Pratt By and Through Pratt v. Mitchell Hollow Irr. Co., 880484

• Court: Supreme Court of Utah
• Citation: 813 P.2d 1169
• Docket Number: No. 880484,880484
• Parties: Jonas Jade PRATT, By and Through his guardians, Jeffrey W. PRATT and Janice P. Pratt, Plaintiff and Appellant, v. MITCHELL HOLLOW IRRIGATION COMPANY, American Fork Irrigation Company, et al., Defendants and Appellees.
• Decision Date: 11 June 1991

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813 P.2d 1169 Jonas Jade PRATT, By and Through his guardians, Jeffrey W.
PRATT and Janice P. Pratt, Plaintiff and Appellant,
v.
MITCHELL HOLLOW IRRIGATION COMPANY, American Fork Irrigation
Company, et al., Defendants and Appellees. No. 880484. Supreme Court of Utah. June 11, 1991.

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Michael J. Petro, Provo, for appellant.

Michael F. Skolnick, D. Gary Christian, Salt Lake City, for American Fork Irr. Co.

Edwin G. Gibbs, Lehi, for Mitchell Hollow Irr. Co.

Jeril B. Wilson, Provo, for Utah County.

Dayle M. Jeffs, Provo, for Kelly Y. Roth.

ZIMMERMAN, Justice:

Appellant Jonas Pratt, a child, by and through his guardians Jeffrey and Janice Pratt ("the Pratts"), appeals from an order of the district court granting summary judgment in favor of appellees American Fork Irrigation Company ("American Fork") and Mitchell Hollow Irrigation Company ("Mitchell") and against the Pratts in their action for damages for injuries caused to Jonas when he fell into an irrigation ditch and became stuck in a culvert. This court's decisions have given owners of ditches and canals immunity from the attractive nuisance doctrine. See, e.g., Loveland v. Orem City Corp., 746 P.2d 763

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(Utah 1987); Trujillo v. Brighton-North Point Irrigation Co., 746 P.2d 780 (Utah 1987). The trial court granted summary judgment to American Fork and Mitchell on the basis of such immunity. The Pratts assert that the irrigation ditch and related facilities constitute a hidden trap and, therefore, the irrigation companies are not entitled to the benefit of the general immunity. We disagree and affirm the trial court's decision.

In reviewing an order granting summary judgment, we view the facts and inferences in the light most favorable to the losing party. E.g., Rollins v. Peterson, 813 P.2d 1156, 1158 (Utah 1991); Utah State Coalition of Senior Citizens v. Utah Power & Light Co., 776 P.2d 632, 634 (Utah 1989). We give no deference to the trial court's legal conclusions, reviewing them for correctness. Landes v. Capital City Bank, 795 P.2d 1127, 1129 (Utah 1990); Ron Case Roofing & Asphalt Paving, Inc. v. Blomquist, 773 P.2d 1382, 1385 (Utah 1989). We consider only the pleadings, depositions, admissions, answers to interrogatories, and affidavits properly before the trial judge. Utah R.Civ.P. 56(c); Norton v. Blackham, 669 P.2d 857, 859 (Utah 1983); Bowen v. Riverton City, 656 P.2d 434, 436 (Utah 1982); Massey v. Utah Power & Light, 609 P.2d 937, 938 (Utah 1980). Papers not properly filed with the trial court will not be considered. See Territorial Sav. & Loan Assoc. v. Baird, 781 P.2d 452, 455-56 (Utah Ct.App.1989); Conder v. A.L. Williams & Assocs., 739 P.2d 634, 635-36 (Utah Ct.App.1987). Depositions that were never introduced into evidence nor read by the trial judge will not be considered on appeal. ¹ Thompson v. Ford Motor Co., 14 Utah 2d 334, 334-35, 384 P.2d 109, 109 (1963); Reliable Furniture Co. v. Fidelity and Guar. Ins. Underwriters, Inc., 14 Utah 2d 169, 170, 380 P.2d 135, 135 (1963); Alford v. Utah League of Cities and Towns, 791 P.2d 201, 206 n. 3 (Utah Ct.App.1990).

American Fork and Mitchell are Utah corporations operating irrigation systems in Utah County. The ditch, water conveyance box, and culvert that are the subject of this action are located in Lehi, Utah County, and are controlled by Mitchell. Some of the water flowing through these facilities has its source in the canals of American Fork. The ditch runs along the property where 3-year-old Jonas Pratt was playing at the time of the accident. The water in the ditch then drops into a water conveyance box. At the bottom of the box is an outlet that joins the box to a closed culvert that runs under a road.

On November 6, 1985, Jonas Pratt fell into the ditch, was carried by the flow of water into the conveyance box, dropped to the bottom of the box, passed through the outlet, and became lodged in the culvert. Jonas suffered severe brain damage as a result of being deprived of oxygen while submerged.

The Pratts sued several defendants, including Mitchell and American Fork, for negligently maintaining the ditch. Specifically, the Pratts argued that owners and operators of canals may be liable to trespassers for negligence when the condition complained of constitutes a hidden danger not ordinarily found in such bodies of water. See Trujillo, 746 P.2d at 782; Loveland, 746 P.2d at 771; Weber v. Springville City, 725 P.2d 1360, 1366 (Utah 1986). The Pratts claimed that there was a material question of fact as to whether a hidden danger or "hidden trap" existed in this case. They argued that the combination of a steep and mossy concrete ditch bank, the absence of a grate covering the conveyance box inlet, and a tire lodged in the culvert, which prevented the child from passing through the culvert, brought this situation within the hidden danger exception. On appeal, the Pratts essentially renew their contentions before the trial court.

American Fork and Mitchell defend the trial court's ruling on two grounds. First, they assert that the facts upon which the Pratts base their claim that a hidden trap

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existed are not part of the record on appeal. Therefore, we have no record basis for deciding that a factual issue exists. Second, they contend that even if there is a factual question as to the existence of a hidden...