Golding v. Ashley Cent. Irr. Co., 940202

• Citation: 902 P.2d 142
• Decision Date: 01 September 1995
• Docket Number: No. 940202,940202
• Parties: Gerald GOLDING, individually, and as representative of the heirs of Randal Golding, deceased, Plaintiff and Appellant, v. ASHLEY CENTRAL IRRIGATION COMPANY, a Utah corporation, Defendant and Appellee.
• Court: Supreme Court of Utah

Page 142

902 P.2d 142 Gerald GOLDING, individually, and as representative of the
heirs of Randal Golding, deceased, Plaintiff and Appellant,
v.
ASHLEY CENTRAL IRRIGATION COMPANY, a Utah corporation,
Defendant and Appellee. No. 940202. Supreme Court of Utah. Sept. 1, 1995.

Page 144

Richard I. Ashton, David A. Wilde, Murray, for plaintiff.

Clark B. Allred, Gayle F. McKeachnie, Vernal, for defendant.

Glen E. Davies, Salt Lake City, for amicus Utah Farm Bureau Federation.

STEWART, Associate Chief Justice:

The plaintiff's son drowned in a canal owned by the defendant, Ashley Central Irrigation Co. ("Ashley"). In Golding v. Ashley Central Irrigation Co., 793 P.2d 897 (Utah 1990) (Golding I ), this Court reversed a judgment entered on the pleadings against the plaintiff in this wrongful death action and remanded to the trial court to determine the applicability of the Utah Limitation of Landowner Liability Act (the "Act"), Utah Code Ann. §§ 57-14-1 through -7 (1994). After additional discovery, the district court ruled that the Act applied and entered a summary judgment against the plaintiff. The plaintiff again appeals.

Ashley owns a canal that runs through the city of Vernal, Utah. For many years, various locations on the canal have been used as swimming holes. The canal is locally known as "the kids canal." Ashley has neither invited the public to swim in the canal nor posted signs prohibiting it. Randal Golding, a seventeen-year-old boy, went swimming in the canal with four friends. Randal first entered the canal at a location below the spillway of a dam that backed up water for an irrigation ditch outlet. He tested the water's depth and current. A friend, Jeff Jackson, happened by and warned them not to swim below the spillway because it was dangerous. He demonstrated the danger by tossing a piece of wood into the water where turbulence churned it under and by telling them that a year earlier he had almost drowned there. Fearing that it was not safe to swim below the dam, the boys decided to swim above it.

While climbing out of the canal to leave, one boy accidentally fell down the spillway and became trapped in the turbulence below. Randal, having already exited the canal, jumped in and saved his friend but was unable to extract himself from the turbulence. He was found downstream shortly thereafter and died two days later.

The plaintiff, Gerald Golding, who is Randal's father, filed this action to recover damages from Ashley for failing to use ordinary care in constructing and maintaining the canal. The district court ruled that the Act applied and that Golding's allegations were insufficient to allege a claim for relief under § 57-14-6 of the Act. Accordingly, the court granted Ashley's motion for judgment on the pleadings. On the first appeal, this Court reversed on the ground that the pleadings were insufficient to establish that the protections afforded landowners by the Act were available to Ashley and remanded to determine the applicability of the Act and to conduct further proceedings.

On remand, Golding amended his complaint by adding a claim for willful or malicious failure to guard or warn against a dangerous condition. After discovery, Ashley again asserted the Act as a defense and moved for summary judgment. The district court granted the motion. Prior to the entry of summary judgment, Golding moved to amend his complaint a second time to add a claim that Ashley was negligent under the "rescue doctrine." However, neither party notified the clerk of the court to submit the motion to the trial court for decision, and as a consequence, the court did not rule on it.

In granting summary judgment for Ashley, the district court ruled that under the Act Ashley was not subject to liability for simple negligence and that the tragic death of Randal Golding was not caused by Ashley's willful, wanton, or malicious failure to guard or warn against a dangerous condition. The court stated:

A condition which is inherent in the very existence of canals, which is open and obvious and not hidden, can not be the basis for establishing liability under a theory that the defendant has breached [its] duty to not wilfully and wantonly cause injury (Pratt) or not wilfully or maliciously cause injury (the "Act").

Page 145

On this appeal, Golding claims that the trial court erred in ruling (1) that a landowner owes no duty of care to trespassers for open and obvious dangers; and (2) that the danger in Ashley's canal was open and obvious, not hidden. Golding also asserts that the court should have addressed the rescue doctrine. Golding does not assert that there are any issues of material fact, only that the trial court erred as a matter of law in its rulings. We review the court's decision for correctness. Jackson v. Righter, 891 P.2d 1387, 1389 (Utah 1995); Pratt v. Mitchell Hollow Irr. Co., 813 P.2d 1169, 1171 (Utah 1991).

Golding's first argument is that the district court misconstrued Pratt v. Mitchell Hollow Irrigation Co., 813 P.2d 1169 (Utah 1991), in ruling that a canal owner owes no duty to warn a trespasser of a dangerous condition in a canal that is open, obvious, and inherent in the nature of canals. We do not agree that the district court so held or misinterpreted Pratt.

The Act encourages landowners to allow the public to use their land for recreational purposes by limiting landowners' liability to persons who use the land. The Act provides that a landowner "owes no duty of care to keep the premises safe for entry or use by any person using the premises for any recreational purpose, or to give any warning of a dangerous condition, use, structure, or activity on those premises to those persons." Utah Code Ann. § 57-14-3. The Act does not, however, limit a landowner's "liability which otherwise exists for: (a) willful or malicious failure to guard or warn against a dangerous condition ... [or] (b) deliberate, willful, or malicious injury to persons or property." Utah Code Ann. § 57-14-6(1)(a), (b). Thus, if a landowner is guilty of willful or malicious failure to guard or warn of a dangerous condition or for deliberate, willful, or malicious injury, there is no immunity under the Act. See Golding I, 793 P.2d at 900; see also Loosli v. Kennecott Copper Corp., 849 P.2d 624, 627 (Ct.App.), cert. denied, 860 P.2d 943 (Utah 1993).

The willful and malicious standard in § 57-14-6(1)(a) requires a landowner to have knowledge of a dangerous condition and of the probability that serious injury may be caused by that condition. Golding I, 793 P.2d at 901; see Ewell v. United States, 579 F.Supp. 1291, 1295 (D.Utah 1984), aff'd, 776 F.2d 246 (10th Cir.1985).

As a general proposition under the common law, a landowner is entitled to the exclusive use of his property in whatever manner he chooses, without having to protect those who enter the property without permission or right. ¹ W. Page Keeton et al., Prosser and...