Loveland v. Orem City Corp.
| Decision Date | 23 November 1987 |
| Docket Number | No. 19942,19942 |
| Citation | 746 P.2d 763 |
| Parties | James B. LOVELAND and Lynette Loveland, individually and as personal representatives of the Estate of Michael Loveland, Plaintiffs and Appellants, v. OREM CITY CORP.; North Union Irrigation Co., a Utah corporation; and Brown Brothers, a partnership, Defendants and Respondents. |
| Court | Utah Supreme Court |
Stephen L. Henriod, Richard K. Hincks, Douglas K. Pehrson, David L. Rasmussen, Salt Lake City, for plaintiffs and appellants.
Allan L. Larson, Salt Lake City, for Orem City Corp.
J. Anthony Eyre, Robert H. Rees, Salt Lake City, for North Union Irr. Co.
Roger H. Bullock, Salt Lake City, for Brown Bros.
Plaintiffs initiated this wrongful death action after Michael Loveland, their three-year-old son, drowned in an irrigation canal. Plaintiffs seek reversal of three district court orders granting defendants' motions for summary judgment. We affirm.
We review the facts of this case in the light most favorable to plaintiffs. 1 Defendant North Union Irrigation Company (North Union) was incorporated in April 1883. At that time, it began operating the North Union Irrigation Ditch (canal) in Utah County, and it continues doing so today.
In July 1976, defendant Brown Brothers became involved in the development of the Executive Estates subdivision in Orem City, Utah. The subdivision is comprised of three plats: plat A, plat B, and plat C. The canal borders portions of all three plats.
The Orem City Planning Commission originally mandated that the Executive Estates plat A subdivision plan provide for the covering of the canal where it crossed that plat to provide the required setback. Brown Brothers subsequently appealed this decision to the Orem City Council, and eventually the Council changed the specification to require fencing of the canal in plat A. Neither the Planning Commission nor the City Council ever expressly required the covering or the fencing of the canal in plats B or C.
Following the development of lot sixteen in plat B of the subdivision, Brown Brothers sold the lot to John Atkinson, dba Jacor, Inc. Jacor in turn constructed a home on the lot and then put the property up for sale.
In October 1978, plaintiffs (Lovelands) were shopping for a house. At that time, they examined the house built by Jacor on lot sixteen. While at the site, the Lovelands noticed North Union's canal that ran through the lot and parallel to the rear lot line. The Lovelands observed that the concrete canal had sloping sides and a flat bottom and was about ten feet wide. At the time the Lovelands inspected the property, there was no water flowing in the canal. When the Lovelands voiced their concern about the canal to Atkinson, he told them not to be concerned because a former real estate listing agent had a document showing that the developers were required by Orem City to fence the canal. Mr. Loveland, himself a building contractor, called the agent, and she confirmed that such a document existed. However, the Lovelands never saw the document, which in actuality only referred to plat A of the subdivision.
Thereafter, Mr. Loveland spoke with a neighboring property owner, Gary Starr, who told Mr. Loveland that fencing the canal was a subdivision plat requirement. Starr also informed Mr. Loveland that although he did not know when the fence would be erected, Orem City had said it would be installed before water was allowed in the canal. The Lovelands subsequently purchased the property from Jacor and moved into their new home in December 1978.
During the winter months, the Lovelands were told by Starr that Orem City was claiming it had no obligation to fence the canal, and an ad hoc neighborhood committee was subsequently formed to deal, in part, with concerns about getting the canal fenced. Starr became the committee's spokesman, and the Lovelands claim he had numerous contacts with North Union between January and May of 1979. The Lovelands also claim North Union indicated that the canal was going to be fenced. The committee prepared a petition for presentation to the Orem City Council. The petition sought improvement of the subdivision's roads and Council assistance to get the canal fenced. However, the City Council was never presented with the petition. The petition was subsequently presented to Orem City's mayor. Thereafter, the roads were improved, but nothing was done about the canal. The Lovelands had no direct contact or personal dealings with the City or any of its officers or representatives.
In April 1979, Mr. Loveland had a conversation with a North Union water master and was told that North Union was trying to work with Orem City to get the fence into place. On May 1, 1979, water began flowing in the canal. The Lovelands claim they were not given advance notice that the canal was to be filled. On May 11, 1979, Mr. Loveland again spoke to the same water master and this time was told that the company was trying to pressure Orem City into installing a fence.
On May 18, 1979, almost three weeks after Mr. Loveland noticed water flowing in the canal, Michael Loveland, while unsupervised, walked out the back door of the Lovelands' home, across the back yard to the cement bank of the canal, and either climbed down or slipped into the water and was drowned. After the incident, the Lovelands requested $200 that was escrowed when they purchased their home for fencing the canal on their lot and, together with their neighbors' financial help, fenced the canal in plats B and C.
Counts one and two of the Lovelands' amended complaint, directed at all three defendants, were grounded on strict liability and negligence theories, respectively. Count three of the complaint, directed only at Orem City and Brown Brothers, was based upon an implied warranty theory. On appeal, the Lovelands only advance the theories found in the first two counts.
The Lovelands' first point is that factual questions concerning Brown Brothers' obligation to fence the canal should have precluded entry of summary judgment in favor of that defendant. This position, however, presupposes the existence of a duty owed by Brown Brothers to Michael Loveland. It is axiomatic that one may not be liable to another in tort absent a duty. 2 The question of whether a duty exists is a question of law. 3 As always, resolution of this issue begins with an examination of the legal relationships between the parties, followed by an analysis of the duties created by these relationships.
In this case, three possible duty-creating relationships are at issue. The Lovelands principally depend on their status as foreseeable purchasers from Brown Brothers, which, as a land developer, conducted activities to improve raw acreage into residential building lots. Alternatively, a relationship is said to have arisen out of an agreement between Brown Brothers and Orem City whereby the former was to fence the canal. Finally, the relationship between the Lovelands as subvendees and Brown Brothers as a vendor must be analyzed. It is with this latter relationship that we begin our analysis.
The "somewhat murky" development of the law surrounding predecessor landowners' liability has given rise to at least three schools of thought regarding recovery for postconveyance injuries occurring on private property due to natural or artificial conditions existing thereon when the present owner or possessor assumed control. 4 The California Supreme Court, although in a different context, recently discussed these three views: The older general rule has been that the seller of realty is not subject to liability for bodily injury suffered by third persons after the vendee has taken possession. This rule has held true even though the vendor may have been responsible for creating a dangerous condition on the land which caused the injury. An intermediate position is that espoused in the Restatement (Second) of Torts and in Professor Keaton and Prosser's text on tort law which provides that the predecessor in title may in certain situations be subject to liability for injuries to third persons that arise after he or she relinquishes title. The scope of this exposure will be examined more thoroughly below. Under the third view, the predecessor in title remains subject to liability until the dangerous condition created by him has been corrected.5
In its defense, Brown Brothers, both here and below, advances that portion of the Restatement (Second) of Torts § 352 (1965) which contains the older general rule. That provision provides, in pertinent part: "[A] vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession." This rule, primarily attributed to the ancient doctrine of caveat emptor, is said to have retained its force for a variety of reasons, including public policy concerns, 6 the importance attached to deeds, 7 the lack of standards of quality or use of land, and the fact that vendees generally make prepurchase investigations of real estate and therefore are assumed to accept it "as is." 8 With respect to this last noted rationale, it has been said:
[I]n the absence of express agreement or misrepresentation, the purchaser is expected to make his own examination and draw his own conclusions as to the condition of the land; and the vendor is, in general, not liable for any harm resulting to him or others from any defect existing at the time of transfer. 9
Despite the varying approaches discussed above and the exceptions discussed more thoroughly below, the Lovelands do not dispute the soundness of the above-quoted portion of the Restatement rule. Instead, they contend that an express agreement existed under which Brown Brothers was required by Orem City to fence the canal. The existence of an...
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