Cross Services, Inc., 903 P.2d 423, 426 (Utah 1995). Peterson has not argued that a constitutional right has been implicated, nor do we find one. Therefore a low threshold applies in balane-ing "(1) whether the classification is reasonable, (2) whether the legislative objectives are legitimate, and (8) whether there is a reasonable relationship between the two." See Ryan, 908 P.2d at 426 (citing Blue Cross & Blue Shield v. State, 779 P.2d 634, 637 (Utah 1989)); see also Malan v. Lewis, 698 P.2d 661, 670-71 (Utah 1984). A statute has "a strong presumption of constitutionality, with doubts resolved in favor of its constitutionality." See Warren v. Melville, 987 P.2d 556, 558 (Utah Ct.App.:1997) (citations omitted). ~

$24 The first question is whether there is anything inherently unreasonable in the legislature's decision to treat vicariously liable defendants differently than other co-defendants. See Ryan, 908 P.2d at 427. We have often noted that vicarious liability does not arise because of actual negligence or fault. See Nelson, 985° P.2d at 513-14; Krukiewics, 725 P.2d at 1850-51. Treating vicariously liable defendants' as different in kind from defendants with some form of fault does not result in an inherently irrational classification, and is not based on any impermissible or suspect grouping. See Ryan, 9083 P.2d at 427. No

125 The second issue is whether the legislative purpose in separating vicariously liable defendants from regular co-defendants is legitimate. "[The court will sustain legislative action if it can reasonably conceive of facts which would justify. the classifications made by the legislation." Ryan, 903 P.2d at 427 (citing Blue Cross, 779 P.2dat 641). In the present case, imputing a legitimate purpose to the legislature is not necessary because the legislature has itself referred to its purposes. One of the primary purposes of the legislature in enacting the LRA was " 'basic fairness." Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877, 880 (Utah 1998) (quoting Tape of Utah Senate Floor Debates, 46th Leg.1986, Gen. Sess. (Feb. 12, 1986). The legislature intended to promote fairness by abolishing joint and several liability for co-defendants lable on fault grounds because no party should be liable for "any amount in excess of the proportion of fault attributed to that defendant." Utah Code Ann. § 78-27-38 (1999). The same rationale does not logically extend to co-defendants to whom no fault ean be apportioned, but who are instead subject to vicarious liability.

126 The LRA was intended "only to abolish the joint and several liability of 'defendants' ... but that does not affect an employer, who being only vicariously liable is not a 'defendant.' Nelson, 985 P.2d at 515 (Howe, J., concurring). As noted above, vicarious liability does not arise because of actual negligence or fault. See Nelson, 985 P.2d at 5138-14; Krukiewics, 725 P2d at 1350-51. Therefore, it is legitimate for the legislature to draw a distinction between co-defendants who are at-fault and vicariously liable parties who are not. It is also legitimate for the legislature to promote fairness through abolition of joint and several lability for at fault co-defendants.

127 The last issue is whether there is a reasonable relationship between the statutory classification and the legislative purpose. We conclude that the classification is not an unreasonable means of achieving fairness in the apportionment of damages between different kinds of defendant. Even though the legislative distinction between at-fault co-defendants and vicariously liable co-defendants requires two separate standards for the creation and interpretation of releases, it is not the court's place "to defend the merits, desirability, or rationality of legislative action." Eyan, 908 P.2d at 426. It is enough that distinguishing between at-fault co-defendants and vicariously liable ones is reasonable in light of the legislative objectives. See id. ‘ ‘

128 Peterson extends his uniform operation of laws argument to plaintiffs who are disparately affected in their ability to collect damages by virtue of different standards governing releases under the JOA and the LRA. We disagree with the argument that the disparity is unconstitutional. In reality, both the JOA and the LRA provide a plaintiff with equal opportunity to pursue all liable parties. Neither the JOA nor the LRA will release either an at fault co-defendant or a vicariously liable one where the release expressly reserves the plaintiff's rights to pursue those parties. See Nelson, 985 P.2d at 514. Plaintiffs will only be treated differently where they do not carefully draft their releases or do not adequately investigate the possibility of other liable parties. The burden is on plaintiffs to understand the distinction between the JOA and the LRA. The JOA applies to vicariously liable co-defendants and the LRA applies to co-defendants who are at fault within the meaning of the act. See Nelson, 985 P.2d at 514 n. 8. The public policy arguments advanced by Peter: son on behalf of plaintiffs should be addressed to the legislative process. So long as the distinctions made by the statute are reasonable, we may not invalidate them on constitutional grounds where no other factors such as fundamental rights are at issue.

III THE EXTENT OF SWIRE'S LIABILITY

129 In view of our holding regarding the applicability of the JOA to this release and its. constitutionality, we affirm the trial court's dismissal of Swire by summary judgment. The issue of credit for underinsured motorist payments is thus moot.

CONCLUSION

1 80 We affirm the district court's grant of summary judgment regarding the validity of the release signed by Peterson, as well as the lack of evidentiary or legal basis to void or reform it. We vacate the district court's grant of summary judgment regarding the extent of Swire's lability as the issue is moot.

1 31 Associate Chief Justice DURRANT,. Justice HOWE, Judge DAVIS, and Judge HOWARD concur in Chief Justice DURHAM'S opinion.

1 32 Having disqualified themselves, Justice RUSSON and Justice WILKINS do not participate herein; Court of Appeals Judge JAMES Z. DAVIS and District Judge FRED D. HOWARD sat.

      . The district court also found that punitive damages were not permissible in this case. This ruling has not been challenged.

      . Section 78-27-37 of the LRA states: "(1) 'Defendant' means a person, other than a person immune from suit ..., who is claimed to be liable because of fault to any person seeking recovery. (2) 'Fault' means any actionable breach of legal duty, act, or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification or abuse of a product."

      . Other state legislatures have made an explicit distinction between vicariously liable defendants and regular co-defendants when abrogating joint and several liability. See Ariz.Rev.Stat. Ann. § 12-2506(D)(2001); Idaho Code § 6-803(5) (2000); Wash. Rev.Code Ann. § 4.22.070(1)(a) (2002).


author: RUSSON, Justice:

text:
    2002 UT 44
    Paul BLACKNER, Plaintiff and Appellant, v. STATE of Utah, DEPARTMENT OF TRANSPORTATION, and Town of Alta, Defendants and Appellees.
    No. 20000906.
    Supreme Court of Utah.
    April 30, 2002.

      Tad D. Draper, Sandy, for Blackner.
    Mark L. Shurtleff, Att'y Gen., Sandra L. Steinvoort, Brent A. Burnett, Asst. Att'ys Gen., Salt Lake City, for Department of Transportation David C. Richards, George W. Burbidge II, Salt Lake City, for Town of Alta.
   RUSSON, Justice:

T1 Paul Blackner ("Blackner") appeals from an order granting summary judgment to defendants the Town of Alta, Utah ("Alta"), and the Utah Department of Transportation ("UDOT"). We affirm.

BACKGROUND

T2 On March 14, 1998, an avalanche ("the first avalanche") thundered down on State Route 210, a two-lane road, in the White Pine Chutes area of Little Cottonwood Canyon near Alta. It buried part of the road, blocking the downhill lane of traffic. Soon thereafter, the avalanche was reported to Alta's Central Dispatch Office.

13 Kevin Payne ("Payne"), an Alta Deputy Marshal, was notified of the first avalanche and responded within minutes. Upon arrival, Payne noticed that only one lane of traffic was open and became concerned that vehicles traveling in opposite directions on State: Route 210 would collide with one another in the avalanche area. Therefore, he began to direct traffic. Several minutes after Payne arrived on the scene, Dave Medara ("Me-dara"), an avalanche forecaster with UDOT, who was also notified of the first avalanche, arrived on the scene. After discussing the situation with Payne, Medara departed to assess other slide activity lower in the canyon.

' 4 Several minutes later, a front-end loader was dispatched from the Snowbird Ski Area to remove the snow from the road. While the loader was clearing the road, traffic on both sides of the first avalanche was stopped. Payne instructed travelers in the canyon-including Blackner, who had been driving up Little Cottonwood Canyon-to stop while the loader continued to work. As Blackner and others waited for the loader to finish clearing the road, they exited their vehicles and stood on the roadside to watch the road-clearing activities. -

5 After evaluating the slide activity lower in the canyon, Medara traveled up the canyon until he arrived at an area just below the scene of the first avalanche. © This was the same area where Blackner and the other travelers had exited their vehicles. Medara became concerned when he noticed that the stopped vehicles, including Blackner's vehicle, were located under a known avalanche slide area. - Medara therefore informed Payne by radio that he was concerned about the safety of his location and asked how long the loader would continue working.

T6 Seconds after Payne told Medara that the loader was taking its last seoop, a second avalanche occurred ("the second avalanche"). The second avalanche inundated the area where Medara and Blackner had stopped their vehicles. Many people, including Me-dara and Blackner, were caught in and overwhelmed by the second avalanche. Blackner was seriously injured. About thirty-four minutes passed between the first avalanche and the second avalanche. Both of the avalanches originated on public land managed by the National Forest Service as part of the Wasatch-Cache National Forest.

T7 Blackner brought suit against UDOT and Alta, alleging that their negligence in managing the first avalanche resulted in his injuries. Both UDOT and Alta moved for summary judgment, arguing that the Governmental Immunity Act (the "Act") barred Blackner's claims against them. Specifically, UDOT and Alta asserted that they were immune from suit because subsections 63-30-10(11) and (18) of the Utah Code preclude suits against governmental entities for injuries arising out of, in connection with, or resulting from (1) any natural condition on publicly owned or controlled land and (2) the management of natural disasters. The trial court granted the motions for summary judgment under both subsections of the Act. Blackner appeals.

STANDARD OF REVIEW

T8 Summary judgment is proper only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c); Ault v. Holden, 2002 UT 38, " 15, 44 P.3d 781. When reviewing whether the trial court properly granted summary judgment, we accord the trial court's legal conclusions no deference and review those conclusions for correctness. Ault, 2002 UT 3B.at % 15, 44 P.3d 781. Furthermore, a trial court's interpretation of a statute is a question of law that we review for correctness. State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, 1 8, 44 P.3d 680; State v. Lusk, 2001 UT 102, " 11, 87 P.3d 1108.

ANALYSIS

19 The issue presented on appeal is whether the trial court erred in granting UDOT and Alta summary judgment under subsections 68-80-10(11) and (18) of the Act. Specifically, the issue is whether the trial court correctly interpreted the exeeptions set forth in those subsections in holding: that UDOT and Alta are immune from suit on Blackner's negligence claim because Black-ner's injuries arose out of, were in connection with, or resulted from a natural condition on public lands or the management of a natural disaster. Utah Code Ann. § 63-80-10(11), (18) (1997).

110 Generally, to determine whether a governmental entity is immune from suit under the Act, we apply a three-part test, which assesses (1) whether the activity undertaken is a governmental function; (2) whether governmental immunity was waived for the particular activity; and (8) whether there is an exception to that waiver. See Taylor v. Ogden City Sch. Dist., 927 P.2d 159, 162 (Utah 1996); Keegan v. State, 896 P.2d 618, 619-20 (Utah 1995). However, in this case, the parties do not dispute whether immunity has been waived, but rather dispute only whether an exception to that waiver applies pursuant to the third part of the test. Thus, we address only the issue of whether a specific exception applies to the waiver of immunity.

[11 The relevant portion of the Act provides:

Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the seope of employment except if the injury arises out of, in connection with, or results from:
(11) any natural condition on pﬁblicly owned or controlled lands, [or]
(13) the management of flood waters, earthquakes, or natural disasters ....

Id. (emphasis added). We first resolve whether UDOT and Alta are immune from Blackner's suit under subsection (11), and if they are immune, we need not address whether they are immune under subsection (18).

112. To resolve whether the trial court erred in concluding that UDOT and Alta were immune from Blackner's suit under subsection (11) because his injuries arose out of, were connected with, or resulted from a natural condition on publicly owned or controlled land, we must determine whether the trial court correctly interpreted section 63-30-10(11) of the Utah Code. When interpreting statutes, we determine the statute's meaning by first looking to the statute's plain language, and give effect to the plain language unless the language is ambiguous. State v. Lusk, 2001 UT 102, 119, 37 P.3d 1103; City of Hildale v. Cooke, 2001 UT 56, ¶36, 28 P.3d 697. The statute's language plainly states that all governmental entities are immune from suit for a government employee's negligence when the plaintiff's injury arose from, was connected with, or resulted from a "natural condition on publicly owned or controlled lands." Utah Code Ann. § 63-30-10(11) (1997).

113 Blackner does not argue that the first avalanche was not a natural condition. Rather, he contends that the negligence of UDOT and Alta was the proximate couse of his injuries instead of that avalanche. However, Blackner's argument either miscomprehends or misapplies the plain language of the Act. The Act unequivocally provides that when a plaintiff's injury either "arises out off Hor] in connection with, or results from" a "natural condition on publicly owned or controlled lands," governmental immunity is retained with respect to any action to recover for injuries provimately caused by a government employee's negligence. The application of the "natural condition" exception to the waiver of governmental immunity does not hinge on whether the "natural condition" in any way "proximately caused" the plaintiff's injuries. See id.

114 In the instant case, even assuming that the actions of Payne and Medara were negligent and proximately caused Blackner's injuries, UDOT and Alta are immune from suit to recover for those injuries because Blackner's injuries arose out of a natural condition on publicly owned or controlled land. The first avalanche and the snow pack from which both avalanches originated were natural conditions. The snow pack was situated on Forest Service land, and the first avalanche partially covered and blocked Route 210, a state-owned-and-controlled road.

115 Further, Blackner's injuries arose out of the snow pack and the first avalanche. Under the statute, the "arise out of" language requires only that there be some causal nexus between the risk and the resulting injury. Taylor v. Ogden City Sch. Dist., 927 P.2d 159, 163 (Utah 1996). In other words, but for the snow pack and the first avalanche, Blackner would not have suffered injury. Sec'id. Here, were it not for the first avalanche, Payne would not have stopped Blackner and others from proceeding up the canyon. In addition, if the snow pack had not been situated on public land above Route 210, it would not have resulted in either avalanche, which caused Payne to stop traffic from moving up the canyon and directly occasioned Blackner's injuries.

{16 Therefore, Blackner's injuries arose out of a natural condition existing on publicly owned or controlled land. Accordingly, the trial court correctly concluded that UDOT and Alta are immune from Blackner's suit because the "natural condition" exeeption to the waiver of governmental immunity applies to Blackner's injuries regardless of whether Payne and Medara were negligent.

CONCLUSION

{17 The trial court correctly granted UDOT and Alta summary judgment under the Governmental Immunity Act because Blackner's injuries arose out of, were in connection with, or resulted from a natural condition on publicly owned or controlled land. We therefore affirm.

T 18 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice WILKINS concur in Justice RUSSONS opinion.

      . Blackner also contends on appeal that if we were to affirm the trial court's summary judgment order in this case, our affirmance would be contrary to public policy. However, Blackner never raised this argument before the trial court and has thus waived the argument on appeal. Associated Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT 112, n. 5, 38 P.3d 291; Treff v. Hinckley, 2001 UT 50, 115, 26 P.3d 212.