Gallegos v. Brewskis

2026 UT App 120 THE UTAH COURT OF APPEALS JERRY GALLEGOS, Appellee and Cross-appellant, v. BREWSKI’S ON HISTORIC 25TH STREET, Appellant and Cross-appellee. Opinion No. 20240219-CA Filed August 6, 2026 Second District Court, Ogden Department The Honorable Reuben Renstrom The Honorable Craig Hall No. 200902686 Bruce C. Burt, Attorney for Appellant and Cross-appellee Robert W. Gibbons and Lindy W. Hamilton, Attorneys for Appellee and Cross-appellant JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred as to Parts I, II, III.A.2 and III.C. JUDGE GREGORY K. ORME also concurred as to Part III.B. JUDGE RYAN M. HARRIS authored a separate opinion, authoring the Opinion of the Court as to the issue in Part III.A.1, in which JUDGE GREGORY K. ORME concurred, and dissenting as to Part III.B. OLIVER, Judge: ¶1 Jerry Gallegos sued Brewski’s on Historic 25th Street (Brewski’s), and others, for injuries he suffered when a Brewski’s employee forcibly removed him from the business’s premises. During the litigation, the district court sanctioned Brewski’s for its spoliation of video evidence. The district court also sanctioned Gallegos after his counsel improperly terminated the deposition  Gallegos v. Brewski’s of one of his expert witnesses who had come to the deposition unprepared. Brewski’s eventually moved for summary judgment on the ground that Gallegos could not prove his claims for negligence and negligent hiring, training, and supervision without expert testimony. The district court granted the motion, dismissing both of Gallegos’s claims against Brewski’s. ¶2 Despite prevailing on summary judgment, Brewski’s filed this appeal challenging the district court’s spoliation sanction. Gallegos then cross-appealed, raising numerous challenges to the district court’s sanctions and summary judgment rulings. For the reasons discussed below, we affirm the district court’s sanctions rulings but we reverse the grant of summary judgment on Gallegos’s negligent hiring, training, and supervision claim. A majority of the court also reverses the grant of summary judgment on the negligence claim. BACKGROUND 1 The Incident and Lawsuit ¶3 In January 2019, Gallegos went to Brewski’s, a local bar, with some friends. Later that night, in an attempt to defend his friend who had been asked to leave the bar, Gallegos began speaking loudly to the bartender from the table where he was sitting. The bartender approached Gallegos at his table to speak to him. As the conversation intensified, a bouncer employed by Brewski’s (Bouncer) walked over and stood next to Gallegos’s table. Bouncer then “grabbed . . . Gallegos from behind and proceeded to the front door to take him outside.” Bouncer put him 1. “In reviewing a district court’s grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and recite the facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2, 328 P.3d 880 (cleaned up). 20240219-CA 2 2026 UT App 120  Gallegos v. Brewski’s in a “full nelson” 2 headlock, with Gallegos’s arms above his head, and then carried and dragged Gallegos to the doorway. Gallegos buckled his knees as the pair approached the door, causing them both to lose their balance as Bouncer pushed Gallegos out the door. Gallegos subsequently fell, and he suffered permanent injury to his right shoulder as a result of the fall. ¶4 Gallegos filed suit against Brewski’s, One Commerce Street, and Harwood Properties, LLC. 3 He alleged two claims of negligence against Brewski’s, one for vicarious liability for its employees’ negligence and one for direct liability based on the negligent hiring, training, and supervision of its employees. Spoliation Sanction ¶5 Following the incident, Gallegos called the police, and a police officer (Officer) soon came to Brewski’s to respond to the incident. Officer informed the manager at Brewski’s (Manager) that Gallegos wished to bring legal action and gave him a case number. While there, Manager showed Officer security video footage (the Footage) of Gallegos’s removal. Officer informed Manager that he needed a copy of the Footage and told Manager to make a copy and hold on to it. Officer’s entire interaction, including viewing the Footage, was captured on video by 2. A “full nelson” is “a wrestling hold gained from behind an opponent by thrusting the arms under the opponent’s arms and clasping the hands behind the opponent’s head.” Full nelson, Merriam-Webster, https://www.merriam-webster.com/dictionar y/full%20nelson [https://perma.cc/7XTH-FEX5]. 3. Gallegos voluntarily dismissed Harwood Properties, LLC and obtained a default judgment against One Commerce Street. See Gallegos v. One Com. St., LLC, 2025 UT App 196, ¶¶ 1, 5 n.2, 585 P.3d 651. 20240219-CA 3 2026 UT App 120  Gallegos v. Brewski’s Officer’s body camera. 4 A few days later, Gallegos sent certified letters to Brewski’s and its owner, Heidi Harwood, requesting a copy of the Footage. Brewski’s employees signed for receipt of these letters. ¶6 Officer returned to Brewski’s within a week of his initial visit, and Manager informed him that a copy of the Footage had been made and was with Harwood. However, Officer was unable to get in contact with Harwood, and no copy of the Footage was ever provided to him or Gallegos. Brewski’s security system automatically loops over itself approximately every ten days, so the Footage was lost and could not be recovered. ¶7 Gallegos filed a motion for sanctions related to Brewski’s spoliation of the Footage. The district court found that Brewski’s had a duty to preserve the Footage and that it violated that duty. Additionally, the court found that the body camera video of the Footage was “not equal in quality” to the Footage. As a result, the court sanctioned Brewski’s with “an adverse inference instruction . . . that if the jury cannot determine from available evidence whether [Brewski’s] was negligent, it must assume that the spoliated evidence would have been unfavorable to [Brewski’s].” Exclusion of Gallegos’s Expert ¶8 During discovery, the court granted Gallegos’s request for additional time to complete expert depositions and extended the deadline to March 3, 2022. Two days before the deadline, Brewski’s deposed Gallegos’s expert witness (Expert), who was designated to testify about “generally accepted security protocols” and opine that Bouncer “was negligent in his application of [the] procedures for physically removing [Gallegos] from the premises.” Expert was unprepared for the deposition and could not answer even basic questions from 4. A copy of the body camera video is not in the record and, therefore, we have not been able to review it ourselves. 20240219-CA 4 2026 UT App 120  Gallegos v. Brewski’s Brewski’s counsel. Ninety minutes into the deposition, Gallegos’s counsel “forced a break in an effort to rehabilitate [Expert’s] testimony off the record,” an action the district court later found to be “inappropriate[].” After resuming, Gallegos’s counsel took another break before “abruptly and inappropriately end[ing] the deposition . . . despite the objection of” Brewski’s counsel. Gallegos’s counsel “indicated on the record . . . that [Expert] was ‘not prepared to move forward with the remainder of the deposition because he ha[d]n’t reviewed the materials.’” Two days later, Gallegos filed a motion for an extension of time to complete Expert’s deposition, claiming that Expert had suffered a “memory blip.” The court denied the motion. ¶9 Brewski’s then filed a motion in limine to exclude Expert from testifying at trial based on the failure to complete expert depositions by the required deadline and the inappropriate behavior at the deposition by Expert and Gallegos’s counsel. After a hearing, the court granted the motion and sanctioned Gallegos. The court pointed out that Gallegos was required to have Expert prepared at the time of the deposition and found that Expert was not prepared. Additionally, the court found Gallegos’s counsel’s decision to end the deposition was unilateral, made without seeking court approval, done over the objection of Brewski’s counsel, and “not substantially justified.” The court found the actions of Gallegos’s counsel and Expert were “willful and intentional.” The court also found that Brewski’s was prejudiced as it was “unable to cross-examine [Expert]” at the deposition and therefore could not “effectively cross-examine” Expert at trial. The court determined that Gallegos was the disobedient party and concluded that “the sanction of exclusion [was] proportional to the sanctionable conduct.” The court then precluded Expert from testifying at trial. 5 5. This court denied Gallegos’s petition for permission to appeal from the interlocutory order excluding Expert’s testimony. 20240219-CA 5 2026 UT App 120  Gallegos v. Brewski’s Summary Judgment ¶10 Following the district court’s order excluding Expert’s testimony, Brewski’s filed a motion for summary judgment, arguing that without Expert, Gallegos could not establish either the proper standard of care or breach of that standard and thus could not prove any of his negligence claims. Gallegos opposed this motion on multiple grounds, including that the motion was untimely, no expert testimony was needed because the issue in the case was a simple “trip,” and if expert testimony was needed, he could call his rebuttal security expert (Rebuttal Expert) in his case-in-chief. ¶11 The court acknowledged the untimely filing of Brewski’s motion but concluded the circumstances giving rise to the motion—namely, the exclusion of Expert—arose after the deadline prescribed in rule 56(b) of the Utah Rules of Civil Procedure and thus warranted an extension of time. Addressing the merits of the motion, the court concluded that the central issue of the case was “what a reasonable bouncer should have done under the same or similar circumstances and whether [Bouncer] breached that standard.” The court determined that “an average layperson would typically not know whether a bouncer can, or should, remove someone from the premises of the business” or “what level of force is reasonable under certain circumstances.” Thus, the court concluded, “expert testimony [was] needed for [Gallegos] to establish the elements of negligence in this case.” The court then denied Gallegos’s request to use Rebuttal Expert in his case-in-chief to establish the standard of care and breach of that standard. ¶12 The court concluded Gallegos could not establish negligence without an expert witness to testify to the standard of care and to a breach of that standard. The court also concluded that without Expert’s testimony on “what proper bouncer training is,” Gallegos could not establish his claim of negligent hiring, 20240219-CA 6 2026 UT App 120  Gallegos v. Brewski’s training, and supervision. The court then granted summary judgment to Brewski’s on all of Gallegos’s claims. The Appeals ¶13 After the district court dismissed all of Gallegos’s claims against Brewski’s, Brewski’s appealed the district court’s imposition of the sanction for spoliation of evidence. 6 Gallegos then filed a cross-appeal raising numerous issues. We now address both appeals. ISSUES AND STANDARDS OF REVIEW ¶14 Brewski’s appeals the district court’s imposition of a sanction against it for spoliation of evidence. “As a general rule, district courts are granted a great deal of deference in selecting discovery sanctions, and we overturn a sanction only in cases evidencing a clear abuse of discretion.” Yuanzong Fu v. Rhodes, 2013 UT App 120, ¶ 8, 304 P.3d 80 (cleaned up), aff’d, 2015 UT 59, 355 P.3d 995. ¶15 In his cross-appeal, Gallegos raises numerous issues for our review. First, Gallegos appeals the court’s spoliation sanction against Brewski’s as being too lenient. Second, Gallegos appeals the court’s imposition of a sanction against him—exclusion of Expert—for discovery violations. Again, we review discovery sanctions for “a clear abuse of discretion.” Id. (cleaned up). “We 6. Where the appellant obtained judgment in its favor, we would normally dismiss the appeal as presenting an insubstantial question because a ruling reversing a discovery sanction would not alter the favorable judgment. See Utah R. App. P. 10(a)(2) (“[T]he court, on its own motion, . . . may dismiss an appeal . . . if it plainly appears that no substantial question is presented.”). But because Gallegos filed a timely cross-appeal, we review Brewski’s appeal of the sanction order on the merits. 20240219-CA 7 2026 UT App 120  Gallegos v. Brewski’s will find an abuse of discretion in a [district] court’s choice of sanction only when there is either an erroneous conclusion of law or no evidentiary basis for the [district] court’s ruling.” Hales v. Oldroyd, 2000 UT App 75, ¶ 16, 999 P.2d 588 (cleaned up). ¶16 Finally, Gallegos challenges the grant of summary judgment to Brewski’s on several grounds. “We review a district court’s decision to grant summary judgment for correctness, granting no deference to the district court’s conclusions.” Gillmor v. Summit County, 2010 UT 69, ¶ 16, 246 P.3d 102 (cleaned up). 7 ANALYSIS I. Spoliation Sanction ¶17 Both Brewski’s and Gallegos argue the district court abused its discretion in entering an adverse jury instruction as a sanction for Brewski’s spoliation of the Footage. Brewski’s argues that no sanction was warranted, while Gallegos argues that the sanction was not severe enough and that the district court should have “deem[ed] liability admitted.” We disagree with both parties and conclude the district court did not clearly abuse its discretion. ¶18 Rule 37(e) of the Utah Rules of Civil Procedure permits a court to impose sanctions “if a party destroys, conceals, alters, tampers with, or fails to preserve . . . electronic data, or other evidence in violation of a duty.” To impose sanctions under this 7. Gallegos also appeals the dismissal of his request for costs related to his motion to exclude witnesses. However, this issue was inadequately briefed, and we therefore decline to address the merits of the argument. See Seamons v. Brandley, 2011 UT App 434, ¶¶ 5–6, 268 P.3d 195 (explaining that an issue is inadequately briefed “when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court” and, as a result, declining to address such issues). 20240219-CA 8 2026 UT App 120  Gallegos v. Brewski’s rule, “the court must first find that the custodial party was under a duty to preserve evidence, and that it violated that duty. At that point, the court has the discretion to impose sanctions for spoliation.” Diversified Concepts LLC v. Koford, 2021 UT App 71, ¶ 19, 495 P.3d 755. A. Duty to Preserve Evidence ¶19 “The duty to preserve evidence begins when litigation is pending or reasonably foreseeable. This is an objective standard, asking . . . whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation.” Id. ¶ 21 (cleaned up). Here, Officer informed Manager of Gallegos’s intent to pursue legal action and that the police had assigned a case number to the incident. Officer also specifically requested a copy of the Footage on the night of the incident. Additionally, within a week of the incident, Gallegos requested a copy of the Footage from Brewski’s via two certified letters that were signed for by Brewski’s employees. 8 Brewski’s argues that Manager did not understand Officer’s request for a copy of the Footage and that the letters were not received by the relevant people. But the existence of a duty is judged by an objective standard, not Manager’s subjective belief. A “reasonable party in the same factual circumstances would have reasonably foreseen litigation,” id. (cleaned up), and understood that it needed to preserve the Footage after requests from both a police officer and the injured party. Thus, the district court did not abuse its discretion in finding that Brewski’s had a duty to preserve the Footage. 8. Brewski’s argues the district court erred in relying on these letters as Gallegos did not produce them in discovery. However, because the letters were not going to be offered in Gallegos’s case- in-chief, he was not required to produce them as part of his initial disclosures. See Utah R. Civ. P. 26(a)(1)(B). 20240219-CA 9 2026 UT App 120  Gallegos v. Brewski’s B. Electronic Information Systems ¶20 Brewski’s argues it should not have been sanctioned under rule 37(e) because the Footage was “electronically [stored] information lost as a result of the routine, good-faith operation of an electronic information system” and the district court did not find the required “exceptional circumstances.” (Quoting Utah R. Civ. P. 37(e).) While there was no dispute that the Footage was lost because the security system automatically looped over itself, Brewski’s did not meet the rule’s requirement of “good-faith operation.” Utah R. Civ. P. 37(e). The district court specifically found that Brewski’s conduct in failing to preserve the Footage was “reckless.” And reckless conduct does not qualify as the “good-faith operation of an electronic information system” as required by rule 37(e). Id. Thus, the district court was not required to find “exceptional circumstances” before imposing sanctions against Brewski’s. Id. Accordingly, the district court did not clearly abuse its discretion in imposing a sanction under rule 37(e). C. Choice of Sanction ¶21 “As with all discovery violations, the district court has broad discretion to choose the sanction it deems appropriate.” Diversified Concepts, 2021 UT App 71, ¶ 35. Available sanctions for spoliation include any of the following: “deeming facts established, limiting a party’s argument, prohibiting evidence, imposing a stay until compliance happens, dismissing an action (in part or in full), striking pleadings, entering default judgment, imposing attorney fees, and giving adverse jury instructions.” Gallegos v. One Com. St., LLC, 2025 UT App 196, ¶ 12, 585 P.3d 651 (citing Utah R. Civ. P. 37(b)). The purpose of spoliation sanctions is “to punish and deter future violations” from the offending party and to “even[] the playing field, or rectify[] the prejudice caused by the spoliation” for the injured party. Diversified Concepts, 2021 UT App 71, ¶ 36 (cleaned up). 20240219-CA 10 2026 UT App 120  Gallegos v. Brewski’s ¶22 In determining which sanction to impose, courts are to consider (1) the fault of the offending party, (2) the prejudice suffered by the opposing party, and (3) whether a lesser sanction will be sufficient to fulfill the purposes of sanctioning the conduct in question. See id. Here, the district court found Brewski’s at fault for failing to preserve the Footage. Next, the court found that, although the Footage was partially recorded on Officer’s body camera, Gallegos was prejudiced because the “secondhand view” on Officer’s body camera was “not equal in quality” to the Footage. Finally, the court considered imposing a lesser sanction against Brewski’s and ultimately did so. The court first considered Gallegos’s request for a directed verdict against Brewski’s on liability, but it concluded that such a sanction was “not warranted under the circumstances.” Instead, it determined that “an instruction with a negative inference [wa]s warranted, given that there [wa]s some evidence that remain[ed].” Thus, the court imposed an adverse jury instruction that “if the jury cannot determine from available evidence whether [Brewski’s] was negligent, it must assume that the spoliated evidence would have been unfavorable to [Brewski’s].” ¶23 The district court grounded its decision in the evidence, appropriately weighed the relevant factors, and fashioned a proportionate sanction to cure the prejudice. Accordingly, the court’s decision to sanction Brewski’s for the spoliation of the Footage by imposing an adverse jury instruction was not a clear abuse of discretion. 9 9. Brewski’s also argues the district court should have addressed whether, during trial, it would be permitted to try to rebut the negative inference permitted by the instruction. However, this issue is not preserved, and we therefore decline to address it. See True v. Utah Dep’t of Transp., 2018 UT App 86, ¶¶ 29–31, 427 P.3d 338. 20240219-CA 11 2026 UT App 120  Gallegos v. Brewski’s II. Exclusion of Expert ¶24 Gallegos challenges the district court’s exclusion of Expert’s testimony as a sanction under rule 37(b) of the Utah Rules of Civil Procedure. Under this rule, “[u]nless the court finds that the failure was substantially justified, the court, upon motion, may impose appropriate sanctions for the failure to follow its orders.” Utah R. Civ. P. 37(b). Available sanctions for this disobedience are the same as discussed in paragraph 21. Gallegos acknowledges that he failed to complete all expert depositions by the date ordered by the court, but he argues that the court nonetheless abused its discretion by sanctioning him for “pausing” Expert’s deposition and by not allowing his request for a continuance to complete Expert’s deposition. We disagree. ¶25 The behavior of both Expert and Gallegos’s counsel at the deposition was improper and deliberate. First, Expert did not have a mere “memory blip” during the deposition. The district court found that although Gallegos was required to have Expert prepared to answer questions at the time of his deposition, Expert “was not prepared.” See Utah R. Civ. P. 26 advisory committee’s notes to 2011 amendments (“[T]he expert is expected to be fully prepared on all aspects of his/her trial testimony at the time of the deposition and may not leave the door open for additional testimony by qualifying answers to deposition questions.”). Second, Gallegos’s counsel compounded the problem by “inappropriately forc[ing] a break in an effort to rehabilitate [Expert’s] testimony off the record” before finally “abruptly and inappropriately end[ing] the deposition.” The district court determined that “[r]ather than allow the defense to question the unprepared [Expert], [Gallegos’s counsel] instead chose to unilaterally end the deposition hoping the court would permit [Expert] more time to prepare himself.” The court also found that Gallegos’s counsel’s decision to “walk out of [Expert]’s deposition before defense counsel could conclude it was not substantially 20240219-CA 12 2026 UT App 120  Gallegos v. Brewski’s justified.” Additionally, the court found this behavior by both Gallegos’s counsel and Expert was “willful and intentional.” ¶26 Moreover, the district court concluded Brewski’s was prejudiced by the behavior of Expert and Gallegos’s counsel. Specifically, the court found that Brewski’s was “unable to cross- examine [Expert] to inquire about his opinions and the bases for his opinions” so it could effectively cross-examine Expert at trial and that the prejudice could not be reversed. The court then concluded the “sanction of exclusion” was “fair, reasonable, . . . specifically targeted at the discovery abuse” that occurred at Expert’s deposition, and “proportional to the sanctionable conduct.” ¶27 We have emphasized that “although some of Rule 37’s discovery sanctions are harsh and extreme, Rule 37 grants the [district] court broad discretion to impose them . . . and we will not interfere with the [district] court’s imposition of discovery sanctions . . . , including its choice of sanctions, unless [an appellant] clearly shows the [district] court abused its discretion.” Wright v. Wright, 941 P.2d 646, 650 (Utah Ct. App. 1997) (cleaned up). On the facts before us—Expert appearing at his deposition unprepared and the “willful and intentional” misbehavior by Gallegos’s counsel at the deposition—Gallegos has not demonstrated that the district court’s decision to sanction him by excluding Expert’s testimony from trial was a clear abuse of discretion. 10 10. It may also have been appropriate for the court to impose sanctions under Utah Rule of Civil Procedure 37(d) because appearing at a deposition as unprepared as Expert did is tantamount to not appearing at all. See Utah R. Civ. P. 37(d) (stating that if a witness fails to appear for a deposition, the other party may move for sanctions under rule 37(b)); see also Black Horse (continued…) 20240219-CA 13 2026 UT App 120  Gallegos v. Brewski’s III. Summary Judgment ¶28 Gallegos challenges the district court’s grant of summary judgment to Brewski’s on two grounds: (A) he argues he was not required to produce expert testimony on the standard of care and breach elements of either his vicarious liability claim for negligence or his direct liability claim for negligent hiring, training, and supervision and (B) he argues the motion should have been denied as untimely. We address each argument in turn. A. Necessity of Expert Testimony ¶29 To prove his two claims of negligence, Gallegos “must establish four elements: the existence of a duty, a breach of the standard of care, causation, and damages.” Jensen v. Walgreen Co., 2025 UT 41, ¶ 17, 579 P.3d 305. With respect to the first element, “in cases where the standard of care is usually not within the common knowledge of the lay juror, testimony from relevant experts is generally required.” Callister v. Snowbird Corp., 2014 UT App 243, ¶ 12, 337 P.3d 1044 (cleaned up). This expert testimony requirement “ensures that factfinders have adequate knowledge upon which to base their decisions.” Ruiz v. Killebrew, 2020 UT 6, ¶ 11, 459 P.3d 1005 (cleaned up). In short, “expert testimony is Lane Assocs., LP v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000) (stating that if a “witness is unable to give useful information he is no more present for the deposition than would be a deponent who physically appears for the deposition but sleeps through it,” and that “producing an unprepared witness is tantamount to a failure to appear” for a deposition and is “sanctionable under Rule 37(d)” (cleaned up)); Eid v. Koninklijke Luchtvaart Maatschappij NV, 310 F.R.D. 226, 228 (S.D.N.Y. 2015) (stating that courts may “treat the production of an unprepared . . . witness as tantamount to a failure to appear,” as long as “the inadequacies in a deponent’s testimony [are] egregious and not merely lacking in desired specificity in discrete areas” (cleaned up)). 20240219-CA 14 2026 UT App 120  Gallegos v. Brewski’s necessary in cases where the jury would be unable to determine the applicable standard of care without resorting to speculation.” Callister, 2014 UT App 243, ¶ 15. “An appellate court reviews a district court’s conclusion that expert testimony is required for correctness.” Clifford P.D. Redekop Fam. LLC v. Utah County Real Est. LLC, 2016 UT App 121, ¶ 10, 378 P.3d 109. 1. Negligence Claim—Bouncer’s Conduct 11 ¶30 Gallegos had designated Expert to testify about “generally accepted security protocols” and to opine that Bouncer “was negligent in his application of [the] procedures for physically removing [Gallegos] from the premises.” After the district court excluded Expert as a sanction for the inappropriate behavior at Expert’s deposition, see supra Part II, Brewski’s moved for summary judgment. It asserted that Gallegos could not meet his burden of proof on his vicarious liability negligence claim against Brewski’s based on Bouncer’s conduct without expert testimony to establish the appropriate standard of care for what a bouncer “should or should not do.” In opposing the motion for summary judgment, Gallegos argued that no expert witness testimony was required because “the act of negligence alleged by [Gallegos] is that [Bouncer] caused [Gallegos] to trip” and a jury could “understand it is unreasonable to trip someone.” ¶31 The district court agreed with Brewski’s that Gallegos was required to present expert testimony to establish “what a reasonable bouncer should have done under the . . . circumstances and whether [Bouncer] breached that standard.” In reaching that conclusion, the district court determined “an average layperson would typically not know whether a bouncer can, or should, remove someone from the premises of the business,” nor would they know “what level of force is reasonable,” know “when a 11. Part III.A.1. is the dissenting opinion of Judge Oliver. The majority opinion on this issue appears in paragraphs 54–63. 20240219-CA 15 2026 UT App 120  Gallegos v. Brewski’s bouncer should use only verbal warnings with an unruly patron,” know “when physical force might be justified,” or “understand proper holds and techniques to ensure minimal injuries to a person being removed from the premises.” ¶32 On appeal, Gallegos asserts the district court erred in concluding he needed an expert witness on the standard of care and on breach of that standard because this case is simply a question of whether it was reasonable for Bouncer to “trip” Gallegos on his way out the door of Brewski’s. 12 The essence of Gallegos’s argument is that this case involves a “simple dispute” about “who stepped on whose foot,” so a jury could easily decide whether Bouncer acted reasonably. I disagree. ¶33 “[I]n a typical negligence case we ask a jury of reasonable people to draw upon their collective expertise to conclude how a reasonable person would have acted in that circumstance.” Gables at Sterling Vill. Homeowners Ass’n, Inc. v. Castlewood-Sterling Vill. I, LLC, 2018 UT 04, ¶ 57, 417 P.3d 95. Were this a simple physical altercation between bar patrons, “a jury of reasonable people [could] draw upon their collective expertise to conclude how a reasonable person would have acted in that circumstance.” Duennebeil v. Paramount Fin. Servs., Inc., 2025 UT App 141, ¶ 10, 579 P.3d 784 (cleaned up). But this is not such a simple case. The situation here involves a bouncer physically removing an unruly patron from a bar using specialized techniques. This is neither a “professional task [that] is so common [n]or [an] alleged breach 12. This was not Gallegos’s original theory of the case. He designated Expert to offer opinions on “generally accepted security protocols” and to testify that Bouncer “was negligent in his application of [the] procedures for physically removing [Gallegos] from the premises.” It was not until after the district court excluded Expert’s testimony and Brewski’s moved for summary judgment that Gallegos shifted to his “tripping” theory of negligence. 20240219-CA 16 2026 UT App 120  Gallegos v. Brewski’s [that] is so egregious that specialized knowledge is not required to conclude that the conduct fell below the applicable standard of care.” Id. (cleaned up). ¶34 Indeed, the question of what a reasonable bouncer would do under the circumstances involves more than the final act in the process of physically removing an unruly bar patron; it includes numerous decisions along the way. Here, Bouncer made the decision to (1) intervene when Gallegos was speaking loudly to the bartender from his table, (2) physically intervene by walking over to the table and standing behind Gallegos, (3) remove Gallegos from Brewski’s after observing his behavior toward the bartender, (4) use physical force by grabbing Gallegos from behind and carrying him to the exit, and (5) use specialized techniques—the full nelson—in accomplishing the removal. To determine whether Bouncer acted negligently in the final moment of removing Gallegos from the premises, the jury must consider the reasonableness of each step along the way because each action Bouncer took that night affected the next, all with a cumulative impact on the final moment. ¶35 According to the majority, the jury need only consider whether Bouncer acted reasonably when he “tripped” Gallegos. See infra ¶ 63. To do so, the majority acknowledges the district court “would of course need to strictly police Gallegos’s presentation, so as to prevent Gallegos . . . from introducing any evidence or argument about security protocols” or similar allegations. See infra note 15. While I have the utmost confidence in our district court bench, this is a task that cannot so easily be accomplished. In the moment that Bouncer allegedly tripped Gallegos at the exit, Bouncer was holding Gallegos in a full nelson. And Bouncer’s decision to use this technique would certainly affect the jury’s assessment of his reasonableness. After all, if one person has physical control of the other person, their relative physical positions would unquestionably affect the determination of whether one of them acted negligently. Thus, the jury cannot 20240219-CA 17 2026 UT App 120  Gallegos v. Brewski’s determine whether Bouncer acted reasonably when he allegedly “tripped” Gallegos in the exit without also determining whether it was reasonable for Bouncer to have placed Gallegos in a full nelson headlock beforehand as the two actions are inextricably intertwined, just like the arms of Bouncer and Gallegos in that moment. So, for the jury to determine who tripped whom at the exit, the jury necessarily would have to consider the reasonableness of Bouncer’s actions leading up to that last moment in an interaction that began minutes before and in a different part of the bar. ¶36 Put simply, Bouncer removing Gallegos from the bar involved a series of decisions and actions in a continuous event where each decision affected the next. Whether Bouncer acted reasonably in making each of these decisions—both individually and collectively—“is not a question that a lay person can answer.” Clifford P.D. Redekop Fam. LLC v. Utah County Real Est. LLC, 2016 UT App 121, ¶ 20, 378 P.3d 109; see also id. (holding expert testimony was required for the question of the correct square footage calculation in a commercial real estate dispute “even though [lay] persons would likely be able, without an expert’s help, to find a tape measure and a friend and measure the square footage of their own living room”). Without expert testimony, jurors would be “left to their own devices, [and] would be forced to speculate about how a reasonable [bouncer] would act, and about whether [Bouncer] failed to conform to that standard” in his series of interactions with Gallegos. Jenkins v. Jordan Valley Water Conservancy Dist., 2013 UT 59, ¶ 21, 321 P.3d 1049; see also id. (holding expert testimony was required to establish the standard of care for replacing broken pipe). And jurors are not permitted to engage in such speculation “on matters of duty, breach, or otherwise.” Id. ¶37 The majority relies on our court’s decision in Collins v. Utah State Developmental Center, to support its conclusion that an expert is not required for Gallegos’s “tripping” theory. 1999 UT App 336, 20240219-CA 18 2026 UT App 120  Gallegos v. Brewski’s 992 P.2d 492; see infra ¶¶ 57–59. But Collins involved a very different type of activity. In Collins, the guardian of an adult with intellectual disabilities sued the care center where she lived for negligence, asserting that the center acted negligently when it failed to protect her “from a swing injury.” 1999 UT App 336, ¶¶ 4, 8. The guardian argued that the center “was negligent in failing to take the necessary safety precautions for this very common recreational activity.” Id. ¶ 9. Here, Gallegos argues that Bouncer was negligent in the course of his employment at Brewski’s for “tripping” him as Bouncer was removing him from the premises because he was an unruly patron. In contrast to playing on swings—an admittedly common activity that most people have enjoyed at some point in their lives—very few people have removed an unruly patron from the premises of a bar while holding the person in a full nelson or have themselves been the person removed under those same circumstances. The two activities are simply not comparable. Thus, I do not find Collins instructive here. ¶38 I would affirm the district court’s determination that the question of whether Bouncer acted reasonably in allegedly “tripping” Gallegos while removing him from the bar is not within the knowledge and experience of a lay juror and requires expert testimony. 2. Negligent Hiring, Training, and Supervision Claim ¶39 On Gallegos’s direct liability claim that Brewski’s was negligent in the hiring, training, and supervision of its employees, the district court also concluded that Gallegos was required to produce expert testimony “because that knowledge is beyond the training and experience of an average layperson.” This conclusion was in error. ¶40 Our supreme court has held that the “question of what a reasonable person would do in performing background checks in hiring and in training and supervising employees is one 20240219-CA 19 2026 UT App 120  Gallegos v. Brewski’s permissibly resolved on the basis of the knowledge and experience of lay persons.” Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 41, 345 P.3d 619. Therefore, we must reverse the grant of summary judgment to Brewski’s on Gallegos’s claim of negligent hiring, training, and supervision. B. Use of Rebuttal Expert in Case-in-Chief 13 ¶41 Gallegos argues that once the district court ruled he was required to produce expert testimony to support his negligence claim, it should have granted his request to use Rebuttal Expert in his case-in-chief to meet that requirement. Specifically, Gallegos argues that rule 26(a)(4)(C)(iii) of the Utah Rules of Civil Procedure gives courts the discretion to allow an expert designated as a rebuttal witness to testify in the case-in-chief, and that the court here abused its discretion by not doing so. We disagree that the court abused its discretion here. ¶42 First, the text of rule 26(a)(4)(C)(iii) states, “The court may preclude an expert disclosed only as a rebuttal expert from testifying in the case in chief.” Utah R. Civ. P. 26(a)(4)(C)(iii) (emphasis added). It does not specifically provide for the accommodation th