Whipple v. American Fork Irr. Co., 940308

• Court: Supreme Court of Utah
• Citation: 910 P.2d 1218
• Docket Number: No. 940308,940308
• Parties: Lori WHIPPLE, individually and as guardian ad litem for Jennifer Whipple, Christopher Whipple, Jeff Whipple, and Kelsey Whipple, minors and heirs of John C. Whipple, deceased, Plaintiff and Appellant, v. AMERICAN FORK IRRIGATION CO., a Utah corporation, and John Does 1 through 10, Defendants and Appellees.
• Decision Date: 26 January 1996

Page 1218

910 P.2d 1218 Lori WHIPPLE, individually and as guardian ad litem for
Jennifer Whipple, Christopher Whipple, Jeff
Whipple, and Kelsey Whipple, minors and
heirs of John C. Whipple,
deceased, Plaintiff
and Appellant,
v.
AMERICAN FORK IRRIGATION CO., a Utah corporation, and John
Does 1 through 10, Defendants and Appellees. No. 940308. Supreme Court of Utah. Jan. 26, 1996.

Fred D. Howard, Jackson Howard, Phillip E. Lowry, Provo, for plaintiff and appellant.

Thomas J. Scribner, Donald E. McCandless, Provo, for defendants and appellees.

HOWE, Justice:

Plaintiff Lori Whipple appeals from the district court's dismissal of her wrongful death action against defendant American Fork Irrigation Company. The dismissal was made under rule 12(b)(6) of the Utah Rules of Civil Procedure.

In determining whether a trial court properly dismissed an action under rule 12(b)(6), we assume that the factual allegations in the complaint are true and we draw all reasonable inferences in the light most favorable to the plaintiff. Colman v. Utah State Land Bd., 795 P.2d 622, 624 (Utah 1990). In her complaint, Whipple alleged that her husband, John C. Whipple, drowned in defendant's irrigation ditch while attempting to save the life of a child who was a guest at their child's birthday party. She further alleged:

11. The irrigation ditch in which Mr. Whipple drowned was designed so as to create and facilitate swift currents and traps for debris which combined to prevent Mr. Whipple and the child he was rescuing from escaping the ditch.

Page 1220

12. The ditch in which Mr. Whipple drowned was defective when designed and constructed, and such defect rendered the device unreasonably dangerous.

13. Specifically, plaintiffs believe that the design of the irrigation ditch promoted swift currents, slick sides, and traps for debris. Plaintiffs further believe that because of inferior design and construction, and inadequate maintenance and policing, the debris became entrapped beneath a bridge causing an aquatic trap from which the decedent was unable to escape.

Whipple brought this wrongful death action on behalf of herself and her four minor children, claiming damages for the "excruciating pain and distress" suffered by her husband before his death and for the loss of his financial support, companionship, care, and affection. Defendant moved to dismiss for failure to state a claim under rule 12(b)(6), arguing that under cases such as Loveland v. Orem City Corp., 746 P.2d 763 (Utah 1987), and Weber v. Springville, 725 P.2d 1360 (Utah 1986), canal owners are not generally liable for deaths or injuries occurring in their canals. The trial court granted its motion, and Whipple appeals.

Because a rule 12(b)(6) dismissal is a conclusion of law, we review for correctness, granting no deference to the trial court's decision. St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991). In reviewing the dismissal, we must keep in mind that the purpose of a rule 12(b)(6) motion is to challenge the formal sufficiency of the claim for relief, not to establish the facts or resolve the merits of a case. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). We also note that a dismissal is justified only when the allegations of the complaint clearly demonstrate that the plaintiff does not have a claim. See Utah R.Civ.P. 8(a) (stating that the only requirements of a complaint are that it contain a "short and plain statement ... showing that the pleader is entitled to relief" and "a demand for judgment for the relief").

To determine the sufficiency of Whipple's complaint, we first examine the applicable law. The basis of a wrongful death action is negligence. See Kelson v. Salt Lake County, 784 P.2d 1152, 1154-55 (Utah 1989). To successfully plead negligence, a claimant must allege that the defendant breached a duty that he owed to the claimant or, in this case, to the claimant's decedent. Weber, 725 P.2d at 1363. This court has often recognized that the duty owed by a possessor of land to another person depends on whether that person is an invitee, a licensee, or a trespasser. Pratt v. Mitchell Hollow Irr. Co., 813 P.2d 1169, 1172 (Utah 1991).

Both parties agree that Whipple's decedent was a trespasser in defendant's ditch because he entered it "without a privilege to do so created by the possessor's consent or otherwise." Restatement (Second) of Torts § 329 (1965). In a number of our cases, we have stated that the only duty a possessor of land owes to a trespasser is to not wilfully or wantonly injure him. Golding v. Ashley Cent. Irr. Co., 902 P.2d 142, 145-46 (Utah 1995); Pratt, 813 P.2d at 1172; Weber, 725 P.2d at 1366; Loveland, 746 P.2d at 765; Featherstone v. Berg, 28 Utah 2d 94, 95, 498 P.2d 660, 661 (1972). Upon closer examination, however, we believe the Restatement (Second) of Torts § 333 (1965) more accurately states the duty owed:

Except as stated in §§ 334-339, a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care

(a) to put the land in a condition reasonably safe for their reception, or

(b) to carry on his activities so as not to endanger them.

The exceptions stated in sections 334 to 339 deal generally with activities and artificial conditions highly dangerous to constant trespassers on a limited area or to known trespassers, controllable forces...