Kerr v. City of Salt Lake, 2013 UT 75 (December 17, 2013)
The Utah Supreme Court held, with Justice Lee dissenting from this portion of the decision, that an appellate court may not review an order granting a new trial where a jury did not enter a verdict in the first trial. Following the first trial on the city’s alleged failure to repair a sidewalk, the trial court granted a directed verdict to the city, but thereafter granted the sidewalk patron’s motion for new trial. A second trial occurred, after which a jury returned a verdict against the city. The court held that for the same reasons it declines to review denials of summary judgments granted on evidentiary grounds, it declined to review the grant of a new trial because the jury did not enter a verdict after the first trial. Thus, there was no danger that the trial court granted a new trial in order to negate a result it simply disagreed with in derogation of the litigants’ rights to a trial by jury. Instead, the grant of a new trial in these circumstances was akin to a reconsideration of the trial court’s prior directed verdict ruling, placing the litigants in the same procedural position as if the prior aborted trial had never occurred. Because the litigants had a full and fair opportunity to litigate the facts in the second trial, the court held that it need not evaluate the sufficiency of the evidence at the truncated first trial.