Avila v Taylorsville City

Avila appealed the denial of his post-conviction relief petition. The panel affirmed holding Avila knew all the facts alleged in his petition at the time of sentencing and thus his petition was seven years too late and summary judgment was properly granted.

State v Carvajal

Carvajal appealed his forcible child sex abuse conviction. The panel affirmed. It rejected his ineffective assistance claim because the indecent liberties jury instruction was proper as the state could either prove Carvajal touched the victim on her breast or touched her breast through clothing and the surrounding circumstances of a mentally challenged victim who was decades younger than Carvajal and tried to stop the touching and failure to object to eh instruction was thus not deficient; failing to object to the state’s closing argument was not deficient as indecent liberties was a viable theory; and held Carvajal failed to provide any evidence in support of his failure to investigate theory. It held there was no plain error in allowing the indecent liberties theory to go to jury and the lack of error precluded a fining of cumulative error.

Lane v Provo Rehabilitation and Nursing

Provo appealed the judgment against it arguing lack of causation and Lane cross-appealed the district court ruling that concealment of an administration of the wrong drugs to Lane’s father by a negligent nurse could not be imputed to Provo and the subsequent reduction in damages. The panel reversed on concealment and remanded for entry of judgment for the full amount of damages found by the jury. It held that Provo conceded the nurse was acting in the scope of her job when she gave opioids to Lane’s father, which were prescribed, for another patient and under Utah law knowledge of this act is imputed to Provo. It held the Utah Supreme Court Wardley case relied upon by Provo does require a different outcome as Wardley extended the rule of imputation to claims of direct liability and did not lit the doctrine in any way for vicarious liability as here. It held Provo’s attempt to blame nurse’s concealment of the wrong administration of the opioids failed a as matter of law and evidence nurse negligently administered the drugs and told no one was sufficient to prove causation as experts for both parties agreed the nurse breaches the duty of care and the drugs were both the but for and the foreseeable proximate cause of Lane’s father’s death. It finally held that remand to enter judgment for Lane for the full amount of damages was the proper course as neither party challenged the damages amount or the evidence presented on the issue.