Nelson By and Through Stuckman v. Salt Lake City

Decision Date05 July 1996
Docket NumberNo. 940543,940543
Citation919 P.2d 568
PartiesJoseph NELSON, a minor, By and Through his natural mother and guardian Cynthia STUCKMAN, Plaintiff and Appellant, v. SALT LAKE CITY, a body politic, and the State of Utah, By and Through the Utah State Division of Parks and Recreation, Defendants and Appellees.
CourtUtah Supreme Court

Edward T. Wells, West Valley City, for plaintiff.

Jan Graham, Atty. Gen., Debra J. Moore, Carol Clawson, Asst. Attys. Gen., and Steven W. Allred, Salt Lake City, for defendants.

STEWART, Associate Chief Justice:

Joseph Nelson appeals from orders of the trial court disallowing his claims for personal injury against Salt Lake City and the State of Utah. We reverse the trial court's ruling and remand for trial.


On May 16, 1990, Cynthia Stuckman took her four-year-old son Joseph Nelson to watch his brother participate in a free-admission baseball game at a Riverside Park baseball field. Allegedly believing that a secure fence separated the nearby playground from the Jordan River, Nelson's mother allowed him to play there as she watched the baseball game. A short time later, Nelson was found floating face down in the Jordan River. He suffered serious, permanent injuries. On his behalf, his mother brought this suit for damages against the City and the State for negligence in failing to maintain the fence in proper repair.

Riverside Park, owned by Salt Lake City, is bordered on the west by the Jordan River. The playground is located in the northwest corner of the park. A four-foot-high chain link fence separates the playground from the Jordan River Parkway--City-owned but State-managed land bordering on the Jordan River. 1 The parkway provides open access to the Jordan River. The four-foot-high fence is actually the second fence to serve the park. Although there is a factual dispute regarding which governmental entity was responsible for constructing the original fence and the purpose for which that fence was erected, the parties agree that the original fence reached six feet in height and was situated immediately adjacent to the river. 2 In deference to the State's desire for a parkway, the City allowed the State to dismantle the fence and construct a four-foot-high chain link fence at its current site. The parties disagree over which entity retained responsibility for maintaining the fence.

Nelson alleges that he gained access to the river through a breach in the fence. The breach is due to a missing gate, which an errant driver had knocked down earlier that year. Although aware of the broken gate, neither the State nor the City undertook to repair it.

Initially, Nelson brought action only against Salt Lake City. In a notice of claim dated May 1, 1991, Nelson sought $2 million on a simple negligence claim. The City denied Nelson's notice of claim. Thus, on May 14, 1992, Nelson filed a complaint against the City, alleging negligence, failure to warn of a dangerous condition, and failure to take adequate protective measures. On June 16, 1992, in response to the City's motion to dismiss pursuant to the Limitation of Landowner Liability Act, Nelson filed an amended complaint alleging "willful" conduct.

The City responded to the allegations by noting that even if the complaint were valid, the State of Utah should be joined in the action because it was responsible for maintaining the fence. Consequently, on February 18, 1993, two years and nine months after the accident, Nelson served notice of claim on the Governor and the Attorney General for the State of Utah. On March 16, 1994, Nelson amended the complaint to add the State of Utah as a defendant. On April 22, 1994, Nelson served a notice of claim on the Utah State Division of Parks and Recreation.

The trial court granted the City's motion for summary judgment, concluding that the Jordan River is a natural condition and that the Utah Governmental Immunity Act precluded liability for an injury arising out of a natural condition. It also determined that the Jordan River is a natural waterway for which the City would not be liable even in the absence of the Act. In addition, the trial court determined that the Landowner Liability Act applied, requiring "willful" or "malicious" action for liability. Finally, the court held that by delaying his plea of willfulness until over a year after the date of the accident, Nelson exceeded the time limitations prescribed by the Governmental Immunity Act. Holding that Nelson's complaint against the State was similarly time barred, the trial court granted the State's motion for dismissal.


On an appeal from a summary judgment, we consider only two questions: whether the lower court erred in (1) applying the governing law, and (2) holding that no material facts were in dispute. Bushnell Real Estate, Inc. v. Nielson, 672 P.2d 746, 749 (Utah 1983). Thus, we review the trial court's order of dismissal for correctness. St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991). Furthermore, because negligence cases often require the drawing of inferences from the facts, which is properly done by juries rather than judges, "summary judgment is appropriate in negligence cases only in the clearest instances." Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991).


Nelson raises four issues on appeal; the first concerns both the State and the City, while the other three apply only to the City. 3 The issues are (1) whether the action is time barred by the limitations found in the Utah Governmental Immunity Act; (2) whether the action is governed by the Limitation on Landowner Liability Act; (3) whether the governmental entity responsible for maintaining the fence owed Nelson a duty to protect him from falling into the Jordan River; and (4) whether the City is protected by governmental immunity. Additionally, the City asserts that several issues raised by Nelson on appeal are not properly before this Court.

We dispose of the first two issues summarily. First, plaintiff asserts that the trial court erred in holding that his minority did not toll the running of the filing period for his claim. We have recently reiterated that the general tolling provisions of Utah Code Ann. § 78-12-36 apply to claims brought by a minor under the Governmental Immunity Act. 4 Cole v. Jordan School Dist., 899 P.2d 776 (1995). Therefore, Nelson had until one year after his eighteenth birthday to bring his claim. Because Nelson clearly complied with this limitation, his claim is not time barred.

Next, Nelson argues that the trial court erred in applying the Utah Limitation of Landowner Liability Act, Utah Code Ann. §§ 57-14-1 to -7, to this case. It is unnecessary to examine this question, as the Court has recently held that the Act does not apply to improved public parks. De Baritault v. Salt Lake City Corp., 913 P.2d 743, 747 (Utah 1996).

We see no merit in the City's argument that Nelson's failure to list all issues presented for review in his original docketing statement dooms his appeal. Nelson filed timely notices of appeal from both trial court orders. He then submitted a docketing statement that included only those questions of law related to the application of the Limitation of Landowner Liability Act. Nelson subsequently filed an amended docketing statement that included the other issues presented for appeal. The City moved to strike the statement for being untimely filed. The issues Nelson targeted for appeal were stated in his amended docketing statement and were thoroughly discussed in his brief.

The docketing statement is for the benefit of the Court, not the appellee:

It is used by the appellate court in assigning cases to the Supreme Court or to the Court of Appeals when both have jurisdiction, in making certifications to the Supreme Court, in classifying cases for determining the priority to be accorded them, in making summary dispositions when appropriate, and in making calendar assignments.

Utah R.App.P. 9(b). In short, Nelson's failure to list all issues for review in the docketing statement did not affect his right to raise later specified issues for appeal.

A. Duty Owed to Nelson

Having resolved these preliminary issues, we proceed now to consider whether Nelson has established the required elements of a tort. For the sake of analytical clarity, we will first address the traditional tort issues and then take up the question of immunity. See Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1164 (Utah 1993). 5

As we recently stated, "Without a duty, there can be no negligence as a matter of law, and summary judgment is appropriate." Rocky Mt. Thrift Stores Inc. v. Salt Lake City Corp., 887 P.2d 848, 852 (Utah 1994); see Trujillo v. Jenkins, 840 P.2d 777 (Utah 1992) (determination of landowner's duty of care is question of law). Relying on the public duty doctrine, the City argues that it owed no special duty to Nelson. Under the public duty doctrine, for a governmental entity to be held liable, "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." Ferree v. State, 784 P.2d 149, 151 (Utah 1989); accord Rollins v. Petersen, 813 P.2d 1156, 1159 (Utah 1991); see Owens v. Garfield, 784 P.2d 1187, 1189 (Utah 1989).

The common law recognizes a duty of due care on the part of an individual or entity that undertakes, whether gratuitously or for consideration, to perform a duty. Breach of that duty may result in an actionable tort. The Restatement of Torts describes this duty as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care...

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