424 P.3d 866
Utah2018Background
- In 2012, 16-year-old A.C. trespassed onto the roof of a one‑story building owned by Gateway Community Church (Gateway) and was electrocuted by energized metal flashing caused by an improperly wired oval sign; he died days later.
- Gateway did not give permission to access the roof; two prior rooftop trespass incidents were known (2004 and 2010); other property incidents (loitering, graffiti, break‑ins) occurred off the roof.
- Draper City had sign ordinances requiring safe installation/maintenance and stating purposes including public health, safety, and welfare; ordinance also made violations misdemeanors and included a "liability for damages" clause stating it does not relieve sign owners of liability.
- A.C.’s parents sued Gateway for wrongful death/negligence, asserting (1) common‑law exceptions to the general nonliability to trespassers (Restatement §§334, 335, 339) and (2) that the Draper sign ordinance created an independent tort duty.
- District court granted summary judgment for Gateway (no duty owed to trespasser); Utah Court of Appeals affirmed; Utah Supreme Court granted certiorari and affirmed, holding plaintiffs failed to raise genuine disputes on the requisite elements for the Restatement exceptions and that the ordinance did not create a tort duty to trespassers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gateway owed a duty under Restatement §334/§335 (constant trespass exceptions) | Colosimo: two known rooftop trespass incidents + circumstantial property evidence show Gateway knew or should have known of habitual rooftop trespass | Gateway: two incidents over >10 years (and off‑roof incidents) are insufficient to show "constant" or "habitual" intrusion on the limited area | Held: No duty; two incidents do not create genuine dispute that trespassers "constantly intrude" on the roof, and circumstantial off‑roof evidence cannot substitute for knowledge of intrusion to the specific limited area. |
| Whether Gateway owed a duty under Restatement §339 (attractive nuisance for children) | Colosimo: Section 339 applies because children were likely to trespass and the sign/energized flashing posed an unreasonable risk | Gateway: lacked (actual or constructive) knowledge of the defective wiring/flashing and thus §339(b) fails | Held: No duty; even accepting §339(a) dispute, plaintiffs failed to show Gateway knew or had reason to know of the hazardous condition or its dangerous nature, so §339(b) not satisfied. |
| Whether district court misapplied summary‑judgment burdens | Colosimo: district court shifted burden improperly to plaintiffs to produce affirmative evidence | Gateway: proper burden shift under Celotex‑type standard because plaintiffs bear burden at trial on duty elements | Held: Court of Appeals should have addressed burden question but district court applied correct Celotex‑style rule; burden properly required plaintiffs to produce affirmative evidence and they failed to do so. |
| Whether Draper sign ordinance creates an independent tort duty to trespassers | Colosimo: ordinance language (protect "City residents" and public safety) and liability clause show council intended to protect persons like A.C. | Gateway: ordinance regulates signs and enforcement is municipal; it contains no explicit intent to create a private tort duty to trespassers | Held: No duty; ordinance plain language and context do not show intent to protect trespassers or the specific class/harm required under Restatement §286 principles, so court will not adopt the ordinance as the tort standard of care. |
Key Cases Cited
- Whipple v. American Fork Irrigation Co., 910 P.2d 1218 (Utah 1996) (adopts Restatement §333 as statement of duty to trespassers and recognizes limited Restatement exceptions)
- Lopez v. Union Pacific R.R. Co., 932 P.2d 601 (Utah 1997) (reversed summary judgment where evidence showed habitual trespass in limited area)
- Kessler v. Mortenson, 16 P.3d 1225 (Utah 2000) (adopts Restatement §339 as the attractive nuisance standard)
- Rollins v. Petersen, 813 P.2d 1156 (Utah 1991) (discusses when courts may adopt statutory standards as tort standards under Restatement §286/§288)
- Orvis v. Johnson, 177 P.3d 600 (Utah 2008) (addresses summary judgment burden discussions later clarified consistent with Celotex)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment standard: movant need not produce affirmative evidence when nonmoving party bears burden at trial)
- Jones & Trevor Marketing, Inc. v. Lowry, 284 P.3d 630 (Utah 2012) (clarifies which party must produce evidence on summary judgment depending on who bears trial burden)