District Court, Salt Lake Department The Honorable Richard D.
McKelvie No. 140903126
J. Schriever, Attorney for Appellant
Eric Bunderson, Claire Gillmor, Brandon M. Hill, and Adrienne
H. Bossi, Attorneys for Appellee
Kate A. Toomey authored this Opinion, in which Judges J.
Frederic Voros Jr. and Stephen L. Roth concurred.
This appeal involves an accident in a West Valley City (WVC)
swimming pool during which appellant Samantha Miller was
injured. Miller sued WVC, and the district court dismissed
the case. We must decide whether the court properly granted
WVC's rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief may be granted. We conclude
that it did and therefore affirm.
WVC owns and operates West Valley City Family Fitness Center.
In May 2013, Miller was swimming laps in the fitness center
pool when some teenage girls came into her lane and
"interfere[d] with her laps." Miller alleged the
"lifeguard did not take adequate action to remove the
girls from the pool." While Miller was doing the
backstroke she ran into one of the teenagers, "became
disoriented . . . and collided with the [pool] wall."
Miller "sustained a closed-head injury, neck injuries
and other bodily injuries."
Miller sued WVC asserting premises liability and negligence.
She first contended she was an invitee to the fitness center
and WVC had "a duty to keep the premises free from
hazardous conditions." She further argued that WVC,
through its lifeguard employee, "should have known that
there was an unreasonably dangerous condition in [her]
swimming lane" that she would be unable to see while
doing the backstroke and because of this, the condition
"was hidden to [her]." She argued WVC owed a duty
to warn her of the "hidden or latent hazardous
Second, in support of her negligence claim, Miller contended
that WVC "undertook an obligation to monitor the
swimming lanes" at the fitness center "to keep them
clear of hazards for people swimming"; WVC "should
have recognized it was necessary for the protection of others
to maintain the swimming lanes free of hazards"; WVC
"failed to exercise reasonable care, " which
"increased the risk of harm"; Miller relied on WVC
"to maintain the swimming lanes free of hazards";
and WVC's failure to exercise reasonable care was the
proximate cause of her injuries.
WVC filed a motion to dismiss. It asserted Miller's suit
should be dismissed for lack of jurisdiction under rule
12(b)(1) of the Utah Rules of Civil Procedure because Miller
failed to file a bond as required by section 63G-7-601(2) of
the Utah Code. Further, WVC argued Miller's complaint
"should be dismissed under Utah Rule of Civil Procedure
12(b)(6)" for failure to "state any claim under
which she could be entitled to relief." Miller
subsequently filed a bond and cured the jurisdictional
WVC's motion to dismiss argued that Miller's
complaint failed "to establish a waiver of governmental
immunity" and should be dismissed as a matter of
law. Specifically, WVC argued Miller
did not properly plead that immunity was waived due to a
"defective or dangerous condition of a public building .
. . or other public improvement" as allowed by the
Governmental Immunity Act of Utah (the GIA). See
Utah Code Ann. § 63G-7-301(3)(a)(ii) (LexisNexis
2011). That is, Miller did not allege
that the defective and dangerous condition was related to the
structures of "the building, the pool, [or] the sides of
the pool." Rather, she claimed the dangerous condition
was the teenager in her swimming lane, but did not show how
the teenager "could be a dangerous condition sufficient
to support a cause of action for premises liability."
WVC argued the "plain language of the statute requires
that there be a defect in the physical condition of the
improvement in order for [WVC] to be liable."
(Emphasis added.) WVC also argued that even if Miller could
establish "that a young girl in a swimming pool can
constitute a dangerous or defective condition of a public
building, " WVC would still be immune because immunity
is not waived if the injury results from a latent dangerous
or defective condition, and Miller herself characterized the
condition as "hidden or latent" in her
complaint. See id. §
¶7 WVC argued Miller's negligence claim failed
because WVC owed Miller no duty of care, in that Miller based
her claim on section 323 of the Restatement (Second) of Torts
but failed to allege facts sufficient to satisfy the
requirements of that section. WVC also argued that because
Miller's complaint alleged a lifeguard's omission
caused her injury, the public duty doctrine applied, and
therefore WVC owed no duty of care to Miller. Finally, WVC
noted that Miller had not established there was a special
relationship between herself and WVC and therefore could not
demonstrate an exception to the public duty doctrine.
The district court agreed. As to the premises liability
claim, it determined the plain language of section
63G-7-301(3)(a)(ii) required that liability be premised upon
a defect in "the structure or building itself" and
Miller had failed to plead or demonstrate this. In addition,
the court determined that Miller had not "alleged a
latent condition" because "the facts alleged in the
complaint make clear that the 'defect' complained of,
the teenage girl in the swimming lane, [was] open and
obvious, " and Miller was aware of the condition and
notified the lifeguard.
¶9 And in regard to the negligence claim, the court
agreed with WVC that Miller "did not plead that [WVC]
made a voluntary undertaking to protect her, that the
voluntary undertaking was done without reasonable care, and
that [Miller] reasonably relied on this undertaking."
Additionally, the court determined that under Cope v.
Utah Valley State College, 2014 UT 53, 342 P.3d 243,
Miller needed to demonstrate that WVC had a special
relationship imposing a "specific duty of care
toward" her if her claim was "based upon a public
duty." Because Miller failed to "allege any facts
to establish a special relationship, " she could not
"overcome the standard employed in Cope."
Accordingly, the court determined Miller's complaint did
not "state an actionable claim" and dismissed the
suit. Miller appeals.
AND STANDARD OF REVIEW
On appeal, Miller contends the district court improperly
granted WVC's rule 12(b)(6) motion to dismiss. "A
trial court's decision to dismiss a case based on
governmental immunity is a determination of law that we
afford no deference. . . . Because the propriety of a
12(b)(6) dismissal is a question of law, we give the trial
court's ruling no deference and review it under a
correctness standard." Van de Grift v. State,
2013 UT 11, ¶ 6, 299 P.3d 1043 (citation and internal
quotation marks omitted). Likewise, "the issue of
whether a duty exists is a question of law which we ...