Feldman v. Salt Lake City Corp.

Decision Date28 January 2021
Docket NumberNo. 20190238-SC,20190238-SC
Citation484 P.3d 1134
CourtUtah Supreme Court
Parties Leonid FELDMAN, personally and as personal representative of the estate of Liudmila Feldman; Marina Donnelly; and Anton Khokhlov, Appellants, v. SALT LAKE CITY CORPORATION, Salt Lake City, Appellee.

Eric S. Olson, Lena Daggs, Salt Lake City, for appellants

Samantha J. Slark, Salt Lake City, for appellee

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

Justice Himonas, opinion of the Court:


¶1 Liudmila Feldman tragically drowned in a creek at a Salt Lake City Corporation (City) park. Her husband and adult children (the Feldmans) brought a wrongful death suit against the City. Asserting protection under Utah's Limitations on Landowner Liability Act (Act), the City moved to dismiss. The district court granted the motion. It found the Feldmans' wrongful death action was barred by the Act's prohibition on claims for personal injury caused by the inherent risks of participating in an activity with a recreational purpose. The Feldmans appeal, arguing: (1) the Act does not bar wrongful death claims; (2) if it does, it violates the Utah Constitution; and (3) their complaint sufficiently alleges that Ms. Feldman did not drown due to an inherent risk of entering the creek. We disagree with the Feldmans on the first two issues but reverse the district court on the third and remand for further proceedings consistent with our opinion.


¶2 The City owns Parley's Historic Nature Park (Park) and the East Creek Access area within the Park.1 On April 23, 2017, Ms. Feldman and her husband, Leonid Feldman, went walking with their dogs in the Park. The dogs went into the creek at the East Creek Access. Leonid entered the creek to retrieve the dogs but was "pushed downstream" and unable to retrieve them. Ms. Feldman then tried to get the dogs out. She entered the creek but "was caught in [the] dangerous current." Unfortunately, all efforts to rescue her from the current failed, and she died.

¶3 The Feldmans sued the City for negligence, premises liability, negligent infliction of emotional distress, vicarious liability, and wrongful death.2 Central to these claims is the Feldmans' allegation that "[t]he dangerous current at the creek ... resulted from manmade developments at the East Creek Access."

¶4 In response, the City moved to dismiss the complaint under rule 12(b)(6) of the Utah Rules of Civil Procedure, asserting protection under section 401 of the Act, UTAH CODE § 57-14-101 –501. That section prohibits a person from making "a claim against or recover[ing] from an owner of any land ... opened to the general public without charge ... for personal injury or property damage caused by the inherent risks of participating in an activity with a recreational purpose on the land." UTAH CODE § 57-14-401(1) (2018) (amended 2019).3 The City argued that section 401 applied because: (1) the Feldmans' complaint alleged that the City owned the East Creek Access; (2) the East Creek Access was open to the public without charge; (3) Ms. Feldman had been participating in an activity with a recreational purpose and entered the creek in furtherance of that activity; and (4) "[b]eing caught in a strong or dangerous current is an inherent risk of entering any creek, stream, river, or body of water."

¶5 The Feldmans countered the City's motion to dismiss with three main arguments. First, they asserted that section 401 of the Act did not apply because (1) the Feldmans "do not fall into the statute's definition of ‘a person’ "; (2) their wrongful death claims were not claims for "personal injury or property damages" under the statute; and (3) Ms. Feldman "was not killed by an ‘inherent risk’ of entering a creek." Second, they argued that if section 401 barred their wrongful death claims, the statute would violate article XVI, section 5 of the Utah Constitution (Wrongful Death Clause). Third, they argued that if section 401 does apply, it should be read to contain an exception for "any conduct that is willful or wanton" under Utah Code § 57-14-204.

¶6 The Feldmans also moved to amend their complaint, seeking to add the allegation that the City's "conduct was willful or malicious, in that [it] acted and failed to act even though [it] knew of the hazard and knew that serious injury was a probable result of contact with the hazard." The City opposed the motion to amend as futile, arguing, inter alia , that section 401 contains no exception for willful or malicious conduct and the allegations were not supported by facts in the complaint.

¶7 The district court granted the City's motion to dismiss, holding that section 401 barred the Feldmans' claims. The district court first found that the Feldmans are "person[s]" within the meaning of the Act. It then held that section 401 barred the Feldmans' wrongful death claims because " ‘personal injury’ claims include[ ] all personal torts" and so the statute "precludes all tort claims, including the personal tort of wrongful death." Next, the district court held that "a strong current, whether ... caused by spring run-off, high rain, a manmade improvement, or all of the above, is a danger that is common to a creek or any body of water," and, thus, "a current is an inherent risk of entering a creek."

¶8 The district court went on to reject the Feldmans' argument that the application of the statute violated the Wrongful Death Clause because, at the time the Utah Constitution was adopted in 1895, there was no express authority for wrongful death suits against the State.

¶9 The district court also held that the proposed amendment to the complaint did nothing to defeat the City's motion to dismiss, reasoning that the Feldmans "provide[d] no facts to support their claims" and the proposed amendments were futile since section 401 has no "statement that a landowner is liable for a willful or malicious failure to guard or warn." The district court thus granted the City's motion to dismiss.

¶10 The Feldmans appealed. We have jurisdiction under Utah Code section 78A-3-102(3)(j).


¶11 "We review a decision granting a motion to dismiss for correctness, granting no deference to the decision of the district court." Amundsen v. Univ. of Utah , 2019 UT 49, ¶ 20, 448 P.3d 1224 (citation omitted). "In so doing, we accept the plaintiff's description of the facts alleged in the complaint to be true and view all reasonable inferences from those facts in the light most favorable to the plaintiff." Id. (citation omitted) (internal quotation marks omitted).

¶12 Regarding the underlying claims, we review the district court's interpretation of a statute for correctness—it being a question of law. Bryner v. Cardon Outreach, LLC , 2018 UT 52, ¶ 7, 428 P.3d 1096. Similarly, we review the district court's determination of the constitutionality of a statute for correctness. See State v. Drej , 2010 UT 35, ¶ 9, 233 P.3d 476.


¶13 The Feldmans argue that the district court erred in granting the City's rule 12(b)(6) motion to dismiss. Specifically, they argue that the district court erred because: (1) section 401 does not bar wrongful death actions; (2) if it does, it violates the Wrongful Death Clause of the Utah Constitution; and (3) even if the statute could apply here, it does not bar the Feldmans' claims because Ms. Feldman's death was not caused by a risk inherent in her usage of the park.4

¶14 We address each of these arguments below and conclude the following: First, because section 401 may provide a defense that goes to the viability of Ms. Feldman's underlying personal injury claims, it also may bar the Feldmans' wrongful death claims. Second, section 401 does not violate the Utah Constitution because it merely provides a reasonable defense to wrongful death claims. Third, the Feldmans have sufficiently alleged that Ms. Feldman's death was not caused by an inherent risk of recreating in the Park, and so the district court erred in granting the City's motion to dismiss.


¶15 The Feldmans assert a wrongful death action against the City. The City, in turn, asserts a defense under section 401 of the Act. UTAH CODE § 57-14-401 (2018). Section 401 bars "claim[s] ... for personal injury" against landowners in certain circumstances. If Ms. Feldman had lived to maintain her own action against the City, her claim undoubtedly would have been a claim "for personal injury" under the statute. Assuming the other elements of section 401 were satisfied, it would bar such a claim. The question is whether the statute also, by extension, bars her family's wrongful death claims arising from the same injury. We hold that, if the Act is otherwise applicable, it does.

¶16 To show why, we first discuss the unique nature of a wrongful death action in Utah. Next, we show that Utah courts allow defendants in a wrongful death suit to assert some, but not all, of the defenses that could have been asserted against the decedent's underlying personal injury claim. Finally, we hold that section 401 provides a defense that may be asserted against the Feldmans' wrongful death claims.

A. In Utah, Wrongful Death "Occupies a Position of Privilege Among Torts"

¶17 When considering defenses asserted in wrongful death actions, this court often has begun by explaining the historical and unique nature of the action. See, e.g. , Riggs v. Ga.-Pac. LLC , 2015 UT 17, ¶ 12, 345 P.3d 1219 ; Bybee v. Abdulla , 2008 UT 35, ¶ 18, 189 P.3d 40. For context, we briefly do so again here. In early English common law, courts for centuries considered the accidental killing of another person a compensable harm. See Riggs , 2015 UT 17, ¶ 12, 345 P.3d 1219. However, in 1808, an English court surprisingly ruled that death was not an "injury." Id. (citation omitted). In response, in 1846, England adopted Lord Campbell's Act...

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