*1 оn jority relies Charvos TRUJILLO, minor, P. 901 a 1913 case Johnny By a
containing summary Litem, of evidence taken as Through his ad Guardian Bar TRUJILLO, of Salt Lake’s ditches Johnny Trujil to the condition bara S. year. unpersuaded lo, I am that evi- Respondents, Plaintiffs and duty care I think the of reasonable dence. v. previous case law and statutes found in our BRIGHTON-NORTH POINT IRRIGA care read to reasonable should be COMPANY, Ni TION Val Jenkins and property. protecting lives as well as At wife, cea his Lee Anna least, Irrigation Co. should be North Union Gary Xanthos, J. Defend prove validity the cost required to Appellants. ants and assumption rely it has asked courts on. No. 19502. Further, I note that whatever force of Supreme Court of Utah. opinion might in a
logic have child was case which a harmed ditch does not seem present in
to be this case. defendants through the Lovelands’
own an easement yard. apparent
back It was to defendants containing
when the subdivision the Love-
land home was constructed that canals. Ironical-
would have access
ly, company’s the existence of the canal complicatеd ability
easement of the a fence in
Lovelands their own yard.
back North Union Canal Co.
Newell, (Utah 1976), North
Union Canal Co. sued owners who (to .property installed a on their
had fence
protect it from North Union Canal’s ease-
ment) fence, compel the removal
which North Union claimed interfered with enjoyment
its use and its easement
making it more difficult for it to use canal equipment.
maintenance held con- safeguarding
siderations
children allowed the installation of the
fence, required litigation to settle the description placement gates
exact legal imposes
the fence. doctrine which duty
no on North Union Co. to
fence or maintain its canal in a manner
reasonably safe for while simulta-
neously exposing property owners who at-
tempt potential litigation, to fence canals to ironic; unjust.
is more it is than Frank, Murray, Scalley, Ford G. appel- for defendants and
lants. Nelson,
P. Keith for Jen- kins. *2 Rappaport, City, (1913),
Richard
Salt Lake
ZIMMERMAN, Justice:
personal injuries
liable for
or deaths that
Appellant Brighton-North
Irriga-
Point
result when
in
play
or fall into the
Point”)
Company (“Brighton-North
tion
Trujillos acknowledged
water. The
the
interlocutory appeal
filed this
from the trial
decisions,
and
summary
court’s denial of its motion for
product
contended that
were a
of a
judgment. Brighton-North
arguеs
Point
philosophy.
different
time and
They ar
that as a matter of law it could not be held
gued that the
authority,
modern trend of
as
failing
safeguard
liable for
children from
set forth in section 339 of the Restatement
dangers posed by water in an unfenced
(Second) Torts,
is to
possessors
make all
agree
Brighton-
ditch.
with
of land subject
liability
for harm to
North Point and conclude that it was enti-
young
by
children caused
conditions on
sought.
tled to the
it
their land if the factual tests set
in
out
We therefore reverse.
section 339 are
Trujillos argued
met.1 The
Brighton-North
op-
Point has owned and
Brighton-North
that under section 339
erated an
in
canal
Salt Lake
Pоint’s liability
question
of fact to be
County
through
since 1890. Water flows
determined from an examination of all the
days
during
the canal several
a week
the
circumstances.
summary
irrigation season.
pool
Water is аllowed to
judgment
inappropriate.
in
off-days.
the ditch on
The ditch runs
The trial
summary judg-
court denied the
along the east
side of
on which
memorandum,
In a written
the
apartment
stands an
complex
by
owned
accepted
Trujillo’s reasoning
court
the
Jenkins,
defendants Val
Nicea
Lee
policy
ruled that the
reasons cited
this
Anna
J. Xanthos. Re-
in
Charvoz and
are no
spondents
Trujillo
Barbara
and Johnny S.
longer
provides
viаble and that section 339
son,
Trujillo and their sixteen-month-old
persuasive
a more
just
standard.
Johnny,
apartment complex.
lived
the
8, 1981,
August
On
Johnny Trujillo nearly
appeal,
presented
On
we are
with essen-
pool
standing
drowned in a
tially
questions
arguments
the same
result,
permanent
ditch. As a
he suffered
advanced below. Should we adhere to our
injuries.
Trujillos
apart-
sued both the
precedents
effectively
old
insulate
ment owners and
Point for
liability
owners of canals and ditches from
negligence
failing
to fence or cover the
for harm suffered
small children? The
ditch.
answer does not
extended discus-
Brighton-North Point
moved for summa
sion. We have dealt
with
ry judgment, arguing
pri
today,
Court's
another decision issued
Loveland v.
or
(Utah
decisions Charvoz v.
City Corp.,
Orem
(1965)
1. Restatement
of Torts § 339
volve an unreasonable risk of death or serious
provides
bodily
as fоllows:
harm to such
(c)
youth
the children because of their
do
possessor
subject
of land is
not discover the condition or realize the risk
physical
harm to children
thereon
intermeddling
involved in
with it or in com-
upon
caused
an artificial condition
it,
ing
dangerous by
within the area made
land if
(d)
utility
possessor
to the
of maintain-
(a)
where the condition exists is
ing the condition and the burden of eliminat-
upon
possessor
one
knows or has
danger
slight
compared
as
with
reason to know that children are
involved,
trespass,
the risk to children
(e)
(b)
possessor
pos-
fails to exercise reason-
the condition is one of which the
danger
able care to eliminate the
or otherwise
sessor knows or has reason to know and
protect
which he realizes or
in-
should realize will
children.
Springville City,
we declined to
depart
developеd in Brown v.
from the law
1986); Loveland,
As
made clear in
the im-
arеas with
we
small chil
munity
and Brinker-
bestowed
dren—does not mean
appro
that the most
*3
judicial
creation.
its
priate agency
fashioning
hoff
vitality
is not determined
whether one
this Court or that
appropriatе
the most
analyze
chooses to
under the
remedy is wholesale abolition of the immu
older attractive
doctrine or under
nuisance
nity
established
Brinker
and more flexible articulation of
newer
hoff.
the standard in section 339 of the Restate-
As we noted in
fences or other
Instead,
pragmatic ap-
ment.2
a rather
safety measures
certainly
appro-
that
praisal must be made of the reasons for the
priate in
quite
some areas
inappro-
be
repeal.
immunity rule and the effects of its
priate in others. The
govern-
state or local
vitality
We find continued
in the reasons
even,
originally supporting
mеnts are far better
the rule. But
suited than we to
potential negative
more
are the
consider the countervailing considerations
consequences of its abolition.
capable
and are more
of establishing very
specific
determining
criteria for
where and
acknowledge
underground
pip-
protective
how
measures should be taken.
ing and increased urbanization and indus-
probably
trialization havе
made
They
the car-
trict court STEWART, C.J.,
HALL, Associate HOWE, J.,
C.J., concur. (dissenting).
DURHAM, Justice: *4 my partial
For the reasons set Corp., City
dissent in Loveland v. Orem 1987), I dissent. TOPP, Virgil Lee Plaintiff is dе- acknowledges that this case majority Appellant, doctrine, yet de- judicially created cided responsibility for fashion- to assume
clines problems for current HAYWARD, Defendant and N.D. “Pete” inadequate. рatently doctrine is (Two Cases). Respondent difficulties of pragmatic Fairness and the 870110, Nos. undertaking are indeed such an considerations, showing on but there is no Supreme of Utah. record that such adequatеly not be ad- Further, is no by the courts. there dressed that a
showing whatsoever the record significant concern of the reality very impor- —is know, fencing open For all we
tant. areas ditches in urban and residentiаl equipment and materi-
may, with modern
als, expenditure and represent a nominal easily fairly passed on to
one which is view, my it is time to reexamine
users. 75-year-old doc-
the factual bases majority and to ascer- affirmed
trine may not the lives of children
tain whether appropriately safeguarded by a
be more designed for communities
rule of law century. half of the twentieth
latter on the issue and
would remand for trial retroactivity questions of to be deter-
leave hearing fair on the
mined after a full and Co., very and ditches. existenсe of canals Big 498-500 hand v. Ditch 706 P.2d 1366-67; Loveland, Weber, (Mont. P.2d at (quoting Buckeye at 773 n. 60 Harris v. this deci- to note that neither Co., 501-02, Ariz. 180-81 and Loveland reach the sion nor those in Weber question (1978)). for harms of an owner resulting dangers from that are not inherent