Lamarr v. Utah State Dept. of Transp.

• Decision Date: 26 March 1992
• Docket Number: No. 910600-CA,910600-CA
• Citation: 828 P.2d 535
• Parties: Nicholas LAMARR, Plaintiff and Appellant, v. UTAH STATE DEPARTMENT OF TRANSPORTATION, and Salt Lake City, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 535

828 P.2d 535

Nicholas LAMARR, Plaintiff and Appellant, v. UTAH STATE DEPARTMENT OF TRANSPORTATION, and Salt Lake City Defendants and Appellees.

No. 910600-CA.

Court of Appeals of Utah.

March 26, 1992.

Gordon K. Jensen (Argued), Goicoechea Law Offices, West Valley City, for appellant.

Roger F. Cutler, City Atty., Bruce R. Baird (Argued), Asst. City Atty., Salt Lake City, R. Paul Van Dam, Utah Atty. Gen., Brent Burnett (Argued), Asst. Atty. Gen., Salt Lake City, for appellee.

Before BILLINGS, Associate P.J., and JACKSON and RUSSON, JJ.

OPINION

BILLINGS, Associate Presiding Judge:

Plaintiff Nicholas Lamarr (Lamarr) appeals from a summary judgment dismissing his negligence claims against the Utah State Department of Transportation (UDOT) and Salt Lake City (the City) arising out of an accident on the North Temple overpass. We affirm.

FACTS

On April 18, 1987, at approximately 10:30 p.m., Lamarr was struck by a car while walking east across the North Temple overpass. The impact threw Lamarr over the side of the overpass, and Lamarr struck the ground, suffering serious, permanent injuries.

Before the accident, Lamarr had walked west across the overpass using the pedestrian walkway that deposits pedestrians under the overpass. Lamarr was frightened and harassed by transients who had congregated under the overpass. On his return trip, Lamarr walked along the overpass's roadway. Lamarr claims this was necessary to avoid harassment and possible physical violence by the transients congregated around the stairway leading to the walkway. While walking along the roadway, an automobile struck Lamarr throwing him over the side of the overpass.

Lamarr brought suit against UDOT and the City. Lamarr contends UDOT and the City were negligent in failing to properly construct, maintain, and place signs on the overpass. Lamarr also contends the City negligently failed to properly "control" ¹ the transient population under the overpass. After discovery, the City and UDOT moved for summary judgment on a number of alternative grounds. The trial court granted summary judgment in favor of both UDOT and the City.

Lamarr presents four issues on appeal: (1) did the trial court err in holding the City owed Lamarr no duty for construction, maintenance, or placing signs on the overpass?; (2) did the trial court err in holding the City owed Lamarr no private duty to control the transient population?; (3) did the trial court err in ruling as a matter of law the City and UDOT did not proximately cause Lamarr's injuries?; and (4) did the trial court err in concluding any duty of the City to control the transient population is an immune discretionary function, under Utah Code Ann. § 63-30-10(1)(a) (1989)? UDOT presents two additional issues on appeal: (1) did Lamarr's failure to file a notice of his claim with both UDOT and the attorney general deprive the trial court of jurisdiction over Lamarr's claims against UDOT?, and (2) did UDOT owe Lamarr a duty of care?

Summary judgment is proper when the record indicates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kitchen v. Cal Gas Co., 821 P.2d 458, 460 (Utah App.1991). We review the trial court's grant of summary judgment under a "correctness" standard. Id. Thus, we accord no deference to the trial court's legal conclusions underlying its grant of summary judgment. Id.

We first consider whether summary judgment in favor of the City was proper, and then turn to the grant of summary judgment in favor of UDOT.

I. SUMMARY JUDGMENT FOR THE CITY

Lamarr raises multiple claims of error. Because of our resolution of the duty issue, however, we need not reach the other issues briefed on appeal. ²

A. Duty Generally

In Utah, a plaintiff must establish four elements to state a claim of negligence: the defendant owed the plaintiff a duty, defendant breached the duty (negligence), the breach of the duty was the proximate cause of plaintiff's injury, and there was in fact injury. Reeves v. Gentile, 813 P.2d 111, 116 (Utah 1991). Establishing the defendant owed the plaintiff a duty of care is "[a]n essential element of a negligence claim." Owens v. Garfield, 784 P.2d 1187, 1189 (Utah 1989). In fact, the Utah Supreme Court recently noted that without a showing of duty, a plaintiff cannot recover. Rollins v. Petersen, 813 P.2d 1156, 1159 (Utah 1991). "Duty is 'a question of whether the defendant is under any obligation for the benefit of a particular plaintiff....' " Ferree v. State, 784 P.2d 149, 151 (Utah 1989) (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 30, at 356-57 (W. Keeton 5th ed. 1984)). Whether the defendant owed the plaintiff a duty of care is "entirely a question of law to be determined by the court." Id.

B. Duty to Maintain Safe Overpass

Lamarr first claims the City owed him a duty to maintain a sidewalk on the overpass or to place on the overpass signs that would have prevented him from walking on the roadway. Lamarr contends this duty inheres from the Utah Sidewalk Construction Act, which provides:

The legislature recognizes that adequate sidewalks and pedestrian safety devices are essential to the general welfare of the citizens of the state. It is the opinion of the legislature that existing sidewalks within the state, especially in the most populated areas, are not adequate to service the walking public with a result of creating unnecessary hazards to pedestrian and vehicular traffic.

Utah Code Ann. § 27-14-2 (1989). Section 27-14-2 further states: "It is the intent of this act to provide a means whereby a portion of the funds received by the counties and participating cities as B and C road funds may be used for the construction of curbs, gutters, sidewalks and pedestrian safety devices pursuant to the guidelines set forth in this act." Id. (emphasis added). Lamarr argues this statute imposes a mandatory duty on the City to construct a sidewalk on the overpass, even though Lamarr admits the overpass is a state road and already has a state-maintained pedestrian walkway. We disagree.

In construing statutes, we are bound to "assume that each term of a statute was used advisedly; and that each should be given an interpretation and application in accord with their [sic] usually accepted meaning, unless the context otherwise requires." Grant v. Utah State Land Bd., 26 Utah 2d 100, 485 P.2d 1035, 1036 (1971). In Grant, the court construed a forfeiture statute providing that the State Land Board " 'may reinstate' " a previously forfeited land sales contract. Id., 485 P.2d at 1036 (quoting Utah Code Ann. § 65-1-47 (1953)). The plaintiff contended section 65-1-47 "vest[ed] in him the absolute right to reinstate a forfeited certificate." Id. The court disagreed, holding the word "may" is not mandatory but only permissive. Id.

Based on the plain meaning of the statute, we hold the Utah Sidewalk Construction Act does not place a mandatory duty on the City to supplement the State's efforts to ensure pedestrian safety on state roads. Thus, the City had no duty to maintain or construct a sidewalk on the overpass or to place signs on the overpass that would have prevented Lamarr from walking across the roadway. Accordingly, the trial court did not err in granting the City summary judgment on this duty issue. ³

C. Public Duty Doctrine

Lamarr also claims the City owed him a duty to "control" the transient population beneath the overpass. The trial court held the City did not owe Lamarr such a duty. We agree with the trial court, and hold that under the public duty doctrine, the City owed no duty to Lamarr to "control" transients.

Under the public duty doctrine,

[f]or a governmental agency and its agents to be liable for negligently caused injury suffered by a member of the public the plaintiff must show a breach of a duty owed him as an individual, not merely the breach of an obligation owed to the general public at large by the governmental official.

Ferree, 784 P.2d at 151 (citing Obray v. Malmberg, 26 Utah 2d 17, 484 P.2d 160, 162 (1971)). The public duty doctrine has been defined as "a duty to all is a duty to none." Rollins, 813 P.2d at 1165 (Durham, J., concurring in part and dissenting in part). Thus, if the City owed no duty to Lamarr apart from its duty to the general public, Lamarr cannot recover. See Ferree, 784 P.2d at 152.

The Utah Supreme Court recently explained the parameters of Utah's public duty doctrine. See id. In Ferree, the court applied the public duty doctrine holding state corrections officials were not liable when a prison inmate on weekend release murdered Dean Ferree. Id. at 151-52. The court concluded the officials had only a general duty to the public, not a private duty to Ferree, and therefore owed Ferree no duty of care. Id. Moreover, in Rollins, 813 P.2d 1156, the court affirmed the trial court's grant of summary judgment because under the public duty doctrine, the State did not owe a duty to protect the decedent from a state hospital patient. Id. at 1161-62. The court specifically noted the decedent "was simply a member of the public, no more distinguishable to the hospital than to any other person." Id. at 1162.

Lamarr contends "[t]he public duty doctrine has no application where governmental immunity has specifically been waived by statute." The Utah Supreme Court has clearly rejected Lamarr's theory. ⁴ The specific question of the effect of waiver of immunity on the public duty doctrine was addressed in Ferree. In rejecting a claim similar to Lamarr's, the court stated:

Sovereign immunity, however, is an affirmative defense and conceptually arises subsequent to the question of whether there is tort liability in the first instance. There is sound reason and desirable simplicity in analyzing and applying negligence concepts before deciding issues of sovereign immunity....

"... Conceptually, the question of the applicability of a...