Weber, By and Through Weber v. Springville City, 19467

• Decision Date: 17 September 1986
• Docket Number: No. 19467,19467
• Citation: 725 P.2d 1360
• Parties: Jonathan Robert WEBER, By and Through his guardians and conservators, Donald R. WEBER and Winona Weber, and Donald R. Weber and Winona Weber, individually, Plaintiffs and Appellants, v. SPRINGVILLE CITY, Springville Irrigation Company, Thomas W. Biesinger, Virginia B. Law, and John Does I through V, Defendants and Respondents.
• Court: Utah Supreme Court

Page 1360

725 P.2d 1360

Jonathan Robert WEBER, By and Through his guardians and conservators, Donald R. WEBER and Winona Weber and Donald R. Weber and Winona Weber individually, Plaintiffs and Appellants, v. SPRINGVILLE CITY, Springville Irrigation Company, Thomas W Biesinger, Virginia B. Law, and John Does I through V, Defendants and Respondents.

No. 19467.

Supreme Court of Utah.

Sept. 17, 1986.

Jackson Howard, Provo, for plaintiffs and appellants.

Tim Dalton Dunn, Salt Lake City, for Springville City.

Darwin C. Hansen, Bountiful, for Biesinger.

Harold D. Mitchell, Springville, for Springville Irrigation.

L. Rich Humpherys, Salt Lake City, for Virginia Law.

HALL, Chief Justice:

Donald and Winona Weber ("plaintiffs"), individually and on behalf of their minor child Jonathan, sued Thomas W. Biesinger for negligence and breach of contract and Springville City and Springville Irrigation Company ("Irrigation Co.") for negligence. Plaintiffs also sued Virginia Law for negligence, but did not appeal the lower court's decision in that defendant's favor. Prior to argument, plaintiffs and Biesinger settled out of court, and subsequently, this Court entered an order dismissing plaintiffs' appeal against Biesinger with prejudice. Plaintiffs seek reversal of the district court's orders granting Springville City's and Irrigation Co.'s motions for summary judgment and dismissing the case.

I

The record, when read in the light most favorable to plaintiffs, reveals the following events underlying this action. ¹ Sometime prior to 1975, Biesinger bought an unimproved tract of land in Springville City, Utah. He then built an apartment complex on the property located at 649 East Swenson Avenue. To the north of the complex, there are two waterways that run somewhat parallel to one another: an inland stream known as "Hobble Creek" and a covered irrigation ditch owned by Irrigation Co.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Water flows from southeast to northwest in both waterways. Biesinger's apartment complex and the attendant common areas are separated from Hobble Creek by a thin strip of land that was owned by Glen A. Law when this action arose.

Irrigation Co. has the right to divert certain quantities of water out of Hobble Creek for irrigation purposes. The diversion occurs at various points--the lowest of which is at Swenson Dam, located immediately upstream from the Seventh East bridge or about one hundred forty feet east of Biesinger's apartment complex. The bridge is composed of three culvert pipes covered with bridge decking. The dam is made up of some materials, perhaps wooden planks, that are placed in front of the culverts. Irrigation Co. annually places Swenson Dam into Hobble Creek to impede creek water from continuing in its natural path. Water backs up behind the dam and is forced into Irrigation Co.'s ditch. Excess water flows over the dam and through the pipes and continues its natural path down Hobble Creek. The record indicates that Irrigation Co.'s watermaster, Hardy Child, was aware that children played around the dam in the summer and that he was fearful about it.

Springville City performs some maintenance on Hobble Creek, which crosses Springville's corporate boundaries. Specifically, Springville City has responsibility for shoring up the creek's banks during the peak runoff periods in higher water years and pulling logs and debris out of the creek during the spring runoff. The City maintains the banks of Hobble Creek in order to preserve bridges where the channel abuts city property. The City also maintains the Seventh East bridge. There is evidence in the record that Springville City has contracted for some dredging of Hobble Creek. However, the dredging operations did not take place near the scene of the incident. Moreover, the record indicates that the course of the stream has never been diverted or altered by Springville City.

When Biesinger constructed the apartment complex, Irrigation Co.'s ditch was not covered. Thus, during construction Biesinger erected a four-foot fence at the northern boundary of his property to prevent children from falling into the ditch on Glen Law's property. ² The west end of Biesinger's fence is connected to a neighbor's fence. The southeast end of Biesinger's fence abuts a footbridge which parallels the Seventh East bridge such that people can pass around the fence.

On or before June 13, 1980, plaintiffs answered Biesinger's advertisement regarding an apartment for rent. They were shown the apartment by Biesinger's agents, who purported to be the managers of the complex. Upon hearing the sound of a nearby stream, plaintiffs inquired whether the common area was safe for children and whether children could gain access to the stream. The agents told plaintiffs that the area was safe, that a proper fence and a sufficient gate had been placed in the rear of the property, and that children could not get to the stream. In actuality, the fence was in disrepair and inadequate to prevent small children from accessing Hobble Creek. Plaintiffs then entered into a rental agreement with Biesinger for apartment No. 36.

On June 18, 1980, while plaintiffs were parked near the southeast corner of the complex and moving their belongings into Unit 36, Jonathan, aged two and one-half, strayed from the apartment complex and fell into Hobble Creek. He was rescued a short time later, but not before sustaining permanent debilitating mental and physical injuries. Although Jonathan was allegedly last seen walking west in front of the apartments, there is no evidence indicating the point where he fell into Hobble Creek; in fact, people near the scene about the time the incident occurred claimed that they had no idea where Jonathan fell in.

II

At argument, plaintiffs' attorney explained that the lower court granted summary judgment in defendants' favor and instructed each defendant to prepare orders incorporating the judge's ruling. Plaintiffs' counsel complained that since defendants orders were only prepared as orders of dismissal, some significance should attach to the fact that the orders lacked findings of fact and conclusions of law. Utah Rule of Civil Procedure 52(a) (Repl.Vol. 9B, 1977 ed.) expressly disposes of counsel's concerns: "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41(b)." We dealt with this argument in Ellertson v. Dansie:

Plaintiff also contends that the trial court erred in failing to make findings of fact. It is of course permissible, and in some instances may be helpful, if the court so desires, to recite what it regards as the undisputed facts upon which it bases its summary judgment. But it is under no obligation to do so. ³

III

Plaintiffs' actions against Irrigation Co. and Springville City are grounded primarily upon negligence theory. We have previously defined the elements of a negligence action to include: "(1) a duty of reasonable care owed by the defendant to [the] plaintiff; (2) a breach of that duty; (3) the causation, both actually and proximately, of [the] injury; and (4) the suffering of damages by the plaintiff." ⁴ Resolution of this appeal requires us to consider only the first and third of these elements. ⁵

The question of whether a "duty" exists is a question of law, and this Court, which is not bound by the trial court's conclusions, may independently review the issue. ⁶ Accordingly, the lack of legal conclusions in the record does not in any respect hinder our decision.

Plaintiffs rely on several theories to establish a duty of care on the part of Springville City. Plaintiffs first contend that Springville City had a duty to fence or cover Hobble Creek or to insure that the creek was fenced or covered in the vicinity of this incident because it assumed responsibility for insuring that buildings constructed within its boundaries were safe. ⁷ Specifically, plaintiffs contend that Springville City, Utah, Ordinance § 10-1-4 charges the City with a duty to protect its residents from water hazards in close proximity to buildings and developments for which it has issued building permits. The ordinance provides: "No building permit shall be issued for any property which is crossed by or fronted by an irrigation ditch, unless the plans and specifications for the construction to be accomplished thereon provide for the covering of such irrigation ditch." Even if we assume for purposes of argument that Biesinger's apartment building is "crossed by or fronted by" Hobble Creek, plaintiffs' reasoning remains fundamentally flawed.

Utah, like most jurisdictions, has recognized that one who undertakes to render services has a duty to exercise reasonable care. ⁸ Yet the nature of this rule requires the Court to narrowly construe the scope of any assumed duty. Adoption of plaintiffs' theory would require this Court to hold that Hobble Creek is an irrigation ditch or to judicially extend the purpose of the City ordinance beyond its plain meaning. An "irrigation ditch" is an artificial watercourse designed to divert a flow of water to areas where it otherwise would not flow because of the configurations of the surrounding land. ⁹ Irrigation Co.'s ditch comes within this definition and thus within the ordinance. At some point, Springville City's requirement that the ditch be covered was complied with.

The incident underlying this case, however, occurred in Hobble Creek, which, as distinguished from Irrigation Co.'s ditch, is a living stream. The creek, as discussed below, is a naturally channelized current of water; the current is caused by the natural configuration of the surrounding land from which the water is collected. ¹⁰ Further, Hobble Creek has a definite and at least periodic source of water. ¹¹ Therefore, Hobble Creek is a natural watercourse, a classification mutually exclusive of artificial waterways. It...