Francis v. State

• Decision Date: 23 November 2010
• Docket Number: No. 20090256.,20090256.
• Citation: 248 P.3d 44,2010 UT 62
• Parties: Kevan FRANCIS and Rebecca Ives, individually, the natural parents of Samuel Ives, deceased; and Tim Mulvey and Rebecca Ives, individually and on behalf of their minor child Jack Mulvey, Plaintiffs and Appellants,v.STATE of Utah, UTAH DIVISION OF WILDLIFE RESOURCES; and John Does I–X, Defendants and Appellees.
• Court: Utah Supreme Court

248 P.3d 44
2010 UT 62

Kevan FRANCIS and Rebecca Ives, individually, the natural parents of Samuel Ives, deceased; and Tim Mulvey and Rebecca Ives, individually and on behalf of their minor child Jack Mulvey, Plaintiffs and Appellants,
v.
STATE of Utah, UTAH DIVISION OF WILDLIFE RESOURCES; and John Does I–X, Defendants and Appellees.

No. 20090256.

Supreme Court of Utah.

Nov. 23, 2010.

[248 P.3d 45]

Allen K. Young, Provo, Jonah Orlofsky, Chicago, IL, for plaintiffs.Mark L. Shurtleff, Att'y Gen., Reed M. Stringham, III, Peggy E. Stone, Asst. Att'ys Gen., Salt Lake City, for defendants.NEHRING, Justice:

INTRODUCTION

¶ 1 A black bear attacked and killed eleven-year-old Samuel Ives while he was sleeping in a tent with his family during a camping trip in American Fork Canyon. Earlier that morning, the Utah Division of Wildlife Resources (the “DWR”) had been alerted to a bear attack at the same location, and state officials had conducted an unsuccessful search for the animal for several hours before Samuel and his family arrived at the campsite. The DWR did not notify potential users of the campsite about the attack or request the United States Forest Service (the “USFS”) to close the area where the attack had occurred.

¶ 2 Samuel's heirs sued the State of Utah and the DWR (collectively, “the State”) for negligence. In response, the State argued that it was shielded from suit under the Governmental Immunity Act's “permit” exception¹ because Samuel's death arose out of, or in connection with, the plaintiffs' claim that the State negligently failed to request the USFS to issue an order closing the area where the bear attack had occurred. Because

[248 P.3d 46]

the State conceded negligence for the purposes of the motion, the district court did not address whether the State owed Samuel a common law duty of reasonable care; the claim also went unaddressed in the State's arguments to the court. Yet, whether Samuel was owed a common law duty of reasonable care became the centerpiece of the State's quest for affirmance on appeal. The State also argued for the first time on appeal that it was immune under the Act's “natural condition” exception.²

¶ 3 We hold that the district court erred when it ruled that the State was immune from suit under the Act's permit exception. We also decline to affirm the district court on alternate grounds proffered by the State.

BACKGROUND ³

¶ 4 June 17, 2007, was Father's Day. That evening, the Ives family decided to camp at an unimproved campsite approximately one mile above the Timpanooke Recreation Area in American Fork Canyon. The campsite is located on land that is owned and controlled by the federal government, and the federal government is the only entity that can order the land's closure, even temporarily.

¶ 5 Earlier that morning, the same campsite was occupied by other campers, including Jake Francom. At about 5:30 a.m., a black bear entered the campsite and raided coolers owned by the campers, bumped Mr. Francom while he was asleep in his tent, and ripped open the tent. Mr. Francom and his camping companions drove the bear from the campsite without being injured.

¶ 6 Mr. Francom immediately reported the attack to the DWR, both directly and through other agencies. The DWR determined that the bear was a “Level III nuisance” and concluded that it needed to be destroyed. Agents of the DWR and the federal government then took up a four-and-a-half-hour effort to locate the bear. By approximately 4:00 p.m., the agents had not found the bear and decided to resume the search the next day. Although the bear was still at large, the DWR agents did not place any notices at the campsite or otherwise attempt to notify potential users of the campsite about the bear attack. Nor did the DWR agents request that the USFS close the campsite.

¶ 7 Shortly after the agents left the campsite, the Ives family entered and settled in for the evening. The family was unaware of the earlier bear attack. Sometime between 9:00 p.m. and midnight, a family member discovered that Samuel was not in the tent. A search led to the discovery of Samuel's lifeless body.

¶ 8 The Ives family and Samuel's biological father, Kevan Francis, sued the State for negligence. In response, the State asserted that it was shielded by governmental immunity. The State followed its answer to the plaintiffs' complaint with a motion for judgment on the pleadings under Utah Rule of Civil Procedure 12(c). Like the answer, the motion focused exclusively on the application of the Governmental Immunity Act of Utah to the plaintiffs' claims. Specifically, the State asserted that it was immune under the Act's permit exception, section 63G–7–301(5)(c), which provides that governmental entities retain immunity, even in the face of negligence, “if the injury arises out of, in connection with, or results from ... the issuance, denial, suspension, or revocation of, or by the failure or refusal to issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar authorization.” ⁴ The State argued that it was immune under the permit exception because the plaintiffs' complaint alleged that Samuel's death arose out of the State's negligent

[248 P.3d 47]

failure to ask the USFS to close the site where the attack occurred.

¶ 9 The district court agreed and granted the State's motion for judgment on the pleadings. The district court held that the plaintiffs' claims fell within the permit exception because Samuel's death “had at least some causal relation to the State's failure to revoke its camping authorization to [p]laintiffs.” The plaintiffs appeal that order. For the reasons that follow, we hold that the Act's permit exception has no bearing on the claims made by the plaintiffs in this action. We also decline to address the two alternate arguments presented by the State on appeal because they are not apparent on the record. We have jurisdiction under Utah Code section 78A–3–102(3)(j) (Supp.2010).

STANDARD OF REVIEW

¶ 10 A district court's decision to dismiss claims based on governmental immunity is a determination of law that we give no deference and review for correctness.⁵ We will affirm the ruling of a lower court on alternate grounds only when the ground or theory is “apparent on the record.” ⁶ To be “apparent on the record,” “[t]he record must contain sufficient and uncontroverted evidence supporting the ground or theory to place a person of ordinary intelligence on notice that the prevailing party may rely thereon on appeal.” ⁷

ANALYSIS I. THE STATE IS NOT IMMUNE UNDER THE UTAH GOVERNMENTAL IMMUNITY ACT'S PERMIT EXCEPTION

¶ 11 We first address whether the district court erred when it granted the State's motion for judgment on the pleadings on the basis that the State was immunized from suit under section 63G–7–301(5)(c) of the Governmental Immunity Act of Utah.⁸

¶ 12 “Generally, to determine whether a governmental entity is immune from suit under the Act, we apply a three-part test, which assesses (1) whether the activity undertaken is a governmental function; (2) whether governmental immunity was waived for the particular activity; and (3) whether there is an exception to that waiver.” ⁹ The parties do not dispute that the State performed a governmental function, and the State conceded negligence for the purpose of its motion for judgment on the pleadings. ¹⁰ Thus, the only issue is whether the permit exception immunizes the State from suit. The permit exception provides that a governmental entity retains immunity, even in the face of negligence, “if the injury arises out of, in connection with, or results from ... the issuance, denial, suspension, or revocation of, or by the failure or refusal to issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar authorization.” ¹¹

¶ 13 The State contends that when the plaintiffs paid the federally-required entrance fee, “the federal government [gave] its authorization, albeit implicit, to stay in the area and hike, picnic, or camp.” The State argues that the permit exception applies here because the plaintiffs' injury “arises out of, in connection with, or results from” their claim that the State negligently failed to request the federal government to revoke that authorization....