Cope v. Utah Valley State College , 2014 UT 53 ( 2014 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2014 UT 53
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
SHAWNNA RAE COPE,
Appellant,
v.
UTAH VALLEY STATE COLLEGE ,
Appellee.
No. 20130016
Filed November 21, 2014
On Certiorari to the Utah Court of Appeals
Fourth District, Provo Dep’t
The Honorable Samuel D. McVey
No. 060402488
Attorneys:
Terry M. Plant, Stewart B. Harman, Salt Lake City, for appellant
Sean D. Reyes, Att’y Gen., J. Clifford Petersen, Asst. Att’y Gen.,
Salt Lake City, for appellee
Michael D. Zimmerman, Troy L. Booher, Julie J. Nelson,
Salt Lake City, for Amicus Curiae
JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING ,
JUSTICE PARRISH and JUSTICE LEE join.
JUSTICE DURHAM , opinion of the Court:
INTRODUCTION
¶1 Shawnna Cope was injured while practicing with the Utah
Valley State College (UVSC) ballroom dance team, and sued the
state-owned college.1 The district court dismissed the lawsuit, ruling
that the public duty doctrine dictated that UVSC owed no duty of
care to Ms. Cope. The court of appeals subsequently held that the
1
After the accident leading to this appeal, Utah Valley State
College changed its name to Utah Valley University. Because the
pleadings and the courts below have consistently referred to the
institution by its name on the date of the accident, we likewise use
UVSC throughout this opinion.
COPE v. UTAH VALLEY STATE COLLEGE
Opinion of the Court
public duty doctrine did not apply to Ms. Cope’s lawsuit and
reversed the trial court. We granted certiorari.
¶2 Having requested additional briefing from the parties, we
take this opportunity to clarify the public duty doctrine. First, we
decline to abrogate the doctrine, as several other states have done,
and retain the public duty doctrine as part of Utah’s common law.
Second, we overturn in part Webb v. University of Utah, 2005 UT 80,
125 P.3d 906, and hold that the public duty doctrine applies only to
the omissions of a governmental actor. The doctrine does not
immunize the State from liability for affirmative acts that harm a
plaintiff. Third, we clarify that the public duty doctrine is limited to
situations where a plaintiff seeks to impose liability for a duty to
protect the general public from external harms.
¶3 Applying these principles to this case, we hold that the
public duty doctrine does not negate UVSC’s duty of care toward
student members of a ballroom dance team created and overseen by
the college. We therefore reverse the district court, although for
reasons different from those expressed by the court of appeals, and
remand for further proceedings.
BACKGROUND
¶4 Ms. Cope was a member of a ballroom dance team at UVSC,
a state-owned college. She was also enrolled in a ballroom dance
class that awarded her credit for her participation with the team.
During a team practice, Ms. Cope was rehearsing a choreographed
dance routine that required her partner to lift her to his shoulder as
she completed a back flip. When couples on the dance team learn a
new lift, spotters are usually provided to catch the female dancer if
she falls. On this particular occasion, though, no spotters were
requested or provided. Ms. Cope and her partner attempted the lift
twice, but they did not properly complete the maneuver. On the first
two attempts, her partner lifted Ms. Cope to his right shoulder,
which was easier than lifting her across his body to his left shoulder.
¶5 Ms. Cope’s partner told the class instructor that he had
never been able to successfully perform this particular lift, and the
instructor told the couple to try the lift again, this time to the left
shoulder. The instructor told Ms. Cope to push off with greater force
and told her partner to lift with more power, but did not give further
guidance on how to complete the maneuver. The instructor also said
that if the couple was unable to perform the maneuver properly, he
would have to cut it from the routine. On the third attempt
Ms. Cope’s partner lost his footing, and she fell. Her partner used his
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body to cushion the fall, but Ms. Cope sustained an injury when her
head struck her partner’s knee.
¶6 Ms. Cope sued UVSC, alleging the college negligently
caused her injury. She also alleged UVSC was liable for the class
instructor’s negligence under the doctrine of respondeat superior.
UVSC moved for summary judgment, arguing UVSC owed no duty
to protect Ms. Cope from harm because it did not have a special
relationship with her. The district court denied the motion and set
a trial date. UVSC then renewed its motion for summary judgment,
attaching additional evidence that Ms. Cope and her partner had
practiced lifting her to the partner’s right shoulder prior to the date
of the accident.
¶7 The district court granted the renewed motion for summary
judgment and dismissed Ms. Cope’s lawsuit. Relying upon our
analysis of the public duty doctrine in Webb v. University of Utah,
2005 UT 80, 125 P.3d 906, the district court ruled that UVSC did not
form a special relationship with Ms. Cope, and therefore UVSC
owed her no duty of care. The district court reasoned that because
Ms. Cope was aware that she was performing a new lift that she and
her partner had not successfully completed before, and because the
instructor gave her the option of cutting the maneuver from the
routine, UVSC did not induce “detrimental reliance creating a
greater risk of peril than existed otherwise.”
¶8 Ms. Cope appealed, and the court of appeals reversed the
district court because it found that the special relationship exception
to the public duty doctrine applied to Ms. Cope. Cope v. Utah Valley
State Coll., 2012 UT App 319, ¶ 27, 290 P.3d 314. The court of appeals
held that “a special relationship is created when (1) a directive is
given to a student (2) by a teacher or coach (3) within the scope of
the academic enterprise” and found that a special relationship had
been formed under the facts of this case. Id. ¶ 17.
¶9 This court granted certiorari on the following issue:
“Whether the court of appeals erred in its construction and
application of the special relationship test articulated by Webb v.
University of Utah, 2005 UT 80, 125 P.3d 906.” After the parties
presented oral argument to this court, we issued an order requesting
supplemental briefing on the following issues:
1. Should the scope and application of the public duty
doctrine be limited to public employees with duties to
the public as a whole, such as public safety officers?
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2. Should the public duty doctrine be applied to
affirmative acts of government employees or should the
doctrine be limited to omissions?
3. Should the public duty doctrine be retained in our
common law?
STANDARD OF REVIEW
¶10 In this appeal, we review the court of appeals’
determination that the district court erred in ruling that neither
UVSC nor its employee owed an enforceable duty of care to
Ms. Cope. Whether a defendant owes a duty of care to a plaintiff is
question of law. B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 23, 275 P.3d
228. We therefore review de novo a lower court’s determination of
whether a duty exists. Slisze v. Stanley-Bostitch, 1999 UT 20, ¶ 9, 979
P.2d 317.
ANALYSIS
¶11 In order to prevail in an action for negligence, a plaintiff
must prove that (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. B.R.
ex rel. Jeffs v. West, 2012 UT 11, ¶ 5 n.2, 275 P.3d 228. The first element
of a negligence claim, a duty of care, “may be defined as an
obligation, to which the law will give recognition and effect, to
conform to a particular standard of conduct toward another.”
Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 19, 215 P.3d 152
(internal quotation marks omitted). “A court’s conclusion that duty
does or does not exist is an expression of the sum total of those
considerations of policy which lead the law to say that the plaintiff
is [or is not] entitled to protection.” Webb v. Univ. of Utah, 2005 UT
80, ¶ 9, 125 P.3d 906 (alteration in original) (internal quotation marks
omitted).
¶12 When determining whether a government actor owes a
duty of care to a plaintiff, we have held that courts must evaluate
whether the public duty doctrine dictates that an individual may not
enforce a public duty in tort. Under this 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.” Madsen v.
Borthick, 850 P.2d 442, 444 (Utah 1993); accord Ferree v. State, 784 P.2d
149, 151 (Utah 1989) (“For a governmental agency and its agents to
be liable for negligently caused injury suffered by a member of the
public, the plaintiff must show a breach of a duty owed him as an
individual, not merely the breach of an obligation owed to the
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general public at large by the governmental official.”). In other
words, “a duty to all is a duty to none.” Cannon v. Univ. of Utah, 866
P.2d 586, 588 (Utah Ct. App. 1993) (internal quotation marks
omitted). The public duty doctrine is based on the policy
determination that when a governmental entity assumes a duty to
protect the general public from harms such as criminal activity,
holding the entity liable for a breach of this duty would cause
municipalities to be “mired hopelessly in civil lawsuits . . . for every
infraction of the law.” Prosser v. Kennedy Enters., Inc., 179 P.3d 1178,
1183 (Mont. 2008). If a plaintiff’s negligence claim is based upon a
public duty, courts will recognize the duty only if 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. Madsen, 850 P.2d at 444.
¶13 In deciding whether the public duty doctrine prevents
Ms. Cope from establishing the necessary duty element of her
negligence cause of action, we first examine the issues outlined for
supplemental briefing: (1) whether the public duty doctrine should
be retained, (2) whether the doctrine applies to both acts and
omissions, and (3) whether the doctrine is limited to employees with
duties to the public at large. Because we hold that the public duty
doctrine should be retained in our common law, we finally examine
whether the doctrine bars Ms. Cope’s lawsuit.
I. VALIDITY OF THE PUBLIC DUTY DOCTRINE IN UTAH
¶14 The public duty doctrine is recognized in most jurisdictions.
See Beaudrie v. Henderson, 631 N.W.2d 308, 311 (Mich. 2001). By our
count, however, twelve state supreme courts have explicitly rejected
or abandoned the doctrine.2 These courts generally have justified the
abandonment of the public duty doctrine by reasoning that it was a
2
Adams v. State, 555 P.2d 235, 241–42 (Alaska 1976); Coffey v. City
of Milwaukee, 247 N.W.2d 132, 137–39 (Wis. 1976); Commercial Carrier
Corp. v. Indian River Cnty., 371 So. 2d 1010, 1015 (Fla. 1979); Brennen
v. City of Eugene, 591 P.2d 719, 724–25 (Or. 1979); Ryan v. State, 656
P.2d 597, 599 (Ariz. 1982); Schear v. Bd. of Cnty. Comm’rs, 687 P.2d
728, 730–31 (N.M. 1984); Maple v. City of Omaha, 384 N.W.2d 254, 260
(Neb. 1986); Leake v. Cain, 720 P.2d 152, 160 (Colo. 1986); DeWald v.
State, 719 P.2d 643, 653 (Wyo. 1986); Jean W. v. Commonwealth, 610
N.E.2d 305, 312–13 (Mass. 1993); Doucette v. Town of Bristol, 635 A.2d
1387, 1390 (N.H. 1993); Ficek v. Morken, 685 N.W.2d 98, 107–08 (N.D.
2004); see also Arthurs ex rel. Estate of Munn v. Aiken Cnty., 551 S.E.2d
579, 585 (S.C. 2001) (retaining the public duty doctrine when applied
to statutory duties but rejecting the doctrine when applied to
common-law duties).
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Opinion of the Court
form of governmental immunity and was therefore inconsistent with
their state legislatures’ abrogation of absolute sovereign immunity.
E.g., Doucette v. Town of Bristol, 635 A.2d 1387, 1390 (N.H. 1993)
(“[T]he public duty rule impermissibly conflicts with the abrogation
of common law municipal immunity . . . .”); Adams v. State, 555 P.2d
235, 241 (Alaska 1976) (“[W]e consider that the [public duty] doctrine
is in reality a form of sovereign immunity, which is a matter dealt
with by statute in Alaska, and not to be amplified by court-created
doctrine.”).
¶15 We disagree with the reasoning of the courts that have
abandoned the public duty doctrine. The public duty doctrine is not
a subsidiary branch of sovereign immunity, as asserted by some
courts. See Adams, 555 P.2d at 241. Rather, the doctrine informs a
court’s determination of whether a government actor owes a
common law duty of care to a plaintiff. Day v. State, 1999 UT 46, ¶ 10,
980 P.2d 1171 (treating the public duty doctrine and sovereign
immunity as separate and distinct legal principles); Higgins v. Salt
Lake Cnty., 855 P.2d 231, 235 (Utah 1993) (same). “Conceptually, the
question of the applicability of a statutory immunity does not even
arise until it is determined that a defendant otherwise owes a duty
of care to the plaintiff and thus would be liable in the absence of
such immunity.” Ferree v. State, 784 P.2d 149, 153 (Utah 1989)
(internal quotation marks omitted); see also Turner v. United States,
248 U.S. 354, 358 (1919) (“The fundamental obstacle to recover
[under the public duty doctrine] is not the immunity of a sovereign
to suit, but the lack of a substantive right to recover the damages
resulting from failure of a government or its officers to keep the
peace.”).
¶16 We therefore see no reason to deviate from our prior
holding that
the legislature’s abrogation of absolute sovereign
immunity does not lead to the conclusion that the
public duty doctrine has also been abrogated.
Legislative recognition of a right to recover from one
who has previously been immune from liability for
tortious acts cannot logically be read as an elimination
of the requirement that before one can recover damages
from another, a tort must be proven. There must still be
proof of a duty owed to the one claiming injury and a
breach of that duty.
Rollins v. Petersen, 813 P.2d 1156, 1162 n.3 (Utah 1991); see also Arthurs
ex rel. Estate of Munn v. Aiken Cnty., 551 S.E.2d 579, 583 (S.C. 2001)
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(“Since the public duty rule is not grounded in immunity but rather
in duty, we hold it has not been affected by [the legislative
abrogation of absolute sovereign immunity].” (Citations omitted)).
In fact, this court did not adopt the public duty doctrine until several
years after the legislature first limited Utah’s sovereign immunity in
1965 by passing the Governmental Immunity Act. 1965 Utah Laws
390–97; Obray v. Malmberg, 484 P.2d 160, 162 (Utah 1971). Thus,
Utah’s abrogation of absolute sovereign immunity could not
impliedly extinguish a doctrine not yet recognized by this court.3
¶17 Stare decisis bolsters our decision to retain the public duty
doctrine. This court has consistently applied the doctrine for over
forty years.4 Presumably, government officials and employees have
relied upon this long-standing legal principle in performing their
public duties, and we should not disrupt the status quo without
good cause to do so. See Carter v. Lehi City, 2012 UT 2, ¶ 6, 269 P.3d
141. As noted above, we find no compelling legal rationale for
abandoning the public duty doctrine, and therefore follow our
precedent recognizing it.
¶18 Having affirmed the continued validity of the public duty
doctrine in Utah, we next examine its proper scope.
II. APPLICABILITY OF THE PUBLIC DUTY DOCTRINE
TO ACTS AND OMISSIONS
¶19 In Webb v. University of Utah, we held that the public duty
doctrine applies to both acts and omissions. 2005 UT 80, ¶ 15, 125
P.3d 906. Having invited the parties to brief the continued viability
of this principle, we consider whether to modify this holding. We
3
After briefing and oral argument in this case, the legislature
enacted a law that appears to be a statutory endorsement of the
special relationship exception to the public duty doctrine: “A general
duty that a governmental entity owes to the public does not create
a specific duty to an individual member of the public, unless there
is a special relationship between the governmental entity and the
individual member of the public.” S.B. 250, 60th Leg., Gen. Sess.
[Utah 2014] (modifying Utah Code section 63G-7-202). Because this
apparent statutory expression of the public duty doctrine is not
retroactive, it does not affect the disposition of this case. See State v.
Clark, 2011 UT 23, ¶ 11, 251 P.3d 829. We therefore leave the
interpretation of this statute for another day.
4
Webb v. Univ. of Utah, 2005 UT 80, ¶ 16, 125 P.3d 906; Day, 1999
UT 46, ¶ 11; Rocky Mountain Thrift Stores Inc. v. Salt Lake City Corp.,
887 P.2d 848, 852 (Utah 1994); Madsen v. Borthick, 850 P.2d 442, 444
(Utah 1993); Ferree, 784 P.2d at 151–52; Christenson v. Hayward, 694
P.2d 612, 612–13 (Utah 1984); Obray, 484 P.2d at 161–62.
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“may not do so lightly.” State v. Menzies, 889 P.2d 393, 399 n.3 (Utah
1994). This court should overturn its own precedent only “where the
decision is clearly erroneous or conditions have changed so as to
render the prior decision inapplicable.” Id. (internal quotation marks
omitted). In addition, we consider whether overturning a precedent
would undermine the public’s substantial reliance upon an
established legal principle. As we have noted, “people should know
what their legal rights are as defined by judicial precedent, and
having conducted their affairs in reliance on such rights, ought not
to have them swept away by judicial fiat.” Carter v. Lehi City, 2012
UT 2, ¶ 6, 269 P.3d 141 (internal quotation marks omitted).
¶ 20 In deciding whether Webb was clearly erroneous, we first
examine the legal support for our conclusions in that opinion to
determine its precedential weight. Menzies, 889 P.2d at 399
(overturning the holding of an opinion because it was “not the most
weighty of precedents ”). We then look to the origins and purpose
of the public duty doctrine to determine whether our conclusion in
Webb—that the doctrine extends to affirmative acts—is clearly
erroneous. Finally, we consider whether substantial reliance interests
in the Webb holding counsel against overturning our precedent.
¶21 Webb states that “governmental actors are not accountable
for their affirmative acts unless a special relationship is present.”
2005 UT 80, ¶ 16. In support of this declaration, we cited Day v. State,
where we held that a general public duty “does not impose a specific
duty of due care on the government with respect to individuals who
may be harmed by governmental action or inaction, unless there is”
a special relationship. 1999 UT 46, ¶ 12, 980 P.2d 1171 (emphasis
added). But at this point in tracing the origins of our holding in
Webb, the trail goes cold. The authorities cited in Day do not discuss
the extension of the public duty doctrine to affirmative acts that
cause harm. See id. Moreover, the Day court explicitly recognized in
a footnote that several courts have held that the public duty rule
does not apply to affirmative acts. Id. ¶ 13 n.2 (“Some courts have
also recognized an exception to the public duty rule where there is
an affirmative act by the officer causing injury.” (internal quotation
marks omitted)). So, not only is Day’s statement that “governmental
action or inaction” is covered by the public duty doctrine of
uncertain origin and devoid of analysis, but the opinion also points
to authority that contradicts this conclusion. Thus, Webb’s conclusion
that the public duty doctrine applies to affirmative acts apparently
builds on the shaky foundation of our unsubstantiated stray dicta in
Day.
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¶22 Additionally, the clear preponderance of caselaw
contradicts our assertion in Webb. The origins of the public duty
doctrine can be traced back to South v. Maryland, 59 U.S. (18 How.)
396 (1855). In that case, the plaintiff asserted that “certain
evil[-]disposed persons came about him, hindered and prevented
him, threatened his life, with force of arms demanded of him a large
sum of money, and imprisoned and detained him for the space of
four days, and until he paid them the sum of $2,500 for his
enlargement.” Id. at 401 (internal quotation marks omitted). The
plaintiff requested protection from the local sheriff, who was
apparently present for at least a portion of the ordeal, but the sheriff
refused to assist him. Id. The plaintiff then sued the sheriff, alleging
the sheriff had neglected to execute the duty imposed by his position
to keep the peace. Id. The Supreme Court held, however, that the
sheriff could not be held liable for breach of his public duties as
conservator of the peace “by those who have suffered injury to their
property or persons through the violence of mobs, riots, or
insurrections.” Id. at 403. The Court noted that because the plaintiff
had not alleged that his individual rights and privileges had “been
restrained or hindered by the malicious act of the sheriff,” the
plaintiff had not pled a viable cause of action against the sheriff. Id.
(emphasis added). Thus, the Supreme Court established that a public
official could not be held liable for a failure to perform a public duty,
but suggested that the official could be liable for harmful acts. See
also Turner v. United States, 248 U.S. 354, 357–58 (1919) (tribal officials
not liable for failing to prevent individuals from destroying a fence).
¶23 The great weight of state law supports the distinction
between omissions and affirmative acts established by the Supreme
Court. Most other jurisdictions that have considered the issue have
held that the public duty doctrine shields a governmental actor only
from liability for omissions. See, e.g., Commonwealth v. Burns, 639
S.E.2d 276, 279 (Va. 2007) (declining to extend the public duty
doctrine to include the affirmative acts of a road construction crew
in creating a dangerous condition on a public highway); Gleason v.
Peters, 568 N.W.2d 482, 487 (S.D. 1997) (holding that a police
department had no duty to stop a party because it was “undisputed
that no affirmative action by the officers contributed to, increased,
or changed the risk which would have otherwise existed” (internal
quotation marks omitted)); Willis v. Warren Twp. Fire Dep’t, 672
N.E.2d 484, 487 (Ind. Ct. App. 1996) (“The [public duty] test . . . is
limited in application to cases in which a government’s promise and
subsequent failure to act causes the plaintiff’s losses.”); Coty v.
Washoe Cnty., 839 P.2d 97, 99 (Nev. 1992) (public duty doctrine does
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not apply “where a public officer’s conduct ‘affirmatively causes’ harm
to an individual”); Dauffenbach v. City of Wichita, 667 P.2d 380, 385
(Kan. 1983) (public duty doctrine does not apply “where there is an
affirmative act by the officer causing injury”); Jahnke v. Inc. City of
Des Moines, 191 N.W.2d 780, 785 (Iowa 1971) (“[T]he general rule is
that a municipality or its employees is not liable for failure to supply
general police or fire protection.”); Massengill v. Yuma Cnty., 456 P.2d
376, 379 (Ariz. 1969) (“The failure of a public officer to perform a
public duty can constitute an individual wrong only when some
person can show that in the public duty was involved also a duty to
himself as an individual, and that he has suffered a special and
peculiar injury by reason of its nonperformance.” (emphasis added)
(internal quotation marks omitted)), overruled on other grounds by
Ryan v. State, 656 P.2d 597 (Ariz. 1982) (abrogating the public duty
doctrine); Bacon v. Town of Rocky Hill, 11 A.2d 399, 402 (Conn. 1940)
(governmental entity may be held liable for affirmatively creating a
dangerous condition on a public highway, but not for omissions in
failing to remedy a dangerous condition it did not create).
¶24 Utah caselaw prior to Webb was in line with this prevailing
view, applying the public duty doctrine to shield governmental
actors from liability only for negligent omissions. Rocky Mountain
Thrift Stores Inc. v. Salt Lake City Corp., 887 P.2d 848, 852 (Utah 1994)
(city not liable for alleged failure to adequately ameliorate the
negative effects of a flood); Madsen v. Borthick, 850 P.2d 442, 444–45
(Utah 1993) (state agency not liable for alleged failure to properly
regulate a financial institution that failed); Ferree v. State, 784 P.2d
149, 151–52 (Utah 1989) (state corrections officials had no duty to
prevent an inmate on weekend release from harming unidentified
third parties); Christenson v. Hayward, 694 P.2d 612, 612–13 (Utah
1984) (police officer did not have a duty to prevent a drunk
motorcyclist from driving and harming himself); Obray v. Malmberg,
484 P.2d 160, 161–62 (Utah 1971) (sheriff not liable for an alleged
failure to properly investigate a crime). In contrast, we have declined
to apply the public duty doctrine where an officer’s act of engaging
in a high-speed vehicle pursuit affirmatively “created an immediate,
obvious, and significant threat of serious harm to other users of the
highway.” Day, 1999 UT 46, ¶ 24. The distinction between these two
lines of Utah caselaw lies in the source of the harm to the plaintiff.
Where the harm is directly caused by a third party, the plaintiff’s
own negligence, or an outside force such as a natural disaster, the
government is not liable for its failure to rescue the plaintiff from the
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external harm.5 Where the affirmative acts of a public employee
actually cause the harm, however, the public duty doctrine does not
apply. See Fried v. Archer, 775 A.2d 430, 444 (Md. Ct. Spec. App. 2001)
(The public duty doctrine protects police dispatchers “because such
dispatchers do not create the plaintiff’s peril. The government driver
who injures a plaintiff through his negligence is liable because he
created the peril, not because he failed to rescue the plaintiff from
it.”), aff’d sub nom. Muthukumarana v. Montgomery Cnty., 805 A.2d 372
(Md. 2002); Huey v. Town of Cicero, 243 N.E.2d 214, 216 (Ill. 1968)
(“[T]he general rule is that a municipality or its employees is not
liable for failure to supply general police or fire protection. This rule
has been maintained in the face of decisions holding municipalities
liable for affirmative negligent or wilful acts by their employees.”
(Citations omitted)).
¶25 Moreover, limiting the public duty doctrine to omissions
comports with the special relationship exception to the doctrine.
Under this exception, a government defendant may be held liable for
the violation of what would otherwise be a public duty if the
defendant formed a special relationship with the plaintiff that gave
rise to a specific duty of care toward the plaintiff as an individual.
Madsen, 850 P.2d at 444. This special relationship exception makes
sense only in the context of omissions. For instance, if a police officer
affirmatively acts by negligently discharging his weapon and
wounds a child ten blocks away, it would be absurd to inquire
whether the officer had a special relationship with the innocent
victim. Imposing liability if the officer happened to have a special
relationship with the child, but disallowing recovery if no such
relationship existed simply would not make sense. The inherent
absurdity of applying a special relationship exception to the
affirmative acts of public safety employees stems from the fact that
the foreseeability of the harm, rather than the nature of the
tortfeasor’s relationship to the plaintiff, limits liability for affirmative
5
The public duty doctrine is not confined, however, to situations
where a public employee takes no action whatsoever. “[A] failure to
perform [a public duty], or an inadequate or erroneous performance,
must be a public, not an individual injury . . . .” White v. Beasley, 552
N.W.2d 1, 3 (Mich. 1996) (emphasis added) (internal quotation
marks omitted). In Rocky Mountain Thrift Stores, for example, Salt
Lake City took various measures to combat extreme flooding. 887
P.2d at 851. The public duty doctrine, however, shielded the city
from liability for the plaintiff’s claims that these efforts were
inadequate. Id. at 852. In other words, governmental actors are also
not liable for a defective effort to perform a public duty to ameliorate
an externally caused harm.
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acts causing harm. See B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶¶ 19,
27–28, 275 P.3d 228; Furkovich v. Bingham Coal & Lumber Co., 143 P.
121, 124 (Utah 1914). In contrast, the special relationship exception
to the public duty doctrine serves a similar function to the tort
principle that a private individual generally has no duty to act to
rescue another from harm unless there is a special relationship that
creates such a duty. See B.R., 2012 UT 11, ¶¶ 7–19; RESTATEMENT
(THIRD ) OF TORTS: PHYS. & EMOT . HARM §§ 37, 40 (2012). For both
government actors and private individuals, the special relationship
exception permits liability for omissions where a special relationship
has been formed as an exception to the primary rule that no duty to
act exists.6
¶26 Finally, any reliance interests in Webb are not substantial
enough to prevent this court from overruling it. See Carter, 2012
UT 2, ¶ 6. Unlike the public duty doctrine itself, which we have
consistently applied over the last forty years, supra ¶ 17, our holding
in Webb is an isolated application of that doctrine, supra ¶¶ 21, 23.
Because Webb has not become a well-entrenched or frequently
applied precedent, the public’s reliance upon Webb is not as strong.
Moreover, our holding in Webb involved the common law, which is
subject to continuing evolution and refinement and may not
engender the same sort of reliance interest as an interpretation of a
statute, for example.
¶27 In summary, the genesis of the public duty doctrine, the
great weight of foreign authority, and our prior caselaw all limit the
doctrine’s application to omissions. This, coupled with the dubious
support for our holding in Webb, leads us to the conclusion that we
clearly erred by expanding the doctrine to encompass affirmative
acts. We therefore overrule Webb on this point and hold that the
6
By excepting from liability the public duties certain government
employees perform by virtue of their employment, the public duty
doctrine places public safety employees on the same footing as
private actors. Neither may be subjected to tort liability for a failure
to rescue another from harm absent a special relationship.
Conceptually, it appears that there is little difference between the
special relationship exception applied to a private individual’s
failure to rescue another from harm and the special relationship
exception applied to a public employee’s failure to perform a public
duty to safeguard the general public. But because the degree to
which the special relationship exception applied to the omissions of
private individuals and the special relationship exception applied to
the omissions of public safety officials is not a question we need
resolve in this appeal, we reserve it for another day.
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Opinion of the Court
public duty doctrine does not apply to claims of affirmative
misconduct.
III. SCOPE OF DUTIES PROTECTED BY
THE PUBLIC DUTY DOCTRINE
¶28 We now turn to the question of which types of duties are
“public duties” that may not be enforced in a lawsuit against a
government agency or public employee. Before we do so, though,
we first discuss the proper relationship between the public duty
doctrine and the special relationship exception.
¶29 In Webb v. University of Utah, we stated that “[w]ithout a
special relationship, the University owed no duty to [the plaintiff].”
2005 UT 80, ¶ 16, 125 P.3d 906. Understandably relying upon this
perhaps inartful declaration, both the district court and the court of
appeals exclusively focused on the question of whether UVSC had
formed a special relationship with Ms. Cope. Under this
construction of the public duty doctrine, the primary question is
whether a special relationship has been established. Examining the
special relationship exception first, however, distorts the public duty
doctrine. In essence, the doctrine becomes a “special relationship
doctrine,” with governmental actors owing a duty of care only
where they have reached out to form a special relationship with
members of the public.
¶30 Instead, courts must first determine whether a plaintiff’s
theory of liability rests upon a public duty. If a plaintiff’s claim is
based on the defendant’s failure to adequately discharge a public
duty, a presumption arises that this duty may not be a basis for
liability in a lawsuit. Only then should the court examine whether a
special relationship exists that would create an exception to the
general rule that public duties may not provide a basis for liability.
¶31 We have defined a public duty as “an obligation owed to
the general public at large.” Ferree v. State, 784 P.2d 149, 151 (Utah
1989). The most common examples of public duties include (1) the
duty a police officer assumes to protect the public from harm caused
by the criminal acts of third parties and (2) the duty of a firefighter
to protect the public from fires or natural disasters. See, e.g., Powell
v. District of Columbia, 602 A.2d 1123, 1128 (D.C. 1992) (“[T]he [public
duty] doctrine applies to law enforcement services and services akin
to police and fire protection . . . .”); Cuffy v. City of New York, 505
N.E.2d 937, 939 (N.Y. 1987) (“As a general rule, a municipality may
not be held liable for injuries resulting from a simple failure to
provide police protection.”); John H. Derrick, Annotation, Modern
Status of Rule Excusing Governmental Unit from Tort Liability on Theory
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COPE v. UTAH VALLEY STATE COLLEGE
Opinion of the Court
that Only General, Not Particular, Duty Was Owed Under Circumstances,
38 A.L.R.4TH 1194, § 2 (1985) (“Under the [public duty] doctrine a
governmental entity is not liable for injury to a citizen where liability
is alleged on the ground that the governmental entity owes a duty
to the public in general, as in the case of police or fire protection.”).
Other examples of public duties include: the duty to regulate
financial institutions to protect depositors, Madsen v. Borthick, 850
P.2d 442, 444 (Utah 1993); the duty to protect the public from natural
disasters, Rocky Mountain Thrift Stores Inc. v. Salt Lake City Corp., 887
P.2d 848, 852 (Utah 1994); the duty of prison officials or parole
boards to consider public safety when granting furloughs or parole
to prisoners, Ferree, 784 P.2d at 151–52; the duty of government
safety inspectors to guard the public from unsafe conditions, Hage
v. Stade, 304 N.W.2d 283, 287 (Minn. 1981) (fire safety inspectors);
and the duty to avoid issuing a license to an unsafe motorist or an
incompetent physician, Johnson v. Indian River Sch. Dist., 723 A.2d
1200, 1203 (Del. Super. Ct. 1998) (driving license) aff’d, 723 A.2d 397
(Del. 1998); Nelson v. State, 195 P.3d 293, 303 (Mont. 2008) (medical
license).
¶32 These examples of public duties raise the question of how
broad a duty must be in order to qualify as “an obligation owed to
the general public at large.” Ferree, 784 P.2d at 151. More specifically,
this case raises the question of how expansive the obligations of an
employee of a public college must be to qualify as a public duty. A
public duty need not extend to the entire world. The duties of
firefighters and police officers, which are clearly public obligations,
end at the border of the city or county that they serve. And, of
course, the student bodies of Utah’s public institutions of higher
learning rival or exceed the population of many small cities and
towns throughout the state. Thus, by analogy to the example of
police officers and firefighters, a duty owed to a college or university
population as a whole may be sufficiently broad to qualify as a
public duty. For example, a university police department may
assume an obligation to secure the safety of students, faculty, and
visitors to the campus that would be just as extensive as the duties
assumed by a small-town sheriff.
IV. APPLICATION OF THE PUBLIC DUTY DOCTRINE TO
BALLROOM DANCE INSTRUCTION AT A PUBLIC COLLEGE
¶33 We now apply the principles laid out in this opinion to the
question presented in this appeal: whether the public duty doctrine
bars Ms. Cope’s lawsuit against UVSC for injuries she sustained
while practicing for the college’s ballroom dance team. In other
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Opinion of the Court
words, did Ms. Cope base her negligence claim upon an allegation
that UVSC neglected to perform a public duty that it owed to the
general public?
¶34 First, we examine whether Ms. Cope’s lawsuit is founded
upon an allegation that UVSC’s affirmative actions caused her
injuries, or whether she rests her lawsuit on UVSC’s omissions in
failing to perform a public duty. The public duty doctrine would not
hinder the former theory of liability, but could bar a lawsuit based
on the latter premise. The parties have emphasized different aspects
of Ms. Cope’s claims in an effort to characterize her lawsuit as being
based upon either an act or an omission. UVSC asserts that
Ms. Cope’s lawsuit is properly viewed as a claim that the college
failed to provide spotters that could have prevented her injury.
Ms. Cope, on the other hand, contends that UVSC’s dance instructor
affirmatively directed her and her partner to perform the new
maneuver without spotters, which caused her injury.
¶35 Resolution of the question whether Ms. Cope’s lawsuit is
based upon an act or an omission, however, does not depend upon
the semantic framing of her negligence claim as either an allegation
that UVSC failed to provide spotters or an allegation that UVSC
affirmatively directed Ms. Cope to perform the dance move without
spotters. Affirmative acts include “active misconduct working
positive injury to others,” while omissions are defined as “passive
inaction, [i.e.,] a failure to take positive steps to benefit others, or to
protect them from harm not created by any wrongful act of the
defendant.” B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 7, 275 P.3d 228
(internal quotation marks omitted). Active misfeasance, however, is
not confined to situations where an affirmative act directly causes
harm to the plaintiff. As Judge Cardozo noted:
The hand once set to a task may not always be
withdrawn with impunity though liability would fail if
it had never been applied at all. . . . If conduct has gone
forward to such a stage that [inaction] would commonly
result, not negatively merely in withholding a benefit,
but positively or actively in working an injury, there
exists a relation out of which arises a duty to go
forward. . . . The query always is whether the putative
wrongdoer has advanced to such a point as to have
launched a force or instrument of harm, or has stopped
where inaction is at most a refusal to become an
instrument for good.
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COPE v. UTAH VALLEY STATE COLLEGE
Opinion of the Court
H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896, 898 (N.Y. 1928).
Judge Cardozo noted that examples of situations where actions had
advanced to a stage where inaction would commonly result in injury
include: (1) a surgeon who fails to sterilize instruments, causing an
infection; (2) an engineer who fails to shut off steam; or (3) an
automobile manufacturer that neglects to adequately inspect an
automobile for defects before selling it to a consumer. Id. In each of
these examples, the defendants could be held liable for misfeasance
because they had affirmatively created conditions that gave rise to
a duty to act in order to prevent harm.
¶36 Ms. Cope alleged facts that would, at minimum, lead to a
similar duty to act. UVSC created, funded, and supervised the
ballroom dance team. The college also gave students course credit
for team participation. UVSC’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. Just as a surgeon who undertakes
an operation also assumes a duty to act to sterilize the surgical
instruments, once UVSC created the ballroom dance team and used
tuition revenue to hire an instructor, the college “launched a force or
instrument of [potential] harm.” See id. Having done so, UVSC
assumed a duty to act reasonably when providing dance instruction.
¶37 Thus, even if we were to characterize Ms. Cope’s claim as an
allegation that UVSC failed to provide spotters, this is not an
“omission” within the tort-law definition of this term. Examples of
omissions for which a government entity may not be held liable
include the failure to provide police or fire protection and neglecting
to protect the public from harm caused by a natural disaster. See, e.g.,
Rocky Mountain Thrift Stores Inc. v. Salt Lake City Corp., 887 P.2d 848,
852 (Utah 1994); Jahnke v. Inc. City of Des Moines, 191 N.W.2d 780, 785
(Iowa 1971). In effect, a policeman normally may not be held liable
for failing to prevent the harmful criminal acts of a third party, while
a firefighter may not be sued for neglecting to dowse a fire he did
not set. In each of these examples, an omission in the form of a
failure to perform a public duty to protect or rescue the general
population “from harm not created by any wrongful act of the
defendant” may not be enforced through a lawsuit for damages. See
B.R., 2012 UT 11, ¶ 7 (internal quotation marks omitted). Ms. Cope’s
claim is dissimilar, however, in that she does not allege that UVSC
and her dance instructor failed to rescue her from an external threat.
At minimum, Ms. Cope asserts that UVSC actively created the
conditions that led to her injury by creating the ballroom dance team
and then failing to provide safe instruction. Because Ms. Cope can,
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Opinion of the Court
at least in theory, trace her harm back to an affirmative act by UVSC,
the public duty doctrine does not bar her claim.
¶38 We also hold that the public duty doctrine does not apply
because ballroom dance instruction is not a public duty “owed to the
general public at large”—or, in this case, UVSC’s student body and
faculty. See Ferree v. State, 784 P.2d 149, 151 (Utah 1989). Neither
UVSC nor its ballroom dance instructor assumed a duty to provide
dance instruction to the entire college. The scope of UVSC’s dance
instruction duties is not the only impediment to its claim to public
duty doctrine protections, though. The nature of a duty to provide
safe dance instruction is fundamentally different from recognized
public duties such as providing police and fire protection,
safeguarding the public from natural disasters, considering public
safety when granting parole to prisoners, regulating financial
institutions to protect depositors, and licensing motorists and
doctors to promote safety. See supra ¶ 31. Each of these well-
established public duties involve obligations assumed by
governmental entities to protect the general public from external
harms. Ballroom dance instruction, however, is not a service that
protects the public from harm. Thus, Ms. Cope’s theory of liability
does not rely upon a public duty owed to the general public.
¶39 We therefore hold that Ms. Cope’s lawsuit is not based on
a public duty. Consequently, the public duty doctrine does not bar
her negligence claim, and we need not consider the special
relationship exception to this doctrine. We reverse the district court’s
order dismissing Ms. Cope’s lawsuit and remand for further
proceedings consistent with this opinion.7
7
UVSC argued in its opening brief that Utah should follow
caselaw from other jurisdictions holding that a coach’s duty of care
is limited to a duty “not to increase the risk inherent in learning,
practicing, or performing in the sport.” Kahn v. E. Side Union High
Sch. Dist., 75 P.3d 30, 39 (Cal. 2003). This principle adopted by other
courts, however, was not discussed in the district court’s order or
the court of appeals’ opinion, and we did not grant certiorari or
request additional briefing on this issue. We therefore do not
address this issue because it lies outside the scope of the issue
defined in our order granting certiorari or the issues described in our
request for additional briefing. See DeBry v. Noble, 889 P.2d 428, 443
(Utah 1995) (“Issues . . . not included in the order granting certiorari
or fairly encompassed within such issues, are not properly before
this Court on the merits.”).
17