Cope v. Utah Valley State College

will not be that she likelihood a substantial effective exercising proper and capable Utah future. See in the near care

parental 78A-6-507(1)(d). §Ann. Code argues that termi also Mother interests children's best was not

nation placement in a final It is well time of trial. at the adoption adoptive placement is not that an

established terminating parent's prior

required adoptive placement of an The lack

rights. determining inter best considered it is not proceeding, but

ests in a termination J.D., App re

controlling. See In case, al In this P.3d 1062. of the children placement final

though the ascertained, the evidence yet

was not support termination

sufficient in their best rights was parental

Mother's parental of Mother's Termination

interests. opportunity for

rights permitted at least stability chil for the placement

a final

dren.

¶ Affirmed. App

2012UT 319 COPE, Rae Plaintiff

Shawnna Appellant, COLLEGE, STATE

UTAH VALLEY Appellee.

Defendant

No. 20110147-CA. Appeals Utah.

Court of

Nov. 2012. Petersen, Shurtleff, Clifford

Mark L. J. Steinvoort, City, for L. Salt Lake and Sandra Appellee. VOROS, DAVIS, Judges and

Before CHRISTIANSEN.

OPINION VOROS, Judge: Cope appeals the trial Shawnna Rae grant summary judgment favor court's (UVSC).1 Valley College We of Utah State part and re part affirm in and reverse proceedings. mand for further

BACKGROUND 2005, Cope In was a member of the Sep Tour Team. On UVSC Ballroom Dance injured when Cope was she tember practicing a lift with another team fell while (In (Partner). Cope's member instructor structor) supervising was the team's rehears injury. al the time of the Before the occurred, stopped the re injury Instructor couples to have demonstrate hearsal some lift then worked with each and Instructor couple individually on the lift doing Cope and Partner were realized incorrectly. supposed the lift Partner left Cope right from side over his lift his lifting her over his shoulder but had been Instructor, right Partner told shoulder. get lift well." "I've never been able to this Executing the lift the left shoulder was over right executing more difficult than it over the required greater shoulder strength get Cope and momentum body right across his and over Partner's side Cope his left Instructor warned shoulder. " Partner, you guys do and '[E]ither going lift from the rou we are to cut [the deposition that Cope testified in her tine]'" [they] lift she considered the lift "the coolest doing" been in the routine. When had left attempted Partner the lift over the shoulder, footing his Partner lost Harman, fell, hitting her on Partner's knee and Terry B. head M. Plant and Stewart suffering injury. City, Appellant. Salt Lake Valley University. the incident. 1. UVSC now known as Utah However, time of we refer to it its name at the deposition, her testified consequence out further thereby avoided she had never danced with injury. Partner before Accordingly, the trial court con- day injury. of her pro UVSC cluded that no relationship arose and that Instructor thus owed vided the trial court with a video taken some care. during preceding time Cope's inju week

ry in which she and Partner were recorded

practicing times, together ISSUES AND STANDARDSOF REVIEW the lift three al ways over the incorrect shoulder. ¶ Cope first contends that the trial court ¶ 4 According Cope's expert, executing abused its discretion reconsidering its the lift over the left shoulder when original denial of UVSC's motion for sum practicing right Partner had been it over the mary judgment. "A trial court's decision to shoulder at danger was least as difficult and grant deny or a motion to reconsider sum ous, so, if not more than attempting an en mary judgment is within the discretion of the tirely explained new lift.2 She that it was court, trial and we will not disturb ruling its industry standard in the for dancers to absent an abuse of discretion." Timm v. spotters learning use new lifts. She Dewsnup, 1996) opined also that Instructor should have used omitted). (emphasis spotters on the lift to decrease the risk of ¶ 7 Cope also contends that the trial court injury until the students indicated that granting erred in UVSC's motion for sum were comfortable with the lift and Instructor mary judgment because a competent determined that per existed and Instructor. Sum forming it. Instructor believed that because mary judgment appropriate when "there is Cope and capable Partner were perform genuine no any issue as to material fact and ing shoulder, right lift over the spot ... moving party is entitled judg to a ters were they practiced needed when the lift ment as a matter of law." Utah R. Civ. P. over the left shoulder. 56(c). "We review a trial court's order ¶ 5 Cope complaint filed a against UVSC granting summary judgment for correct August on Following discovery, ness," viewing "all facts and inferences in the summary UVSC filed a motion for judgment light most favorable to the nonmoving party." 29, 2010, July arguing alleged that Ctr., Surgical Mountain West Hospi LLC v. facts were insufficient to establish that it had Corp. Utah, tal 2007UT . gave with that 1276 rise to a of care. The trial court denied the motion. UVSC renewed its motion on ANALYSIS December based on the video evi I. Reconsideration of Motion showing dence and Partner had Summary Judgment for practiced together, the lift incorrectly, albeit on at least one prior occasion to the date of Cope contends that the trial court Cope's injury. evidence, light of this erred reconsidering original its denial of trial court revised its earlier decision. It UVSC's motion summary for judgment. Cope, determined that couple's 60(b) aware of the Cope's argument relies on rule prior difficulty lift, in performing the never Utah Rules of Civil Procedure. That rule accepted theless the risk of continuing permits a trial party court to "relieve a attempt it rather than have the "'coolest' from a judgment" final "newly based on dis part of the routine" eut. The trial court covered evidence which due diligence gave concluded that because could not have been discovered in time to option learning of either correctly 59(b)." the lift move for a new trial under Rule routine, having it eut from the 60(b), (b)(@2). could Utah R. Civ. P. Cope reasons have elected not to do the difficult lift with- that the video of Cope and Partner rehears- expert explained learning 2. The memory a lift that is of the muscle associated with the simi- previously similar to one learned is often more lar lift. completely difficult than a different lift because expressed in accident, should be Duty determinations prior to the week

ing in clear, categorical, bright-line rules "relatively for the basis which formed discovery of reconsider, of cases." applicable not evi- to a class of law motion UVSC's not have diligence could (citation "by due marks quotation internal dence that omitted). example, considered "the For id., original discovered," prior to the Jeffs been part healthcare summary judgment existence motion pre its discretion care in abused to exercise reasonable providers therefore trial court inju ruling. pose scribing its earlier a risk reconsidering medications ¶ 22. The Utah parties." ry to third here is not relevant rule duty question held that "the Supreme Court 60(b) 60(b). governs the reconsid Rule rule specific not turn on the combination orders, trial court's and the of final eration practitioner] nurse pharmaceuticals [the summary judg motion for denial of UVSC's injury or the prescribed final order. The relevant was not ment Rather, analysis allegedly caused. 54(b) 54(b). of the Utah "Rule rule rule is class, as a providers healthcare considers ... allows a Procedure of Civil Rules gen prescription of medication negligent respect change position its eral, range injuries that could the full of judgment has a final before order or decision ¶ 23. in this class of cases." result Trembly Mrs. the case." v. in rendered been "Thus," concluded, prac nurse the court 1306, Cookies, n. 2 P.2d 1310 884 Fields duty appellants "would owe no to 54(b) states, titioner (Utah "Any Rule Ct.App.1994). duty whole class only if there were no for the adjudicates fewer than all the ... that order providers general in these cir of healthcare fewer rights and liabilities of or the claims expressed Id. The court cumstances." subject to revision parties than all the practitioner the nurse opinion on whether entry judgment any before time care, duty her or whether breached rights and the claims and the adjudicating all proximately plain caused the breach such Civ. P. parties." Utah R. of all liabilities damages. tiffs' 54(b). present did its motion to UVSC While 60(b) rule motion based on as a reconsider governmental actors are When substance, evidence, "the newly discovered involved, apply to a special considerations dispositive in caption, of a motion is analysis. public policy, a matter of duty "As motion," character of the see determining the expose governmental actors to tort we do not P.2d at 1310 n. 2. UVSC's Trembly, 884 may liability mishaps for all befall 54(b) substance, was, simply a rule in motion conducting their public in the course order, a non-final reconsider motion to 2005 duties." Webb v. prerogative to court had the thus the trial ¶80, 11, duty public The UT 125 P.3d 906. prior ruling on the and revise its reconsider governmental limits a actor's to doctrine summary judgment. Accordingly, motion for special relationship exists situations where a point. court on this we affirm the trial government specific individ uals: Relationship Special II. provides that al- public The doctrine next consider whether the We entity general a though government a owes determining in that UVSC

trial court erred public, ground to all members of care to owed no impose specific does not a of due relationship special existed between that no respect to government care on the with "The issue of whether Cope and Instructor. may by govern- individualswho be harmed entirely a of law to duty exists is a inaction, action or unless there court." Ferree v. mental determined 1989). (Utah State, gov- 151 specific 784P.2d between the some connection agency and the individuals that ernment a "Duty must be determined as duty. impose a makes it reasonable categorical and on a basis for matter of law Dep't Pub. Day ex rel. Utah v. State given B.R. ex rel. class of tort claims." Jeffs (cita- ¶ 46, 12, P.2d 1171 West, 980 Safety, 1999UT 275 P.3d 228.

319 omitted). Thus, government tions actor P.3d whether the facts of a specific duty of care owes no to the undiffer place case case within a relation- general public, only but entiated those ship category ais matter of law for the court persons apart "who stand so far from the decide, Ferree, see 784 P.2d at 151. public that we can describe them as ¶ 14 University personnel do not having special relationship govern generally have relationship ¶ 11, Webb, mental actor." 125 students. 906; Higgins P.3d see also v. Salt Lake 1993). Busch, County, P.2d (citing 855 236-39 Freeman v. 349 F.3d (8th Cir.2003)). However, Webb, A number of circumstances our indicate implicitly recognized group catego that an individual or distinct stands sufficiently apart general public ry from the eases arises special relationship, including "gov create a university setting. possibility The reasonably ernmental actions induce can be created follows detrimental reliance a member of the college from the fact that "a student will Day, public" group. or a distinct 1999 inevitably relinquish a measure of behavioral "(alt P.2d (identifying autonomy to an instructor out of deference to may give least four circumstances [that] rise superior skill, knowledge, experi special relationship govern ¶ 24. to a between the ence." The court observed that individuals"); specific Higgins, ment and college students-even students-"want (recognizing P.2d at 238-40 rela please They their instructors. want to sue tionships may extend to members of a dis They ceed their studies. believe that the group). tinct subject instructors have command of the matter and the environment in which it is ¶ 13 Jeffs, scope Under of a ¶ 26. taught." may Id. These factors cause special relationship is determined on a cate a student sig abandon her own "internal level, gorical applicable general to a class of peril" rely detrimentally nals of and to on her cases. See 2012 UT 275 P.3d 228. ¶¶ 26-27; Beach, instructor. Id. see also 726 special But a relationship "whether exists ("The special P.2d at 415-16 essence aof depends upon a careful evaluation of the dependence by party upon one Health, Valley facts." Wilson Mental 969 dependence the other or mutual 1998). between the 416, P.2d The facts deter parties."). particular mine whether a case falls into a general special class of cases where a rela The difficult "is to determine tionship (identifying exists. See id. at 418-20 autonomy how much loss of a student must general a class of cases a rela peril present sustain and how much must be tionship discussing exists and the facts to Webb, special relationship." to establish a determine whether the case falls into that 125 P.3d 906. Webb itself category); Higgins 855 P.2d at 237-39 There, question. answers this an earth sci (same); Petersen, Rollins v. 813 P.2d participated trip ences student in a field to a (Utah 1991) (same); Ferree, 784 P.2d at project condominium to examine fault lines. (same); Utah, University 151-52 Beach v. The course instructor directed the students (Utah 1986) (same); 415-16 icy snowy to walk on and through sidewalks Valley

Jenkins v. Jordan Water Conservan project. condominium One student 29-32, 283 Dist., cy App ¶¶ slipped pulled and Webb down. The fall (same). P.3d 1009 But see Cruz v. Middle ¶ injured Webb. See id. 2. Inc., Lincoln-Mercury, kauff (Utah 1996) (suggesting 1255-56 Our court held that the in duty analysis may icy structor's directive to walk on the side turn on consideration of "special walk did not a unique relationship. cireumstances" to the create facts case). ¶ 27. Although disputed each "A facts relevant See id. directive received in connec special relationship inquiry college to the assignment should be tion with a course is an factfinder, engage resolved see act that would Normandeau the attention of the ¶ ¶ 26. Inc., Nevertheless, Equip., prudent v. Hanson student." directly superior skill, experience." not relate knowledge, in Webb"did the directive ¶ 24. class," a statement was such Instructor's enterprise of the but academic relationship to the directive. "tangential only a bore ¶ 27. mission." Id. academic trip's field ¶ 18 Moreover, unlike the directive concluded, the instructor did Thus, Webb, given within the the directive was here pres might be which the control not "exert enterprise. Cope fell the academic seope of a setting to create academic ent in an Ballroom of the UVSC during a rehearsal words, while the In other relationship." Id. Team. In that context Danee Tour relied on the might have injured student rely on the dance-related does have reason to inspecting expertise instructor's course instructor. Unlike directives of features, rely no reason to he had geologic Webb, ciream- plaintiff in a student judgment respect instructor's the course expected "relinquish could be stance Thus, while iey navigating sidewalks. in autonomy to [her] of behavioral measure given by a teacher involved directive Webb superior [his] out of deference to structor student, cre to a skill, knowledge, experience." See id. ated, given not directive was reasonably that her 24. She would believe enterprise. seope of the academic within the subject mat has "command of the instructor in which it ter and the environment analysis we From this ¶ 26. "under taught." id. She would relation rule: extrapolate success, measured [her] stand that (1) given a directive is ship is created degree knowledge [or skill] . (8) (2) by teacher or coach to a student ..., aban acquired [she] turned on whether enterprise. scope of the academic within the signals peril all internal to take doned See Webb v. potentially [action]." hazardous ¶¶ 23-27, In contrast 125 P.3d 906.3 Webb, Thus, unlike in Instruc See id. a directive present case involves directly "relate tor's directives to did within the given by to a student an instructor class," enterprise the academic enterprise. scope of the academic direct, tangential, relationship to bore a Partner, you guys "'[Elither told program's mission." the dance "academic lift going [the we are to cut do this or " It "a directive received in con See id. was Thus, on the like the students routine.] the college assignment course nection with Webb, icy Cope in and Partner sidewalk prudent the engage would the attention of ¶ 2. to do the lift. See id. Of "were directed" "logical candidate" student" and thus was a course, Cope compelled proceed to ¶ 26. to induce detrimental reliance. See id. refused, she could have spotters; without sum, every In indicator of a relation negotiate spotters, quit attempted to for present here.4 ship absent from Webb team, or from the universi dance withdrawn ¶ 19 Indeed, require compulsion, ty. But Webb does not one factor not discussed Webb, likely present to evoke a reason Webb is also here. merely a directive one; general was a the instructor [her teacher's] able "deference to directive student's See, ¶ 24 ("The degree. hypotheti notes, id. e.g., one of engaged in an exten 3. As the dissent Webb analysis possibility special relationship of the balance between the risk sive that a can be cal involved in a situation and the control exerted in a created between an instructor and student 2005 a teacher. See Webb setting higher the funda education flows from 80, ¶¶ 23-27, do not UT 125 P.3d 906. But we reality college ... student will mental requires apply Webb courts to this same believe inevitably relinquish a behavioral au measure of balancing every case in which a student test added)); tonomy (emphasis an instructor...." to university duty by personnel. asserts a breach of ('The question harder is to determine id. arising product of its The rule out of Webb is a autonomy a must sus how much loss student balancing and control factors. of the risk present peril must be tain and how much special relationship." (emphasis add establish a requires that a We do not believe Webb student ed)); (rejecting id. the claim of a signals peril." have Webb, internal "abandoned a/f ... relationship where did not "[the instructor (emphasis 125 P.3d 906 Webb, might present added). which in an exert control appears Although phrase setting"). passages suggest other in Webb Here, "Mr. Cope's directed Webb and other students" to 416. distinguish- situation was ¶ 2. icy snowy walk on sidewalks. able from that of the other students on the specific. Here the directive was UVSC Ballroom Dance Tour Team. "stopped the rehearsal [and] went to each ¶ 22 Similarly, Brigham Orr v. Young couple timing see issues were." (D.Utah University, 1994), 960 F.Supp. 1522 Partner, he

When reached he in published without opinion, 108 F.3d aff'd them, name, structed how to achieve the (10th Cir.1997), a Utah federal district lift, clearly and did so in terms implying that applied Utah law in determining safely the lift was achievable with a bit more private whether a university injured owed an "(Copel, you just effort: need to kick. [Part player football an affirmative of care. ner}, you push need to more or lift more." rejected The court player's claim of "a cireumstance, In this it would be a rare special relationship with university by rely superior student who refused to virtue of his player football status." Id. at experience expertise of her instructor. Specifically, 1529. rejected the court true, notes, It is as the player's that, dissent football "by claim playing foot "Instructor told only BYU, and Partner ball for he became in essence a ward of practice correctly, must the lift university not that vestige without of free will practice must spotters." without independence." Infra or Id. at 1528.5 The court And case-specific fact, based on this relied on the distinction large between "'a the trier of fact well determine that group, undifferentiated such a university as " " Instructor did not breach the body,' care and 'narrow classes of indi he owed in this cireumstance. In viduals who for some reason were distin guishable from the mass." existed, however, sofar as whether a (quoting Hig Webb makes clear that the distinction be gins v. Salt County, Lake 236- tween acts and dispositive: 1998)). omissions is not Although the court found "a relationship relating govern to a that would create a act, mental imposition the court acknowledged that actor can result in training liability for either her acts or her failure "when provided services are act." P.3d 906. negligently then performed, liability could re that, here, It follows so far "stand[s] sult existing under negligence." theories of apart from the public"-and indeed, Here, Id.6 does not claim that dane- apart so far from the ing other students. in the on the UVSC Ballroom Danee Tour class-"that we can describe having [her] as Team she became in essence a ward of the governmental university; rather, alleges she that she was actor." See id. 11. injured training services were being provided in way such a as to create a

¶ 21 This conclusion is consonant with relationship. See University Webb v. Utah case law. example, For in Beach v. Utah, 80, ¶¶ 14, 16, 125 P.3d 906 (Utah 726 P.2d 413 {noting that the commission of an affirmative 1986), our rejected the claim governmental act a actor does not create university duty a owed a of care to itself, duty by provides "but instead rele supervise a student who fell from a cliff at vant information about whether a re night during a trip sponsored field by the lationship existed governmental between the university. See id. at 414. The Beach court injured actor and the party"). concluded that the student's "situation was distinguishable not from that of the other UVSC cites several holding cases students on trip" duty thus the instructor only reasonable care arises when a duty had no to "walk [her] to tent and coach or instructor increases the risk of see that night." she was down for beyond Id. at harm activity. inherent in an opinion attributing We read the court's as explain this 6. The court did not this reference to case; hyperbole plaintiff "existing negligence." in the it does not theories of See Orr v. 1522, Univ., Brigham Young legal F.Supp. state the 960 test in Utah. 1528 (D. 1994). Utah

322 Religious care Japanese Am. If a of reasonable v. activities. See, e.g.,Bushnell ous will hesi 525, argues, instructors imposed, UVSC Ctr., 50 Cal. Cal.App.4th 48 & Cultural (1996) to excel. See challenge participants (holding that a 671, tate 673-74 Rptr.2d in only for an imposing gener recover (holding could id. judo student generally vigor chill care would duty of reasonable conduct, al or intentional reckless structor's events). Such negligence sporting ex in sounding participation in ous noting that appropriate actions that are instructor's considerations only policy an tended activity); in the considering inherent whether risk increase 2009-Ohio-6898, Univ., Higgins, P.2d at 236-37. See 855 Kent State exists. v. Crace 534, impact ¶¶ 924 N.E.2d 13-15, App.3d practical consider "the 185 Ohio Courts must university standard to would finding same (applying 906 instructor). However, the exis have," is "realis cheerleading including whether appropriate standard duty and the or funda performance tically incapable tence of a Mad questions. See par distinct are two nature of the mentally of care at odds withthe 442, Borthick, 444 Beach, P.2d 237; 850 v. 726 sen relationship." ties' ("In of a 1993) establishing the existence P.2d at 418. both a analysis is used for duty, the same application of do not believe our 26 We claim. gross negligence and a negligence in to the facts of duty outlined Webb in the the two lies difference The performance or incapable of case is either the defendant to which degree of care instructor- fundamentally at odds with the held."). in concerns raised believe the We sports relationship. Participants are best addressed cited UVSC cases in programs look to the or extra-curricular ordinary standard of reason an by adopting they acquire the for direction as structor Kahn v. East Side Union able care. They compete. trust needed to skills 990, Dist., Cal.Rptr.3d Cal. 4th 4 High Sch. apprecia training, expertise, and instructor's (2003) J., (Kennard, 30, 103, 51-52 75 P.3d Participants ex risks involved. tion of the (stating dissenting) concurring and excel, challenge them to pect instructors sports inherent in active could harm risk of to act expect also those instructors but high by holding school be accounted Furthermore, reasonably doing so. care). ordinary coaches to standard mitigates reasonable care standard of care A of reasonable it leaves by UVSC: policy concerns raised create encompasses a not to generally challenge push their stu free to "coaches Reighard long risk of harm. See an skills level as as unreasonable to advance their dents 45, ¶¶ 29-31, Yates, ath exposing v. the student they do so without West, 1168; B.R. ex rel. of harm." See an unreasonable risk letes to Jeffs 228. What be Kahn, Cal.Rptr.3d n. & 31 Cal.4th setting may be reason (Kennard, J., not concurring reasonable one and dis P.3d at 52 Ordinarily can participants in another. senting). able reasonably expect or coaches instructors undisputed facts conclude that We in an inherent them risks to insulate spe the existence of a in this case establish they voluntarily engage. activity in which reason relationship and thus a cial Kahn, Cal.Rptr.3d

See, e.g., 31 Cal.4th part the of Instructor. We able care on (majority opinion). But P.3d at 38-43 this the existence of caution whether, of this the cireumstances under proxi breach and questions of not resolve case, unreasonable risk created an for the risks involved mate cause. Whether harm, inherent in com the risk of increased performing in dancers particular these dancing, otherwise or was petitive ballroom spotters would cause a lift without particular in his acts and omissions is unreasonable particu to take dance instructor reasonable fact. for the trier of question Cope from a fall is protect precautions lar And, if Instructor of breach. poli question argues that UVSC also regard, wheth reasonably in this to act imposing a failed against cy weigh considerations Cope's fall caused proximately failure er that physically strenu- of care on coaches of injuries reasonably and is a of causation. See induce detrimental reliance Jeffs, 2012 UT 275 P.3d 228. "Both ¶ by public.'" a member of the ¶ State, questions case-specific (quotingDay are and fact- of those 1999 UT 980 P.2d intensive, 1171); Utah, University and are not before us on this see also Beach v. of (Utah 1986) ¶ (explaining appeal." Id. 28. special relationships "generally arise responsibility when one assumes for anoth CONCLUSION safety deprives er's or of another his or her the trial court's denial Because of (cit opportunities self-protection" normal summary judgment first motion for UVSC's (Second) ing § Restatement of Torts 314A order, was not a final the trial court did not (1964))). giving Detrimental reliance rise to by reconsidering abuse its discretion and re special relationship between an instructor facts, vising it. Because the considered in (1) and a student is induced when the in light Cope, the most favorable to establish a structor the academic "alter[s] environment" special relationship, the trial court erred in "benign setting" academic in such a granting UVSC's renewed motion for sum way that subjected peril mary judgment. in part We therefore affirm beyond the "identifiableand danger" obvious part in and reverse remand for further by the student participating assumed proceedings. (2) setting academic a reason able "student would understand that [her] ¶ 29 I CONCUR: MICHELE M. success, by academic measured either CHRISTIANSEN, Judge. degree knowledge acquired by posi or impression instructor, tive DAVIS, Judge (concurring made on the part in turned on ignored whether" she an obvious dissenting part): danger in order to fulfill a directive of the ¶ I majority part 30 concur with the as to I ¶¶ Webb, 23-27, instructor. See reject majority's analysis but both the and its 125P.3d 906. respect part conclusion with II. I believe by majority that the rule articulated con narrow, majority rejects 32 The fact- cerning the existence of a relationship dependent rule articulated in Webb in favor university students and their in of a much recognizing broader rule significantly structors broadens the relationship university whenever a teacher or governmental setting actors in this and is gives coach a directive to a student "within supreme holding inconsistent with the court's scope of the enterprise." Utah, University in Webb v. ¶ 17.1 supra imposes It then of rea 125P.3d 906. giving any sonable care on instructors such gave spe directives, course-related redefining the risk guidance cific as to when a relation analysis control by articulated Webb asserting pertains that it to the breach of the ship university arises between students and instructor's rather than to the existence their "[A] instructors: 'by governmental created actions of the itself. majority language The degree relies on acquired from Webb knowledge emphasizing between the di instructor, made positive impression class, enterprise rective and the academic turned on whether abandoned all internal see Webb v. signs peril [engage potentially in] haz- support of its assertion that ardous [action]. scope directive that is "within the of the aca Id. This clarification indicates the Webb enterprise" gives demic rise to a rela court intended a much narrower rule than that tionship. explicitly the Webb court majority articulated in this case. Further- "relat[ing] clarified what it meant a directive more, it that confirms the existence of a class," directly enterprise to the academic turn, degree, at least to some stating, implicated by on the risk the instructor's di- this we mean it is ... reasonable [whether] By rective and the control the instructor exercised any to believe that student would understand over the student. that his success, measured either by imposed duty should be on parties," third a rule majority justifies this broad The category. holding providers within supreme court's all healthcare the by relying on ¶¶ 27-28. West, 11, negligent The fact the v. rel. ex B.R. Jeffs certain, exis medi 228, explained that the more innocuous prescription it in which P.3d "on a cate duty very must be decided little foresee "may well involve tence of a cations claims," given class of tort to the gorical injury" was irrelevant basis able risk of ¶ 23. if the majority implies that The only appropriately con duty see id. question of on turns existence of the "case- in the context of more sidered by the instruc implicated specific risks the issues of breach specific and fact-intensive" directive, appropri rule is ¶ 28. then the not tor's See proximate cause. id. matter, I As an initial ately categorical. considering whether to If we prerogative that it is not our would observe general rule exception to the carve out an by supreme the set down reject to a rule care when en imposing "a to exercise on our its decisions based own court in one of gaging in affirmative conduct that creates language in interpretation contradictory others," physical as the risk of harm Jeffs generally State another of its decisions. ¶ 21, was, might I be inclined to court see id. 5, Newland, App 10 n. 2010 UT v. relying agree majority that a rule with the ("[U]nder vertical stare principles of P.3d 71 degree is nature the risk or of control decisis, departing prohibited from we are sufficiently categorical. not by our su precedent established from the in this case is not question we must resolve court."). case, any I believe the preme subject excep to an whether Instructor rule be- takes the majority's approach Jeffs public tion-we know that he is because seope. youd its intended gov categorically doctrine immunizes explained that in de court 34The Jeffs Instructor, actors, ernmental such as one individual has termining whether liability specified narrow circum except another, begin general rule we . stances See Webb v. to exercise care that "we all have ¶¶ ("As 125 P.3d 906 engaging in affirmative conduct policy, expose we public matter of do physical harm to others." a risk of creates liability tort for all governmental actors to then We mishaps may public befall determining "in wheth other factors examine duties."). Rather, conducting their course of exception an to the er to carve out re we must determine whether rule," foreseeability likeli including "the or exception from that moved himself policy to which injury, public as hood of relationship, one "creat[ing] party bear the loss occasioned can best exist, acts," id. previously [his] did not general policy other consider injury, ¶ 14. (citations quotation and internal ations." "duty purely legal Although is a issue omitted). con These factors must be marks decide," for the court Normandeau categorical level" so that we can sidered "at a Inc., Equip., Hanson on a duty "as a matter of law and determine ... "factual issues bear on P.3d given of tort categorical basis for a class ¶ 21. ¶ 23. Thus, the relating] duty," For ... id. issue[s] court de claims." Id. Jeffs Lincoln- example, in Cruz v. inappropriate termined that it would be Middlekauff (Utah 1996), Inc., Mercury, 909 P.2d 1252 exception provid carve out an for healthcare a car considered whether court prescribing drugs that make "the ers would party to a third who dealership had a specific ... combi turn on injured a car from when someone stole prescribed pharmaceuticals nation of keys were left in the dealership after the allegedly injury ¶ 253. categorical ignition. The See id. explained that so caused." Id. The regarding duty in that cireumstance rule within long as there were cireumstances right pos having a lawful consist[ing] "[o]ne category of cases "[the relevant automobile, property, such as an negligently presecrib- session of providers of healthcare leaving keys there- injure although negligent in ing patients who then medications to in, respond damages has no caused instructor issues a directive within seope the by a thief who takes it and runs into a third of the academic enterprise, majority's the (citation party's vehicle." Id. at 1255 approach would have us derive a from omitted). quotation internal marks But the Instructor's mere failure to observe a stan explained court "special that where cireum- view, my dard of care.2 In Instructor's stances" exist that would have "increase[d] to adhere to such a standard must first be foreseeability by the put- risk to others" established determining whether a ting the defendant "on notice that its cars arose, which, analysis an under thieves," targeted by duty may never- Webb, implicates the risk and control factors imposed. theless be Thus, Id. at 1255-57. above, discussed supra see 31. disputed the court determined that the exis- ¶ 38 Although an analysis-of duty in the tence of such question cireumstances was a context of university may, instructors bearing fact applicability on the excep- of an times, require the factfinder to make deter categorical tion to the imposing duty, rule relating minations to the fact-dependent dispute precluded spe the the court issue, cial Normandeau, see granting a motion to dismiss. See id. at 44, ¶ 21, 152; Cruz, UT 909 P.2d at Similarly, 1257. the issue of whether a uni- versity here, I give instructor's believe that spe- law, actions rise to a as a matter of cial relationship Cope is a bearing allege of fact has failed to sufficient facts to upon legal the exception give issue of whether an rise to a relationship.3 "[A] col lege public duty applies. instructor who has no special relation the doctrine ship with her class benign members in a ¶ 37 In a Jeffs, case such as where the setting academic can create a rela categorical imposes duty, rule simple it ais tionship by altering the academic environ weigh matter factual considerations ment." might ultimately relieve the defendant of lia 906. In order to determine whether bility part as proximate the breach or academic altered, environment has been how analysis. cause in a case such as ever, we must nature of Cruz, indeed, hand, in the case at consider "benign" environment in its categorical state. rule states that a The academic environment of the ballroom exist, considerations, mot factual such as the dance team in benign risk and its control factors state relevant to the involved the exis performing students lifts. Cope's expert As tence of a relationship, might imposition pointed nevertheless liability make witness out in ap deposition, falls propriate must part Thus, be considered are an doing as inherent risk of all lifts. duty analysis all, or not at since resolution of Instructor's directive that and Partner disposes issue By practice the claim. the lift over the left shoulder did not adopting ordinary an standard require of reasonable itself any to confront danger care in cireumstance university beyond where a the inherent risk she assumed so, by doing majority's 2. And approach sig- practiced because had never the lift correct- nificantly protection undercuts afforded to ly. Viewing light the facts in the most favorable university public state instructors under the Cope, apparent it attempt per- that the doctrine. form the lift over the left shoulder was both different and more performing difficult than My reasoning differs from that of the trial Thus, right agree over the shoulder. I generally Bailey court. See Bayles, risky it was for her and Partner to have ("It 52 P.3d 1158 is well settled that an attempted it for the spotters first time without appellate judgment appeal affirm the regardless practiced of whether had it incor- any legal ed from if it ground is sustainable on or rectly during previous Furthermore, week. I record, theory apparent though even such agree do not with the trial court that auton- ground theory differs from that stated omously rejected "option" an per- to decline to trial court ruling to be the basis of its or ac form the lift and have it cut (citation from the routine tion...." internal marks quotation omitted)). reasonably expected she could have Unlike the court, trial I do not consid being having er the fact that practiced and Partner the cause of had the "cool" lift cut from during preceding lift the week negative accident to the routine impression would leave a relationship analysis relevant position Instructor and affect her on the team.

32G enterprise of directly to the academic gen relate the dance team. with participating "to Univ., it was unreasonable class" and that Young Brigham erally Orr v. (determin 1994) (D. understand any student would Utah that F.Supp. believe "[v]oluntary association that his academic on ... turned success student's ing that a signals they not itself all internal abandoned athletic team" whether collegiate with a potentially haz relationship peril between to take rise to give lines"). pub fault college), without route to view ardous and aff'd Cir.1997). (10th F.3d 1388 opinion, lished facts considered Because the using not danger of increased It was Cope fail to establish light most favorable to alleg re-learning the lift that while spotters relationship Instructor and between relationship in this ato gave rise edly correctly the trial court Cope, I that believe lift itself. involved case, risk not the motion for sum renewed granted UVSC's ¶ 39But to nothing in the facts Thus, I affirm. mary judgment. there would included, directive Instructor's suggest implicitly, requirement explicitly either spot practice without Partner Cope and only Partner told and Instructor

ters. correctly, lift not practice the they must spotters. it without they practice must nothing suggest to that Instrue And there App UT 316 the dancers to permitted not have tor would they requested them or spotters had use McCLELLAN, Petitioner Carl request not suggest did to even Appellant, and she lacked the she felt that spotters because Thus, request.4 it autonomy make such to necessary for and Partner

was not Utah, Respondent STATE peril confront an signs of ignore internal Appellee. fulfill Instructor's danger order to obvious No. 20100979-CA. for directive; simply have asked could evidence that Instructor spotters.5 Without Appeals of Utah. Court of Cope and Partner directed explicitly attempt the corrected required were Nov. 2012. Cope's or that spotters, lift without on whether she re-learned turned

success undisputed facts are spotters,

lift without special re that a to demonstrate

insufficient between Instructor

lationship arose 80, 27, 125 P.3d Cope.6Cf. in (determining that an earth science icy directive that students walk

structor's not examining fault lines "did while

sidewalks fact, negligent may it have been for significant no matter how despite variation in the 4. lift, to do so. deposition, "I didn't him to fail in his Partner stated spotters I I need to think would ask previous I able to majority's to that was on the fact know that time find the reliance 6. I also specific her down." the lift and to sit directive was control that Instructor's class, than to the entire to be Partner, rather misguided. the directive that -It is the nature of may have been a better While Instructor relevant, the number of students to spotters ap- it makes position whether to determine circumstances, Cope and directed. The fact that whom it is propriate and his fail- under the necessary for them to spotters error made Partner's provide and Partner ure to not, in and of instruction does contrary industry receive individual itself, standards for have been give rise to a safety, until a unless and arose, provide spotters, them and Instructor. had no

Case Details

Case Name: Cope v. Utah Valley State College

Court Name: Court of Appeals of Utah

Date Published: Nov 8, 2012

Citation: 290 P.3d 314

Docket Number: 20110147-CA

Court Abbreviation: Utah Ct. App.