Colosimo v. Gateway Cmty. Church

• Decision Date: 26 June 2018
• Docket Number: No. 20160838,20160838
• Citation: 424 P.3d 866
• Parties: Lawrence and Sarah Jean COLOSIMO, Petitioners, v. GATEWAY COMMUNITY CHURCH, Respondent.
• Court: Utah Supreme Court

424 P.3d 866

Lawrence and Sarah Jean COLOSIMO, Petitioners,

v.GATEWAY COMMUNITY CHURCH, Respondent.

No. 20160838

Supreme Court of Utah.

Filed June 26, 2018

Jefferson W. Gross, Aida Neimarlija, Salt Lake City, for petitioners

Mark Dalton Dunn, Trystan B. Smith, Troy L. Booher, Beth E. Kennedy, Salt Lake City, for respondent

Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce, and Judge Johnson joined.

Due to her retirement, Justice Durham did not participate herein; District Court Judge Christine S. Johnson sat.

Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter and accordingly did not participate.

On Certiorari to the Utah Court of Appeals

Chief Justice Durrant, opinion of the Court:

Introduction

¶1 A teenage boy died from injuries he sustained while trespassing on the roof of a one-story building owned by a local church. Due to faulty wiring of a sign, he was electrocuted while attempting to climb down. The boy’s parents brought a wrongful death suit against the church, claiming that the church breached its duty to their son under the common law and under a city sign ordinance. On summary judgment, the district court held that because the boy was a trespasser the church owed him no duty. The court of appeals affirmed the district court on both grounds and we granted certiorari. We now must decide whether the court of appeals erred in affirming the district court’s grant of summary judgment. Because the boy’s parents failed to show a duty existed under either the common law or the sign ordinance, we affirm the court of appeals’ decision.

Background

¶2 In 2012, sixteen-year-old A.C. and his two cousins decided to go "roofing," i.e., climbing on roofs after dark. They climbed up a permanently-fixed ladder onto the roof of a one-story building owned by Gateway Community Church (Gateway), located in Draper, Utah. It is undisputed that the boys climbed onto the roof without permission. Unbeknownst to A.C. and his cousins, the building contained an oval sign that was improperly wired. Due to the faulty wiring, the metal flashing¹ on the roof had become electrified. While scaling the ladder, both A.C. and one of his cousins felt a shock when they inadvertently touched the flashing.

¶3 After ten minutes or so on the roof, and after discussing the possible reasons for the electrified flashing, the boys decided to cautiously vacate the roof. The two cousins made it down safely, but on A.C.’s way down, his foot got caught between the ladder and the metal flashing, and he was electrocuted for ten to fifteen seconds. He lost consciousness and was taken to the emergency room. A.C. passed away ten days later due to complications from the electrocution.

¶4 After the accident, a Draper City building inspector—with the assistance of a Draper police officer and Gateway’s pastor—inspected the roof but found no problem. He concluded that "everything was up to code." The following day, a fire marshal, along with a Gateway board member, inspected the roof for over an hour without being able to pinpoint the source of the electricity in the flashing. Finally, through a process of elimination, the fire marshal was able to determine that an oval "Welcome to Gateway" sign was electrifying the roof’s flashing. Further investigation revealed that the sign had been improperly installed. Lawrence and Sarah Jean Colosimo, A.C.’s parents and heirs, then had the sign inspected by an electrical engineer, who also identified the sign as the source of the problem.

¶5 Beginning as early as 1996, Draper City adopted several ordinances (collectively the "Ordinance")² regulating the "installation, maintenance or dilapidation" of signs within the city.³ One of the express purposes of the Ordinance "is to protect and promote the health, safety and welfare of City residents."⁴ In order to "protect the safety and welfare of the people of the City," the Ordinance prohibits any sign that "constitutes a hazard to safety or health by reason of inadequate installation, maintenance or dilapidation."⁵ The Ordinance requires all signs to be "maintained in good and safe structural condition, [and] in compliance with all building and electrical codes."⁶ Any person who violates this Ordinance is "guilty of a Class B misdemeanor."⁷ The Ordinance also contains a provision entitled "Liability for Damages," which provides that "[t]he provisions of this ordinance shall not be construed to relieve or to limit in any way, the responsibility or liability of any person, firm, or corporation which erects or owns any sign, for personal injury or property damaged caused by the sign."⁸

¶6 The installation date of the oval sign is unknown. Gateway leased a suite within the building starting in 1999 and eventually purchased the entire building in 2003. Sometime in 2003 or 2004, Gateway had a new acrylic faceplate installed in the existing sign cabinet that was attached to the building. The Colosimos’ electrical expert posited that the sign was not installed during the original construction of the building in 1999. The pastor testified that, "[a]s far as [he was] aware, the Church did not purchase, manufacture, design, or install the oval exterior sign," and that, "[t]o the best of [his] knowledge, the oval exterior sign was affixed to the property prior to the Church’s purchase of the property."

¶7 The Colosimos brought a wrongful death and survival suit against Gateway for negligence. Gateway moved for summary judgment, arguing that it owed A.C. no duty because he was a trespasser. In opposing summary judgment, the Colosimos argued that, despite A.C. being a trespasser, Gateway owed him a duty under the common law and under the Ordinance. Specifically, they argued that Gateway was aware of constant trespassing on the roof and so had a duty to trespassers under sections 334 and 335 of the Restatement (Second) of Torts. In support, the Colosimos pointed to the fact that Gateway had known of two instances, one in 2004 and the other in 2010, where people trespassed on its roof over the past twelve years. The Colosimos also provided the court with evidence of instances of loitering, littering, and break-ins on Gateway’s property (but not on its roof), as well as evidence that "roofing" had occurred on other buildings in Draper.

¶8 Additionally, they argued that Gateway owed a duty under the attractive nuisance doctrine as set forth in section 339 of the Restatement. The Colosimos asserted that because of A.C.’s age, he failed to appreciate the danger of electrocution on the roof. They also claimed that Gateway owed A.C. a duty under the Ordinance.

¶9 The district court granted summary judgment in favor of Gateway, concluding that because A.C. was a trespasser Gateway owed him no duty. Specifically, the district court held that the Colosimos failed to produce sufficient evidence to create a genuine issue of fact as to whether Gateway knew or should have known that people were constantly trespassing under sections 334 and 335, and as to whether Gateway knew or had reason to know of the existence of a dangerous condition on its roof, an additional element required under section 339. The district court also held that the Ordinance did not create an independent duty under tort law.

¶10 The Colosimos timely appealed and the court of appeals affirmed the district court’s holdings.⁹ While the court of appeals did not address the parties’ burden on summary judgment, it stated that the Colosimos failed to show that Gateway knew of constant trespassing, a requirement the court believed applied to all three Restatement sections.¹⁰ The court also held that Gateway owed no duty under the Ordinance because ordinances should be strictly construed when they conflict with the common law.¹¹ The Colosimos thereafter filed a petition for writ of certiorari with our court, which we granted. We have jurisdiction pursuant to section 78A-3-102(3)(a) of the Utah Code.

Standard of Review

¶11 We granted certiorari on two issues: first, whether the court of appeals erred in concluding Gateway could not be held liable for A.C.’s death under a common law theory of negligence, and second, whether the court of appeals erred in concluding Gateway could not be held liable for A.C.’s death under a municipal ordinance regulating signs. "On certiorari, we give the court of appeals’ decision no deference and review its decision under a correctness standard."¹² Further, " ‘[t]he question of whether a duty exists is a question of law’ and is reviewed for correctness."¹³

Analysis

¶12 The Colosimos’ claims for wrongful death and survival are based in negligence.¹⁴ To prevail on a negligence claim, "the plaintiff must [first] establish ... that the defendant owed the plaintiff a duty" and "that the defendant breached that duty."¹⁵ "Absent a showing that the defendant owed any duty, the plaintiff’s claim has no merit, and he or she may not recover."¹⁶

¶13 The court of appeals affirmed the district court’s holding that the Colosimos failed to show that Gateway owed a duty to A.C. under the common law or under the Ordinance. The court of appeals was correct on both counts. The Colosimos did not show that there was a genuine issue of fact on the question of whether Gateway knew that there was constant trespassing on the roof as required under sections 334 and 335 of the Restatement (Second) of Torts, or on the question of whether Gateway knew that the metal flashing on the roof was electrified, thereby creating a dangerous condition under section 339. The Colosimos also failed to show that the Ordinance created an independent duty in tort. The court of appeals did err, however, in failing to reach the question of what burden the parties bore on summary judgment and in conflating the knowledge requirement of section 339 of the Restatement (Second) of Torts with the knowledge requirement of sections 334 and 335. We correct...