Samantha MILLER, Appellant, v. WEST VALLEY CITY, Appellee.
No. 20150449-CA
Court of Appeals of Utah.
Filed April 13, 2017
2017 UT App 65
TOOMEY, Judge:
TOOMEY, Judge:
¶1 This appeal involves an accident in a West Valley City (WVC) swimming pool during which appellant Samantha Miller was injured. Miller sued WVC, and the district court dismissed the case. We must decide whether the court properly granted WVC‘s rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. We conclude that it did and therefore affirm.
Ryan J. Schriever, South Jordan, Attorney for Appellant.
J. Eric Bunderson, Claire Gillmor, Brandon M. Hill, and Adrienne H. Bossi, Attorneys for Appellee.
BACKGROUND1
¶2 WVC owns and operates West Valley City Family Fitness Center. In May 2013, Miller was swimming laps in the fitness center pool when some teenage girls came into her lane and “interfere[d] with her laps.” Miller alleged the “lifeguard did not take adequate action to remove the girls from the pool.” While Miller was doing the backstroke she ran into one of the teenagers, “became disoriented . . . and collided with the [pool] wall.” Miller “sustained a closed-head injury, neck injuries and other bodily injuries.”
¶3 Miller sued WVC asserting premises liability and negligence. She first contended she was an invitee to the fitness center and WVC had “a duty to keep the premises free from hazardous conditions.” She further argued that WVC, through its lifeguard employee, “should have known that there was an unreasonably dangerous condition in [her] swimming lane” that she would be unable to see while doing the backstroke and because of this, the condition “was hidden to [her].” She argued WVC owed a duty to warn her of the “hidden or latent hazardous conditions.”
¶4 Second, in support of her negligence claim, Miller contended that WVC “undertook an obligation to monitor the swimming lanes” at the fitness center “to keep them clear of hazards for people swimming“; WVC “should have recognized it was necessary for the protection of others to maintain the swimming lanes free of hazards“; WVC
Judge Kate A. Toomey authored this Opinion, in which Judges J. Frederic Voros Jr. and Stephen L. Roth concurred.
¶5 WVC filed a motion to dismiss. It asserted Miller‘s suit should be dismissed for lack of jurisdiction under rule 12(b)(1) of the Utah Rules of Civil Procedure because Miller failed to file a bond as required by section
¶6 WVC‘s motion to dismiss argued that Miller‘s complaint failed “to establish a waiver of governmental immunity” and should be dismissed as a matter of law.2 Specifically, WVC argued Miller did not properly plead that immunity was waived due to a “defective or dangerous condition of a public building . . . or other public improvement” as allowed by the Governmental Immunity Act of Utah (the GIA). See
¶7 WVC argued Miller‘s negligence claim failed because WVC owed Miller no duty of care, in that Miller based her claim on section 323 of the Restatement (Second) of Torts but failed to allege facts sufficient to satisfy the requirements of that section. WVC also argued that because Miller‘s complaint alleged a lifeguard‘s omission caused her injury, the public duty doctrine applied, and therefore WVC owed no duty of care to Miller. Finally, WVC noted that Miller had
¶8 The district court agreed. As to the premises liability claim, it determined the plain language of section
¶9 And in regard to the negligence claim, the court agreed with WVC that Miller “did not plead that [WVC] made a voluntary undertaking to protect her, that the voluntary undertaking was done without reasonable care, and that [Miller] reasonably relied on this undertaking.” Additionally, the court determined that under Cope v. Utah Valley State College, 2014 UT 53, 342 P.3d 243, Miller needed to demonstrate that WVC had a special relationship imposing a “specific duty of care toward” her if her claim was “based upon a public duty.” Because Miller failed to “allege[] any facts to establish a special relationship,” she could not “over-come the standard employed in Cope.” Accordingly, the court determined Miller‘s complaint did not “state an actionable claim” and dismissed the suit. Miller appeals.
ISSUE AND STANDARD OF REVIEW
¶10 On appeal, Miller contends the district court improperly granted WVC‘s rule 12(b)(6) motion to dismiss. “A trial court‘s decision to dismiss a case based on govern-
mental immunity is a determination of law that we afford no deference. . . . Because the propriety of a 12(b)(6) dismissal is a question of law, we give the trial court‘s ruling no deference and review it under a correctness standard.” Van de Grift v. State, 2013 UT 11, ¶ 6, 299 P.3d 1043 (citation and internal quotation marks omitted). Likewise, “the issue of whether a duty exists is a question of law which we review for correctness.” Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405 (Utah 1998) (citation and internal quotation marks omitted).
ANALYSIS
¶11 Miller‘s appeal raises two main issues. First, she contends the district court erred in dismissing her premises liability claim for failure to demonstrate that immunity was waived under the GIA. She further contends the court erred in determining she failed to plead a negligence claim. But as a threshold matter, Miller asserts the case should be remanded because the district court “did not apply the correct standard” in that it “did not accept [her] description of the facts in the complaint to be true” or “consider all reason-able inferences to be drawn from those facts in a light most favorable to [her].”
I. Pleading Standard
¶12 Rule 8 of the Utah Rules of Civil Procedure requires a plaintiff “to submit a short and plain statement showing that the pleader is entitled to relief and a demand for judgment for the relief.” Peak Alarm Co. v. Salt Lake City Corp., 2010 UT 22, ¶ 69, 243 P.3d 1221 (ellipsis, citation, and internal quotation marks omitted). The pleadings must be sufficient to give “fair notice of the nature and basis or grounds of the claim and a
¶13 In this case, the district court agreed with WVC that Miller “did not plead that [WVC] made a voluntary undertaking to protect her, that the voluntary undertaking was done without reasonable care, and that [Miller] reasonably relied on this undertaking.” But nothing in the court‘s ruling suggests it did not accept as true Miller‘s recitation of the facts; rather, the court concluded that the facts she pleaded, even if true, were not sufficient to demonstrate a cause of action. In addition, the court did not accept Miller‘s legal conclusions pertaining to her premises liability claim. In other words, it determined that, even assuming all of the facts Miller set forth as true, Miller could not show a cause of action for premises liability or negligence. We thus conclude the court did not apply the wrong standard.
II. Premises Liability
¶14 We next determine whether the district court properly dismissed Miller‘s premises liability claim. The court determined dismissal was appropriate because Miller had not demonstrated that governmental immunity was waived.
¶15 Although governmental entities are usually immune from suit, immunity is sometimes waived. See
¶16 The district court interpreted section
¶17 Barneck indicates that the “operative terms of the Governmental Immunity Act . . . coincide with the key terms . . . used to define the scope of premises liability in tort. . . . And we therefore interpret [those terms] in a manner incorporating the ‘old soil’ . . . long carried at common law.” Id. (citations and additional internal quotation marks omitted). Barneck goes on to define a “dangerous condition” as “[a] property defect creating a substantial risk of injury when the property is used in a reasonably foreseeable manner.” Id. ¶ 17 (quoting
¶18 Using Barneck‘s reasoning that the term-of-art sense of common law terms should be incorporated into the statute, Miller argues WVC‘s immunity is waived because “Utah courts have recognized liability against landowners for injuries to invitees caused by third parties on the premises.” She relies on section 344 of the Restatement (Second) of Torts, which states:
A possessor of land who holds it open to the public for entry for his business pur-poses is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentional-ly harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable visitors to avoid the harm, or otherwise to protect them against it.
¶19 But the cases on which Miller relies to support her position do not involve statutes or address governmental immunity. See Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183-84 (Utah 1991) (holding that under sec-tion 344 of the Restatement (Second) of Torts, a jewelry business was not liable for injuries the plaintiff sustained during a rob-bery of the store); Steffensen v. Smith‘s Mgmt. Corp., 820 P.2d 482, 489 n.5 (Utah Ct. App. 1991) (noting that the district court‘s finding that the defendant grocery corpora-tion owed the customer plaintiff “a duty to take reasonable precautions to protect her from the criminal acts of third parties was correct” where the defendant had foreseen that the criminal acts would occur). And sec-tion
¶20 Miller also argues that an obstruction in a swim lane is a dangerous condition that creates a substantial risk of injury for swimmers who are using the lane in a reasonably foreseeable manner. But her contentions do not address the basis of the district court‘s decision: that governmental immunity is only waived for defective or dangerous conditions of a building, and waiver does not extend to conditions inside a building. In order to persuade us that the district court‘s interpreta-tion of the statute was incorrect, Miller must address the reasoning of the district court‘s decision to interpret the statute as it did. See Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441. Because Miller has not done so, we are not persuaded that the court erred.
¶21 In any event, we conclude the district court‘s statutory interpretation was correct. When interpreting statutes, “we look first to the statute‘s plain language,” and “[w]hen the plain meaning of the statute can be discerned from its language, no other interpretive tools are needed.” LPI Services v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135 (citation and internal quotation marks omit-ted). As stated, section
¶22 Additionally, Barneck defines a dan-gerous condition as a ““property defect.“” Barneck v. Utah Dept of Transp., 2015 UT 50, ¶ 17, 353 P.3d 140 (quoting
III. Negligence
¶23 Miller next contends the district court erred in determining that WVC was immune from a negligence claim. In its decision, the court noted the GIA waives governmental immunity “as to any injury proximately caused by a negligent act or omission of an employee committed within the scope of employment.”
¶24 First, we determine whether the public duty doctrine applies, and if it does, we then determine whether Miller demonstrated an exception to it.
A. Public Duty Doctrine
¶25 The Utah Supreme Court ad-dressed the public duty doctrine in Cope. A public duty is “an obligation owed to the general public at large.” Id. ¶ 31 (citation and internal quotation marks omitted). Under the doctrine, “a plaintiff cannot recover for the breach of a duty owed to the general public, but must show that a duty is owed to him or her as an individual.” Id. ¶ 12 (citation and internal quotation marks omitted). Thus, “a duty to all is a duty to none.” Cannon v. University of Utah, 866 P.2d 586, 588 (Utah Ct. App. 1993) (citation and internal quotation marks omitted). By precluding liability ac-tions when a government entity has “as-sume[d] a duty to protect the general public from harms,” this doctrine prevents a munici-pality from being “mired hopelessly in civil lawsuits . . . for every infraction of the law.” Cope, 2014 UT 53, ¶ 12, 342 P.3d 243 (citation and internal quotation marks omitted). “If a plaintiff‘s negligence claim is based upon a public duty,” an exception to the doctrine applies when the plaintiff “establishes a spe-cial relationship that imposes a specific duty of care toward the plaintiff as an individual that is distinguishable from a public duty owed to the general public.” Id.
¶26 In Cope, our supreme court determined that the public duty doctrine ap-plies only to omissions of a government actor, not to its affirmative acts: “Where the harm is directly caused by a third party . . . the government is not liable for its failure to rescue the plaintiff from the external harm. Where the affirmative acts of a public em-ployee actually cause the harm, however, the public duty doctrine does not apply.” Id. ¶ 24 (footnote omitted). Affirmative acts are de-fined as “active misconduct working positive injury to others,” and omissions are “passive inaction, a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defen-dant.” B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 7, 275 P.3d 228 (citation and internal quota-tion marks omitted).
¶27 Cope explains, however, that “[a]ctive misfeasance” is not “confined to situations where an affirmative act directly causes harm to the plaintiff” but extends to situa-tions where defendants “had affirmatively created conditions that gave rise to a duty to act in order to prevent harm.” Cope, 2014 UT 53, ¶ 35, 342 P.3d 243. For example, “a sur-geon who fails to sterilize instruments, caus-ing an infection” or “an automobile manufac-
¶28 The facts in Cope illustrate this point. A college student enrolled in a ballroom dance class sustained an injury while practic-ing a particular lift. Cope v. Utah Valley State College, 2014 UT 53, ¶¶ 4-5, 342 P.3d 243. The parties emphasized different as-pects of the incident to characterize the col-lege‘s conduct as either an act or an omis-sion: the student claimed the injury was caused by the instructor‘s direction to prac-tice a new maneuver without spotters, and the college claimed the injury arose from a failure to provide spotters who could have prevented the injury. Id. ¶ 34. Our supreme court, noting that the issue did not depend “upon the semantic framing of [the] negli-gence claim,” determined that the college‘s “actions in creating and overseeing the ball-room dance team had advanced to a stage where it had a duty to act in a reasonable manner to prevent injuries caused by partic-ipation with the dance team.” Id. ¶¶ 35-36. Thus, the college‘s conduct was an affirma-tive act because the student did not allege that the college “failed to rescue her from an external threat,” and because the college “created the conditions that led to her injury by creating the ballroom dance team.” Id. ¶ 37. Accordingly, the public duty doctrine did not bar the student‘s claim. Id.
¶29 Referencing Cope, Miller con-tends that WVC‘s conduct was likewise an affirmative act. She asserts that WVC “ac-tively engaged in the business of running a swimming pool,” “promoted the swim lanes as a place where swimmers could rely on the swim lanes to be free of obstructions,” and “hired lifeguards to monitor the swim lanes and establish[] rules for their safe use.” She alleges these “affirmative acts” “launched a force or instrument of potential harm.” See id. ¶ 35.
¶30 We disagree and conclude that WVC‘s conduct was an omission and not an affirma-tive act. First, Miller‘s complaint repeatedly characterized WVC‘s actions as a “failure to exercise reasonable care,” and specifically noted WVC failed to keep the swimming lanes clear of hazards. Though her complaint implied that WVC engaged in the business of running a swimming pool, and therefore owed a duty to its patrons, it did not allege facts showing the public duty doctrine did not apply to her. Furthermore, Miller‘s com-plaint alleged her injury occurred because the lifeguard failed to remove a third person from her swim lane. The harm was directly caused by the presence of a third party, not by the affirmative acts of the lifeguard, and thus was caused by an omission. See id. ¶ 24.
¶31 We recognize the superficial similarity of these facts to those in Cope. In Cope, the college created and oversaw the ballroom dance team, which created “a duty to act in a reasonable manner to prevent injuries caused by participation with the dance team.” Id. ¶ 36. In the same vein, WVC engaged in running a swimming pool, and by Miller‘s argument, should have a duty to act in a reasonable manner to prevent injuries to users of that facility. But a key difference distinguishes this case from Cope.
¶32 In Cope, the student was injured while following the direction of the dance instruc-tor; here, Miller‘s injury was caused by her collision with a teenager in her swim lane, not by an act of or direction by the lifeguard. There is a difference between the direct su-pervision an instructor gives while teaching students to perform a new maneuver and the general observations of a lifeguard over an entire pool. Because Miller‘s harm was “di-rectly caused by a third party“—the teenag-er—and not by “the affirmative acts of a public employee“—the lifeguard—we con-clude the public duty doctrine bars Miller‘s claim against WVC. See Cope, 2014 UT 53, ¶ 24, 342 P.3d 243. We next determine wheth-er Miller qualifies for the special relationship exception to the public duty doctrine.
B. Special Relationship
¶33 Because Miller‘s negligence claim is based upon a public duty, she must demonstrate a special relationship between herself and WVC “that imposes a specific duty of care toward [her] as an individual
¶34 In Cannon v. University of Utah, the Cannons crossed the street separating a parking lot from the University of Utah cam-pus. Id. at 587. Two police officers were assigned “to the crosswalk to assist in con-trolling traffic.” Id. “It had been raining and snowing intermittently, and the officers . . . had marked the crosswalk with flares.” Id. But by the time the Cannons crossed the street, “the flares had burned out, and the two officers were sitting in their patrol car.” Id. As the Cannons crossed the street, a vehicle struck them. Id. They sued the Uni-versity, and the trial court “entered sum-mary judgment in favor of the University, concluding that . . . the officers owed [them] no duty of care.” Id. at 588. This court deter-mined that “to establish a negligence claim,” the Cannons needed to demonstrate they had a special relationship with the University by “show[ing] that the University breached a duty owed specifically to them as individu-als.” Id. at 589. This court concluded the officers did not owe the Cannons a duty distinct from “a general duty owed to the public at large.” Id. Rather, neither “the Cannons nor the University did anything to set apart the Cannons . . . from the general public. The service provided by the officers was the same for all pedestrians using the crosswalk. . . .” Id. Thus, “there was no spe-cial relationship between the Cannons and the University,” because “the officers did not owe any specific duty to the Cannons which they did not already owe to the general public.” Id. at 590.
¶35 Here, the lifeguard did not owe Miller a duty specific to her. Rather, WVC‘s life-guards were employed to ensure the safety of the general public. The lifeguard monitor-ing the pool in which Miller was swimming was there to survey the conditions of the entire pool and ensure the safety of all its patrons. We thus conclude that Miller did not have a special relationship with WVC.
¶36 Because Miller‘s negligence claim is barred by the public duty doctrine and be-cause she has not established a special rela-tionship, we conclude the district court cor-rectly dismissed her claim.
CONCLUSION
¶37 For the foregoing reasons, we affirm the decision of the district court.