Colosimo v. Gateway , 424 P.3d 866 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 26
IN THE
SUPREME COURT OF THE STATE OF UTAH
LAWRENCE and SARAH JEAN COLOSIMO,
Petitioners,
v.
GATEWAY COMMUNITY CHURCH,
Respondent.
No. 20160838
Filed June 26, 2018
On Certiorari to the Utah Court of Appeals
Third District, West Jordan
The Honorable Barry G. Lawrence
No. 120414704
Attorneys:
Jefferson W. Gross, Aida Neimarlija, Salt Lake City, for petitioners
Mark Dalton Dunn, Trystan B. Smith, Troy L. Booher,
Beth E. Kennedy, Salt Lake City, for respondent
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
JUSTICE PEARCE, and JUDGE JOHNSON joined.
Due to her retirement, JUSTICE DURHAM did not participate herein;
DISTRICT COURT JUDGE CHRISTINE S. JOHNSON sat.
JUSTICE PETERSEN became a member of the Court on
November 17, 2017, after oral argument in this matter and
accordingly did not participate.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 A teenage boy died from injuries he sustained while
trespassing on the roof of a one-story building owned by a local
church. Due to faulty wiring of a sign, he was electrocuted while
COLOSIMO v. GATEWAY CMTY. CHURCH
Opinion of the Court
attempting to climb down. The boy’s parents brought a wrongful
death suit against the church, claiming that the church breached its
duty to their son under the common law and under a city sign
ordinance. On summary judgment, the district court held that
because the boy was a trespasser the church owed him no duty. The
court of appeals affirmed the district court on both grounds and we
granted certiorari. We now must decide whether the court of appeals
erred in affirming the district court’s grant of summary judgment.
Because the boy’s parents failed to show a duty existed under either
the common law or the sign ordinance, we affirm the court of
appeals’ decision.
Background
¶2 In 2012, sixteen-year-old A.C. and his two cousins decided
to go “roofing,” i.e., climbing on roofs after dark. They climbed up a
permanently-fixed ladder onto the roof of a one-story building
owned by Gateway Community Church (Gateway), located in
Draper, Utah. It is undisputed that the boys climbed onto the roof
without permission. Unbeknownst to A.C. and his cousins, the
building contained an oval sign that was improperly wired. Due to
the faulty wiring, the metal flashing1 on the roof had become
electrified. While scaling the ladder, both A.C. and one of his cousins
felt a shock when they inadvertently touched the flashing.
¶3 After ten minutes or so on the roof, and after discussing the
possible reasons for the electrified flashing, the boys decided to
cautiously vacate the roof. The two cousins made it down safely, but
on A.C.’s way down, his foot got caught between the ladder and the
metal flashing, and he was electrocuted for ten to fifteen seconds. He
lost consciousness and was taken to the emergency room. A.C.
passed away ten days later due to complications from the
electrocution.
¶4 After the accident, a Draper City building inspector— with
the assistance of a Draper police officer and Gateway’s pastor—
inspected the roof but found no problem. He concluded that
“everything was up to code.” The following day, a fire marshal,
along with a Gateway board member, inspected the roof for over an
1A flashing is generally defined as a piece of “[s]heet metal used
to reinforce and weatherproof the joints and angles of a roof.”
Flashing, THE FREE DICTIONARY (last visited June 13, 2018)
https://www.thefreedictionary.com/flashing.
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Opinion of the Court
hour without being able to pinpoint the source of the electricity in
the flashing. Finally, through a process of elimination, the fire
marshal was able to determine that an oval “Welcome to Gateway”
sign was electrifying the roof’s flashing. Further investigation
revealed that the sign had been improperly installed. Lawrence and
Sarah Jean Colosimo, A.C.’s parents and heirs, then had the sign
inspected by an electrical engineer, who also identified the sign as
the source of the problem.
¶5 Beginning as early as 1996, Draper City adopted several
ordinances (collectively the “Ordinance”)2 regulating the
“installation, maintenance or dilapidation” of signs within the city.3
One of the express purposes of the Ordinance “is to protect and
promote the health, safety and welfare of City residents.”4 In order
to “protect the safety and welfare of the people of the City,” the
Ordinance prohibits any sign that “constitutes a hazard to safety or
health by reason of inadequate installation, maintenance or
dilapidation.”5 The Ordinance requires all signs to be “maintained in
good and safe structural condition, [and] in compliance with all
building and electrical codes.”6 Any person who violates this
Ordinance is “guilty of a Class B misdemeanor.”7 The Ordinance
also contains a provision entitled “Liability for Damages,” which
provides that “[t]he provisions of this ordinance shall not be
construed to relieve or to limit in any way, the responsibility or
liability of any person, firm, or corporation which erects or owns any
sign, for personal injury or property damaged caused by the sign.” 8
2 The ordinances listed in the Colosimos’ brief and analyzed by
the court of appeals and district court below are a collection of sign
ordinances from the years 1996, 2003, and 2011. Neither party
argued before the court of appeals that a certain version of the
Ordinance did not apply. Nor did they do so on certiorari.
Accordingly, like the court of appeals, we treat these provisions as
one consistent version of the Draper sign ordinance.
3 DRAPER, UTAH, ORDINANCE § 9-14-090(a)(9)(i) (1996).
4 Id. § 9-26-010 (2011).
5 Id. § 9-14-090(a) (1996).
6 Id. § 9-14-070(c)(1)(iii) (1996).
7 Id. § 9-26-070(d) (2003).
8 Id. § 9-26-070(g) (2003); see also id. § 9-26-050(H)(6) (2011).
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¶6 The installation date of the oval sign is unknown. Gateway
leased a suite within the building starting in 1999 and eventually
purchased the entire building in 2003. Sometime in 2003 or 2004,
Gateway had a new acrylic faceplate installed in the existing sign
cabinet that was attached to the building. The Colosimos’ electrical
expert posited that the sign was not installed during the original
construction of the building in 1999. The pastor testified that, “[a]s
far as [he was] aware, the Church did not purchase, manufacture,
design, or install the oval exterior sign,” and that, “[t]o the best of
[his] knowledge, the oval exterior sign was affixed to the property
prior to the Church’s purchase of the property.”
¶7 The Colosimos brought a wrongful death and survival suit
against Gateway for negligence. Gateway moved for summary
judgment, arguing that it owed A.C. no duty because he was a
trespasser. In opposing summary judgment, the Colosimos argued
that, despite A.C. being a trespasser, Gateway owed him a duty
under the common law and under the Ordinance. Specifically, they
argued that Gateway was aware of constant trespassing on the roof
and so had a duty to trespassers under sections 334 and 335 of the
Restatement (Second) of Torts. In support, the Colosimos pointed to
the fact that Gateway had known of two instances, one in 2004 and
the other in 2010, where people trespassed on its roof over the past
twelve years. The Colosimos also provided the court with evidence
of instances of loitering, littering, and break-ins on Gateway’s
property (but not on its roof), as well as evidence that “roofing” had
occurred on other buildings in Draper.
¶8 Additionally, they argued that Gateway owed a duty under
the attractive nuisance doctrine as set forth in section 339 of the
Restatement. The Colosimos asserted that because of A.C.’s age, he
failed to appreciate the danger of electrocution on the roof. They also
claimed that Gateway owed A.C. a duty under the Ordinance.
¶9 The district court granted summary judgment in favor of
Gateway, concluding that because A.C. was a trespasser Gateway
owed him no duty. Specifically, the district court held that the
Colosimos failed to produce sufficient evidence to create a genuine
issue of fact as to whether Gateway knew or should have known that
people were constantly trespassing under sections 334 and 335, and
as to whether Gateway knew or had reason to know of the existence
of a dangerous condition on its roof, an additional element required
under section 339. The district court also held that the Ordinance did
not create an independent duty under tort law.
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Opinion of the Court
¶10 The Colosimos timely appealed and the court of appeals
affirmed the district court’s holdings.9 While the court of appeals did
not address the parties’ burden on summary judgment, it stated that
the Colosimos failed to show that Gateway knew of constant
trespassing, a requirement the court believed applied to all three
Restatement sections.10 The court also held that Gateway owed no
duty under the Ordinance because ordinances should be strictly
construed when they conflict with the common law.11 The Colosimos
thereafter filed a petition for writ of certiorari with our court, which
we granted. We have jurisdiction pursuant to section 78A-3-102(3)(a)
of the Utah Code.
Standard of Review
¶11 We granted certiorari on two issues: first, whether the court
of appeals erred in concluding Gateway could not be held liable for
A.C.’s death under a common law theory of negligence, and second,
whether the court of appeals erred in concluding Gateway could not
be held liable for A.C.’s death under a municipal ordinance
regulating signs. “On certiorari, we give the court of appeals’
decision no deference and review its decision under a correctness
standard.”12 Further, “‘[t]he question of whether a duty exists is a
question of law’ and is reviewed for correctness.”13
Analysis
¶12 The Colosimos’ claims for wrongful death and survival are
based in negligence.14 To prevail on a negligence claim, “the plaintiff
must [first] establish . . . that the defendant owed the plaintiff a
duty“ and “that the defendant breached that duty.”15 “Absent a
9Colosimo v. Gateway Cmty. Church, 2016 UT App 195, ¶ 35, 382
P.3d 667.
10 Id. ¶ 14 & n.4.
11 Id. ¶¶ 21–22, 26.
12 Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3.
13Slisze v. Stanley-Bostitch, 1999 UT 20, ¶ 9, 979 P.2d 317 (citation
omitted).
14See Whipple v. Am. Fork Irrigation Co., 910 P.2d 1218, 1220 (Utah
1996).
15Torrie v. Weber Cty., 2013 UT 48, ¶ 9, 309 P.3d 216 (citation
omitted); see also MacGregor v. Walker, 2014 UT 2, ¶ 11, 322 P.3d 706
(Continued)
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Opinion of the Court
showing that the defendant owed any duty, the plaintiff’s claim has
no merit, and he or she may not recover.”16
¶13 The court of appeals affirmed the district court’s holding
that the Colosimos failed to show that Gateway owed a duty to A.C.
under the common law or under the Ordinance. The court of appeals
was correct on both counts. The Colosimos did not show that there
was a genuine issue of fact on the question of whether Gateway
knew that there was constant trespassing on the roof as required
under sections 334 and 335 of the Restatement (Second) of Torts, or
on the question of whether Gateway knew that the metal flashing on
the roof was electrified, thereby creating a dangerous condition
under section 339. The Colosimos also failed to show that the
Ordinance created an independent duty in tort. The court of appeals
did err, however, in failing to reach the question of what burden the
parties bore on summary judgment and in conflating the knowledge
requirement of section 339 of the Restatement (Second) of Torts with
the knowledge requirement of sections 334 and 335. We correct those
errors and ultimately affirm the court of appeals’ decision.
I. The Court of Appeals Correctly Held that Gateway Owed
No Duty Under the Common Law
¶14 The Colosimos first argue that the court of appeals erred
when it affirmed the district court’s holding that Gateway owed A.C.
no duty under the common law. When deciding whether a possessor
of land owes a duty to another person, we must first determine
“whether that person is an invitee, a licensee, or a trespasser.”17 We
have defined the term “trespasser” as a person who enters on a
possessor’s land “without a privilege to do so created by the
possessor’s consent or otherwise.”18 It is clear that A.C. climbed on
Gateway’s roof without Gateway’s consent, and neither party
disputes that A.C. was a trespasser in this case. So the Colosimos’
(“An essential element of every negligence action is the existence of
a duty of care owed by the defendant to the plaintiff.”).
16 Young v. Salt Lake City Sch. Dist., 2002 UT 64, ¶ 12, 52 P.3d
1230.
17 Whipple v. Am. Fork Irrigation Co., 910 P.2d 1218, 1220 (Utah
1996)
18 Id. (quoting RESTATEMENT (SECOND) OF TORTS § 329 (AM. LAW
INST. 1965)).
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Opinion of the Court
argument turns on what duty is owed to a trespasser under the
common law.
¶15 In Whipple v. American Fork Irrigation Co., we stated that,
under our caselaw, it appears that “the only duty a possessor of land
owes to a trespasser is to not willfully or wantonly injure him.”19 But
we also held that this rule did not completely sum up the duty a
landowner owes to a trespasser, and we expressly adopted section
333 of the Restatement (Second) of Torts as our standard, noting that
it “more accurately states the duty owed.”20
¶16 Under section 333, “a possessor of land is not liable to
trespassers for physical harm caused by his failure to exercise
reasonable care.”21 But section 333 also recognizes exceptions to this
rule, which are set forth in sections 334 through 339 of the
Restatement.22 These exceptions “deal generally with activities and
artificial conditions highly dangerous to constant trespassers on a
limited area or to known trespassers, controllable forces dangerous
to known trespassers, and artificial conditions highly dangerous to
trespassing children.”23 Accordingly, because A.C. was a trespasser
on Gateway’s property, the Colosimos must find a duty under one of
these exceptions in order to gain relief under the common law.
¶17 In its order below, the district court concluded that none of
these exceptions applied. Before the court of appeals, the Colosimos
challenged only the district court’s holding on three of these
exceptions—sections 334, 335, and 339—and the court of appeals
limited its analysis to these three exceptions. 24 On certiorari, the
Colosimos argue that the court of appeals erred in affirming the
district court’s decision on these three exceptions. We therefore also
limit our analysis to these three exceptions, and hold that the court of
appeals correctly affirmed the district court’s holding on each of
these exceptions.
19 Id.
20 Id.
21 RESTATEMENT (SECOND) OF TORTS § 333.
22 Id.
23 Whipple, 910 P.2d at 1220.
24Colosimo v. Gateway Cmty. Church, 2016 UT App 195, ¶ 14, 382
P.3d 667.
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Opinion of the Court
A. The Court of Appeals Correctly Held that Sections 334 and 335 of the
Restatement (Second) of Torts Do Not Apply
¶18 The court of appeals correctly held that sections 334 and 335
of the Restatement (Second) of Torts do not apply in this case
because there was no genuine issue of material fact as to whether
Gateway knew or should have known that trespassers “constantly
intrude” upon its rooftop. Section 334, entitled “Activities Highly
Dangerous to Constant Trespassers on Limited Area,” provides:
A possessor of land who knows, or from facts within
his knowledge should know, that trespassers constantly
intrude upon a limited area thereof, is subject to liability
for bodily harm there caused to them by his failure to
carry on an activity involving a risk of death or serious
bodily harm with reasonable care for their safety.25
Section 335, entitled “Artificial Conditions Highly Dangerous to
Constant Trespassers on Limited Area,” likewise provides:
A possessor of land who knows, or from facts within
his knowledge should know, that trespassers constantly
intrude upon a limited area of the land, is subject to
liability for bodily harm caused to them by an artificial
condition on the land, if
(a) the condition
(i) is one which the possessor has created or
maintains and
(ii) is, to his knowledge, likely to cause
death or seriously bodily harm to such
trespassers and
(iii) is of such a nature that he has reason to
believe that such trespassers will not
discover it, and
(b) the possessor has failed to exercise reasonable
care to warn such trespassers of the condition
and the risk involved.26
¶19 Both of the above sections require the plaintiff to produce
evidence that trespassers constantly intrude upon a specific portion
of the landowner’s property containing the dangerous activity or
condition. In other words, “[i]n order that the possessor of land may
25 RESTATEMENT (SECOND) OF TORTS § 334 (emphasis added).
26 Id. § 335 (emphasis added).
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be subject to liability under the rule in [sections 334 and 335], it is
necessary that he know, or from facts within his knowledge should
know, that persons constantly and persistently intrude upon some
particular place within the land.”27
¶20 The court of appeals held that sections 334 and 335 were
inapplicable because the Colosimos failed to show that Gateway
knew or, from the facts within its knowledge, should have known
that trespassers “constantly intrude” on the roof.28 The Colosimos
had originally provided the district court with evidence of two
instances where Gateway knew of trespassers on Gateway’s roof;
one in 2004 and another in 2010. The district court held that these
two instances were insufficient to establish constant trespassing as
required by the Restatement. On appeal, the court of appeals rejected
the Colosimos’ contention that “the [district] court erred when it
found as a matter of law that Gateway’s actual knowledge of two
instances of trespass over a decade was insufficient to put Gateway
on notice of habitual trespassers.”29 Relying on Lopez v. Union Pacific
Railroad Co.,30 the court of appeals pointed out that our court has
found “habitual trespassing” when a “[p]laintiff produced evidence
that [others] habitually [trespass]” and that the defendant was
“aware of [such] practice,” but not when there were merely “an
27 Id. § 334 cmt. d.
28 See Colosimo, 2016 UT App 195, ¶ 16. It is important to note, as
the district court noted and Gateway argued in its briefing before
us, that section 334 of the Restatement applies only to situations in
which an owner carries on dangerous activities on the property at
issue. See RESTATEMENT (SECOND) OF TORTS § 334. Here, no
dangerous activity was being conducted on Gateway’s property—
Gateway used suites within the building to conduct
non-dangerous, church-related activities, and none of these
activities was ongoing at the time A.C. climbed the roof. While
there was arguably a dangerous condition—i.e., the sign or the
electrified metal flashing—present on the property at the time of
the accident, section 335, not section 334, applies to dangerous
conditions. Thus, the Colosimos cannot rely upon section 334 in this
case, and the court of appeals correctly held that Gateway did not
owe a duty to A.C. under that section.
29 Colosimo, 2016 UT App 195, ¶¶ 15–17.
30 932 P.2d 601 (Utah 1997).
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isolated couple of instances.”31 The court ultimately affirmed the
district court, concluding that “[t]wo incidents of trespassing over so
many years do not rise to the level of constant intruding and are not
enough to put Gateway on notice.”32
¶21 We agree with the court of appeals. Two incidents of known
trespass on its roof over a decade do not create a genuine issue of
fact as to whether Gateway knew or should have known that
trespassers were “constantly intrud[ing]” on its roof. In defining the
constant intrusion requirement of sections 334 and 335, courts have
held that a plaintiff must show that trespassers “regularly”33 and
“persistently”34 intruded upon the limited area, and that even a
showing of “frequent” trespass will not suffice.35 We have likewise
described this requirement as “habitual” intrusion.36 It can hardly be
said that two instances of trespass over a period of more than ten
years amounts to regular, persistent, or habitual intrusion. And it is
even more farfetched to suggest that two instances of intrusion
within ten years places a party on constructive notice of regular,
persistent, or habitual trespass. So the Colosimos cannot establish
that Gateway owed a duty under section 334 or 335.
31 Colosimo, 2016 UT App 195, ¶¶ 15–16 (first alteration in
original) (emphasis omitted).
32 Id. ¶ 16.
See, e.g., Maffucci v. Royal Park Ltd. P’ship, 707 A.2d 15, 23
33
(Conn. 1998).
34 See, e.g., Huffman v. Appalachian Power Co., 415 S.E.2d 145, 154
(W. Va. 1991) (holding that as a “predicate step for a trespasser to
establish liability,” a plaintiff must bring forth “sufficient evidence
that . . . others constantly and persistently intruded on [the limited
area] or that [defendant] was aware of such intrusions”). The
comments to section 334 also describe the constant trespass
requirement as knowledge “that persons constantly and
persistently intrude upon some particular place within the land.”
RESTATEMENT (SECOND) OF TORTS § 334 cmt. d.
35See Humphrey v. Glenn, 167 S.W.3d 680, 688 (Mo. 2005) (en
banc) (holding a new trial was needed because the jury instructions
contained the word “frequently,” instead of the proper term
“constantly,” when defining the frequency of the intrusion).
36 Lopez, 932 P.2d at 604–05.
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Opinion of the Court
¶22 The Colosimos also argue, however, that the court of
appeals erred by failing to consider other circumstantial evidence—
beyond the two known prior instances of trespass on the roof—that
they believe further show the presence of a genuine issue as to
whether constant trespassing was occurring on Gateway’s property.
The Colosimos provided the district court with evidence of prior
instances of loitering, graffiti, littering, and break-ins on Gateway’s
property, none of which took place on its roof. The Colosimos also
offered testimony of witnesses who stated that children were known
to climb on roofs in Draper City and that Gateway knew of the
existence of a box near the caged ladder, which the Colosimos
contend made access to the ladder easier for intruders. They also cite
to evidence where a board member of Gateway allegedly admitted
that Gateway’s roof was a “public place” where children were likely
to intrude.37 Lastly, the Colosimos state that Gateway’s concession
that a genuine issue of material fact exists as to section 339(a)’s
requirement—that the possessor of land know or have reason to
know that “children are likely to trespass” on the property—further
evidences that Gateway knew or should have known of constant
trespassing on the property.38 Neither the district court, nor the court
of appeals, mentioned these facts in their determinations on sections
334 and 335.39
37Gateway contends that the board member, Mr. Bowling, only
admitted to the statement that “kids are kids” and not that the
Gateway’s rooftop was a “public place.” While the questioning of
Mr. Bowling was not particularly clear at his deposition, it appears
from the record that Mr. Bowling admitted to the rooftop being a
“public place” and that kids will be kids and will climb up on roofs.
38 See infra section I.B. for further discussion of this requirement.
39 These courts may have omitted discussion of these facts
because neither believed such evidence was relevant to the factual
dispute as to whether habitual trespassing occurred on Gateway’s
roof. The additional evidence cited by the Colosimos more
appropriately applies to section 339(a)’s requirement—that the
possessor of land know or have reason to know that “children are
likely to trespass” on the property—which Gateway conceded was
a disputed issue on summary judgment, and which the district
court never reached because it dismissed the Colosimos’ section
339 claim under section 339(b). See infra section I.B.
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¶23 The Colosimos argue that the court of appeals “disregarded
all such evidence” and that with this additional evidence, along with
the direct evidence of two known instances of rooftop trespass, “a
reasonable jury could infer that Gateway had a reason to know that
there likely were a lot more trespassing incidents on Gateway’s roof
than the two admitted instances.” They argue that a court should not
limit the evidence it considers only to direct evidence but should
consider all relevant evidence on summary judgment. But Gateway
argues that this additional evidence cannot give rise to an inference
that constant trespassing occurred on Gateway’s rooftop.40 Gateway
states that because the break-ins, graffiti, and littering did not occur
on the roof, it is not relevant to the “limited area,”—i.e., the roof—
required in sections 334 and 335. Gateway also contends that “the
fact that other people in Draper knew that teenagers were climbing
onto other roofs” does not show that “Gateway knew about
trespassing on its roof.” Gateway further states that its concession
regarding section 339(a)’s requirement that it knew or had reason to
know that its rooftop is a place where children are likely to trespass
40The Colosimos also argue that the court of appeals “invade[d]
the province of the jury” because questions of knowledge should be
decided by a jury. But Gateway correctly characterizes the dispute
on summary judgment: “The question of knowledge concerning
constant trespassing becomes relevant only when there is constant
trespassing of which one could have knowledge.” So while
knowledge of constant trespassing may be the province of the jury,
the Colosimos needed to first provide sufficient evidence of
constant trespassing to survive summary judgment.
This was the case in Lopez v. Union Pacific Railroad Co., a case on
which the Colosimos rely. As the court of appeals correctly noted,
Lopez “involved more than two instances of trespassing” in a
limited area. Colosimo, 2016 UT App 195, ¶ 16. The Lopez court
expressly stated that “[p]laintiff produced evidence that workers
habitually crossed over the cuts of rail cars to reach parking lots.”
Lopez, 932 P.2d at 605. Indeed, on both occasions where the railroad
company made note of the trespassing, they stated that employees
“[were] crossing between rail cars while cars [were] being
switched,” and that employees had been seen “crawling and
jumping through cuts of cars” and that this “practice must be
stopped.” Id. at 602, 605. The Lopez court therefore reversed
summary judgment because there was sufficient evidence of
constant trespass to allow the jury to determine liability. Id. at 605.
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is not a concession that there is a genuine issue of material fact as to
habitual trespassing under sections 334 and 335.
¶24 The Colosimos are correct that we have never limited a
district court’s review on summary judgment to direct evidence.
Rather, we have expressly stated “the nonmoving party . . . ‘is
entitled to the benefit of having the court consider all of the facts
presented, and every inference fairly arising therefrom”41 and that “all
facts and the reasonable inferences to be made therefrom should be
construed in a light favorable to the non-moving party.”42 But even
considering the additional evidence mentioned above, along with
the reasonable inferences made therefrom, the evidence taken as a
whole does not raise a genuine issue of material fact as to whether
trespassers were constantly intruding on the “limited area” at issue,
i.e., the roof, as required under sections 334 and 335. Much of the
circumstantial evidence the Colosimos cite concerns instances of
possible trespass on areas other than the roof—trespass that
occurred away from the dangerous condition. As the comments to
the Restatement sections provide, “[i]t is not enough that [the
landowner] know or have reason to know that persons persistently
roam at large over his land.”43 Rather, the land owner must know or
should know “that persons constantly and persistently intrude upon
some particular place within the land.”44 Thus, while evidence of
loitering, graffiti, littering, and break-ins may support the notion that
trespassing occurred on Gateway’s property in addition to the two
rooftop instances, this additional evidence does not necessarily
provide Gateway with knowledge that “persons constantly and
persistently intrude” upon the rooftop.45
¶25 Similarly, testimony about other citizens’ knowledge of
children climbing other roofs in Draper does not prove children
Uintah Basin Med. Ctr. v. Hardy, 2008 UT 15, ¶ 19, 179 P.3d 786
41
(emphasis added) (citation omitted).
USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 33, 235 P.3d 749
42
(emphasis added).
43 RESTATEMENT (SECOND) OF TORTS § 334 cmt. d.
44 Id. (emphasis added).
45 See Maffucci, 707 A.2d at 22 (holding that “[k]nowledge of
trespassers to other areas cannot . . . be the basis for imposing
liability” under section 335).
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Opinion of the Court
constantly climbed Gateway’s roof. Rather, this testimony supports
section 339(a)’s requirement that the possessor know or have reason
to know that “children are likely to trespass” on the limited area.46
The only evidence relevant to the question of whether habitual
trespassing actually occurred therefore was the two instances of
known trespassing on Gateway’s roof. Accordingly, the court of
appeals correctly held that two instances of trespassing over more
than a ten-year period did not create a genuine issue of material fact
as to whether constant trespassing occurred or whether Gateway
had notice of such constant trespassing.
B. The Court of Appeals Correctly Concluded that Section 339 of the
Restatement (Second) of Torts Does Not Apply
¶26 The court of appeals also correctly held that Gateway did
not owe A.C. a duty under section 339 of the Restatement. The court
concluded that because the Colosimos failed to establish section
339(a)’s requirement—that children were likely to trespass on the
roof—they could not sustain a claim under section 339. The court’s
reliance on section 339(a) as grounds for dismissal was error,
however, because it incorrectly inferred that section 339(a)’s
knowledge requirement is identical to those in sections 334 and 335,
and Gateway had already conceded that section 339(a) was a
disputed issue of fact. But this error does not undermine the court’s
ultimate determination on section 339 because the Colosimos failed
to satisfy an additional requirement, which is set forth in section
46 RESTATEMENT (SECOND) OF TORTS § 339(a) (emphasis added). In
their efforts to use Gateway’s concession as to section 339(a) as
support of their claims under sections 334 and 335, the Colosimos
seem to interpret section 339(a)’s requirement to read “the place
where the condition exists is one upon which the possessor knows
or has reason to know that children are trespassing,” as opposed to
its plain language, which reads “the place where the condition
exists is one upon which the possessor knows or has reason to
know that children are likely to trespass.” By using the phrase “are
likely to” instead of “are,” the authors of the Restatement appear to
suggest, however, that the actual or constructive knowledge the
possessor must have under section 339(a) is knowledge that the
place where the condition occurs is one that child trespassers may,
more likely than not, trespass at some time—and not necessarily
knowledge that children are currently trespassing. Thus, the
knowledge requirement under section 339(a) is a lower threshold.
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339(b). We outline the Colosimos’ failure below and affirm the court
of appeals’ decision on alternative grounds.
¶27 On certiorari, the Colosimos maintain that Gateway also
owed A.C. a duty under section 339 of the Restatement. We have
expressly adopted section 339 as the “complete statement of the
attractive nuisance doctrine” in our jurisprudence.47 It provides that:
A possessor of land is subject to liability for physical
harm to children trespassing thereon caused by an
artificial condition upon the land if
(a) the place where the condition exists is one upon
which the possessor knows or has reason to know
that children are likely to trespass, and
(b) the condition is one of which the possessor
knows or has reason to know and which he realizes
or should realize will involve an unreasonable risk
of death or serious bodily harm to such children,
and
(c) the children because of their youth do not
discover the condition or realize the risk involved in
intermeddling with it or in coming within the area
made dangerous by it, and
(d) the utility to the possessor of maintaining the
condition and the burden of eliminating the danger
are slight as compared with the risk to children
involved, and
(e) the possessor fails to exercise reasonable care to
eliminate the danger or otherwise to protect the
children.48
In order for a plaintiff trespasser to prevail on an attractive nuisance
claim, he or she must prove the existence of all five elements listed
above.49
47 Kessler v. Mortenson, 2000 UT 95, ¶ 14, 16 P.3d 1225.
48 RESTATEMENT (SECOND) OF TORTS § 339.
49Kessler, 2000 UT 95, ¶ 15 (“Recovery [under the attractive
nuisance doctrine] can only be had when the conditions of the rule
are met. Indeed, the elements set forth in section 339 of the Second
Restatement of Torts must be satisfied in order for the rule to be
applicable.”(citation omitted)).
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Opinion of the Court
¶28 The district court originally held on summary judgment that
Gateway could not be liable under section 339 because the
Colosimos did not provide sufficient evidence to create a genuine
dispute as to section 339(b)’s requirement—that the possessor of
land know or have reason to know of the existence of a particularly
dangerous condition on the property. Specifically, the district court
stated that “Gateway had no knowledge of, or reason to have known
of [the defectively wired sign or electrified metal flashing] and could
not have realized that there was a potentially lethal condition on its
property.” The court of appeals did not, however, affirm the district
court’s conclusion on the same grounds. Instead, the court appears
to have concluded that section 339 did not apply in this case because
the Colosimos could not prove section 339(a)’s requirement—that
Gateway’s rooftop was a place where children were likely to
trespass. The court specifically stated that “[t]wo incidents of
trespassing over so many years do not rise to the level of constant
intruding and are not enough to put Gateway on notice that
‘children are likely to trespass’ as expressed in the exceptions
outlined in the Restatement.”50 The court’s reliance on section 339(a)
was misplaced for two reasons.
¶29 First, it appears the court incorrectly applied the same
knowledge requirement found in sections 334 and 335—that the
possessor know or should know that trespassing occurs on the
property—to section 339. The court expressly stated that it chose not
to address the Restatement sections separately “because all of the
sections upon which [the Colosimos] rely have the common
requirement that the possessor of land know or should know that
trespassers are likely to intrude.”51 The court then went on to state
that the Colosimos failed to show constant trespassing.52 As noted
above, sections 334 and 335 require knowledge of actual and
constant trespassing on the owner’s property—not that trespassers
are likely to intrude. But by stating that the sections shared the same
knowledge requirement, it appears the court operated under the
assumption that knowledge that “children are likely to trespass” is
analogous to knowledge of actual trespassing. This interpretation
misreads what is required under section 339(a). Section 339(a)
requires the plaintiff to show that “the possessor [of land] knows or
50 Colosimo, 2016 UT App 195, ¶ 16 (citation omitted).
51 Id. ¶ 14 n.4.
52 Id. ¶ 16.
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has reason to know that children are likely to trespass.” 53 Knowledge
that children are likely to trespass is not, as the court of appeals
suggested, the same as knowledge of actual trespassing. Rather,
knowledge that children are likely to trespass means that the
possessor knows that it is probable that children will trespass on his
or her property in the foreseeable future.54 Thus, while two instances
of actual trespassers on the roof, and the circumstantial evidence
noted above, may not be sufficient to show constant trespassing on
Gateway’s roof, it may be sufficient to show that Gateway knew or
had reason to know that children are likely to trespass on its roof.
Accordingly, the court of appeals erred in rejecting the Colosimos’
section 339 claim on this ground.
¶30 The court also improperly relied on section 339(a) in its
dismissal of the Colosimos’ attractive nuisance claim because
Gateway admitted that a dispute existed regarding section 339(a) in
its memorandum in support of summary judgment below. Gateway
argued before the district court that summary judgment was proper
because the Colosimos failed to provide evidence of sections 339(b)
and (c) and conceded that there may be disputes concerning sections
339(a), (d) and (e). The district court granted Gateway’s motion for
summary judgment on the Colosimos’ section 339 claim under
section 339(b) alone. The court of appeals, however, affirmed the
district court’s decision on the grounds that there was no disputed
issue of fact on section 339(a)—the very element that Gateway
conceded was disputed. Accordingly, the court of appeals erred in
dismissing the Colosimos’ section 339 claim on this ground.
¶31 The court’s error here does not, however, change the end
result in this case. The court’s decision to dismiss the Colosimos’
section 339 claim was correct on alternative grounds—the Colosimos
failed to produce evidence, as required by section 339(b), that
Gateway knew or had reason to know about the defective wiring or
the electrified metal flashing and that these conditions created an
unreasonable risk of death or serious bodily harm to children.55 The
53 RESTATEMENT (SECOND) OF TORTS § 339(a).
54 See supra note 46.
55 See RESTATEMENT (SECOND) OF TORTS § 339(b) (stating that a
landowner is subject to liability for harm to children trespassers if
“the condition is one of which the possessor knows or has reason to
know and which he realizes or should realize will involve an
(Continued)
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Opinion of the Court
record shows that the Colosimos were unable to provide sufficient
evidence that Gateway had actual knowledge that the sign was
improperly wired or that it had observed any problem indicating
that such was the case. While Gateway knew the sign had stopped
working approximately one month before the accident, that does not
support the inference that Gateway knew or had reason to know that
the metal flashing had become electrified or that such condition
would “cause an unreasonable risk of death or serious bodily harm”
to a child.56 The court of appeals therefore correctly affirmed the
district court’s dismissal of the Colosimos’ section 339 claim.
¶32 Accordingly, although the court of appeals erred in its
review of section 339(a), this error does not affect the ultimate
outcome of the case because, as the district court correctly
concluded, no genuine issue existed as to whether Gateway knew or
had reason to know of the sign’s defective wiring or the electrified
metal flashing. Nor did Gateway realize, or should have realized,
that such condition would cause death or serious bodily injury to
children. The court of appeals therefore correctly affirmed the
district court’s holding.
¶33 Because the Colosimos failed to raise a genuine issue of fact
regarding Gateway’s knowledge of constant trespassing and its
knowledge of a dangerous condition on the property, the Colosimos
failed to satisfy an exception to our general bar on trespasser
liability. So we affirm the court of appeals’ determination that
Gateway owed no duty to A.C. under the common law.
C. Summary Judgment Standard
¶34 The Colosimos next argue that the court of appeals erred in
affirming the district court’s decision to grant Gateway’s motion for
summary judgment because the district court incorrectly shifted the
summary judgment burden to the Colosimos—the nonmoving party.
Although the Colosimos argued this below, the court of appeals
chose not to address this issue on appeal because it was undisputed
that A.C. was a trespasser—a fact the court believed was
dispositive.57 The Colosimos argue this decision was incorrect. We
agree with the Colosimos, but conclude that this error was harmless
unreasonable risk of death or serious bodily harm to such
children”).
56 See id.
57 Colosimo, 2016 UT App 195, ¶ 9 n.3.
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because the district court correctly applied the summary judgment
burden standard in this case.
¶35 The Colosimos first argue that the court of appeals erred in
failing to address their argument that the district court incorrectly
placed the summary judgment burden on them below. On appeal,
the court of appeals noted that “[t]he parties also dispute their
relative burdens under Orvis v. Johnson . . . for summary judgment,”
but chose not to address the argument “because it is undisputed that
[A.C.] was trespassing at the time of the accident,” a fact the court
believed was “dispositive.”58 This was wrong; the fact that A.C. was
a trespasser is not dispositive in this case and the court should have
addressed the burden argument. As noted above, the Colosimos had
asserted claims under sections 334, 335, and 339 of the Restatement
(Second) of Torts—sections that apply only when the plaintiff
seeking relief is a trespasser. So determining which party bore the
burden on summary judgment to show, for example, that there was
a genuine issue of material fact as to whether trespassers constantly
intrude upon a limited area, is a decision that is unaffected by a
plaintiff’s trespasser status in this case. So the court of appeals erred
when it chose not to address this argument. But this error did not
affect the ultimate outcome of the case because, as the district court
correctly concluded, the Colosimos carried the summary judgment
burden on their claims.
¶36 The Colosimos take issue with this conclusion. They argue
that Gateway failed to meet its burden on summary judgment
because Gateway, as the moving party, cannot simply point to a lack
of evidence to overcome its burden but instead must affirmatively
“present admissible evidence in its moving papers demonstrating
that a fact is not disputed.” For support, the Colosimos rely on
certain language in Orvis v. Johnson.59 But, as we recently noted in
Salo v. Tyler,60 Orvis does not stand for the summary judgment
standard the Colosimos advance on appeal.
¶37 In Salo, we considered an identical argument to the one the
Colosimos make today—“that the moving party always bears the
burden of coming forward with evidence establishing a basis for
58 Id.
59 2008 UT 2, 177 P.3d 600.
60 2018 UT 7, --- P.3d ---.
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Opinion of the Court
judgment as a matter of law.”61 We acknowledged that this
argument “has an apparent foothold in dicta in Orvis,” where “we
admittedly stated that ‘Utah law does not allow a summary
judgment movant to merely point out a lack of evidence in the
nonmoving party’s case, but instead requires a movant to
affirmatively provide factual evidence establishing that there is no
genuine issue of material fact.’”62 We noted, however, that a mere
two paragraphs later in Orvis we set forth a standard that mirrored
the federal Celotex63 standard, which allows the moving party that
does not bear the burden of persuasion at trial to meet its initial
burden without providing its own affirmative evidence:
A summary judgment movant, on an issue where the
nonmoving party will bear the burden of proof at trial,
may satisfy its burden on summary judgment by
showing, by reference to “the pleadings, depositions,
answers to interrogatories, and admissions on file,
together with the affidavits, if any,” that there is no
genuine issue of material fact. UTAH R. CIV. P. 56(c).
Upon such a showing, whether or not supported by
additional affirmative factual evidence, the burden
then shifts to the nonmoving party, who “may not rest
upon the mere allegations or denials of the pleadings,”
but “must set forth specific facts showing that there is a
genuine issue for trial.” Id. (e).64
Recognizing the apparent conflict between these two statements in
Orivs, we acknowledged that Orvis may not be “entirely consistent
on the question of the moving party’s burden.”65
¶38 Finally, in order to dispel any confusion over the summary
judgment standard, in Salo we repudiated any notion that our
standard departed from the federal Celotex standard.66 And we
reiterated our summary judgment standard:
61 Id. ¶ 22.
62 Id. ¶ 23 (quoting Orvis, 2008 UT 2, ¶ 16).
63 See Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
64 Salo, 2018 UT 7, ¶ 25 (quoting Orvis, 2008 UT 2, ¶ 18).
65 Id.
66 Id. ¶ 28. It is also important to note that the Colosimos had
sufficient notice of this standard well before Salo. In Jones & Trevor
(Continued)
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the extent of the moving party’s burden varies
depending on who bears the burden of persuasion at
trial. A movant who seeks summary judgment on a
claim on which it will bear the burden of persuasion at
trial cannot seek summary judgment without
producing affirmative evidence in support of the
essential elements of its claim. But a movant who seeks
summary judgment on a claim on which the nonmoving
party bears the burden of persuasion may show that there is
no genuine issue of material fact without producing its own
evidence.67
This means that “[i]f a defendant can show that the plaintiff has no
legally sufficient evidentiary basis for its claims at trial, the
defendant may establish the lack of a genuine issue of material fact
Marketing, Inc. v. Lowry, 2012 UT 39, 284 P.3d 630, which came four
years after Orvis, we articulated the same standard we set forth in
Salo. There, we stated that “[t]he determination of which party
must come forward with evidence proving that there is a genuine
material dispute of fact depends on which party bears the burden
of proof on the underlying legal theory or claim that is the subject
of the summary judgment motion.” Id. ¶ 30. We also stated that
“[w]here . . . the nonmoving party will bear the burden of proving
the underlying legal theory at trial, the moving party may satisfy its
initial burden on summary judgment by showing that ‘the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any [show] that there is no
genuine issue of material fact’ and that ‘[u]pon such a showing,
whether or not supported by additional affirmative factual
evidence, the burden then shifts to the nonmoving party.’” Id.
(second alteration in original) (citations omitted). And, as we stated
in Salo, we even noted in Jones & Trevor Marketing that “‘our
summary judgment jurisprudence regarding burden shifting’ is
‘entirely consistent with Celotex.’” Salo, 2018 UT 7, ¶ 27 (quoting
Jones & Trevor Mktg., 2012 UT 39, ¶ 30 n.9). So the Colosimos had
notice of the correct summary judgment standard long before the
district court’s decision. They simply chose to ignore our holding in
Jones & Trevor Marketing.
67 Salo, 2018 UT 7, ¶ 26 (emphasis added).
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Opinion of the Court
and an entitlement to judgment as a matter of law . . . without
adducing any affirmative evidence of its own.”68
¶39 Based on the standard we articulated in Orvis, Lowry, and
recently in Salo, we reject the Colosimos’ summary judgment
argument on appeal. We conclude that while the court of appeals
should have addressed the issue of the parties’ burdens on summary
judgment, this error did not affect the outcome of the case because
the district court did not err in its application of the standard below.
The Colosimos are the plaintiffs in this case and therefore bear the
burden of establishing the elements of their claims. As the moving
party, however, Gateway bore the initial burden of demonstrating
their entitlement to judgment as a matter of law, which it was
entitled to do “without adducing any affirmative evidence of its
own.”69 Gateway moved for summary judgment after discovery on
the basis that the Colosimos failed to produce sufficient evidence to
create a genuine issue of material fact as to whether Gateway owed a
duty to A.C.—an element of the Colosimos’ negligence claim.
Gateway therefore met its initial burden. The burden then shifted to
the Colosimos, the party with the burden of persuasion at trial, to
produce affirmative evidence showing the existence of a genuine
issue of fact as to whether a duty existed under the exceptions listed
in the Restatement (Second) of Torts. The district court therefore
correctly held that the burden of providing affirmative evidence fell
on the Colosimos, which they failed to meet. Thus, although the
court of appeals should have considered the summary judgment
argument on appeal, this error did not change the outcome of the
case.
¶40 Accordingly, we affirm the court of appeals’ holding that no
duty existed under the common law.
II. The Court of Appeals Correctly Held that Gateway Owed No
Duty Under the Draper City Sign Ordinance
¶41 We next consider whether the court of appeals erred in
holding that Gateway did not owe A.C. a duty under the Ordinance.
The Colosimos argue that the court of appeals erred because the
Ordinance’s language illustrates the Draper City Council’s intention
to protect trespassers from electrical shock resulting from
improperly installed signs. They also argue that the court of appeals
68 Id. ¶ 31.
69 Id.
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Opinion of the Court
erred in strictly construing the language of the Ordinance. But
nothing in the Ordinance illustrates the council’s intention to protect
trespassers. So even when read under standard rules of construction,
the plain language of the Ordinance does not suggest it was enacted
to protect A.C. from the injuries he suffered. We therefore affirm the
court of appeals’ holding that the Ordinance did not create a
separate duty in tort to trespassers.
¶42 It is well established that state and local governments
generally have power to create tort duties. The state legislature has
broad police powers,70 which include the power to form new tort
duties through the enactment of statutes.71 And, because local
governments also are generally granted authority to protect the
general welfare within their jurisdictions, they likewise have power
to create duties through the enactment of ordinances to further that
purpose.72 So it is clear that the Draper City Council could have
explicitly imposed a tort duty through the enactment of the
Ordinance.
¶43 But the Draper City Council did not do so here. The
Ordinance contains no explicit statement of an intention to create a
tort duty owed to others, much less to trespassers. It does expressly
70 Dean v. Rampton, 556 P.2d 205, 206 (Utah 1976) (“[T]he
legislature, representing the people, . . . has all of the fundamental
power of the sovereign to make whatever laws it deems proper for
the general welfare.”).
71See, e.g., Torrie v. Weber Cty., 2013 UT 48, ¶¶ 8–13, 309 P.3d 216;
Day v. State ex rel Utah Dep’t of Pub. Safety, 1999 UT 46, ¶ 14, 980
P.2d 1171.
72See Price Dev. Co., L.P. v. Orem City, 2000 UT 26, ¶ 10, 995 P.2d
1237 (“When reviewing a local government action, we give local
government great latitude in creating solutions to the many
challenges it faces, unless the action ‘is arbitrary, or is directly
prohibited by, or is inconsistent with the policy of, the state or
federal laws or the constitution of [Utah] or of the United
States.’”(alteration in original) (citation omitted)); State v.
Hutchinson, 624 P.2d 1116, 1126 (Utah 1980) (“When the State has
granted general welfare power to local governments, those
governments have independent authority . . . to pass ordinances
which are reasonably and appropriately related to the objectives of
that power, i.e., providing for the public safety, health, morals, and
welfare.”).
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Opinion of the Court
impose an obligation on sign owners to follow the Ordinance’s
requirements. And anyone failing to meet this obligation is subject to
sanctions by Draper City.73 But this obligation is different than a
duty arising under tort that is owed to private individuals. The
question before us then is whether we may adopt the Ordinance as a
standard of care and thereby impose an independent tort duty upon
a sign owner to private individuals when the Ordinance does not
expressly do so.
¶44 To answer this question, we generally look to section 286 of
the Restatement (Second) of Torts for a list of “circumstances under
which it is appropriate for a court to adopt a statutory standard of
conduct as that of a reasonable person and to impose a tort duty to
act toward a person in accordance with that standard.”74 Section 286
provides:
The court may adopt as the standard of conduct of a
reasonable [person] the requirements of a legislative
enactment or an administrative regulation whose
purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the
one whose interest is invaded, and
(b) to protect the particular interest which is
invaded, and
(c) to protect the particular interest against the kind
of harm which has resulted, and
(d) to protect that interest against the particular
hazard from which the harm results.75
We also look to section 288 of the Restatement for further guidance
on the “conditions under which courts generally will not impose a
73 See DRAPER, UTAH, ORDINANCE § 9-26-070(d) (2003) (stating
that any “person, firm or corporation” that violates the Ordinance
is “guilty of a Class B misdemeanor”); id. § 9-26-050(H)(5) (2011)
(“The City shall be entitled to recover all costs incurred, including
attorney’s fees, in the enforcement of actions under this chapter
. . . .”).
74Rollins v. Petersen, 813 P.2d 1156, 1163 (Utah 1991), overruled on
other grounds by Scott v. Universal Sales, Inc., 2015 UT 64, 356 P.3d
1172.
75 RESTATEMENT (SECOND) OF TORTS § 286 (AM. LAW INST. 1965).
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tort duty to act in accordance with a legislative standard.”76 That
section provides:
The court will not adopt as the standard of conduct of a
reasonable [person] the requirements of a legislative
enactment or an administrative regulation whose
purpose is found to be exclusively
(a) to protect the interests of the state or any
subdivision of it as such, or
(b) to secure to individuals the enjoyment of rights
or privileges to which they are entitled only as
members of the public, or
(c) to impose upon the actor the performance of a
service which the state or any subdivision of it
undertakes to give the public, or
(d) to protect a class of persons other than the one
whose interests are invaded, or
(e) to protect another interest than the one invaded,
or
(f) to protect against other harm than that which
has resulted, or
(g) to protect against any other hazards than that
from which the harm has resulted.77
Together, we use these lists as “guidelines” in determining when we
will adopt an ordinance as the standard of care and therefore impose
a tort duty.78
¶45 As evidenced in both lists, we specifically focus on whether
the purpose of the statute or ordinance was to protect the plaintiff at
hand from the type of injury he or she has suffered. In other words,
before a statute or ordinance “can be used as a basis for imposing a
tort duty . . . , we must be persuaded that the purpose of the statute
[or ordinance] was to protect a class of persons of which [the plaintiff
in the case] is a member and to protect [such plaintiff] against injury
or death resulting from” the kind of harm contemplated by the
legislature.79 And, as we described in Hall v. Warren,80 the plaintiff
76 Rollins, 813 P.2d at 1163.
77 RESTATEMENT (SECOND) OF TORTS § 288.
78 Rollins, 813 P.2d at 1163.
79Id. at 1164–65 (emphasis added); see also Stembridge v. Nat’l
Feeds Inc., No. 1:11CV49DAK, 2013 WL 5347455, at *8 (D. Utah
(Continued)
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Opinion of the Court
bears the burden of showing that the ordinance was intended to
protect persons in the plaintiff’s shoes from the type of harm that
befell the plaintiff:
a [defendant] may be subject to a duty of care imposed
by a statute or ordinance . . . . [only when the plaintiff]
show[s] (1) the existence of the statute or ordinance,
(2) that the statute or ordinance was intended to protect
the class of persons which includes the party, (3) that
the protection is directed toward the type of harm
which has in fact occurred as a result of the violation,
and (4) that the violation of the ordinance or statute
was the proximate cause of the injury complained of.81
Thus, when determining whether a tort duty should be imposed, we
must look to the purpose and intention of the city council in enacting
that ordinance.82
Sept. 23, 2013) (“Before a statute can be used to impose a tort duty,
the statute’s purpose must be to protect a class of persons of which
the plaintiffs are members and to protect against the type of harm
experienced.”).
80 632 P.2d 848 (Utah 1981).
81 Id. at 850 (emphasis added).
82 Gateway argues that the Ordinance cannot form a duty
because Utah generally views violations of ordinances as evidence
of prima facie negligence, as opposed to evidence of negligence per
se. But Gateway bypasses the first step. It is true that we have held
that, “[a]s a general rule, violation of a standard of safety set by a
statute or ordinance is prima facie evidence of negligence.” Id.; see
also id. at 850 n.1 (describing our departure from a negligence per se
standard to a prima facie standard in most cases); Child v. Gonda,
972 P.2d 425, 432–33 (Utah 1998) (describing the difference between
prima facie negligence and negligence per se). As we explained in
Rollins, however, “before violation of a legislative standard will be
held to be negligence per se (or prima facie evidence of negligence),
the legislative standard must first be ‘adopted by the court as
defining the standard of conduct of a reasonable [person].’” 813
P.2d at 1164 n.4 (alteration in original) (quoting RESTATEMENT
(SECOND) OF TORTS § 288B). This means that “[t]he question here
presented is not whether violation of a safety statute is negligence
per se or prima facie evidence of negligence, but rather the
(Continued)
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¶46 “In order to assess the legislative purposes of a statute, we
begin with the language of the statute.”83 Indeed, we have held that
“[t]he best evidence of the legislature’s intent is the plain language of
the statute itself.”84 When looking at the plain language, “[w]e
presume that the legislature used each word advisedly,” and deem
“all omissions to be purposeful.”85 We therefore begin our analysis
with the language of the Ordinance.
¶47 The Ordinance provides that it was enacted “to protect and
promote the health, safety and welfare of City residents and
businesses by regulating the design, construction, and installation of
signs in a content neutral manner that does not favor any type of
speech over another.”86 In order to “protect the safety and welfare of
the people of the City,” the Ordinance prohibits any sign that
“constitutes a hazard to safety or health by reason of inadequate
installation, maintenance or dilapidation”87 and requires all signs to
be “maintained in good and safe structural condition, [and] in
compliance with all building and electrical codes.”88 The Ordinance
also contains thirteen “objectives” the council sought to achieve
through the enactment, most of which deal with providing “signs
that are well designed and pleasing in appearance,” “enhanc[ing] the
economic strength of the City,” and “protect[ing] from visual
clutter.”89 Two objectives address safety specifically: one broadly
preliminary question of whether the legislative standard imposes a
duty recognizable in tort as the standard of a reasonable person.”
Id. So it is only after a statute or ordinance is adopted by the court
as the standard of conduct of a reasonable person, thereby
imposing a duty recognizable in tort, that a court will then
determine whether a violation thereof constitutes prima facie
evidence of negligence or negligence per se.
83 State v. Outzen, 2017 UT 30, ¶ 22, 408 P.3d 334.
84Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (alteration in
original) (citation omitted).
85 Id. (alteration in original) (citation omitted).
86 DRAPER, UTAH, ORDINANCE § 9-26-010 (2011).
87 Id. § 9-14-090(a) (1996).
88 Id. § 9-14-070(c)(1)(iii) (1996).
89 Id. § 9-26-010(1)–(13) (2011).
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COLOSIMO v. GATEWAY CMTY. CHURCH
Opinion of the Court
states an objective of the Ordinance is “to promote public safety”90;
the other provides that the Ordinance seeks to “minimize light
pollution, glare, visual obstructions, distraction, and traffic and
safety hazards with the free flow of travel and activity for vehicles
and pedestrians.”91
¶48 The Colosimos argue that the phrases “City residents” and
“people of the City” used in the Ordinance illustrate that the Draper
City Council intended to protect a broad class of people that includes
any “resident” of the city, even trespassers and wrongdoers. But,
standing alone, these general phrases do not demonstrate that the
Ordinance was meant to protect trespassers. They merely indicate
that the Ordinance was meant to protect the public at large, not a
specific class of people. And when an ordinance provides that its
purpose is to protect the public at large, without further reference to
specific members within the public, a court generally cannot deduce
a particular class of people the legislature was intending to protect
and therefore should not impose a tort duty.92 We therefore cannot
90 Id. § 9-26-010(12) (2011).
91 Id. § 9-26-010(8) (2011).
92 Blackburn Ltd. P’ship v. Paul, 90 A.3d 464, 478 (Md. 2014)
(“[T]he finding of a statutory duty . . . must be premised on the
statute being targeted toward a protected class, and not merely the
public at large.”).
The Colosimos argue that we have upheld statutory tort duties
in safety statutes that apply to the public at large. For support, they
rely on Torrie v. Weber County, 2013 UT 48, 309 P.3d 216. But the
statute at issue in Torrie was considerably different than the
Ordinance. See id. ¶ 11. There, the statute contained an express
provision establishing a tort duty to third parties. Id. (stating that
we had “previously determined in Day v. State ex rel Utah
Department of Public Safety[, 1999 UT 46, ¶ 14, 980 P.2d 1171,] that a
law enforcement officer engaged in a high speed pursuit of a
suspect owes a statutory duty of care to innocent third parties” and
quoting language from Utah Code section 41-6a-212, which
expressly provides that an “operator of an authorized emergency
vehicle” has “the duty to act as a reasonably prudent emergency
vehicle operator”). Here, the Ordinance contains no language
suggesting the Draper City Council intended to create a tort duty.
Thus, we are asked to determine whether the city council implicitly
meant to create a duty through the Ordinance. And, in the absence
(Continued)
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Opinion of the Court
say that the purpose of the Ordinance was to protect trespassers
such as A.C.
¶49 The Colosimos also take issue with the court of appeals’
decision to apply strict construction to the Ordinance’s language. In
its opinion below, the court of appeals rejected the Colosimos’
argument of an independent duty under the Ordinance primarily
based on a common-law rule of statutory construction—that a court
should construe strictly statutes in derogation of the common law.93
Although the court acknowledged that the Utah Legislature has
expressly stated that this common-law rule “does not apply to the
Utah Code,”94 the court held that the rule does apply when
“interpreting ordinances.”95 Operating under this rule of
construction, the court determined that an ordinance must
“explicitly ‘extend or modify the common-law rule of the
nonliability of landowner to trespassers’” to create an independent
statutory duty to a trespasser.96 And because the Ordinance did not
explicitly extend or modify the common law in this respect, the court
concluded that the Ordinance could not be read to override the
common-law principle of nonliability to trespassers.97
¶50 The Colosimos argue that the court erred in its decision by
imposing “an erroneous new standard that ordinances must be
construed ‘strictly.’” They argue that the court of appeals should
have applied standard rules of construction in this case. Conversely,
Gateway argues that the court of appeals did not create a new
standard but simply restated the common-law standard articulated
by Utah courts in prior zoning ordinance cases. The parties raise an
of an express provision establishing a duty, we generally require an
ordinance or statute to specify a particular class of plaintiffs in
order to impose a tort duty upon a party. See Rollins, 813 P.2d at
1163–64.
93 Colosimo, 2016 UT App 195, ¶ 20.
94See UTAH CODE § 68-3-2(1) (“The rule of the common law that
a statute in derogation of the common law is to be strictly
construed does not apply to the Utah Code.”).
95 Colosimo, 2016 UT App 195, ¶ 21.
96Id. ¶ 26 (quoting Wells v. Henry W. Kuhs Realty Co., 269 S.W.2d
761, 767 (Mo. 1954)).
97 Id.
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COLOSIMO v. GATEWAY CMTY. CHURCH
Opinion of the Court
important question as to whether the statutory rule of strict
construction applies to local government ordinances in derogation of
the common law, as opposed to state statutes in similar
circumstances. But we need not answer this question at this time,
because even applying standard rules of statutory construction to the
Ordinance, we cannot say the city council intended to create a duty
to trespassers.
¶51 Under standard rules of statutory construction, “we first
examine the plain language of an ordinance,” taking care to read it in
a manner that “render[s] all parts thereof relevant and
meaningful.”98 In doing so, “[w]e ‘presume that the legislature used
each word advisedly and read each term according to its ordinary
and accepted meaning.’”99 “But we do not interpret the ‘plain
meaning’ of a statutory term in isolation. Our task, instead, is to
determine the meaning of the text given the relevant context of the
statute (including, particularly, the structure and language of the
statutory scheme).”100 As discussed above, the plain language of the
Ordinance itself does not show that A.C. was a member of a class the
Draper City Council intended to protect by enacting the Ordinance.
The Ordinance merely states that it was meant to protect the “public
safety” of the “residents of the City.” While the word “resident”
arguably could include trespassers when read in isolation, such an
intent is unlikely when read in context. For example, the vast
majority of the Ordinance’s language deals with regulating the
physical dimensions of signs within the city for the express purpose
of providing “signs that are well designed and pleasing in
appearance,” “enhance[ing] the economic strength of the City,” and
“protect[ing] from visual clutter.”101 This suggests that the
“residents” the Ordinance contemplated were primarily sign
owners, business owners, and common citizens. And, when dealing
with public safety, the Ordinance’s language generally speaks only
of preventing “traffic hazards,” thereby indicating that “residents”
98Jackson v. Mateus, 2003 UT 18, ¶ 21, 70 P.3d 78 (citation
omitted).
99Whitney v. Div. of Juvenile Justice Servs., 2012 UT 12, ¶ 10, 274
P.3d 906 (citation omitted).
100 Olsen v. Eagle Mtn. City, 2011 UT 10, ¶ 12, 248 P.3d 465.
101 DRAPER, UTAH, ORDINANCE § 9-26-010(1)–(13)(2011).
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Opinion of the Court
also includes those operating vehicles on city roads.102 In contrast,
the Ordinance contains no reference to trespassers or wrongdoers
and fails to mention anything about roofs or those who might be
traversing thereon. So these statements, when read in conjunction
with the language of the Ordinance as a whole, do not show the city
council intended to protect trespassers. Thus, even under standard
rules of statutory construction, the Ordinance does not support an
independent duty in this case.
¶52 Because the plain language of the Ordinance does not show
that the city council intended to protect trespassers—the class of
persons of which A.C. was a member—we decline to adopt the
Ordinance as the standard of care in this case. We therefore affirm
the court of appeals’ holding that the Ordinance did not impose an
independent duty upon Gateway to protect A.C. from the harm he
suffered.
Conclusion
¶53 We hold that Gateway did not owe A.C. a duty under the
common law. The Colosimos, who bore the burden on summary
judgment of providing affirmative evidence, failed to show that a
genuine issue of material fact existed as to whether constant
trespassing occurred on Gateway’s rooftop or that Gateway knew or
had reason to know of the electrified metal flashing on the roof. We
also hold that Gateway did not owe A.C. a duty under the
Ordinance. The plain language of the Ordinance does not show that
A.C. was a member of the class the Ordinance was meant to protect.
We therefore cannot adopt the Ordinance as the standard of care in
this case. Accordingly, we affirm the court of appeals’ decision.
102 See, e.g., id § 9-26-010(8) (2011) (providing that its purpose is
to “minimize light pollution, glare, visual obstructions, distraction,
and traffic and safety hazards with the free flow of travel and
activity for vehicles and pedestrians”); id. § 9-26-060(G)(2) (2011) (in
regards to “Illumination Requirements,” providing that “[n]either
direct nor reflected light from any source shall create a traffic
hazard”); id. § 9-26-060(H)(4)(i) (2011) (in regards to “Standards For
Permitted Sign Types,“ providing that “[f]reestanding and
monument signs shall be placed in a manner so as not to interfere
with traffic in any way, confuse drivers, or present any traffic
hazard”).
31