Glaittli v. State ( 2013 )

2013 UT App 10_________________________________________________________
THE UTAH COURT OF APPEALS
TODD GLAITTLI,
Plaintiff and Appellant,
v.
STATE OF UTAH,
Defendant and Appellee.
Opinion
No. 20100733‐CA
Filed January 10, 2013
Third District, West Jordan Department
The Honorable Bruce C. Lubeck
No. 100400120
Daniel F. Bertch and Kevin K. Robson,
Attorneys for Appellant
John E. Swallow and Bridget K. Romano,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion,
in which JUDGES CAROLYN B. MCHUGH
and J. FREDERIC VOROS JR. concurred.
CHRISTIANSEN, Judge:
¶1 Plaintiff Todd Glaittli appeals the trial court’s dismissal of
his negligence action against the State of Utah. He claims that the
trial court erred by concluding that the State was immune from suit
under the “natural condition” exception to the waiver of immunity
provided in the Governmental Immunity Act of Utah. We affirm.
Glaittli v. State
BACKGROUND
¶2 Because we are reviewing a motion to dismiss, we state the
facts as they are alleged in the complaint. See Hall v. Utah State
Dep’t of Corr., 2001 UT 34, ¶ 2, 24 P.3d 95. Glaittli owned a twenty‐
five foot cabin cruiser boat that he kept docked at a marina at the
Jordanelle Reservoir. The State, through its Division of Parks
& Recreation and Jordanelle State Park, owns and operates the
Jordanelle Reservoir, including the marina, docks, and boat slips
relevant to this case. Glaittli’s boat was tethered to a boat slip at a
floating dock, which is connected to the shore by cables. State
employees lengthen or shorten the cables with a hand‐operated
winch according to the water level in the reservoir to “prevent
boats tied off to the dock from being damaged by bowlines that are
too short or too long. Among other things, failure to adjust these
cables can allow the boats to strike the dock or other boats,
especially during periods of wave action on the reservoir surface.”
The master plan for the Jordanelle Reservoir anticipated that the
marina and floating docks would be protected by a breakwater.
However, no breakwater was built and the docks are exposed to
the waves on the reservoir.
¶3 In June 2008, the water levels were rising and required
frequent adjustments of the cables. On June 10, Glaittli learned
about a storm in the area of Jordanelle Reservoir, “which [would]
create[] large waves.” Realizing that “the wave action was signifi‐
cant enough to warrant his personal attention to his boat,” Glaittli
proceeded to the marina, where he
saw large waves, causing his large boat
to heave to a degree that he feared his
boat would strike the dock or other
boats. [He] walked out onto the dock,
to lengthen the lines on his boat, to
allow it to ride the waves more freely,
without risk to it or other boats. . . .
While [he] was standing on the dock,
20100733‐CA 2 2013 UT App 10Glaittli v. State
he was struck by the bow of his boat,
shattering his upper arm and shoulder,
causing him to fall to the dock, injuring
his shoulder, arm and other parts of his
body.
Glaittli alleges that the State caused his injuries by its negligent
“[f]ailure to adjust the dock level with the water levels by turning
the winch handles”; “[f]ailure to warn [him] of an unsafe condition
at the docks, created by its failure to adjust the dock levels”; and
‘[f]ail[ure] to properly secure the docks on the day of the accident
allowing users in an area that [it] either knew or should have
known was dangerous.” He also alleges that the State negligently
“[a]llow[ed] a hazardous condition to continue to exist by failing
and refusing to construct a breakwater in the area of the [m]arina
where [Glaittli’s] boat was docked.”
¶4 The State responded with a motion to dismiss for failure to
state a claim based on the Governmental Immunity Act of Utah,
arguing that Glaittli’s injuries fell within the “natural condition”
exception to the waiver of immunity. See Utah Code Ann. § 63G‐7‐
301(5)(k) (LexisNexis 2011) (retaining immunity when the “injury
arises out of, in connection with, or results from . . . any natural
condition on publicly owned or controlled lands”). The trial court
agreed that Glaittli’s injuries “arose out of, in connection with, or
resulted from the storm‐created large waves on Jordanelle Reser‐
voir, a ‘natural condition on publicly owned or controlled lands.’”
(Quoting Utah Code Ann. § 63G‐7‐301(5)(k).) Accordingly, the trial
court dismissed the complaint and this appeal followed.
ISSUE AND STANDARD OF REVIEW
¶5 Glaittli argues that the trial court erred in dismissing his
complaint because the Governmental Immunity Act of Utah waives
the State’s immunity for the injuries he suffered and the conduct
here does not fall within the natural condition exception to that
20100733‐CA 3 2013 UT App 10Glaittli v. State
waiver. “A trial court’s decision to dismiss a case based on
governmental immunity is a determination of law that we afford
no deference.” Hall, 2001 UT 34, ¶ 11; see also Blackner v. State Dep’t
of Transp., 2002 UT 44, ¶ 8, 48 P.3d 949. “Additionally, determining
the scope of an exception to the waiver of governmental immunity
is a question of statutory interpretation that we also review for
correctness.” Peck v. State, 2008 UT 39, ¶ 7, 191 P.3d 4; see also
Blackner, 2002 UT 44, ¶ 8.
ANALYSIS
¶6 The issue on appeal is whether the State is immune from suit
under the Governmental Immunity Act of Utah (the Act). See
generally Utah Code Ann. §§ 63G‐7‐101 to ‐904 (LexisNexis 2011
& Supp. 2012). The Act is the latest in a series of statutes through
which the Utah Legislature has identified circumstances where the
immunity the State enjoyed at common law is waived. See Tindley
v. Salt Lake Sch. Dist., 2005 UT 30, ¶ 9, 116 P.3d 295. The Act
contains broad waivers of immunity for certain governmental
functions, which are then limited by specific exceptions. See Utah
Code Ann. § 63G‐7‐301 (LexisNexis 2011). Therefore, “to determine
whether a governmental entity is immune from suit under the Act,
we apply a three‐part test, which assesses (1) whether the activity
undertaken is a governmental function; (2) whether governmental
immunity was waived for the particular activity; and (3) whether
there is an exception to that waiver.” Blackner, 2002 UT 44, ¶ 10.
¶7 The State concedes that its activities relative to maintaining
and operating the Jordanelle Reservoir, including the marina and
floating dock, served a governmental function. In addition, for
purposes of the Motion to Dismiss only, the State concedes an
initial immunity waiver because Glaittli alleged that his injuries
were “proximately caused by a negligent act or omission of an
employee committed within the scope of employment.” See Utah
Code Ann. § 63G‐7‐301(4) (the negligence waiver). Glaittli also
contends that immunity has been initially waived because his
20100733‐CA 4 2013 UT App 10Glaittli v. State
injuries were caused by a “defective or dangerous condition of a
public building, structure, dam, reservoir, or other public improve‐
ment.”1 See id. § 63G‐7‐301(3)(a)(ii) (the public improvement
waiver). The parties disagree as to whether the State retained its
immunity pursuant to an exception to either waiver.2
I. Waivers of Immunity
¶8 “When interpreting a statute, our goal is to give effect to the
legislature’s intent and purpose.” Grappendorf v. Pleasant Grove City,
2007 UT 84, ¶ 9, 173 P.3d 166. To accomplish this,
we begin with the statute’s plain lan‐
guage. In conducting a textual analysis,
we consider the literal meaning of each
term and “avoid interpretations that
will render portions of a statute super‐
fluous or inoperative.” The plain lan‐
guage of any specific provision should
be read in harmony with other provi‐
sions in the same statute.
Id. (quoting Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 15, 24
P.3d 95) (additional citations omitted)).
¶9 Here, subsection (3) of the waiver provisions of the Act
contains the public improvement waiver, see Utah Code Ann.
1
Although we agree with the State that Glaittli did not
preserve his argument under the public improvement waiver,
that provision does not affect our analysis because both the
negligence waiver and the public improvement waiver are
equally affected by the natural condition exception.
2
The State also does not contest that the injuries occurred
on publicly owned and controlled lands.
20100733‐CA 5 2013 UT App 10Glaittli v. State
§ 63G‐7‐301(3)(a)(ii), and subsection (4) of that same section sets
forth the negligence waiver, see id. § 63G‐7‐301(4). Thus, if Glaittli’s
injuries were proximately caused by a defective or dangerous
condition on a public improvement, including a floating dock or a
reservoir, or were proximately caused by the negligence of a State
employee acting within the scope of the employee’s duties, the Act
provides that governmental immunity is waived.
II. Exceptions to the Waiver of Immunity
¶10 However, this is not the end of our inquiry under the Act.
Although immunity has been initially waived for these categories
of conduct, the Act expressly exempts a subset of conduct from the
waiver of immunity. See id. § 63G‐7‐301(5). Of importance for our
purposes is the Act’s provision that “[i]mmunity from suit of each
governmental entity is not waived under Subsections (3) and (4) if
the injury arises out of, in connection with, or results from: . . . (k)
any natural condition on publically owned or controlled lands.” See
id. § 63G‐7‐301(5)(k).
¶11 As an initial matter, Glaittli contends that the natural
condition exception is inapplicable for an injury caused as a result
of a defective public improvement because once manmade
structures are built on natural land or water, they become “public
improvements,” and are no longer “natural conditions.” However,
such a reading would misconstrue the plain language of the
exception, which clearly indicates that it applies to both subsections
(3) and (4). See Utah Code Ann. § 63G‐7‐301(5)(k) (LexisNexis
2011). Indeed, because subsection (3) waives immunity for injuries
caused only by manmade structures, yet is expressly included as
limited by the natural condition exception contained in subsection
(5), Glaittli’s reading would be directly contrary to the plain
language of the Act. See id. § 63G‐7‐301(3)(a)(i) (waiving immunity
for injuries caused by defective or dangerous conditions of a
“highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel,
bridge, viaduct, or other structure located on them”); § 63G‐7‐
301(3)(a)(ii) (waiving immunity for any defective or dangerous
20100733‐CA 6 2013 UT App 10Glaittli v. State
condition of a “public building, structure, dam, reservoir, or other
public improvement”). Thus, irrespective of whether immunity
may have been initially waived under the negligence provision of
the Act, see id. § 63G‐7‐301(4), or the public improvement provision
of the Act, see id. § 63G‐7‐301(3)(a)(ii), the State continues to enjoy
immunity if Glaittli’s injuries arose out of, occurred in connection
with, or resulted from a natural condition. We undertake that
analysis now.
¶12 Glaittli argues that “the wind that caused the waves that
caused the floating dock to ‘heave’ was an ‘atmospheric’ condition,
not a ‘natural’ condition of land, within the meaning of the ‘natural
condition’ [exception].” We consider two decisions from the Utah
Supreme Court instructive to our analysis of this argument:
Blackner v. Utah Department of Transportation, 2002 UT 44, 48 P.3d
949, and Grappendorf v. Pleasant Grove City, 2007 UT 84, 173 P.3d
166.
¶13 In Blackner, the earlier of these decisions, two avalanches
swept onto a state‐controlled road. 2002 UT 44, ¶¶ 3–6. After the
first avalanche, the plaintiff and other drivers were instructed to
wait for workers to clear the road. Id. ¶ 4. While they were
detained, the second avalanche caused additional snow and debris
to fall onto the road, injuring the plaintiff. Id. ¶ 6. The plaintiff sued
the State and the Town of Alta, alleging that immunity was not
retained. Id. ¶ 7. Although the plaintiff did not deny that the first
avalanche was a natural condition, he argued that the negligent
response to that natural condition proximately caused his injuries.
See id. ¶ 13. The supreme court explained the natural condition
exception as it applied to those facts as follows:
The Act unequivocally provides that
when a plaintiff’s injury either “arises
out of[ ][or] in connection with, or
results from” a “natural condition on
publicly owned or controlled lands,”
governmental immunity is retained
20100733‐CA 7 2013 UT App 10Glaittli v. State
with respect to any action to recover
for injuries proximately caused by a gov‐
ernment employee’s negligence. The ap‐
plication of the “natural condition”
exception to the waiver of governmen‐
tal immunity does not hinge on
whether the “natural condition” in any
way “proximately caused” the
plaintiff’s injuries. . . .
[E]ven assuming that the actions
of [the government employees] were
negligent and proximately caused
Blackner’s injuries, UDOT and Alta are
immune from suit to recover for those
injuries because Blackner’s injuries
arose out of a natural condition on
publicly owned or controlled land. The
first avalanche and the snow pack from
which both avalanches originated were
natural conditions.
Id. ¶¶ 13–14 (first and second alterations in original) (quoting Utah
Code Ann. § 63‐30‐10(11) (Michie 1997) (current version at Utah
Code Ann. § 63G‐7‐301(5)(k) (LexisNexis 2011))).
¶14 Five years after Blackner, the Utah Supreme Court decided
Grappendorf. In that case, a “violent gust of wind” ripped Pleasant
Grove City’s moveable pitching mound weighing several hundred
pounds from the strap tethering it to a chain link fence, and
propelled it through the air. See Grappendorf, 2007 UT 84, ¶¶ 1–2.
Tragically, the mound struck and killed a thirteen‐year‐old child
walking through the city park with his parents. See id. The parents
brought a wrongful death action against the city, but the trial court
granted summary judgment based on the natural condition
exception to the waiver of immunity for negligence. Id. ¶ 3. In
reversing summary judgment in favor of the city, the supreme
20100733‐CA 8 2013 UT App 10Glaittli v. State
court noted that the plain language of the natural condition
exception applied only “‘if the injury arises out of, in connection
with, or results from . . . any natural condition on publicly owned
or controlled lands.’” Id. ¶¶ 8–10 (quoting Utah Code Ann. § 63‐30‐
10(11) (Michie 1997) (current version at Utah Code Ann. § 63G‐7‐
301(5)(k) (LexisNexis 2011))). Because a wind gust cannot exist
“on” the land, the court concluded that it was an atmospheric, not
a natural, condition. See id. ¶ 10. The court explained,
Natural condition is . . . limited by the
prepositional phrase “on publicly
owned or controlled lands.” In this
context, “on” is “[u]sed to indicate . . .
[a] [p]osition above and in contact
with” or “[c]ontact with a surface,
regardless of position.” From these
definitions, it follows that a natural
condition “on” the land must be
topographical in nature, not merely
atmospheric. The limiting
prepositional phrase requires that the
natural condition be in physical contact
with the land, supported by the surface
of the land, or part of the land.
Id. (alterations and second omission in original) (quoting Webster’s
II New College Dictionary 764 (1995)).
¶15 In Grappendorf, the supreme court distinguished the
atmospheric quality of the wind from the snow in Blackner, stating
that “[t]he snow that caused the injury was a natural condition in
physical contact with the land.” Grappendorf, 2007 UT 84, ¶ 14
(citing Blackner, 2002 UT 44, ¶ 14). The Grappendorf court also
distinguished a river in Stuckman ex rel. Nelson v. Salt Lake City, 919
P.2d 568 (Utah 1996), explaining that a river “falls within the
natural condition exception because it flows directly above and in
contact with the land.” Grappendorf, 2007 UT 84, ¶ 14 (quoting
20100733‐CA 9 2013 UT App 10Glaittli v. State
Stuckman, 919 P.2d at 575). In holding that the gust of wind was not
a natural condition, the supreme court reasoned, “[w]ere we to
ignore the statute’s limitation that the natural condition be on the
land, the natural condition exception would necessarily swallow
the Act’s waiver of immunity for negligence.” Id. ¶ 11.
¶16 The factual scenario here differs from Grappendorf in that the
wind created large waves on the water contained in the Jordanelle
Reservoir. Even accepting that the wind is an atmospheric
condition, Glaittli’s injuries arose out of, were connected with, or
resulted from the water. In turn, the water is on the land because it
has surface contact with it. As a result, the present facts are more
similar to those addressed in Blackner. While an atmospheric
condition such as the heat of the sun may have acted on the snow
pack to cause the avalanche, the snow pack itself was a natural
condition. Here, the wind, an atmospheric condition, acted on the
water to create the waves.
¶17 Nevertheless, Glaittli contends that the water is not a natural
condition because it is contained in a reservoir, as opposed to a
natural lake. This is an issue of first impression in Utah, which we
resolve in favor of the State. There is no question that when the
water was contained only in the Provo River, it was a natural
condition existing on the land. See Stuckman, 919 P.2d at 574. It is
also apparent that the dam which caused the water to overflow the
banks of the river and pool into a body of standing water is not a
natural condition. See Utah Code Ann. § 63G‐7‐301(3)(a)(ii) (Lexis
Nexis 2011) (including dam within list of public improvements).
The creation of the dam, however, does not change the basic nature
of the water itself, which is a natural condition that has simply
expanded onto a greater area of publicly‐owned land. Therefore,
we hold that the water upon which the wind acted was a natural
condition.3
3
Although there is no Utah authority on this point, the
(continued...)
20100733‐CA 10 2013 UT App 10Glaittli v. State
¶18 Thus, even assuming that the negligent actions of
government employees or the defective condition of the reservoir
or floating dock proximately caused Glaittli’s injuries, his injuries
arose out of, were in connection with, or resulted from a natural
condition on publicly owned or controlled land. See id. § 63G‐7‐
301(5)(k). Accordingly, we agree with the trial court that the
natural condition exception to the waiver of immunity is applicable
and bars Glaittli’s suit.4
3
(...continued)
California Court of Appeal has considered similar issues. See
Osgood v. County of Shasta, 123 Cal. Rptr. 442, 444–45 (Cal. Dist.
Ct. App. 1975) (holding that the county was immune from suit
for injuries incurred in a collision on a manmade lake under the
California Tort Claims Act, which provides governmental
immunity “‘for an injury caused by a natural condition of any
unimproved public property, including but not limited to any
natural condition of any lake, stream, bay, river or beach’”
(quoting Cal. Gov. Code § 831.2)); Knight v. City of Capitola, 6 Cal.
Rptr. 2d 874 (Cal. Dist. Ct. App. 1992) (holding that a
shorebreaking wave was a natural condition, even if caused by
manmade improvements to the beach).
4
Were we to overlook the effect of the waves and focus
instead only on the atmospheric character of the wind, as Glaittli
suggests, then the natural condition exception to the waiver of
immunity would be meaningless. Under Glaittli’s reasoning, if
he had taken his boat out into the middle of a natural lake on
public land and a storm and high winds arose, causing large
waves to heave the boat in such a way that caused him injury,
the wind‐caused waves would not be a natural condition. Yet
that scenario is exactly why the legislature created the natural
condition exception. “The necessity for this exception arises
because ‘Utah’s vast public lands . . . are open to the public for
(continued...)
20100733‐CA 11 2013 UT App 10Glaittli v. State
CONCLUSION
¶19 Based on Glaittli’s pleaded facts, the wind‐caused waves on
the Jordanelle Reservoir that caused his injuries were a natural
condition. Glaittli’s injuries arose out of, were suffered in
connection with, or resulted from that natural condition. Thus, the
trial court correctly dismissed the complaint as barred by
governmental immunity.
____________________
4
(...continued)
recreational uses [and] present all kinds of hazards arising from
their natural conditions. . . . The State . . . cannot be expected to
[protect citizens against] every . . . potentially hazardous
condition located on public property.’
Grappendorf v. Pleasant Grove City, 2007 UT 84, ¶ 8, 173 P.3d 166(alterations and omissions in original) (quoting Stuckman ex rel.
Nelson v. Salt Lake City, 919 P.2d 568, 575 (Utah 1996)).
20100733‐CA 12 2013 UT App 10