July 19, 2013, Utah Supreme Court Case Summaries

July 19, 2013

Utah Supreme Court

Francis v. State, 2013 UT 43, No. 20111027 (July 19, 2013)

ISSUE: Public Duty Doctrine

Justice Durrant,

This case is making its second appearance before this court. Plaintiffs are the parents of a young boy, Sam Ives,1 who was killed by a bear while camping with his family, the Mulveys, in American Fork Canyon. They sued the State of Utah, alleging that the State negligently failed to warn the Mulveys of the dangerous condition created by the bear. The district court initially dismissed the plaintiffs’ claims under the permit exception to the Utah Governmental Immunity Act (Immunity Act) and the plaintiffs appealed. We reversed and held that the permit exception was inapplicable to the facts of this case.

At ¶ 1.

On remand, the State raised two alternative arguments. First, the State argued that it owed no duty to the Mulveys. Second, the State argued that even if it did owe a duty, the natural condition exception to the Immunity Act precluded liability. After the district court dismissed the case a second time, the plaintiffs appealed and now raise three arguments. First, they assert that, under the law of the case doctrine, our refusal to entertain the State’s alternative arguments in Francis I prevented the State from arguing those theories on remand. Second, they argue that the State did owe the Mulveys a duty of care. Finally, they contend that the natural condition exception to the Immunity Act does not apply.

At ¶ 2.

We reverse the district court’s grant of summary judgment in favor of the State. First, we hold that the State was entitled to present its alternative arguments on remand. Therefore, the issues of whether the State owed the Mulveys a duty and whether the natural condition exception applies are properly before this court. We further hold that (1) the State owed the Mulveys a duty because it undertook specific action to protect them as the next group to use the campsite, and (2) the natural condition exception does not immunize the State from liability because a bear is not a “natural condition on publicly owned or controlled lands.”

At ¶ 4.

The Court reviews the facts of the case. Specifically, the State’s knowledge of a bear that had attacked a camper; the State’s attempt to track the bear, the State’s failure to warn Plaintiffs about the bear, and the death of Plaintiffs’ son during a bear attack.

At ¶¶ 5-18.

The Court holds that its refusal to address the State’s alternative theories in Francis I did not bar them from raising those theories on remand.

At ¶¶ 20-22.

Public Duty Doctrine

The Court holds that the States protective actions, directed at the campsite, gave rise to an affirmative duty of care to Plaintiffs as the next campers at the site.

At ¶¶ 23-38.

Under the public duty doctrine, the general duty that the government owes to the public does not give rise to a specific duty of care to individuals “unless there is some [special relationship] between the government agency and the individuals that makes it reasonable to impose a duty.”

At ¶ 25.

We have always “taken a policy-based approach in determining whether a special relation should be said to exist and consequently whether a duty is owed.” We carefully consider “the consequences of imposing that duty for the parties and for society.” And “[w]e are loath to recognize a duty that is realistically incapable of performance or fundamentally at odds with the nature of the parties’ relationship.” Our determination that a special relationship exists, therefore, “is an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff [was] entitled to protection.”

At ¶ 26.

Our cases provide at least four circumstances that can give rise to a special relationship:

(1) by a statute intended to protect a specific class of persons of which the plaintiff is a member from a particular type of harm; (2) when a government agent

undertakes specific action to protect a person or property; (3) by governmental actions that reasonably induce detrimental reliance by a member of the public;

and (4) under certain circumstances, when the agency has actual custody of the plaintiff or of a third person who causes harm to the plaintiff.

The second circumstance is relevant to the facts of this case. It presents a two-part question: first, whether the State undertook specific action and, second, whether those actions were intended to protect a person or property.

At ¶ 27.

The parties in this case do not dispute that the government took specific actions after the bear attacked Mr. Francom at the Campsite. Indeed, after giving up the search for the bear at approximately 5:00 p.m. on the day of the attack, DWR agents swept the Campsite to make sure it was unoccupied and free of anything that might induce the bear to return.

At ¶ 29.

But acts alone are insufficient to create a special relationship. “[T]he professional lives of governmental actors are comprised of an unending sequence of actions and failures to act that in many instances can directly affect the health, safety, and general well-being of citizens.” We do not hold governmental actors liable “for all mishaps that may befall the public.” We must therefore turn to the second question—whether the State’s actions were intended to protect a person or property.

At ¶ 30.

We disagree that a lack of knowledge as to the specific identity of an individual necessarily precludes a special relationship under the public duty doctrine in all cases.

At ¶ 31.

Higgins [Higgins v. Salt Lake Cnty., 855 P.2d 231, 236 (Utah 1993)] demonstrates that “we will find a special relationship and consequent duty when a defendant knew of the likely danger to an individual or distinct group of individuals.” Under Higgins, then, it is not necessary that an individual be specifically identifiable if he or she belongs to a distinct group.

At ¶ 32.

Higgins, of course, is not directly on point. The State did not have custody of the bear in the same way it might have custody of a psychiatric patient. But this distinction carries little weight given that, as discussed above, the State undertook specific protective actions after the bear attacked Mr. Francom. It thus had knowledge of a specific threat and took action. If it directed its actions at a distinct group, rather than the public at large, our reasoning in Higgins appears directly applicable. And we conclude that the State did, in fact, direct its actions at an identifiable group.

At ¶ 33.

While the bear was certainly a threat to the public at large, the State’s actions demonstrate that the bear posed a particular danger to a more distinct group—those who would occupy the Campsite before the bear was destroyed. After giving up their search for the bear, the DWR agents took specific steps to protect those who might occupy the Campsite. They did so because they knew the bear would likely return to the Campsite if attracted and that humans could act as an attractant. Accordingly, just before leaving the area, the DWR agents swept the Campsite to make sure it was unoccupied and clean of attractants. Thus, the State had knowledge of a specific threat to a distinct group and took specific action to protect that group. The State therefore had a special relationship with those who might occupy the Campsite—here, the Mulveys—even if they were not individually identifiable when the State cleared the Campsite.

At ¶ 34.

Additionally, the Mulveys themselves were “reasonably identifiable” as the next group to use the Campsite. The DWR agents who swept the Campsite waved to them as they drove down Timpooneke Road in the direction of the Campsite. The Campsite was only one of a few on the dead-end Timpooneke Road. So although DWR could not specifically identify the Mulveys when its agents swept the Campsite, it nevertheless had reason to believe that the Mulveys could use the Campsite and could therefore be at risk.

At ¶ 35.

We conclude only that the State owed a duty to the Mulveys as the next group to use the Campsite—the group that DWR took specific action to protect. The class of people with which the State had a special relationship is, therefore, very narrow.

At ¶ 37.

Immunity for “Natural Conditions”

The Court holds that the bear was not a natural condition on the land and, as a result, the State is not immune from liability under the Immunity Act.

At ¶¶ 39-48.

[W]e construe the term “natural condition” in light of its ordinary meaning, as laymen would use it in daily usage. In our view, one would not ordinarily refer to a bear, or wildlife generally, as a “condition” on the land. The more ordinary meaning of a “condition on the land” seems to connote features that have a much closer tie to the land itself, such as rivers, lakes, or trees. These conditions are more directly a part of and persist “on the land,” whereas a bear is much more transitory in nature. We accordingly limit application of the natural condition exception to those conditions that are closely tied to the land or that persist “on the land”—conditions that are topographical in nature.

At ¶ 42.

Most recently, in Grappendorf v. Pleasant Grove City, [2007 UT 84] we undertook a “careful analysis” of the natural condition exception.  . . . we concluded that “[f]rom these definitions, it follows that a natural condition ‘on’ the land must be topographical in nature.”  Based on this plain-language analysis, we concluded that a “gust of wind . . . does not fall under the natural condition exception.”

At ¶ 43.

There are, of course, differences between a gust of wind and wildlife. And we readily acknowledge that wildlife could plausibly fall within the scope of the natural condition exception. But we must exercise caution when interpreting an inexact term like “condition,” since its meaning could be stretched to include almost anything. As we stated in Grappendorf, “natural conditions include laws of physics, such as gravity, that necessarily contribute to any accident or occurrence.” Our duty when interpreting a statute, however, is “to give effect to the legislature’s intent and purpose.” And, in our view, the legislature did not intend to waive immunity for a gust of wind but retain it for indigenous wildlife when both seem to fall outside the ordinary meaning of a “condition on land.”

At ¶ 45.

Finally, we note that our interpretation is also supported by the structure of the Immunity Act. A fundamental rule of statutory construction provides that “[w]here a general provision in a statute has certain limited exceptions, all doubts should be resolved in favor of the general provision rather than the exceptions.” The Immunity Act begins with a number of broad waivers of immunity, including waiver “as to any injury proximately caused by a negligent act or omission of an employee committed within the scope of employment.” It then reinstates immunity through specific, enumerated exceptions to the broad waivers of immunity. Thus, we resolve any doubt as to whether the legislature intended one of the exceptions—the natural condition exception—to cover wildlife in favor of the Immunity Act’s general waiver of immunity.

At ¶ 47.

Justice Parrish, dissenting,

Under the plain language of the statute, I conclude that the presence of indigenous wildlife is a “natural condition on publicly owned or controlled lands” and that the State therefore entitled to immunity. UTAH CODE § 63G-7-301(5)(k). Because I would hold that the State is immune from liability under the natural condition exception, I would not reach the issue of whether the State owed any duty to the Mulveys.

At ¶ 50.

Justice Parrish explains.

At ¶¶ 51-62.