DocketNumber： 19942
Citation Numbers： 746 P.2d 763, 70 Utah Adv. Rep. 2, 1987 Utah LEXIS 815, 1987 WL 1889
Judges： Hall, Stewart, Durham, Howe, Zimmerman
Filed Date： 11/23/1987
Status： Precedential
Modified Date： 11/13/2024
(concurring and dissenting):
I concur in the majority opinion except for sustaining the summary judgment against Brown Brothers, the developer of the subdivision in question. The issue of liability was decided by the trial court on summary judgment, and, therefore, a record has not been developed which could elucidate such critical issues as the cost of providing protection from the risks presented by the location of the canal, the peculiar risks associated with a canal of this type, the location of the subdivision or development in this case in relationship to surrounding properties and the nature of those properties, and other factors which ought to bear upon the determination of whether Brown Brothers should be held to have a duty running to purchasers of homes and whether they in fact breached such a duty. In my view, it is not appropriate for this Court to decide simply as a matter of law that under no circumstances does a developer of a subdivision have a duty to protect purchasers of a residence from injury or death caused by an artificial waterway or canal located on the premises of a subdivision. Of course, if the case were to go to trial, the parents’ negligence, if any, could be at issue. See generally Annot., 62 A.L.R.3d 641 (1975).
I concur with the majority opinion in other respects.