Trujillo By and Through Trujillo v. Brighton-North Point Irr. Co.

• Decision Date: 23 November 1987
• Docket Number: No. 19502,BRIGHTON-NORTH,19502
• Parties: Johnny TRUJILLO, a minor, By and Through his Guardian ad Litem, Barbara TRUJILLO, and Johnny S. Trujillo, Plaintiffs and Respondents, v.POINT IRRIGATION COMPANY, Val Jenkins and Nicea Jenkins, his wife, Lee Anna Coombs, and Gary J. Xanthos, Defendants and Appellants.
• Court: Utah Supreme Court

Page 780

746 P.2d 780

Johnny TRUJILLO, a minor, By and Through his Guardian ad

Litem, Barbara TRUJILLO, and Johnny S. Trujillo, Plaintiffs and Respondents, v. BRIGHTON-NORTH POINT IRRIGATION COMPANY, Val Jenkins and Nicea Jenkins, his wife, Lee Anna Coombs, and Gary

J. Xanthos, Defendants and Appellants.

No. 19502.

Supreme Court of Utah.

Nov. 23, 1987.

Gary A. Frank, Murray, Ford G. Scalley, Salt Lake City, for defendants and appellants.

P. Keith Nelson, Salt Lake City, for Jenkins.

Richard A. Rappaport, Salt Lake City, for Xanthos.

John Rokich, Magna, for plaintiffs and respondents.

ZIMMERMAN, Justice:

Appellant Brighton-North Point Irrigation Company ("Brighton-North Point") filed this interlocutory appeal from the trial court's denial of its motion for summary judgment. Brighton-North Point argues that as a matter of law it could not be held liable for failing to safeguard children from dangers posed by water in an unfenced irrigation ditch. We agree with Brighton-North Point and conclude that it was entitled to the summary judgment it sought. We therefore reverse.

Brighton-North Point has owned and operated an irrigation canal in Salt Lake County since 1890. Water flows through the canal several days a week during the irrigation season. Water is allowed to pool in the ditch on off-days. The ditch runs along the east side of property on which stands an apartment complex owned by defendants Val Jenkins, Nicea Jenkins, Lee Anna Coombs, and Gary J. Xanthos. Respondents Barbara Trujillo and Johnny S. Trujillo and their sixteen-month-old son, Johnny, lived in the apartment complex. On August 8, 1981, Johnny Trujillo nearly drowned in a pool of standing water in the ditch. As a result, he suffered permanent injuries. The Trujillos sued both the apartment owners and Brighton-North Point for negligence in failing to fence or cover the ditch.

Brighton-North Point moved for summary judgment, arguing that this Court's prior decisions in Charvoz v. Salt Lake City, 42 Utah 455, 131 P. 901 (1913), and Brinkerhoff v. Salt Lake City, 13 Utah 2d 214, 371 P.2d 211 (1962), specifically held that canals and irrigation ditches do not fall within the attractive nuisance doctrine and that owners and operators of canals are not liable for personal injuries or deaths that result when children play in or fall into the water. The Trujillos acknowledged the Charvoz and Brinkerhoff decisions, but contended that they were a product of a different time and philosophy. They argued that the modern trend of authority, as set forth in section 339 of the Restatement (Second) of Torts, is to make all possessors of land subject to liability for harm to young children caused by conditions on their land if the factual tests set out in section 339 are met. ¹ The Trujillos argued that under section 339 Brighton-North Point's liability is a question of fact to be determined from an examination of all the circumstances. Therefore, a summary judgment is inappropriate.

The trial court denied the summary judgment. In a written memorandum, the court accepted the Trujillo's reasoning and ruled that the policy reasons cited by this Court in Charvoz and Brinkerhoff are no longer viable and that section 339 provides a more persuasive and just standard.

On appeal, we are presented with essentially the same questions and arguments advanced below. Should we adhere to our old precedents that effectively insulate owners of canals and ditches from liability for harm suffered by small children? The answer does not require extended discussion. We have dealt with the question in another decision issued today, Loveland v. Orem City Corp., 746 P.2d 763 (Utah 1987). In Loveland, at 772, we declined to depart from the law developed in Brown v. Salt Lake City, 33 Utah 222, 93 P. 570 (1908), Charvoz, and Brinkerhoff.

As we made clear in Loveland, the immunity bestowed by Charvoz and Brinkerhoff is a judicial creation. Therefore, its vitality is not determined by whether one chooses to analyze the question under the older attractive nuisance doctrine or under the newer and more flexible articulation of the standard in section 339 of the Restatement. ² Instead, a rather pragmatic appraisal must be made of the reasons for the immunity rule and the effects of its repeal. We find continued vitality in the reasons originally supporting the rule. But even more important are the potential negative consequences of its abolition.

We acknowledge that underground piping and increased urbanization and industrialization have probably made the carriage of irrigation water in open ditches and canals less common and less critical to the economic life of this state than it was at the turn of the century when Brown and Charvoz were decided. However, open ditches and canals are still ubiquitous in many parts of Utah, and they are still important to agricultural users and, by extension, to the state as a whole.

This is not to deny the point made twenty-five years ago by the dissenters in Brinkerhoff and by the plaintiffs in this case that urbanization has caused many more children to live closer to ditches and canals that were originally constructed in sparsely populated areas and that this has increased the risk of death or serious injury. See Brinkerhoff, 13 Utah 2d at 220-21, 371 P.2d at 216. An examination of our recent docket is enough to suggest that it is not uncommon for children to be drowned or badly injured. See, e.g., Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986); Loveland, 746 P.2d at 764. However, just because there is a perceived evil--unfenced or uncovered canals and ditches near populous areas with small children--does not mean that the most appropriate agency for fashioning a remedy is this Court or that the most appropriate remedy is wholesale abolition of the immunity established by Charvoz and Brinkerhoff.

As we noted in Loveland, fences or other safety measures that certainly are appropriate in some areas may be quite inappropriate in others. The state or local governments are far better suited than we to consider the countervailing considerations and are more capable of establishing very specific criteria for determining where and how protective measures should be taken. Loveland, 746 P.2d at 773. They also have better means of enforcing these requirements. Such specifically tailored remedies strike us as far more likely to ameliorate the problem than retroactively exposing all canal and ditch owners to liability.

There is also an issue of fairness. The cost of fencing or covering hundreds of miles of exposed ditches and canals would be enormous. Why should that burden be arbitrarily imposed on the relatively few owners of the...