When does a bouncer's conduct require expert testimony in a Utah negligence case? Gallegos v. Brewski's Explained

Background and facts

In January 2019, Jerry Gallegos was forcibly removed from Brewski’s on Historic 25th Street by a bouncer who placed him in a full nelson headlock and carried him to the exit. Gallegos fell and suffered permanent injury to his right shoulder. He filed suit alleging two negligence claims: vicarious liability for the bouncer’s conduct and direct liability for negligent hiring, training, and supervision. During discovery, the district court sanctioned Brewski’s with an adverse inference instruction after finding it recklessly failed to preserve security footage, and separately sanctioned Gallegos by excluding his expert witness after Gallegos’s counsel abruptly and improperly terminated the expert’s deposition — over defense counsel’s objection — when the expert appeared unprepared. After the exclusion, Brewski’s moved for summary judgment, arguing Gallegos could not establish the standard of care or breach without expert testimony. The district court agreed and dismissed all claims.

Key legal issues

The court addressed three principal issues on cross-appeal: (1) whether the spoliation sanction and expert-exclusion sanction constituted a clear abuse of discretion; (2) whether expert testimony was required to support Gallegos’s vicarious liability negligence claim and his negligent hiring, training, and supervision claim; and (3) whether the district court abused its discretion by declining to allow Gallegos’s rebuttal expert to testify in his case-in-chief and by entertaining an untimely summary judgment motion.

Court’s analysis and holding

The court unanimously affirmed both sanctions. On the spoliation sanction, the court held that Brewski’s duty to preserve the footage arose when a police officer specifically requested a copy on the night of the incident and Gallegos sent certified letters demanding preservation within days — an objective standard satisfied regardless of the manager’s subjective understanding. Because the district court found Brewski’s conduct was reckless, the good-faith-operation exception under Utah Rule of Civil Procedure 37(e) did not apply, and an adverse inference instruction was a proportionate sanction. On Expert’s exclusion, the court found that Expert’s appearing wholly unprepared and counsel’s unilateral, willful termination of the deposition over defense objection amounted to conduct warranting exclusion under rule 37(b).

On summary judgment, the court unanimously reversed on the negligent hiring, training, and supervision claim, citing Graves v. North Eastern Services, Inc., 2015 UT 28, for the proposition that background checks and employee supervision are matters within lay jurors’ common knowledge. A majority of the court (Judges Harris and Orme) also reversed on the vicarious liability negligence claim, holding that Gallegos’s narrowed negligent-trip theory — severed from any claim about specialized security protocols — did not require expert testimony. Judge Oliver dissented on this point, reasoning that the bouncer’s series of interdependent decisions was not within the ken of a layperson. The court affirmed the district court’s discretion to entertain the untimely summary judgment motion because the triggering event — Expert’s exclusion — arose after the rule 56(b) deadline.

Practice implications

Practitioners should note that the expert-testimony requirement is not a one-size-fits-all rule in Utah negligence cases involving non-professional defendants. When an expert is excluded by sanction, counsel should promptly determine whether the remaining evidence supports a narrowed simple-negligence theory that does not depend on specialized knowledge. Additionally, Gallegos reinforces that reckless failure to preserve electronically stored evidence defeats the good-faith-operation exception under rule 37(e), exposing clients to adverse inference instructions even where some evidence survives. Finally, the opinion is a cautionary tale on deposition conduct: unilaterally terminating a deposition — even when a witness appears unprepared — without court authorization and over opposing counsel’s objection may result in permanent exclusion of that witness.