TODD GLAITTLI, Plаintiff and Appellant, v. STATE OF UTAH and JOHN DOES I-V, Defendant and Appellee.
No. 20130119
SUPREME COURT OF THE STATE OF UTAH
July 15, 2014
2014 UT 30
This opinion is subject to revision before publication in the Pacific Reporter. Third District, West Jordan. The Honorable Bruce C. Lubeck. No. 100400120. On Certiorari to the Utah Court of Appeals.
Daniel F. Bertch, Kevin K. Robson, Salt Lake City, for appellant
Sean D. Reyes, Att‘y Gen., Bridget K. Romano, Solicitor General, Salt Lake City, for appellee
ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of the Court, in which CHIEF JUSTICE DURRANT and JUSTICE DURHAM joined.
JUSTICE LEE filed a concurring opinion, in which JUSTICE PARRISH joined.
ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
INTRODUCTION
¶ 1 This case requires us to once again define the contours of the “natural condition” exception to the waiver provision of the Governmental Immunity Act of Utah.
¶ 2 Appellant Todd Glaittli suеd the State of Utah for injuries he suffered when his boat “heaved” and struck him, shattering his
BACKGROUND
¶ 3 Todd Glaittli was the owner of a twenty-five foot cabin cruiser boat that he docked in the marina at Jordanelle Reservoir.1 The marina, docks, boat slips, and reservoir are owned by the State of Utah and operated by the Utah Division of Parks & Recreation and Jordanelle State Park. Mr. Glaittli‘s boat was tethered to a boat slip on a floating dock, which was connected to the shore by eight cables. Using a hand-operated winch, State employees could lengthen or shorten the dock cables as needed. The length of the cables was important. Because the dock was floating, its position could be altered by the water level of the reservoir, wind, or other forces that disturbed the water surface. Failure to properly adjust the cables risked allowing the boats to “strike the dock or other boats, especially during periods of wave action.” Although the Jordanelle Reservoir master plan recommended the creation of a breakwater to protect the docks from waves, no breakwater was ever built.
¶ 4 In early June 2008, the water levels of Jordanelle Reservoir were rising at a rate of approximately one foot per day, requiring “frequent, if not daily, adjustment of the cable tether length” of the docks. On June 10, 2008, a storm hit the area and
he saw large waves, causing his large boat to heave to a degree that he feared his boat would strike the dock or other boats. [He] walked out onto the dock, to lengthen the lines on his boat, to allow it to ride the waves more freely . . . . The lines were so taut that he was unable to loosen them. While [Mr. Glaittli] was standing on the dock, he was struck by the bow of his boat, shattering his upper arm and shoulder, causing him to fall to the dock, [resulting in injuries to] his shoulder, arm and other parts of his body.
¶ 5 Mr. Glaittli attributes his injuries to the State‘s failure to: “adjust the dock level with the water levels;” “warn [him] of an unsafe condition at the docks;” “properly secure the docks;” and finally, to “construct a breakwater” for the marina.
¶ 6 The State claimed governmental immunity and moved to dismiss Mr. Glaittli‘s complaint. The parties agreed that the activity was a government function, and the State conceded for the purposes of the motion to dismiss that Mr. Glaittli‘s injury was “proximately caused by a negligent act or omission of an employee committed within the scope of employment“—meaning that governmental immunity would be generally waived.2 The district court thus evaluated only whether there was an exception to the general waiver rule that would allow the State to retain its immunity. Proceeding under
ISSUES AND STANDARD OF REVIEW
¶ 7 The single question on certiorari presents two distinct issues: (1) whether a reservoir is a “natural condition” under
¶ 8 “When reviewing a court of appeals decision affirming a grant of a rule 12(b)(6) motion to dismiss, we review the decisions of the court of appeals rather than that of the trial court . . . for correctness.”5 Moreover, “determining the scope of an exception to the waiver of governmental immunity is a question of statutory interpretation that we also review for correctness.”6
ANALYSIS
¶ 9 Whether a reservoir is a “natural condition on [the] land[]” under
¶ 10 In interpreting the term “natural condition” we cannot focus our inquiry too “broadly,” for if we were to do so, the statute‘s natural condition exception would largely “swallow the Act‘s waiver of immunity for negligence.”9 This is because, as we noted in Grappendorf, “[c]onsidered broadly, natural conditions include laws of physics, such as gravity, that necessarily contribute to any accident or occurrence.”10 Moreover, as we noted in Francis v. State, “we must exercise caution when interpreting an inexact term” (like “natural“) because “its meaning could be stretched to include almost anything.”11 The court of appeals reached its conclusion by focusing on whether the wave and the water it was made of were a “natural condition.” This was error.12
¶ 11 In Blackner v. State, an avalanche fell onto a road, injuring the plaintiff.13 We held that the avalanche was a natural
¶ 12 Our statute reads, in pertinent part,
[i]mmunity from suit of each governmental entity is waived as to any injury proximately caused by a negligent act or omission of an employee . . . . [But is] not waived . . . if the injury arises out of, in connection with, or results from . . . (k) any natural condition on publicly owned or controlled lands.18
In other words, the government loses its immunity if a government employee negligently causes injury, but negligence or not, the government retains its immunity if the injury arose out of a natural condition on public lands.19
¶ 14 Jordanelle Dam and Reservoir was constructed from 1987 through 1992 by the United States Bureau of Reclamation in order
CONCLUSION
¶ 16 We therefore reverse and remand to the district court for a determination of whether a government employee proximately caused Mr. Glaittli‘s injury through a negligent act or omission and for all other proceedings as necessary and consistent with this opinion
JUSTICE LEE, concurring in the judgment:
¶ 17 I concur in the majority‘s decisiоn reversing the grant of summary judgment in favor of the State, but write separately to offer an alternative understanding of the statutory construct of a “natural condition on [the] land[]” under
¶ 18 The statutory construct of a “natural condition on [the] land[]” has bedeviled our court for years. We have appropriately noted that a broad, literal interpretation of “natural condition” would encompass “laws of physics, such as gravity, that necessarily contribute to any accident or occurrence.” Grappendorf v. Pleasant Grove City, 2007 UT 84, ¶ 11, 173 P.3d 166. And we have rightly worried that an undue extension of the natural condition exception could “swallow” the statute‘s “waiver of immunity for negligence.” Id.; see also Francis v. State, 2013 UT 65, ¶ 45, 321 P.3d 1089 (expressing the need for “caution” in interpreting this “inexact term” in a manner that “could be stretched to include almost anything“).
¶ 19 As I have noted previously, this problem is magnified by our court‘s commitment to a but-for test of causation—a test that
¶ 20 Our “natural condition” cases have gone to some lengths to navigate around these rocky problems. First, in Blackner v. State, we conceptualized an avalanche as a “natural condition” sustaining immunity and held that immunity attached despite the plaintiffs’ argument that the proximate cause of the injury was the government defendants’ negligence in stopping traffic in a manner that put the plaintiffs at risk of harm from the avalanche. 2002 UT 44, ¶¶ 13-16, 48 P.3d 949. Then, in Grappendorf, we acknowledged that a gust of wind was in some sense “natural,” but nonetheless declined to extend immunity to an accident caused when wind interacted with an artificial pitcher‘s mound at a baseball park, suggesting that a “transient” force of nature does not “exist on the land as required by the plain language of the statute.” 2007 UT 84, ¶ 10. And in so doing, we emphasized the need to “avoid an interpretation that nullifies the Act‘s waiver of immunity.” Id. ¶ 11. Most recently, in Francis v. State, we applied the Grappendorf analysis in a manner foreclosing immunity for injury caused by an attack by a wild bear, concluding that the bear was too “transitory” to be considered a natural condition on the land. 2013 UT 65, ¶ 42. In Francis, we sought to distinguish “topоgraphical” features like rivers, lakes, and trees, which were “directly a part of and persist ‘on the land‘” from wild animals not as “closely tied to the land.” Id.
¶ 22 The majority reverses the court of appeals for its simplistic treatment of the question whether the waters of the Jordanelle are “natural,” finding error in the assertion that water emanating from the Provo River is always and forever a “natural condition.” Supra ¶¶ 9, 11. Yet, the court‘s analysis is equally simplistic. The majority is right to conclude that “[w]ere it not for human efforts in building the Jordanelle Dam, the Jordanelle Reservoir would not exist and in its place would remain the naturally flowing Provo River.” Supra ¶ 14. But that is only to say that a nonnatural condition was essential to the current existence of the Jordanelle Reservoir. And the same can be said of a natural condition: Were it not for thе naturally flowing Provo River, the Jordanelle Reservoir would not exist and in its place would be a barren valley.
¶ 23 The point is that the question whether the waters of the Jordanelle are natural or nonnatural is not a matter for abstract logic. It is a matter for statutory interpretation—for a determination whether the terms of our statute give controlling significance to a natural condition (naturally flowing waters) or a nonnatural condition (a dam) when both come together to create a condition essential to a danger contributing to an injury.
¶ 24 To address this question, we must do more than espouse the need to avoid an overbroad, rule-swallowing exception fоr natural conditions. (After all, the converse concern is also there—of avoiding an understated, meaningless formulation of natural conditions that would deprive it of any meaningful application.) We must give substantive content to the text of the statute, in a manner that will allow both litigants and lower courts to apply it in a predictable manner.
¶ 25 The question, then, is whether the statutory notion of a “natural condition on [the] land[]” encompasses conditions that are formed by the confluence of both natural and man-made
¶ 26 The key statutory provisions seem to me to incorporate classic terms of art from premises liability in the law of tort. Thus, the statute waives immunity for any injury caused by “a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them” (unless such condition is “latent“), and for any injury caused by “any defective or dangerous condition of a public building, structure, dam, reservoir, or other public improvement” (but with another caveat for “latent” conditions).
¶ 27 The references to “dangerous conditions,” “latent conditions,” and “natural conditions” are apparent invocations of terms of art from premises liability in the law of tort. Under firmly rooted principles of premises liability, a possessor of property may be liable to an invitee or licensee if he fails to exercise reasonable care necessary to protect them from a known “dangerous condition” on the land. RESTATEMENT (SECOND) OF TORTS § 343 (1965); Tallman v. City of Hurricane, 1999 UT 55, ¶ 9, 985 P.2d 892 (“The creator of an artificial condition on land may be liable to others—both upon or outside of the land—for physical harm caused by its dangerous nature.“); Rogalski v. Phillips Petroleum Co., 282 P.2d 304, 307 (Utah 1955) (“The duty owed by an owner of land to a business visitor is to inspect and maintain his premises in a reasonably safe condition or to warn the visitor of any dangerous conditions existing thereon.“); Erickson v. Walgreen Drug Co., 232 P.2d 210, 212 (Utah 1951) (citing and adopting the Restatement standard). This principle is also reflected in the law of nuisance, which subjects a possessor of land to liability for “abatable artificial condition[s] on the land” if the possessor knows of the condition, knows or should know that it exists without the consent of those affected by it, and fails to take reasonable steps to abate it. RESTATEMENT (SECOND) OF TORTS § 839
¶ 28 The reference to “natural conditions on [the] land[]” is also borrowed from the tort law of premises liability. Under longstanding principles of tort law, a possessor of land is not “liable for physical harm caused to others outside of the land by a natural condition of the land.” RESTATEMENT (SECOND) OF TORTS § 363(1) (1965); McCarthy v. Ference, 58 A.2d 49, 53 (Pa. 1948) (“[G]enerally speaking, . . . a landowner is not subject to liability for bodily harm caused to others outside the land by a natural condition of the land. . . .“). And this principle again is also reflected in the law of nuisance. Nuisance law provides that “a possessor of land is not liable to persons outside the land for a nuisance resulting solely from a natural condition of the land,” RESTATEMENT (SECOND) OF TORTS § 840(1) (1979),1 while defining “natural condition” as “a condition that is not in any way the result of human activity.” Id. cmt. a; Livezey v. Schmidt, 29 S.W. 25, 25 (Ky. 1895) (“[A]s expressed in text-books, in order to create a legal nuisance, the act of man must have contributed to its existence.” (internal quotation marks omitted)); Salmon v. Delaware, L. & W.R. Co., 38 N.J.L. 5, 11 (N.J. 1875) (natural conditions are those that are “purely sequences of natural causes“); Roberts v. Harrison, 28 S.E. 995, 996 (Ga. 1897) (natural conditions are “due solely to natural causes“).
¶ 29 These constructs are well-rooted in settled caselaw established long before the date of the enactment of our Governmental Immunity Act. And because the terms of the
¶ 30 A “word or phrase” that “is ‘transplanted from another legal source, whether the common law or other legislation,‘” is understood to “‘bring[] the old soil with it.‘” Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537 (1947)). That seems clearly to be the case here. It can be no accident that the relevant, operative terms of the Governmental Immunity Act—those addressed to the government‘s immunity as regards its role as possessor of land or other property—coincide with the key terms that have long been used to define the scope of premises liability in tort.
¶ 31 Thus, I would read the statute‘s reinstatement of immunity for injury arising out of a “natural condition on [the] land[]” as a transplant from premises liability in tort law. And I would interpret that term in a manner incorporating the “old soil” that it has long carried at common law.
¶ 32 That understanding is not only faithful to the text of the statute; it also addresses the above-noted concern for avoiding an overly expansive interpretation of the natural condition exception. And it is also compatible with the results of our cases.
¶ 33 The longstanding common law concept of “natural conditions” is straightforward. It defines a “natural condition” as a “condition of land [that] has not been changеd by any act of a human being.” RESTATEMENT (SECOND) OF TORTS § 363, cmt. b. It also contrasts natural conditions with artificial ones, which are defined as “structure[s] erected upon land” and “trees or plants planted or preserved, and changes in the surface by excavation or filling, irrespective of whether they are harmful in themselves or become so only because of the subsequent operation of natural forces.” Id. § 363 cmt. b; Mills v. Hall & Richards, 9 Wend. 315, 316 (N.Y. Sup. Ct. 1832) (pond created by man-made dam was an artificial condition); Towaliga Falls Power Co. v. Sims, 65 S.E. 844, 846-49 (Ga. Ct. App. 1909) (pond created by artificial dam and attendant mosquitoes); McCarthy, 58 A.2d at 50-53 (rockslide on natural hill that was weakened by the construction of a highway); Andrews v. Andrews, 88 S.E.2d 88 (N.C. 1955) (wild geese attracted
comprehends soil that has not been cultivated, graded or otherwise disturbed; watеr that is on the land wholly through natural causes; trees, weeds and other vegetation on land that has not been made artificially receptive to it by act of man; and birds, animals or insects that have not been brought upon it or attracted by act of man. The term does not comprehend conditions that would not have arisen but for the effect of human activity even though the conditions immediately resulting from the activity were harmless in themselves and the harmful condition has arisen through the subsequent operation of natural forces.
RESTATEMENT (SECOND) OF TORTS § 840 cmt. a.
¶ 34 This standard incorporates a natural brake against the concern about the “natural condition” exception swallowing the statutory waiver of immunity for negligence and other acts and conditions. See Grappendorf, 2007 UT 84, ¶ 11; Francis, 2013 UT 65, ¶ 45. It clarifies that immunity for natural conditions does not extend to “conditions that would not have arisen but for the effect of human activity even though the conditions immediately resulting from the activity were harmless in themselves and the harmful condition has arisen through the subsequent operation of natural forces.” RESTATEMENT (SECOND) OF TORTS § 840 cmt. a.
¶ 35 That proviso avoids the rule-swallowing effect of the notion that a literal interpretation of “natural condition” would encompass “laws of physics, such as gravity, that necessarily contribute to any accident or occurrence.” Grappendorf, 2007 UT 84, ¶ 11. It does so by indicating that immunity is not invoked for “conditions that wоuld not have arisen but for the effect of human activity,” a caveat that forecloses immunity for injuries traceable to “laws of physics” through their interaction with artificial elements.
¶ 36 The common law formulation of “natural condition” also preserves the results of our prior cases. Under the tort law formulation, an avalanche is a condition that “has not been changed by any act of a human being.” RESTATEMENT (SECOND) OF TORTS § 363 cmt. b. It is essentially “water that is on the land
¶ 37 The Francis case might seem a bit more difficult to sustain under the common law understanding of natural conditions, since the above formulation expressly encompasses “birds, animals or insects that have not been brought upon [the land] or attracted by act of man.” RESTATEMENT (SECOND) OF TORTS § 840 cmt. a. But although “black bears are native to Utah,” there was evidence in Francis that the State defendants had been aware that the bear at issue “had found food” at the campground in question and “would likely return if attracted” by humans or food. 2013 UT 65, ¶¶ 8, 11. So there arguably was a material dispute in Francis as to whether the bear had been “attracted by act of man.” And if so the result in Francis—reversal by our court of a summary judgment decision in favor of government defendants on “natural condition” immunity grounds—could also be sustained. See also Maynard v. Carey Constr. Co., 19 N.E.2d 304 (Mass. 1939) (infestation of cockroaches attracted to a dump).
¶ 38 I would apply this standard to this case. Thus, I would interpret the statutory exception for “natural condition[s] on [the] land[]” to extend only to conditions that have “not been changed by any act of a human being,” RESTATEMENT (SECOND) OF TORTS § 363 cmt. b, or in other words not to “comprehend conditions that would not have arisen but for the effect of human activity.” Id. § 840 cmt. a. And because the Jordanelle Reservoir is a condition affected substantially by human activity (the construction of the Jordanelle Dam), I would hold that the reservoir is not a natural condition and thus that immunity is not reinstated under the statutory exception in
¶ 40 The term-of-art understanding of “natural conditions” allows us to make sense of both the general waiver for dangerous, nonlatent conditions of reservoirs and the specific exception for natural conditions. It does sо by crediting the general waiver in circumstances in which a natural condition (such as water flowing in a river) interacts with an artificial condition (such as a dam)—rendering the otherwise natural water an artificial “dangerous condition” (a reservoir). And the implication for the exception reinstating immunity for “natural conditions” is parallel: Where the injury results only from a natural condition, and not at all from any interaction with an artificial element, then immunity is reinstated even for injuries generally (in a but-for sense) connected to a dangerous artificial condition like a reservoir.
¶ 41 That construct triggers the statutory waiver of immunity for the injuries at issue in this case, which were allegedly causеd
¶ 42 I would reverse the court of appeals on that basis. And in so doing I would repudiate our ad hoc conception of the natural condition exception and replace it with a framework rooted in the common-law, term-of-art understanding of the statutory terminology. I concur in the judgment of the court on that basis.