Miller v. West Valley City

2017 UT App 65

THE UTAH COURT OF APPEALS

SAMANTHA MILLER,

Appellant,

v.

WEST VALLEY CITY,

Appellee.

Opinion

No. 20150449-CA

Filed April 13, 2017

Third District Court, Salt Lake Department

The Honorable Richard D. McKelvie

No. 140903126

Ryan J. Schriever, Attorney for Appellant

J. Eric Bunderson, Claire Gillmor, Brandon M. Hill,

and Adrienne H. Bossi, Attorneys for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.

TOOMEY, Judge:

¶1 This appeal involves an accident in a West Valley City

(WVC) swimming pool during which appellant Samantha Miller

was injured. Miller sued WVC, and the district court dismissed

the case. We must decide whether the court properly granted

WVC’s rule 12(b)(6) motion to dismiss for failure to state a claim

upon which relief may be granted. We conclude that it did and

therefore affirm.

Miller v. West Valley City

BACKGROUND 1

¶2 WVC owns and operates West Valley City Family Fitness

Center. In May 2013, Miller was swimming laps in the fitness

center pool when some teenage girls came into her lane and

“interfere[d] with her laps.” Miller alleged the “lifeguard did not

take adequate action to remove the girls from the pool.” While

Miller was doing the backstroke she ran into one of the

teenagers, “became disoriented . . . and collided with the [pool]

wall.” Miller “sustained a closed-head injury, neck injuries and

other bodily injuries.”

¶3 Miller sued WVC asserting premises liability and

negligence. She first contended she was an invitee to the fitness

center and WVC had “a duty to keep the premises free from

hazardous conditions.” She further argued that WVC, through

its lifeguard employee, “should have known that there was an

unreasonably dangerous condition in [her] swimming lane” that

she would be unable to see while doing the backstroke and

because of this, the condition “was hidden to [her].” She argued

WVC owed a duty to warn her of the “hidden or latent

hazardous conditions.”

¶4 Second, in support of her negligence claim, Miller

contended that WVC “undertook an obligation to monitor the

swimming lanes” at the fitness center “to keep them clear of

hazards for people swimming”; WVC “should have recognized

it was necessary for the protection of others to maintain the

swimming lanes free of hazards”; WVC “failed to exercise

1. “On appeal from a motion to dismiss, we review the facts only

as they are alleged in the complaint. We accept the factual

allegations as true and draw all reasonable inferences from those

facts in a light most favorable to the plaintiff.” Koerber v.

Mismash, 2013 UT App 266, ¶ 3, 315 P.3d 1053 (citation and

internal quotation marks omitted).

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Miller v. West Valley City

reasonable care,” which “increased the risk of harm”; Miller

relied on WVC “to maintain the swimming lanes free of

hazards”; and WVC’s failure to exercise reasonable care was the

proximate cause of her injuries.

¶5 WVC filed a motion to dismiss. It asserted Miller’s suit

should be dismissed for lack of jurisdiction under rule 12(b)(1) of

the Utah Rules of Civil Procedure because Miller failed to file a

bond as required by section 63G-7-601(2) of the Utah Code.

Further, WVC argued Miller’s complaint “should be dismissed

under Utah Rule of Civil Procedure 12(b)(6)” for failure to “state

any claim under which she could be entitled to relief.” Miller

subsequently filed a bond and cured the jurisdictional defect.

¶6 WVC’s motion to dismiss argued that Miller’s complaint

failed “to establish a waiver of governmental immunity” and

should be dismissed as a matter of law. 2 Specifically, WVC

2. Typically, “[i]mmunity is an affirmative defense which must

be proved by the defendant.” Van de Grift v. State, 2013 UT 11,

¶ 23, 299 P.3d 1043 (citation and internal quotation marks

omitted). But in some cases, “the existence of the affirmative

defense may appear within the complaint itself.” Id. (citation and

internal quotation marks omitted). Though Miller did not raise

this issue on appeal, our analysis would be the same had it been

raised. Miller’s complaint alleged a teenage girl in her swim lane

was a “hazardous condition.” This is sufficient to show that

Miller did not qualify for the “defect or dangerous condition”

exception to immunity. See infra ¶¶ 14–22. As for Miller’s

negligence claim, because we determine that WVC did not owe a

duty to Miller, we need not decide whether WVC was entitled to

governmental immunity. See Scott v. Universal Sales, Inc., 2015 UT

64, ¶ 14, 356 P.3d 1172 (“In negligence cases involving a defense

of governmental immunity, we first determine whether the

defendant owed a duty of due care to the plaintiff before

deciding whether the defendant is entitled to the affirmative

(continued…)

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Miller v. West Valley City

argued Miller did not properly plead that immunity was waived

due to a “defective or dangerous condition of a public

building . . . or other public improvement” as allowed by the

Governmental Immunity Act of Utah (the GIA). See Utah Code

Ann. § 63G-7-301(3)(a)(ii) (LexisNexis 2011). 3 That is, Miller did

not allege that the defective and dangerous condition was

related to the structures of “the building, the pool, [or] the sides

of the pool.” Rather, she claimed the dangerous condition was

the teenager in her swimming lane, but did not show how the

teenager “could be a dangerous condition sufficient to support a

cause of action for premises liability.” WVC argued the “plain

language of the statute requires that there be a defect in the

physical condition of the improvement in order for [WVC] to be

liable.” (Emphasis added.) WVC also argued that even if Miller

could establish “that a young girl in a swimming pool can

constitute a dangerous or defective condition of a public

building,” WVC would still be immune because immunity is not

waived if the injury results from a latent dangerous or defective

condition, and Miller herself characterized the condition as

“hidden or latent” in her complaint. 4 See id. § 63G-7-301(3)(b).

(…continued)

defense of governmental immunity.” (citation and internal

quotation marks omitted)).

3. Because Miller’s accident occurred in 2013, we refer to the

version of the statute that was in effect at that time. See State v.

Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (“[I]f a law regulates a

breach of contract or a tort, we apply the law as it exists when

the alleged breach or tort occurs—i.e., the law that exists at the

time of the event giving rise to a cause of action.”).

4. Miller’s complaint alleged the teenager’s presence was a

“hazardous condition,” “[t]he hazard was hidden,” and “WVC

owed [her] a duty to warn of hidden or latent hazardous

conditions.” But in her opposition to WVC’s motion to dismiss,

(continued…)

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Miller v. West Valley City

¶7 WVC argued Miller’s negligence claim failed because

WVC owed Miller no duty of care, in that Miller based her claim

on section 323 of the Restatement (Second) of Torts but failed to

allege facts sufficient to satisfy the requirements of that section.

WVC also argued that because Miller’s complaint alleged a

lifeguard’s omission caused her injury, the public duty doctrine

applied, and therefore WVC owed no duty of care to Miller.

Finally, WVC noted that Miller had not established there was a

special relationship between herself and WVC and therefore

could not demonstrate an exception to the public duty doctrine.

¶8 The district court agreed. As to the premises liability

claim, it determined the plain language of section 63G-7-

301(3)(a)(ii) required that liability be premised upon a defect in

“the structure or building itself” and Miller had failed to plead

or demonstrate this. In addition, the court determined that

Miller had not “alleged a latent condition” because “the facts

alleged in the complaint make clear that the ‘defect’ complained

of, the teenage girl in the swimming lane, [was] open and

obvious,” and Miller was aware of the condition and notified the

lifeguard. 5

(…continued)

Miller argued “the condition was not latent” because she had

informed the lifeguard of the obstruction and “a reasonably

careful inspection . . . would have revealed the dangerous

condition.” Miller distinguished between what was hidden to

her and what was “hidden or latent” to WVC, but because we

conclude the condition was not a “dangerous or defective

condition of a public building” under Utah Code section 63G-7-

301(3)(a), this distinction is ultimately immaterial. See infra ¶ 8 n.5.

5. The district court concluded that even if the presence of a

teenager in the swimming lane were considered a defect, the

defect would “result in a waiver of immunity only if it were a

latent defect.” (Emphasis added.) This is a misstatement of the

(continued…)

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Miller v. West Valley City

¶9 And in regard to the negligence claim, the court agreed

with WVC that Miller “did not plead that [WVC] made a

voluntary undertaking to protect her, that the voluntary

undertaking was done without reasonable care, and that [Miller]

reasonably relied on this undertaking.” Additionally, the court

determined that under Cope v. Utah Valley State College, 2014 UT

53, 342 P.3d 243, Miller needed to demonstrate that WVC had a

special relationship imposing a “specific duty of care toward”

her if her claim was “based upon a public duty.” Because Miller

failed to “allege[] any facts to establish a special relationship,”

she could not “overcome the standard employed in Cope.”

Accordingly, the court determined Miller’s complaint did not

“state an actionable claim” and dismissed the suit. Miller

appeals.

ISSUE AND STANDARD OF REVIEW

¶10 On appeal, Miller contends the district court improperly

granted WVC’s rule 12(b)(6) motion to dismiss. “A trial court’s

(…continued)

law. Section 63G-7-301(3)(b)(ii) of the Utah Code provides that

“[i]mmunity from suit of each government entity is not waived if

the injury arises out of . . . a latent dangerous or latent defective

condition of any public building.” (Emphasis added.) The

allegedly “open and obvious” nature of the danger was not an

additional preclusion to waiver, but essential to Miller’s position

that immunity was waived. This is because immunity is waived

if an injury is caused by a defective condition, then reinstated if

that defective condition is latent. See Utah Code Ann. § 63G-7-

301(a)–(b) (LexisNexis 2011). But the court’s error on this point is

not material. Its determination rested on the fact that Miller had

not alleged facts amounting to a defective or dangerous

condition, and so whether the condition was latent makes no

difference to its decision. See supra ¶ 6 n.4.

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decision to dismiss a case based on governmental immunity is a

determination of law that we afford no deference. . . . Because

the propriety of a 12(b)(6) dismissal is a question of law, we give

the trial court’s ruling no deference and review it under a

correctness standard.” Van de Grift v. State, 2013 UT 11, ¶ 6, 299

P.3d 1043 (citation and internal quotation marks omitted).

Likewise, “the issue of whether a duty exists is a question of law

which we review for correctness.” Fishbaugh v. Utah Power &

Light, 969 P.2d 403, 405 (Utah 1998) (citation and internal

quotation marks omitted).

ANALYSIS

¶11 Miller’s appeal raises two main issues. First, she contends

the district court erred in dismissing her premises liability claim

for failure to demonstrate that immunity was waived under the

GIA. She further contends the court erred in determining she

failed to plead a negligence claim. But as a threshold matter,

Miller asserts the case should be remanded because the district

court “did not apply the correct standard” in that it “did not

accept [her] description of the facts in the complaint to be true”

or “consider all reasonable inferences to be drawn from those

facts in a light most favorable to [her].”

I. Pleading Standard

¶12 Rule 8 of the Utah Rules of Civil Procedure requires a

plaintiff “to submit a short and plain statement showing that the

pleader is entitled to relief and a demand for judgment for the

relief.” Peak Alarm Co. v. Salt Lake City Corp., 2010 UT 22, ¶ 69,

243 P.3d 1221 (ellipsis, citation, and internal quotation marks

omitted). The pleadings must be sufficient to give “fair notice of

the nature and basis or grounds of the claim and a general

indication of the type of litigation involved.” Id. (citation and

internal quotation marks omitted). “A motion to dismiss is

appropriate only where it clearly appears that the plaintiffs

would not be entitled to relief under the facts alleged or under

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Miller v. West Valley City

any set of facts they could prove to support their claim.” Baker v.

Angus, 910 P.2d 427, 430 (Utah Ct. App. 1996). “[M]ere

conclusory allegations in a pleading, unsupported by a recitation

of relevant surrounding facts, are insufficient to preclude

dismissal. Additionally, the court need not accept legal

conclusions or opinion couched as facts.” Koerber v. Mismash,

2013 UT App 266, ¶ 3, 315 P.3d 1053 (citations and internal

quotation marks omitted).

¶13 In this case, the district court agreed with WVC that

Miller “did not plead that [WVC] made a voluntary undertaking

to protect her, that the voluntary undertaking was done without

reasonable care, and that [Miller] reasonably relied on this

undertaking.” But nothing in the court’s ruling suggests it did

not accept as true Miller’s recitation of the facts; rather, the court

concluded that the facts she pleaded, even if true, were not

sufficient to demonstrate a cause of action. In addition, the court

did not accept Miller’s legal conclusions pertaining to her

premises liability claim. In other words, it determined that, even

assuming all of the facts Miller set forth as true, Miller could not

show a cause of action for premises liability or negligence. We

thus conclude the court did not apply the wrong standard.

II. Premises Liability

¶14 We next determine whether the district court properly

dismissed Miller’s premises liability claim. The court determined

dismissal was appropriate because Miller had not demonstrated

that governmental immunity was waived.

¶15 Although governmental entities are usually immune from

suit, immunity is sometimes waived. See Utah Code Ann. § 63G-

7-301 (LexisNexis 2011). “Generally, to determine whether a

governmental entity is immune from suit under the [GIA], we

apply a three-part test, which assesses (1) whether the activity

undertaken is a governmental function; (2) whether

governmental immunity was waived for the particular activity;

and (3) whether there is an exception to that waiver.” Blackner v.

20150449-CA 8 2017 UT App 65

Miller v. West Valley City

Department of Transp., 2002 UT 44, ¶ 10, 48 P.3d 949. The parties

agree WVC’s operation of the fitness center is a governmental

function, but disagree as to whether WVC’s immunity was

waived. In arguing for waiver, Miller relied on section 63G-7-

301(3)(a)(ii), which states that governmental immunity is waived

“as to any injury caused by . . . any defective or dangerous

condition of a public building, structure, dam, reservoir, or other

public improvement.” Utah Code Ann. § 63G-7-301(3)(a)(ii).

¶16 The district court interpreted section 63G-7-301(3)(a)(ii) to

“create liability as it concerns the structure or building itself, as

the word ‘of’ refers only to the physical structure, not conditions

found within.” It declined to adopt Miller’s broader

interpretation of the statute, which inferentially would add the

phrase “or in” after “of” to the statute. On appeal, Miller does

not address the district court’s reasoning but relies on Barneck v.

Utah Department of Transportation, 2015 UT 50, 353 P.3d 140, to

argue the district court misinterpreted the statute because it

should be read through the lens of the common law. See id. ¶ 16.

Miller thus bases her argument on section 344 of the Restatement

(Second) of Torts and asserts that WVC’s immunity is waived

because she “was an invitee” whose injury was caused by a third

party.

¶17 Barneck indicates that the “operative terms of the

Governmental Immunity Act . . . coincide with the key terms . . .

used to define the scope of premises liability in tort. . . . And we

therefore interpret [those terms] in a manner incorporating the

‘old soil’ . . . long carried at common law.” Id. (citations and

additional internal quotation marks omitted). Barneck goes on to

define a “dangerous condition” as “‘[a] property defect creating

a substantial risk of injury when the property is used in a

reasonably foreseeable manner.’” Id. ¶ 17 (quoting Black’s Law

Dictionary 335 (9th ed. 2009)). The Barneck court concluded that

governmental immunity is waived for injuries caused by

dangerous conditions which the government defendant created

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or of which it was aware, and which it should reasonably foresee

would expose others to an unreasonable risk of harm. Id.

¶18 Using Barneck’s reasoning that the term-of-art sense of

common law terms should be incorporated into the statute,

Miller argues WVC’s immunity is waived because “Utah courts

have recognized liability against landowners for injuries to

invitees caused by third parties on the premises.” She relies on

section 344 of the Restatement (Second) of Torts, which states:

A possessor of land who holds it open to the public

for entry for his business purposes is subject to

liability to members of the public while they are

upon the land for such a purpose, for physical

harm caused by the accidental, negligent, or

intentionally harmful acts of third persons or

animals, and by the failure of the possessor to

exercise reasonable care to (a) discover that such

acts are being done or are likely to be done, or (b)

give a warning adequate to enable visitors to avoid

the harm, or otherwise to protect them against it.

Restatement (Second) of Torts § 344 (Am. Law Inst. 1981).

¶19 But the cases on which Miller relies to support her

position do not involve statutes or address governmental

immunity. See Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183–84

(Utah 1991) (holding that under section 344 of the Restatement

(Second) of Torts, a jewelry business was not liable for injuries

the plaintiff sustained during a robbery of the store); Steffensen v.

Smith’s Mgmt. Corp., 820 P.2d 482, 489 n.5 (Utah Ct. App. 1991)

(noting that the district court’s finding that the defendant

grocery corporation owed the customer plaintiff “a duty to take

reasonable precautions to protect her from the criminal acts of

third parties was correct” where the defendant had foreseen that

the criminal acts would occur). And section 63G-301(3)(a)(ii) of

the GIA, the basis of Miller’s claim for waiver, does not address

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Miller v. West Valley City

harm “caused by the accidental, negligent, or intentionally

harmful acts of third persons or animals.” See Restatement

(Second) of Torts § 344. Nor does it distinguish invitees from

other classes of persons. Thus it is not clear that the statute

should “incorporate the term-of-art sense[s] of these terms.” See

Barneck, 2015 UT 50, ¶ 16.

¶20 Miller also argues that an obstruction in a swim lane is a

dangerous condition that creates a substantial risk of injury for

swimmers who are using the lane in a reasonably foreseeable

manner. But her contentions do not address the basis of the

district court’s decision: that governmental immunity is only

waived for defective or dangerous conditions of a building, and

waiver does not extend to conditions inside a building. In order

to persuade us that the district court’s interpretation of the

statute was incorrect, Miller must address the reasoning of the

district court’s decision to interpret the statute as it did. See

Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153,

¶ 8, 257 P.3d 441. Because Miller has not done so, we are not

persuaded that the court erred.

¶21 In any event, we conclude the district court’s statutory

interpretation was correct. When interpreting statutes, “we look

first to the statute’s plain language,” and “[w]hen the plain

meaning of the statute can be discerned from its language, no

other interpretive tools are needed.” LPI Services v. McGee, 2009

UT 41, ¶ 11, 215 P.3d 135 (citation and internal quotation marks

omitted). As stated, section 63G-7-301(3)(a)(ii) waives immunity

for injuries caused by “any defective or dangerous condition of a

public building.” Utah Code Ann. § 63G-7-301(3)(a)(ii)

(LexisNexis 2011). This waives immunity if there exists a

dangerous condition of the building, but it does not specify that

liability reaches to the conditions within a public building. We

agree with the district court that “to adopt [Miller’s] broader

interpretation of the statute” would, in effect, have it read: “any

defective or dangerous condition of or in a public building.”

(Emphasis added.) As the district court noted, “[a] plain reading

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makes clear that the legislature intended to create liability as it

concerns the structure or building itself, . . . not conditions found

within.”

¶22 Additionally, Barneck defines a dangerous condition as a

“‘property defect.’” Barneck v. Utah Dep’t of Transp., 2015 UT 50,

¶ 17, 353 P.3d 140 (quoting Black’s Law Dictionary 335 (9th ed.

2009)). Although property defects may occur within a building,

such flaws do not encompass conditions unrelated to the

structure of a building. The “dangerous condition” alleged by

Miller was a teenager obstructing a swim lane. This is not a

property defect and is not connected to a dangerous condition of

the building itself. Therefore, the district court was correct in

determining that Miller’s complaint failed to sufficiently plead

waiver of immunity under the GIA.

III. Negligence

¶23 Miller next contends the district court erred in

determining that WVC was immune from a negligence claim. In

its decision, the court noted the GIA waives governmental

immunity “as to any injury proximately caused by a negligent

act or omission of an employee committed within the scope of

employment.” Utah Code Ann. § 63G-7-301(4). To prevail in a

negligence action, a plaintiff must prove “(1) the defendant

owed the plaintiff a duty of care, (2) the defendant breached that

duty, and (3) the breach proximately caused (4) the plaintiff to

suffer legally compensable damages.” Cope v. Utah Valley State

College, 2014 UT 53, ¶ 11, 342 P.3d 243. In determining whether a

government entity owes a duty of care to a plaintiff, courts

“must evaluate whether the public duty doctrine dictates that an

individual may not enforce a public duty in tort.” Id. ¶ 12. The

district court determined that the public duty doctrine barred

Miller from bringing a claim against WVC and that Miller had

not alleged any facts to establish the special relationship

exception to the public duty doctrine, and therefore dismissed

her negligence claim.

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Miller v. West Valley City

¶24 First, we determine whether the public duty doctrine

applies, and if it does, we then determine whether Miller

demonstrated an exception to it.

A. Public Duty Doctrine

¶25 The Utah Supreme Court addressed the public duty

doctrine in Cope. A public duty is “an obligation owed to the

general public at large.” Id. ¶ 31 (citation and internal quotation

marks omitted). Under the doctrine, “a plaintiff cannot recover

for the breach of a duty owed to the general public, but must

show that a duty is owed to him or her as an individual.” Id. ¶ 12

(citation and internal quotation marks omitted). Thus, “a duty to

all is a duty to none.” Cannon v. University of Utah, 866 P.2d 586,

588 (Utah Ct. App. 1993) (citation and internal quotation marks

omitted). By precluding liability actions when a government

entity has “assume[d] a duty to protect the general public from

harms,” this doctrine prevents a municipality from being “mired

hopelessly in civil lawsuits . . . for every infraction of the law.”

Cope, 2014 UT 53, ¶ 12 (citation and internal quotation marks

omitted). “If a plaintiff’s negligence claim is based upon a public

duty,” an exception to the doctrine applies when the plaintiff

“establishes a special relationship that imposes a specific duty of

care toward the plaintiff as an individual that is distinguishable

from a public duty owed to the general public.” Id.

¶26 In Cope, our supreme court determined that the public

duty doctrine applies only to omissions of a government actor,

not to its affirmative acts: “Where the harm is directly caused by

a third party . . . the government is not liable for its failure to

rescue the plaintiff from the external harm. Where the

affirmative acts of a public employee actually cause the harm,

however, the public duty doctrine does not apply.” Id. ¶ 24

(footnote omitted). Affirmative acts are defined as “active

misconduct working positive injury to others,” and omissions

are “passive inaction, a failure to take positive steps to benefit

others, or to protect them from harm not created by any

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wrongful act of the defendant.” B.R. ex rel. Jeffs v. West, 2012 UT

11, ¶ 7, 275 P.3d 228 (citation and internal quotation marks

omitted).

¶27 Cope explains, however, that “[a]ctive misfeasance” is not

“confined to situations where an affirmative act directly causes

harm to the plaintiff” but extends to situations where defendants

“had affirmatively created conditions that gave rise to a duty to

act in order to prevent harm.” Cope, 2014 UT 53, ¶ 35. For

example, “a surgeon who fails to sterilize instruments, causing

an infection” or “an automobile manufacturer that neglects to

adequately inspect an automobile for defects before selling it to a

consumer” could be liable for misfeasance because their “actions

had advanced to a stage where inaction would commonly result

in injury.” Id.

¶28 The facts in Cope illustrate this point. A college student

enrolled in a ballroom dance class sustained an injury while

practicing a particular lift. Cope v. Utah Valley State College, 2014

UT 53, ¶¶ 4–5, 342 P.3d 243. The parties emphasized different

aspects of the incident to characterize the college’s conduct as

either an act or an omission: the student claimed the injury was

caused by the instructor’s direction to practice a new maneuver

without spotters, and the college claimed the injury arose from a

failure to provide spotters who could have prevented the injury.

Id. ¶ 34. Our supreme court, noting that the issue did not depend

“upon the semantic framing of [the] negligence claim,”

determined that the college’s “actions in creating and overseeing

the ballroom dance team had advanced to a stage where it had a

duty to act in a reasonable manner to prevent injuries caused by

participation with the dance team.” Id. ¶¶ 35–36. Thus, the

college’s conduct was an affirmative act because the student did

not allege that the college “failed to rescue her from an external

threat,” and because the college “created the conditions that led

to her injury by creating the ballroom dance team.” Id. ¶ 37.

Accordingly, the public duty doctrine did not bar the student’s

claim. Id.

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¶29 Referencing Cope, Miller contends that WVC’s conduct

was likewise an affirmative act. She asserts that WVC “actively

engaged in the business of running a swimming pool,”

“promoted the swim lanes as a place where swimmers could

rely on the swim lanes to be free of obstructions,” and “hired

lifeguards to monitor the swim lanes and establish[] rules for

their safe use.” She alleges these “affirmative acts” “launched a

force or instrument of potential harm.” See id. ¶ 35.

¶30 We disagree and conclude that WVC’s conduct was an

omission and not an affirmative act. First, Miller’s complaint

repeatedly characterized WVC’s actions as a “failure to exercise

reasonable care,” and specifically noted WVC failed to keep the

swimming lanes clear of hazards. Though her complaint implied

that WVC engaged in the business of running a swimming pool,

and therefore owed a duty to its patrons, it did not allege facts

showing the public duty doctrine did not apply to her.

Furthermore, Miller’s complaint alleged her injury occurred

because the lifeguard failed to remove a third person from her

swim lane. The harm was directly caused by the presence of a

third party, not by the affirmative acts of the lifeguard, and thus

was caused by an omission. See id. ¶ 24.

¶31 We recognize the superficial similarity of these facts to

those in Cope. In Cope, the college created and oversaw the

ballroom dance team, which created “a duty to act in a

reasonable manner to prevent injuries caused by participation

with the dance team.” Id. ¶ 36. In the same vein, WVC engaged

in running a swimming pool, and by Miller’s argument, should

have a duty to act in a reasonable manner to prevent injuries to

users of that facility. But a key difference distinguishes this case

from Cope.

¶32 In Cope, the student was injured while following the

direction of the dance instructor; here, Miller’s injury was caused

by her collision with a teenager in her swim lane, not by an act of

or direction by the lifeguard. There is a difference between the

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direct supervision an instructor gives while teaching students to

perform a new maneuver and the general observations of a

lifeguard over an entire pool. Because Miller’s harm was

“directly caused by a third party”—the teenager—and not by

“the affirmative acts of a public employee”—the lifeguard—we

conclude the public duty doctrine bars Miller’s claim against

WVC. See Cope, 2014 UT 53, ¶ 24. We next determine whether

Miller qualifies for the special relationship exception to the

public duty doctrine.

B. Special Relationship

¶33 Because Miller’s negligence claim is based upon a public

duty, she must demonstrate a special relationship between

herself and WVC “that imposes a specific duty of care toward

[her] as an individual that is distinguishable from a public duty

owed to the general public.” See Cope v. Utah Valley State College,

2014 UT 53, ¶ 12, 342 P.3d 243. Miller asserts she had a special

relationship with WVC because she was an invitee. But for

Miller to establish a special relationship, she had to show WVC

owed a duty “specifically to [her] as [an] individual[], rather

than a duty owed to the public at large.” See Cannon v. University

of Utah, 866 P.2d 586, 589 (Utah Ct. App. 1993). That is not the

case here. WVC did not owe Miller a duty different from that

which it would owe all members of the public, namely, to monitor

the swimming pool to keep the lanes free of obstructions.

¶34 In Cannon v. University of Utah, the Cannons crossed the

street separating a parking lot from the University of Utah

campus. Id. at 587. Two police officers were assigned “to the

crosswalk to assist in controlling traffic.” Id. “It had been raining

and snowing intermittently, and the officers . . . had marked the

crosswalk with flares.” Id. But by the time the Cannons crossed

the street, “the flares had burned out, and the two officers were

sitting in their patrol car.” Id. As the Cannons crossed the street,

a vehicle struck them. Id. They sued the University, and the trial

court “entered summary judgment in favor of the University,

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Miller v. West Valley City

concluding that . . . the officers owed [them] no duty of care.” Id.

at 588. This court determined that “to establish a negligence

claim,” the Cannons needed to demonstrate they had a special

relationship with the University by “show[ing] that the

University breached a duty owed specifically to them as

individuals.” Id. at 589. This court concluded the officers did not

owe the Cannons a duty distinct from “a general duty owed to

the public at large.” Id. Rather, neither “the Cannons nor the

University did anything to set apart the Cannons . . . from the

general public. The service provided by the officers was the

same for all pedestrians using the crosswalk . . . .” Id. Thus,

“there was no special relationship between the Cannons and the

University,” because “the officers did not owe any specific duty

to the Cannons which they did not already owe to the general

public.” Id. at 590.

¶35 Here, the lifeguard did not owe Miller a duty specific to

her. Rather, WVC’s lifeguards were employed to ensure the

safety of the general public. The lifeguard monitoring the pool in

which Miller was swimming was there to survey the conditions

of the entire pool and ensure the safety of all its patrons. We thus

conclude that Miller did not have a special relationship with

WVC.

¶36 Because Miller’s negligence claim is barred by the public

duty doctrine and because she has not established a special

relationship, we conclude the district court correctly dismissed

her claim.

CONCLUSION

¶37 For the foregoing reasons, we affirm the decision of the

district court.

20150449-CA 17 2017 UT App 65